PEOPLE v. GOMEZAppellant’s Opening BriefCal.March 21, 2012COP SUPREME COURT COPY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA° People of the State of California, ) ) Plaintiff and Respondent, y' ) No. 8087773 V. ) ) Ruben Perez Gomez, ) ) Defendant and Appellant. ) Superior Court No ) BA156930 ) APPELLANT’S OPENING BRIEF Lynne 8S. Coffin (State BarNo. 121389) SUPREME couRT Coffin Law Group FILED 548 Market St Ste 95752 “ San Francisco, CA 94104 MAR 3 opie tel: (415) 218-8106 ich Clerk Laura S. Kelly . (State Bar No. 234036) 4521 Campus Drive #175 Irvine, CA 92612 tel: (949) 737-2042 Attorneys for Ruben Perez Gomez DEATH PEMAITY * eS IN THE SUPREME COURTOF THE STATE OF CALIFORNIA People of the State of California, Plaintiff and Respondent, v. Ruben Perez Gomez, Defendant and Appellant. No. 8087773 Superior Court No BA156930 N e w N e e N e e N e N e e e e e e e e e e e e e e ” APPELLANT’S OPENING BRIEF LynneS. Coffin (State Bar No. 121389) Coffin Law Group 548 Market St Ste 95752 San Francisco, CA 94104 tel: (415) 218-8106 LauraS. Kelly (State Bar No. 234036) 4521 Campus Drive #175 Irvine, CA 92612 tel: (949) 737-2042 Attorneys for Ruben Perez Gomez TABLE OF CONTENTS INTRODUCTION ...... 0... cece eect tenet n ee nees 1 STATEMENT OF APPEALABILITY ...............00 0c cee cue cee 6 STATEMENT OF THE CASE.....bbe bee etuestteeteeeeeceee, 6 STATEMENT OF FACTS ... 0... eee ec ce cence eees 10 The Salcedo Robbery ........... 00... ccc cece cence ee aae 10 The Patel Homicide ........... 0.0... ccc ce cee ee eeen 12 The Escareno Homicide ........... 0.0.0... cece eee ence 17 The Luna Homicide ......... 0.0... ccc cece cee cease 21 The Dunton and Acosta Homicides ..............0 000.0000 26 Penalty Phase ........ 00... ccc ccc eee t nee eeees 39 ARGUMENT 1.0... 0c ccc ccc cece cece nent n ences 42 I. THE EVIDENCE WASINSUFFICIENT TO PROVE MR. GOMEZ’S GUILT OF THE FIRST DEGREE MURDER OF RAUL LUNA .....cece eee eee eee 42 A. Standard of Review. ...................0000.. 43 B. The Evidence Was NotSufficient to Support Mr. Gomez’s Conviction for the First Degree Murder of Raul Luna. ....... 0.0.0.0. ccc cece cece ee ee 45 1. The EvidenceIs Insufficient to Establish That Mr. Gomez Wasat the Crime Sceneor to Link Himto the Actual Killing of Raul Luna. Il. D. 3. EvenIf it Is Assumed That Mr. Gomez Was One of the Individuals in the Lunas’ Front Yard at the Timeofthe Shooting, the Jury Properly Found That He Did Not Shoot Mr. Luna and There Was NoEvidence at All to Support a Conviction on an Aiding and Abetting Theory. .......... 60 Conclusion. ......-...0c cece eee e eee 68 The Trial Court Erred in Denying Mr. Gomez’s Penal Code Section 1118.1 Motion. ...........-..-4-, 69 Mr. Gomez’s Death Sentences Must Be Reversed. . 70 THE EVIDENCE WASINSUFFICIENT TO PROVE MR. GOMEZ’S GUILT OF THE KIDNAPING, ROBBERY, AND MURDER OF RAJANDRA PATEL ..........+-20055 74 A. Standard ofReview. .......... 0 cece eee eee eee 75 B. The Evidence WasInsufficient to Prove Mr. Gomez’s Guilt of the Kidnaping, Robbery, and Murder of Rajandra Patel. 0.0... 0... cece cece tee eee 79 1. No Forensic or Eyewitness Evidence Linked Mr. Gomezto the Patel Killing. .............. 81 The Testimonial Evidence Purportedly Establishing Mr. Gomez’s Guilt Was Insufficient. .........0 00. cee eee ee ee eee 82 a. Witness #1 1.0... eee eee eee 83 b. Witness #3 2... ee ee eee eee 88 C. The Testimony of Witness #1 and Witness #3 WasInsufficient to Sustain Mr. Gomez’s Conviction for the Robbery, Kidnaping, and Murder of RajandraPatel. Lecce cence eee eee ene ee eeee 89 ~ii- IIT. IV. C. Reversal of Mr. Gomez’s Death Sentences Is Required. eee eee eee eee eee cnet te eee eee eens 94 THE EVIDENCE WAS INSUFFICIENT TO SUPPORT MR. GOMEZ’S FIRST DEGREE MURDER CONVICTIONS FOR THE DEATHS OF ROBERT ACOSTA AND ROBERT DUNTON ...... 0.0. cece cece cee eee eeee 96 A. Standard of Review and Applicable Law. ........ 96 B. The Evidence WasInsufficient to Support a Finding that the Murders of Acosta and Dunton Were Deliberate and Premeditated, Requiring Reversal of Mr. Gomez’s First Degree Murder Convictions for these Killings. THE TRIAL COURT UNCONSTITUTIONALLY FORECLOSED THE POSSIBILITY OF SELF- REPRESENTATION, TELLING MR. GOMEZ HIS DECISION TO PROCEED WITH COUNSEL WAS“FINAL” nee eee ee ee ene eee cnet ete e eee ee eaes 107 A. Factual Background. .....................4.. 107 B. The Trial Court Erred In Unequivocally Ruling Out the Possibility of Self-Representation. ............. 109 C. Reversal is Required. ...................00.0, 115 THE TRIAL COURT ERRED WHENIT REFUSED TO SEVER THE PATEL AND LUNA HOMICIDE CASES FROM EACH OTHER AND FROM THE O’FARRELL STREET DOUBLE HOMICIDE, THE ESCARENO HOMICIDE, AND THE SALCEDO ROBBERY ....... 117 A. The Defense Motion to Sever Counts and the Trial Court’s Ruling. 2.0.0... 0. eee ec eee eee 120 B. Applicable Law. ......... 0. cece cece cece aes 124 -ili- The Trial Court AbusedIts Discretion in Refusing to Sever the Patel and Luna Homicides from the Escareno and Dunton and Acosta Homicides and from Each Other. ..... ccc cc eee eee ee eens 127 1. The Evidence ofthe Patel and Luna Homicides Would Not Have Been Admissible in a Separate Trial of the Dunton and Acosta and Escareno Homicides and the Salcedo Robbery, or Vice Versa, and Evidence of the Patel Homicide Would Not Have Been Admissible in a Trial of the Luna Case, or Vice Versa. ........... 127 2. The Dunton and Acosta and Escareno Charges Were Particularly Inflammatory. ......... 135 3. The Luna and Patel Cases Were Much Weaker than the Salcedo Robbery and the Escareno and Dunton and Acosta Homicide Cases. ..... 139 a. The Evidence Implicating Mr. Gomez in the Luna and Patel Crimes Was Much Weakerthan the Evidence Implicating Him in the Other Cases. .......... 139 b. In Determining Whether the Trial Court AbusedIts Discretion in Denying the Motion to Sever, This Court Should Not Consider Evidence that Was Not Ultimately Presented at Trial....... 143 4, The Patel, Escareno, and Dunton and Acosta Cases Were Charged as Capital Cases, While the Luna Case Was Not. ........-.--50000- 146 5. The Trial Court AbusedIts Discretion in Denying Severance. ............0 eee eee 148 -iV- VI. VII. 6. In the Alternative, Even if the Court Did Not Err In Refusing to Sever the Patel and Luna Cases From Each Other, It Nonetheless Erred In Refusing to Sever these Cases from the Dunton and Acosta Double Homicide. ........... 150 D. Reversal is Required. ..............0.0. 00005 151 E. Even if the Court Did Not Err WhenIt Refused to Sever, the Joint Trial Violated Mr. Gomez’s Constitutional Rights to Due Processanda FairTrial, Requiring Reversal. ................0..0000, 170 THE TRIAL COURT’S REFUSAL TO SEVER MR. GOMEZ’S TRIAL FROM THAT OF HIS CO-DEFENDANT REQUIRES REVERSAL ........... 0.000 e cece eeu 177 THE TRIAL COURT ERRONEOUSLY REQUIRED THE PRESENTATION OF EVIDENCE REGARDING MR. GOMEZ’S REFUSAL TO COME TO COURT ONE MORNING, ERRONEOUSLY INSTRUCTED THE JURORS THAT THEY COULD CONSIDER THE REFUSAL TO COME TO COURTAS EVIDENCE OF A CONSCIOUSNESSOF GUILT, AND FAILED TO PERFORM THE ROLE OF A NEUTRAL ARBITER; THESE ERRORS VIOLATED MR. GOMEZ’S RIGHTS UNDER CALIFORNIA LAW AND THE STATE AND FEDERAL CONSTITUTIONS ............. 0.2.00... eee eee 185 A. FactS. 2... ccc cee ec eee ete tee ene neue 186 1. The Delayed Start to Court Proceedings on December 14, 1999.................... 186 2. Counsel’s Mistrial Motion and the Court’s Response. ... 0.0... ee eee eee ee ee eee 187 3. The Trial Court’s Argument that Mr. Gomez’s Action Showed Consciousness of Guilt. ... 189 4. The Trial Court’s Proffer of Deputy Ganarial’s Testimony and Further ArgumentonIts Admissibility. ......... 0.0 ee eee eee eee 191 5. Deputy Ganarial’s Testimony Before the Jury. Lecce eee e eee ete eee eee e nett eee eeee 193 6. The Trial Court’s Instruction to the Jury. .. 195 Mr. Gomez’s Refusal to Come to Court Was Not Relevant or Admissible to Show ConsciousnessofGuilt and the Trial Court Erred in Insisting on the Presentation ofEvidence AboutIt and Instructing Jurors That They Could Consider The Evidence As Tending to Prove His Consciousness of Guilt. .... 196 1. The Evidence That Mr. Gomez Refused to Come to Court Was Not Relevant to Show Consciousness of Guilt. ................ 196 2. Even if There Were Any Probative Value in the Evidence that Mr. Gomez Refused to Come to Court, It Was Substantially OutweighedbyIts Undue Prejudicial Effect ............... 201 3. The Evidence Violated the Bar on Introduction of Character Evidence. ...............- 203 4, The Trial Court AbusedIts Discretion In Causing the Presentation of the Evidence ofMr. Gomez’s Refusal to Come to Court. ...... 204 5. The Trial Court Erred in Instructing the Jurors That they Could Consider Mr. Gomez’s Refusal to Come to Court as Evidence Showing a Consciousness of Guilt. ................ 207 -vi- E. The Admission of the Evidence Regarding Mr. Gomez’s Refusal to Come to Court and the Court’s Instruction That Jurors Could ConsiderIt as Consciousness of Guilt Evidence Violated Mr. Gomez’s Constitutional Rights. ..................0..05. 208 The Trial Court Improperly Assumedthe Role of an Advocate Against Mr. Gomez And UsedIts Powerto Call Witnesses and Instruct the Jury to Punish Mr. Gomez For His Disrespect to the Court, to Deter Similar Conduct, and to Punish Gomez and Counsel For Counsel’s Mistrial Motion, Violating Mr. Gomez’s Right to Due Process and His Right to Counsel. .. 215 Reversal is Required. ...............02. 00000 221 VII. THE TRIAL COURT’S ERRONEOUS ADMISSION OF — HIGHLY INFLAMMATORY EXPERT TESTIMONY ABOUT THE MEXICAN MAFIA, WHICH RENDERED JURORS FEARFUL FOR THEIR OWN SAFETY, DEPRIVED MR. GOMEZ OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL ..............0.... 226 A. Procedural Background and the Gang Expert Testimony. 0.0.20... cc cee eee eee e eee ence 226 B. The Trial Court AbusedIts Discretion in Allowing Highly Inflammatory Gang Evidence. .......... 231 1. Applicable Law. .................000. 231 2. The Trial Court Abused Its Discretion In Permitting Testimony Aboutthe History ofthe Mexican Mafia, About Crimes Committed By “Hardcore” Gang Membersin Jail, and About Other Cases of Ruthless Retaliatory Crimes Committed on Behalf of the Mexican Mafia. -Vii- IX. D. The Court’s Errors in Allowing the Inflammatory Gang Expert Testimony Violated Mr. Gomez’s Constitutional | Rights. 0.0...6eeeee eee ees 241 The Gang Expert Testimony Was Not Harmless; Reversal is Required. .........-.--- seer eee 244 THE TRIAL COURT’S ADMISSION OF A NOTE LEFT BY ROBERT ACOSTAIN THE PAGESOF A BIBLE VIOLATED CRAWFORD V. WASHINGTON ......... 250 A. This Issue Is Reviewable. ............0005 000s 251 B. Acosta’s Note Was Inadmissible Under Crawford. Reversal ofMr. Gomez’s Convictions for the First Degree Murders of Robert Dunton and Robert Acosta, and of his Death Sentences for the Murders of Raul Luna and Rajandra Patel, is Required. .......... 256 THE TRIAL COURT’S IMPROPER AND UNCONSTITUTIONAL INSTRUCTIONS EFFECTIVELY REQUIRED JURORS TO TAKE NOTES AND STERNLY DISCOURAGED READBACKOF TESTIMONY— IN FACT, PROHIBITINGIT IN THE FIRST TWO DAYSOF DELIBERATIONS ....... 00. c cece eee eee eee eee 260 A. The Court’s Instructions Regarding Notetaking and Readbacks. 1.0.0... 0 cece eee eee ee eee eee 261 The Court Erroneously and Unconstitutionally Insisted That Jurors Take Notes, Telling Them It Would be “Discouraged” to See Them “Looking At The Witnesses” Without Taking Notes. ............ 265 The Court’s Instruction Also Violated Gomez’s Right to A Unanimous Jury Verdict. ............64.. 275 -viii- XII. XIll. D. The Court Erroneously and Unconstitutionally Told Jurors It Would Be “Infuriated” By Requests For Readback Early In Deliberations and Effectively Prohibited Any Readback of Testimony During theFirst Two DaysofDeliberations. .................,. 278 E. Reversal is Required. .............000 0.0005. 282 THE TRIAL COURT ERRONEOUSLY AND UNCONSTITUTIONALLY INSTRUCTED JURORS DURING VOIR DIRE REGARDING THE EXCHANGE OF TESTIMONY FOR LENIENCY, EFFECTIVELY TELLING JURORS THAT PROSECUTION WITNESSES WERE LESSER PARTICIPANTS IN THE CHARGED CRIMES AND THAT THE DEFENDANTS WERE THE “GREATER CULPRITS” . 0...cece eee eee ees 290 A. The Court’s Instructions During Voir Dire. B. The Trial Court’s Explanation of Prosecution Testimony Obtained By Leniency Violated Gomez’s Rights Under State Law and the Federal Constitution. eee ee eee cence eee teen ete eee eneas 294 C. Reversal Is Required. .............-000. 00000 302 THE CALJIC INSTRUCTIONS DEFINING THE PROCESS BY WHICH JURORS REACH A VERDICT ON THE LESSER OFFENSE OF SECOND DEGREE MURDER, AND THE COURT’S FAILURE TO INSTRUCT THE JURY WITH CALJIC NO. 17.11, UNCONSTITUTIONALLY SKEWED THE JURORS’ DELIBERATIONS TOWARD FIRST DEGREE MURDER, REQUIRING REVERSAL THE TRIAL COURT’S INSTRUCTION OF THE JURY WITH CALJIC NO. 17.41.1 VIOLATED MR. GOMEZ’S RIGHTS UNDER THESIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS.................. 321 -ix- C. This Court Should Reconsider Its Decision in Peoplev. Engelman, 0.00000 ceceteens 322 The Delivery of CALJIC No. 17.41.1 at the Guilt and Penalty Phases in this Capital Case Violated the Eighth and Fourteenth Amendments. .............--.. 333 1. Instructing Guilt Phase Jurors in a Capital Trial with CALJIC No. 17.41.1 Violates the Eighth and Fourteenth Amendments. ........... 334 2. Instructing Penalty Phase Jurors With CALJIC No. 17.41.1 Violates the Eighth and Fourteenth Amendments. ......... 00.0 eee eee eee 335 Reversal is Required. ........... 0.0. eeeeeee 339 XIV. A SERIES OF GUILT PHASE INSTRUCTIONS IMPERMISSIBLY AND UNCONSTITUTIONALLY UNDERMINED AND DILUTED THE REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBT ........ 344 A. D. The Instructions on Circumstantial Evidence Undermined the Requirement ofProofBeyond a Reasonable Doubt. ......... 0.0.0... ee eee eee 345 Other Instructions Also Vitiated the Reasonable Doubt Standard. .... 0... cece ee eee eee eee eens 348 This Court Should ReconsiderIts Prior Rulings Upholding the Defective Instructions. .......... 356 Reversal Is Required. ......... 0.00 c cece eee 359 XV. THE TRIAL COURT’S INSTRUCTION ON KIDNAPING ERRONEOUSLY AND UNCONSTITUTIONALLY TOLD. JURORS TO CONSIDER THE TOTALITY OF THE CIRCUMSTANCESIN DETERMINING WHETHER THE MOVEMENTOF THE VICTIM WAS SUBSTANTIAL, REQUIRING REVERSAL ........0 00 cece eee eens 362 XVI. XVII. THE DEFINITION OF SIMPLE KIDNAPING ANNOUNCED BY THIS COURTAT THE TIME OF THE KIDNAPING CHARGED IN THIS CASE WAS UNCONSTITUTIONALLY VAGUE................ 369 A. The Constitution Requires Reasonable Specificity in Defining Criminal Conduct. .................. 370 B. The Statutory Definition of Kidnaping is Vague... 372 1, This Court’s Interpretation of the Asportation Elementin Penal Code Section 207. ...... 372 2. The Lack of an Articulable Standard for What Constituted a “Substantial Distance” Under Penal Code Section 207. ............... 376 C. Reversal of the Kidnaping Conviction, the Kidnaping Special Circumstance, and the Death Sentencesis Required. 0... 0... cece cece eeeeee 383 THE PROSECUTOR VIOLATED GRIFFIN V. CALIFORNIA WHEN,IN AN EFFORT TO FILL A CRUCIAL EVIDENTIARYGAP IN HIS CASE, HE ARGUED THAT THERE WAS NO EVIDENCE THAT MR. GOMEZ READ CERTAIN NEWSPAPERARTICLES; REVERSAL IS REQUIRED .......00 000 ccc ce ec eeecee eee ceeeeees 385 XVIII.THE TRIAL COURT ERRED IN DENYING MR. GOMEZ’S PENAL CODESECTION1118.1 MOTION REGARDING THE ESCARENO CASE, AND EVIDENCE OF MR. GOMEZ’S GUILT OF THE MURDEROF JESUS ESCARENO WASINSUFFICIENT; THE TRIAL COURT -THUS ERRED AND VIOLATED MR. GOMEZ’S CONSTITUTIONAL RIGHTS WHENIT INSTRUCTED JURORS THAT THOSE WHO BELIEVED MR. GOMEZ GUILTY OF MURDERING JESUS ESCARENO COULD CONSIDER THAT MURDER AT THE PENALTY PHASE eeee ee ee eee eee en ee eee ee een n ees 398 -xi- Applicable Law. ..........rane 398 The Trial Court Erred in Denying Mr. Gomez’s Penal Code Section 1118.1 Motion Regarding the Escareno Case; The Evidence ofMr. Gomez’s Guilt ofthe Murder and Robbery ofJesus Escareno Was Insufficient. 0.0.0...ee ee eee 401 1. The Trial Court Erred In Denying Mr. Gomez’s Penal Code Section 1118.1 Motion; Detective Winter’s Paraphrase ofMr. Gomez’s Statement Did Not Raise More than a Suspicion of Guilt Lek cece eee e eee ene eee e eee e eee 402 2. The Evidence WasInsufficient to Support Any Conviction for the Crimes Against Escareno. 3. The Accomplice Corroboration Rule Aside, The Trial Court Erred in Denying Gomez’s Penal Code Section 1118.1 Motion and the Evidence WasInsufficient Under State Law and the Federal Constitution. ...............06- 412 Even if Witness #1’s Testimony Were Corroborated by Mr. Gomez’s Statement to Detective Winter, the Trial Court Erred in Denying Mr. Gomez’s Penal Code Section 1118.1 Motion, and Evidence of Mr. Gomez’s Guilt of the Escareno Crimes Was Legally Insufficient. cece eee ce te een e teen ene ene e nee n tenes 415 Because the Trial Court Erred in Denying the Penal Code section 1118.1 Motion, and Because the Evidence of Mr. Gomez’s Guilt of the Escareno Murder Was Not Sufficient, None of the Jurors Should Have Been Allowed to Consider It At the Penalty Phase. .... 416 Mr. Gomez’s Death Sentences Cannot Stand. .... 420 -xii- XIX. XXI. XXII. THE TRIAL COURT NOT ONLY ERRED IN FAILING TO INSTRUCT THE PENALTY PHASE JURORS THAT THEY COULD NOT CONSIDER THE MURDEROF JESUS ESCARENO AS AGGRAVATION UNLESS THEY FOUND THAT WITNESS #1’°S TESTIMONY WAS CORROBORATED BY INDEPENDENT EVIDENCE LINKING MR. GOMEZ TO THE CRIME, BUT ALSO INSTRUCTED JURORS TO DISREGARD GUILT PHASE INSTRUCTIONS THAT WERE NOT REPEATED AT THE PENALTY PHASE ........... 0.0.0... c eee eee eeee 425 A. | The Trial Court Erred in Removing the Accomplice Corroboration Requirement from the Jury’s Consideration of the Escareno Murderat the Penalty Phase; The Error Violated Gomez’s Constitutional Rights. 2... 0.0... ee eeeence 427 B. Mr. Gomez’s Death Sentences Cannot Stand. .... 431 THE PROSECUTOR’S ELICITATION, AND THE TRIAL COURT’S ADMISSION, OVER OBJECTION, OF EVIDENCE REGARDING THE ETHNIC BACKGROUND OF TWO JAIL GUARDS MR. GOMEZ WAS CHARGED WITH ASSAULTING, EVIDENCE WHICH THE PROSECUTOR THEN EMPLOYED IN ARGUING FOR DEATH, REQUIRES REVERSAL .................. 434 THE TRIAL COURT ERRONEOUSLY AND UNCONSTITUTIONALLY TOLD JURORS THAT THEY WERE FORBIDDEN TO “REFER TO BIBLICAL REFERENCES,” REQUIRING REVERSAL .......... 443 A SENTENCE OF DEATH SHOULD NOT BE PERMITTED ABSENTA JURY FINDING THAT THE DEFENDANTIS GUILTY BEYOND ALL POSSIBLE DOUBT ........ 453 -Xiii- XXIIL.BECAUSE THE ROBBERY AND KIDNAPING SPECIAL CIRCUMSTANCESIN THIS CASE PERMITTED THE JURY TO IMPOSE DEATH FORAN ACCIDENTAL OR UNFORESEEABLE KILLING, THE DEATH PENALTYIS UNCONSTITUTIONAL . 2.0.0... eee eee eee 463 A. Under California Law, a Defendant Can Be Convicted of First Degree Felony Murder, and Found Death- Eligible under California’s Felony-Murder Special Circumstance Allegations,Ifthe Killing Is Negligent, Accidental, or Even Wholly Unforeseeable. ..... 465 As Applied to an ActualKiller, the Robbery and Kidnaping Special Circumstances Violate the Eighth Amendment Because They Permit Imposition of Death Without Proof ofAny Culpable Mens Rea asto the Killing. 2.0... 2c ccc cee eee eee 467 XXIV.CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT MR. GOMEZ’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION ........ 2. cece cece eee teeee 475 A. Penal Code Section 190.2 Is Impermissibly Broad. Loe cee ee ee ee eee ene eee teen nent ee neaee 476 B. The Broad Application Of Section 190.3, Factor (a), Violated Mr. Gomez’s Constitutional Rights. .... 477 C. The Death Penalty Statute And Accompanying Jury Instructions Fail To Set Forth The Appropriate Burden OfProof. 2.0... ceeee eee tees 479 l. Mr. Gomez’s Death Sentence is Unconstitutional Becauseit is Not Premised on Findings Made Beyond a Reasonable Doubt........ veee. 479 2. The Statute Unconstitutionally Fails to Require that the Prosecution Bear the Burden of Persuasion at the Penalty Phase. ......... 481 -xiv- Mr. Gomez’s Death Verdict Was Not Premised on Unanimous Jury Findings. ........... 483 The Instructions Caused the Penalty Determination to Turn on an Impermissibly Vague and Ambiguous Standard. ........ 486 TheInstructions Failed to Inform the Jury that the Central Determination is Whether Deathis the Appropriate Punishment. ............ 487 The Instruction Did Not Tell the Jury It Could Impose a Life Sentence Even if Aggravation Outweighed Mitigation................. 488 The Instructions Failed to Inform the Jurors that if They Determined that Mitigation Outweighed Aggravation, They Were Required to Return a Sentence of Life Without the Possibility of 1:10)(a489 The Instructions Failed to Inform the Jury Regarding the Standard of Proof and Lack of Need for Unanimity as to Mitigating Circumstances............. 000 cece eee 490 The Penalty Jury Should be Instructed on the Presumption of Life. ...............0.. 492 Failing to Require That The Jury Make Written Findings Violates Mr. Gomez’s Right To Meaningful Appellate Review. ........ 0... cece eee eee 493 The Instructions To The Jury On Mitigating And Aggravating Factors Violated Mr. Gomez’s Constitutional Rights. ...................000. 494 The Instructions Used Restrictive Adjectives in the List of Potential Mitigating Factors. ... 494 -XV- 2. The Instructions Failed to Delete Inapplicable Sentencing Factors. .........- 022-2005 494 3. TheInstructions Failed to Inform the Jury Not to Consider the Deterrent Effect or the Cost of the Death Penalty. ....... 0.0.6 c eee eee eee 495 F, The Prohibition Against Inter-Case Proportionality Review Guarantees Arbitrary And Disproportionate Impositions OfThe Death Penalty. ............ 495 G. California’s Capital-Sentencing Scheme Violates The Equal Protection Clause. .........-+....++-05: 496 H. — California’s Use Of The Death Penalty As A Regular Form OfPunishment Conflicts With Evolving Standards of Decency and Falls Short Of International Norms. 2...ceecee eee eens 497 XXV. THE CUMULATIVE EFFECT OF THE ERRORS AT THE CRIMINAL TRIAL UNDERMINESTHE RELIABILITY OF THE CRIMINAL JUDGMENT, REQUIRING REVERSAI498 CONCLUSION ....... 2. ccc te ence eee eens 506 WORD COUNT CERTIFICATION .. 2.0.0... 0. ce eee eee eee eee 507 -XVi- TABLE OF AUTHORITIES State Cases Alcala vy. Superior Court (2008) 43 Cal.4th 1205 ....... 119, 125, 146-148 Arnold v. State (Ga. 1976) 224 S.E.2d 386 2.0... cece eee ee ee 377 Buzgheia v. Leasco Sierra Grove (1997) 60 Cal.App.4th 374 .... 316,358 Coleman v. Superior Court (1981) 116 Cal.App.3d 129............. 142 College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704 .... 168, 224, 248, 288, 307 Commonwealth v. St. Germain (Mass. 1980) 381 Mass. 256 ..... 269, 270 Cotton v. Superior Court (1961) 56 Cal.2d 459 .......0....0.0008.. 373 Dawson v. State (Nev. 1987) 734 P.2d 221 ..............0008. 439, 440 Deilzell v. Day (1950) 36 Cal.2d 349 10...eee ec eee 302 Exparte Keil (1890) 85 Cal. 309 2.0...eccc eee cee eee 373 Frank v. Superior Court (1989) 48 Cal.3d 632 .........eee eee 166 Hovey v. Superior Court (1980) 28 Cal.3d1...............04. 460, 461 In re Charlisse C. (2008) 45 Cal.4th 145 ..............0..00...008. 205 In re Hamilton (1999) 20 Cal.4th 273 ...... beeen bee eee ees 133 In re Michael T. (1978) 84 Cal.App.3d 907 .............. 0.000000 67 Inre Rodriguez (1981) 119 Cal.App.3d 457 ...............0..00.8. 499 Kelley v. State (Fla. 1986) 486 S0.2d 578 ....... 0... . cee eee eee 269 McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d 512 n nnn Eee nee e een eee tenn ent e teen een enees 217 People v. Abilez (2007) 41 Cal.4th 472 «0.0.0.0. e cree ees 407 People v. Aikin (1971) 19 Cal.App.3d 685 «0.6... 0 eee ee eee eee 312 People y. Albarran (2007) 149 Cal.App.4th 214... 136, 232, 239, 241, 245 People v. Alexander (2010) 49 Cal.4th 846 ........ 6 eee ee erences 132 People v. Alkow (1950) 97 Cal.App.2d 797 0.0... e cere cette eee 56 People v. Anderson (1968) 70 Cal.2d 15 ........... 97, 98, 100, 101, 105 People v. Anderson (1987) 43 Cal.3d 1104 ........--. eee eee ee eee 467 People v. Anderson (2001) 25 Cal.4th 543 1.0.6... eee ee eee 479, 480 People v. Anjell (1979) 100 Cal.App.3d 189 ........- +. eee e eee eeee 279 People v. Arias (1996) 13 Cal.4th 92.... 144, 171, 199, 482, 487, 492, 493 People v. Avila (2006) 38 Cal.4th 491 2.0... 6 cece eee eee eee eens 494 People v. Avitia (2005) 127 Cal.App.4th 185 .........-.5-0 05 203, 240 People v. Ayala (2000) 23 Cal.4th 225 ...... 136, 227, 228, 231, 302, 434 People v. Bacigalupo (1993) 6 Cal.4th 457 .........0e seen eee 372, 487 People v. Balderas (1985) 41 Cal.3d 144 1.0.6... eee eee eee ees 131, 144 People v. Barker (2001) 91 Cal.App.4th 1166 ............--005. 57, 58 People v. Barnes (1986) 42 Cal.3d 284 ...... 6.0 e ee eee eee ees 43, 401 People v. Bassett (1968) 69 Cal.2d 122 .. 1.0... eee cece e eee 43 People v. Bean (1988) 46 Cal.3d919 ........... 118, 129, 130, 144, 148 People v. Beeman (1984) 35 Cal.3d 547 «0.0... cece eee cence eens 63 -XVill- People v. Belous (1969) 71 Cal.2d 954 2.0... ce cece ence 377 People v. Benavides (2005) 35 Cal.4th 69 ..................0.005. 211 People v. Bender (1945) 27 Cal.2d 164.0000... cecccceecccccecees 99 People v. Birks (1998) 19 Cal.4th 108.0000... eee eee eee eee 253 People v. Blair (2005) 36 Cal.4th 686 ..................0000, 477, 481 People v. Blakeslee (1969) 2 Cal.App.3d 831 ..............0.05. 59, 81 People v. Bodkin (1961) 196 Cal.App.2d 412 ...........000 000.004. 78 People v. Bojorquez (2002) 104 Cal.App.4th 335 ...... 232, 233, 236, 239 People v. Bolton (1979) 23 Cal.3d 208 0.0... 0... cc eee cece eee 205 People v. Bonilla (2007) 41 Cal.4th 313 ..................000, 419-420 People v. Bonin (1988) 46 Cal.3d 659 12.0... cece eee 283 People v. Bowers (2001) 87 Cal.App.4th 722 ..... 225, 248, 289, 307, 500 People v. Bowman (1966) 240 Cal.App.2d 358.................0.. 219 People v. Box (2000) 23 Cal.4th 1153 2.0... 2. eee eee eee eee 181 People v. Boyce (1980) 110 Cal.App.3d 726 .............. 0.00.00. 407 People v. Boyd (1985) 38 Cal.3d 762 0.0.0... ccc ccc neces 390 People v. Boyer (2006) 38 Cal.4th 412 ...................0.. 208, 418 People v. Bradford (1997) 15 Cal.4th 1229 ............... 132, 144, 389 People v. Bradley (1993) 15 Cal.App.4th 1144...............0.0.. 380 People v. Brady (2010) 50 Cal.4th 547 ..............000. 322, 338, 389 -X1X- People v. Breaux (1991) 1 Cal.4th 281 «26... eee eee eee eee eens 486 People v. Breverman (1998) 19 Cal.4th 142 ......-- sees eee eens 480 People v. Brown (1974) 11 Cal.3d 784 0.6... cece eee eee e eens 378 People v. Brown (1985) 40 Cal.3d 512 ..........---- 337, 338, 448, 488 People v. Brown (1988) 46 Cal.3d 432 ..... 70, 71, 94, 169, 184, 225, 248 259, 289, 307, 420, 432, 440, 449 People v. Brown (2003) 31 Cal.4th 518 ....... 6. see eee eee eee eee 302 People v. Brown (2004) 33 Cal.4th 382 .......... 0-2 eee 322, 338, 478 People v. Bunyard (1988) 45 Cal.3d 1189... ..... 6... eee eee eee 407 People v. Burgener (2003) 29 Cal.4th 833 .......-. eee eee eee eeee 279 People v. Butler (1975) 47 Cal.App.3d 273 ..... 6005s seer neers 276, 284 People v. Camden (1974) 16 Cal.3d 808 ......... 0c eee reece 370 People v. Campbell (1958) 162 Cal.App.2d 776 ....... 0+ +e eee e eens 216 People v. Campbell (1994) 25 Cal.App.4th 402 ......... 0s seen eee 64 People v. Carasi (2008) 44 Cal.4th 1263 ...... 6... eee ee eens 179 People v. Cardenas (1982) 31 Cal.3d 897 ...... 52, 54, 136, 232, 247, 498 People v. Carlisle (2001) 86 Cal.App.4th 1382 ........ 6.0 e seen eee 111 People v. Carlucci (1979) 23 Cal.3d 249 1.0... cece cece een ees 217 People v. Carpenter (1997) 15 Cal.4th 312.1... 06. c eee ee eee 196 People v. Carrera (1989) 49 Cal.3d 291 2... 0. cece eee ee eee eee 418 People v. Carrillo (2004) 119 Cal.App.4th 94 .........-.-.05. 227, 434 -XX- People v. Peoplev. People v. People v. Peoplev. People v. Peoplev. Peoplev. People v. People v. People v. People v. People v. Peoplev. Peoplev. People v. Peoplev. Peoplev. People v. Peoplev. Castaneda (2011) 51 Cal.4th 1292 .............0... 364, 366 Castillo (1997) 16 Cal.4th 1009............ 133, 207, 268, 302 Catlin (2001) 26 Cal.4th 81 0.0... eee eee eee eee 132 Caudillo (1978) 21 Cal.3d 562 ........ 363, 366, 374, 375, 381 Cavitt (2004) 33 Cal.4th 187 22... . 0. cece eee eae 62 Chambers (1964) 231 Cal.App.2d 23 ...............000, 181 Champion (1995) 9 Cal.4th 879.0... 0.0... 00.0 c cee eee 136 Clark (2011) 52 Cal.4th 856 1.0.0.0... 0c. eee eee eee 132 Cleveland (2001) 25 Cal.4th 466 ........... 324, 326, 329, 332 Cluff(2001) 87 Cal.App.4th 991 ...............00.0000, 204 Coddington (2000) 23 Cal.4th 529 ................0000. 440 Coffman and Marlow (2004) 34 Cal.4th 1 ........0....... 178 Cole (2004) 33 Cal.4th 1158 2.00... eee eee eee eee 208 Collins (1976) 17 Cal.3d 687.2... eee eee, 314, 333 Concepcion (2008) 45 Cal.4th 77 12.22.00... ec eee 185 Conner (1983) 34 Cal.3d 141 ... 43, 48, 52, 76, 79, 97, 399, 413, 415 Cook (2006) 39 Cal.4th 566 ..............0005. 493, 494, 497 Cooniz (1953) 119 Cal.App.2d 276 .................0000. 76 Cooper (1991) 53 Cal.3d 1158 1.2.0.2... ce cece 63, 64 Cowan(2010) 50 Cal.4th 401 ..............0.. 200, 205, 423 -xxi- People v. Cox (1991) 53 Cal.3d 618 2.0.0... eee eee e rete e eee 231 People v. Cox (2003) 30 Cal.4th 916 «0... . 0. eee eee eee cee eens 287 People v. Crandell (1988) 46 Cal.3d 833 ....... 00sec teeter ees 196 People v. Crittenden (1994) 9 Cal.4th 83 .........- eee eens 356, 357 People v. Daly (1992) 8 Cal.App.4th 47 2.0.6... e cere e eee 381, 383 People v. Daniels (1969) 71 Cal.2d 1119 .......-. eee eee ee eee 374, 382 People v. Daniels (1988) 202 Cal.App.3d 671 .....---++- 00+ 379, 380 People v. Daniels (1993) 18 Cal.App.4th 1046 ..........-. 377, 378, 383 People v. Danks (2004) 32 Cal.4th 269 .........-..0e eee 443, 445-447 People v. Dent (2003) 30 Cal.4th 213 .........--. 109, 110, 112, 114, 116 People v. Dewberry (1959) 51 Cal.2d 548 «1.0... eee eee eee eee 311,312 People v. Dickey (2005) 35 Cal.4th 884 . 1.0... 66. e eee eee eee 199 People v. Dillon (1983) 34 Cal.3d 441 0.2... cee eee eee ee eee eee 465 People v. DiLuca (N.Y. App. Div. 1982) 448 N.Y.S.2d 730 .......-. 266 People v. Doolin (2009) 45 Cal.4th 390 .......... 93, 231, 280, 287, 301 People v. Duncan (1991) 53 Cal.3d 955 16... 0. eee e eee eee ees 489 People v. Dunkle (2005) 36 Cal.4th 861 ......-.-. secre ee eee 301, 302 People v. Durham (1969) 70 Cal.2d 171 0.1... cece e eee eee eee 64 People v. Earle (2009) 172 Cal.App.4th 372 ...........+5- 149, 172, 174 People v. Earp (1999) 20 Cal.4th 826 1.1... 0... cece nent e eee es 466 -xXxii- People v. Edelbacher (1989) 47 Cal.3d 983 ............. 0.00000, 476 People v. Edwards (1991) 54 Cal.3d 787 1.0.0... ce ccc cece eee 301 People v. Engelman (2002) 28 Cal.4th 436 ... 321, 322, 324, 326-335, 337, 452, 460, 461 People v. Estrada (1995) 11 Cal.4th 568 ........0...0..0..00.0.0000, 372 People v. Falsetta (1999) 21 Cal.4th 903 .................... 210, 241 People v. Farley (2009) 46 Cal.4th 1053 .............0. 0000.00.08. 356 People v. Farnham (2002) 28 Cal.4th 107 1.0.0.0... 00.0. .0...005. 196 People v. Fauber (1992) 2 Cal.4th 792 1.0... 0... cece ce cee eee 493 People y. Fierro (1991) 1 Cal.4th 173 0.0.0.0...0. 495 People v. Flannel (1980) 25 Cal.3d 668 ............ 00 ee cece eeee 480 People v. Flood (1998) 18 Cal.4th 470 2.0.0.0... ccc cee ce eee 364 People v. Ford (1964) 60 Cal.2d 772 2... ccc cc cece e eee 93 People v. Fritz (2007) 153 Cal.App.4th 949 ..............000..0008 203 People v. Frye (1998) 18 Cal.4th 18 Cal.4th 894 ........... 93, 133, 280 People v. Gainer (1977) 19 Cal.3d 835 2.0... ccc ee eee eee 333 People v. Gamache (2010) 48 Cal.4th 347 2.00.0... ......00..008. 227 People v. Garcia (2005) 36 Cal.4th 777 2.0... ccc cece ce eee 133 People v. Gay (2008) 42 Cal.4th 1195 ............ 72, 225, 397, 422, 455 People v. Geier (2007) 41 Cal.4th 555 oo... eeeee eee 134 People v. Ghent (1987) 43 Cal.3d 739 . Lecce eueeueseteeeneeenees 286 -XXili- People v. Gibson (1976) 56 Cal.App.3d 119 ..... 6-002 eee eee ee ees 246 People v. Gonzalez (2006) 38 Cal.4th 932 ........ cee eee eee 70, 94, 184 People v. Gray (2005) 37 Cal.4th 168 «2.0... 6. eee eee eee eee ees 132 People v. Griffin (2004) 33 Cal.4th 536 «1.2... 66. eee ee eee 51, 480 People v. Guiuan (1998) 18 Cal.4th 558 20... 6... cece eee eee 296, 305 People v. Gunder (2007) 151 Cal.App.4th 412 ........-.----5- 315, 316 People v. Gutierrez (2002) 28 Cal.4th 1083 .......-. 6. eee eee eee 133 People v. Gutierrez (2003) 29 Cal.4th 1196 .........--++ eee 185, 199 People v. Gutierrez (2009) 45 Cal.4th 789 .......-.- eee eee eee 208 People v. Hall (1964) 62 Cal.2d 104 .......... 002008 50, 59, 65, 68, 81 People v. Hamilton (1873) 46 Cal. 540 0.0.0... eee e eee eens 260 People v. Hamilton (2009) 45 Cal.4th 863 .......... 0s ee eee 289, 307 People v. Han (2000) 78 Cal.App.4th 797 2.0.0.6 eee cece cece eens 348 People v. Harris (2005) 37 Cal.4th 310... 6.0... eee e ee eee eee eeee 216 People v. Harris (2008) 43 Cal.4th 1269 ...........--.0 eee ee. 418, 428 People v. Harrison (2005) 35 Cal.4th 208 .. 1.0... - 0. cece eee renee 389 People v. Hart (1999) 20 Cal.4th 546 2.0... 0... cee eee eee eens 354 People v. Hartsch (2010) 49 Cal.4th 472 1.6... cece cece eens 136 People v. Hawkins (1995) 10 Cal.4th 920 ...........0055: 102, 217, 218 People v. Hawthorne (1992) 4 Cal.4th 43 2.0.0... cece cece eee ees 479 -XXiv- People v. Hayes (1990) 52 Cal.3d577 0... 0.0... ceca - 466, 500, 505 People v. Henderson (1935) 4 Cal.2d 188... 00... 0.0... cece eee, 279 People v. Hernandez (2003) 30 Cal.4th 835 ........ 71, 78, 133, 421, 427 People v. Hernandez (2006) 38 Cal.4th 932 ........ 0.0.00 cee eee 238 People v. Hill (1998) 17 Cal.4th 800 ................ 227, 283, 434, 498 People v. Hillhouse (2002) 27 Cal.4th 469 ..............000..,. 268, 277 People v. Hines (1997) 15 Cal.4th 997 ..............0......00000. 450 People v. Holt (1984)37 Cal.3d 436.0... eee eee 498, 499 People v. Howard (2010) 51 Cal.4th 15 ........0....0..00.0.00.. 44, 79 People v. Huggins (2006) 38 Cal.4th 175 0.0.2... 0... cece cee eee 132 People v. Hughes (2002) 27 Cal.4th 287 0.0.0.2... ccc eee eee 389 People v. Ibarra (2007) 156 Cal.App.4th 1174 .............0..00.., 348 People v. Jacobs (2007) 156 Cal.App.4th 728 ............0... 149, 205 People v. Jenkins (1979) 91 Cal.App.3d 579 ..............0005, 50, 110 People v. Jenkins (1994) 29 Cal.App.4th 287 ..............0..000, 314 People v. Jennings (1991) 53 Cal.3d 334 ................005. 356, 357 People v. John (1983) 149 Cal.App.3d 798 ....... 0.00.00. cee eae 381 People v. Johnson (1980) 26 Cal.3d 557 ..... 43, 75, 96, 97, 398, 399, 401 413-415 People v. Johnson (1988) 47 Cal.3d 576 .......0.0.c cece eee, 134, 143 People v. Johnson (1993) 19 Cal.App.4th 778 ...............00008. 238 “XXV- Peoplev. Johnson (2004) 115 Cal.App.4th 1169... cee ee eee eee 301 People v. Jones (1998) 17 Cal.4th 279 1... 6. seer crete cere eens 79 People v. Jones (2003) 30 Cal.4th 1084 .. 0... cece ee eee ee eee 133 People v. Jurado (2006) 38 Cal.4th 72 ....... eee cece eee eens 196 People v. Kainzrants (1996) 45 Cal.App.4th 1068 ............. 302, 358 People v. Kelley (1980) 113 Cal.App.3d 1005 .....------ eee eee eee 489 People v. Kennedy (2005) 36 Cal.4th 595 2.0... 6. cess cere cere ees 478 People v. Killebrew (2002) 103 Cal.App.4th 644 ........--+2+++00- 231 People v. Kipp (1998) 18 Cal.4th 349 1.0... 6... eee e ee eee eee eee 488 People v. Knoller (2007) 41 Cal.4th 139 ...... 6... e eee eee e eee 440 People v. Koontz (2002) 27 Cal.4th 1041 ..........--- 98, 101, 105, 418 People v. Kraft (2000) 23 Cal.4th 978 «0... 60. e eee eee eee eens 125 People v. Lancaster (2007) 41 Cal.4th 50 .........eee eee eee 112-114 People v. Lang (1974) 11 Cal.3d 134 0.0... eee eee eee eee ene 76 People v. Lasko (2000) 23 Cal.4th 101 .......- eee ee eee ee eee eee 217 People v. Lavergne (1971) 4 Cal.3d 735 1.0.6... eee eee eee eens 233 People v. Lenart (2004) 32 Cal.4th 1107 .... 6.0... eee eee e eee 482 People v. Letner (2010) 50 Cal.4th 99 ........“Seen 180, 354, 467 People v. Lewis (1983) 144 Cal.App.3d 267 ........ seer eee eens 199 People v. Lewis (2001) 26 Cal.4th 334 2.0.6... eee e eee ee eees 444, 445 -XXVi- People v. Lewis (2008) 43 Cal.4th 415 .......... 132, 368, 384, 419, 428 People v. Lewis (2009) 46 Cal.4th 1255 2.0... eee eee eee 455 People v. Lewis and Oliver (2006) 39 Cal.4th970 ................. 132 People v. Litteral (1978) 79 Cal.App.3d 790 .............000.. 277, 279 People v. Lloyd (1967) 253 Cal.App.2d 236 .................. 406, 407 People v. Lynch (2010) 50 Cal.4th 693 ..............0.00 ccc eee 131 People v. Mahoney (1927) 201 Cal. 618 ............00 000... cee 216 People v. Majors (1998) 18 Cal.4th 385 2.0.0... . ec eee eee eee 252 People v. Manriquez (2005) 37 Cal.4th 547 2.00.2... 00... cee, 497 Peoplev. Marquez (1992) 1 Cal.4th 553 2... eee eee eee, 268 People v. Martinez (1999) 20 Cal.4th 225 ..... 363-365, 374-376, 378, 380 People v. Martinez (2010) 47 Cal.4th 911 ...........0........0000. 181 People v. Martinez (Colo. Ct. App. 1981) 652 P.2d 174............. 269 People v. Mason (1991) 52 Cal.3d909 1.0.0... eee eee eee 279 People v. Matthai (1902) 135 Cal. 442 22.0... eee eee eee 298 People v. Mayfield (1997) 14 Cal.4th 668 .................... 100, 102 People v. McCoy (2001) 25 Cal.4th 1111 ...................0, 42, 61-64 People v. McDermott (2002) 28 Cal.4th 946 .................. 399, 406 People v. McKinnon (2011) 52 Cal.4th610 ........... 97, 132, 227, 322 People v. Medina (1995) 11 Cal.4th 694 .......... 185, 198, 207, 484, 485 -XXVil- People v. Memory (2010) 182 Cal.App.4th 835 .....-- +. seer ee eee 231 People v. Memro (1995) 11 Cal.4th 786 ....... 0-00 eee eee eee 145 People v. Mendoza (2000) 24 Cal.4th 130............-- 57, 141, 171, 209 People v. Mendoza Tello (1997) 15 Cal.4th 264 ... 227, 228, 302, 396, 434 People v. Miller (1990) 50 Cal.3d 954 2.0... . eee e ee eee eee 132, 389 People v. Mincey (1992) 2 Cal.4th 408 ... 0,-6.6. eee eee eee e eee ees 427 People v. Modesto (1967) 66 Cal.2d 695 «1.0... e eee ee ee eee eee 393 People v. Molina (2000) 82 Cal.App.4th 1329 ........+--+-55- 340, 341 People v. Monterroso (2004) 34 Cal.4th 743 ........0ee eee eee eee 217 People v. Moore (1954) 43 Cal.2d 517 1.66... cece eee eee eee ees 489 People v. Moore (2011) 51 Cal.4th 386 .......... 310, 311, 315, 318, 418 People v. Morgan (2007) 42 Cal.4th 593 ........ 363, 369, 370, 419, 488 People v. Morris (1988) 46 Cal.3d1......... 44, 56, 60-62, 65, 68, 69, 97 People v. Morris (1991) 53 Cal.3d 152 1.0... c cece eee renee 267 People v. Morton (1903) 139 Cal. 719 1.1... ec cece eee eee erences 400 People v. Muldrow (1988) 202 Cal.App.3d 636 ..........0++ see eee 498 People v. Murtishaw (1981) 29 Cal.3d 733 «0.0.0.0 e eee e eee eeee 390 People v. Musselwhite (1998) 17 Cal.4th 1216 ......... 126-128, 337, 466 People v. Najera (2008) 43 Cal.4th 1132 ..........- 0s eee ee. 400, 430 People v. Nelson (2011) 51 Cal.4th 198 ........- eee eee eee 100, 427 -XXViil- People v. Noguera (1992) 4 Cal.4th 599 1.0... eee eee ee cee eee 356 People v. Ochoa (1993) 6 Cal.4th 1199 1... . eee cece eee 76 People v. Ochoa (2001) 26 Cal.4th 398 ................00000. 125, 133 People v. Oliver (1987) 196 Cal.App.3d 423 ............ 0.0000 eee 326 People v. Ozene (1972) 27 Cal.App.3d 905 .............. 000.00 cee 76 People v. Partida (2005) 37 Cal.4th 428 ................. 208, 210, 241 People v. Pena (2004) 32 Cal.4th 389 1.0.0... .........2 00008, 460, 461 People v. Perry (1972) 7 Cal.3d 756 2.0.0.0... cece eee 399, 400, 406 People v. Perry (1979) 100 Cal.App.3d 251 .............0. 000.0008, 43 People v. Pescador (2004) 119 Cal.App.4th 252 ...... | .-. 314, 315, 317 People v. Peters (1982) 128 Cal.App.3d 75 2.0.0... 0.0.00. c eae 333 People v. Phillips (1959) 173 Cal.App.2d 349 ..............0..005. 379 People v. Pigage (2003) 112 Cal.App.4th 1359 ................... 199 People v. Pinholster (1992) 1 Cal.4th 865 ............ 0.000... eae 240 People v. Pitts (1990) 223 Cal.App.3d 606 ..................., 227, 434 People v. Prettyman (1996) 14 Cal.4th 248 .. 0.0... ........0..0000. 63 People v. Price (1991) 1 Cal.4th 324 ..............0.....00000. 143, 185 People v. Prieto (2003) 30 Cal.4th 226 ........... 58, 125, 336, 481, 483 People v. Prince (2007) 40 Cal.4th 1179...... 70, 169, 184, 320, 420, 432 440, 442, 449 People v. Ramirez (2006) 39 Cal.4th 398 .......... 0.0... cece eee 196 -XX1X- People v. Rayford (1994) 9 Cal.4th 1 .........4. 370, 372, 373, 379, 380 People v. Reynoso (2003) 31 Cal.4th 903 ...... 0. secret eee eee 133 People v. Rice (1976) 59 Cal.App.3d 998 «0.1... seer eee reece 490 People v. Riel (2000) 22 Cal.4th 1153 ....... 6... e ee eee eee 356, 401 People v. Rivers (1993) 20 Cal.App.4th 1040 .....-... sere e eee ees 350 People v. Robbins (1915) 171 Cal. 466 ....... 6. cece eee ence ees 407 People v. Roberts (1992) 2 Cal.4th 271 «2.6... essere eee eee 61, 72, 236 People v. Robinson (1964) 61 Cal.2d 373 ... 49,50, 59, 141, 411, 412, 415 People v. Robinson (2005) 37 Cal.4th 592 «1... eee eee eee eee eee 287 People v. Roder (1983) 33 Cal.3d 491 ...... 6... cere eee 344, 358, 361 People v. Rodriguez (1986) 42 Cal.3d 730 cence eee e ene eee eee 299 People v. Rogers (2006) 39 Cal.4th 826 ........... eee eee eee eees 132 People v. Romero (2008) 44 Cal.4th 386 ..........-- ee eee eee 301, 322 People v. Rowland (1992) 4 Cal.4th 238 ...... 6... eee e eee e eee ees 450 People v. Ruiz (1988) 44 Cal.3d 589 2.00... ee eee eee ee eee eens 145 People v. Russell (2010) 50 Cal.4th 1228 ....... 6... eee eee eee 418 People v. Saffold (2005) 127 Cal.App.4th 979 ...... 0. cece renee 252 People v. Salas (1975) 51 Cal.App.3d 151 1.1.6... cece eee eee eee 350 People v. Samuels (2005) 36 Cal.4th 96.1.0... eee eee eee e ee eee 133 People v. Sanchez (1864) 24 Cal. 17 2.2... eee e cece eee eens 98 -XXX- People v. Sanders (1995) 11 Cal.4th 475 2.0.0... 0c ee cee ee ee 391 People v. Sandoval (1992) 4 Cal.4th 155.00... eee ee eee. 444, 445 People v. Sapp (2003) 31 Cal.4th 240 ..................2 0.0 c eae 133 People v. Satchell (1971) 6 Cal.3d 28 0.0.0... ccc cece ce ene 93 People v. Scheid (1997) 16 Cal.4th 1... eee eee cee eee 201 People v. Schmeck (2005) 37 Cal.4th 240 ...... 2.0... ec eee eee eee 475 People v. Scott (2011) 52 Cal.4th 452 2.0... eee eee eee 131 People v. Sedeno (1974) 10 Cal.3d 703 2.0... 0... cece ee cece 480 People v. Sengpadychith (2001) 26 Cal.4th 316 .............0.000.. 496 People v. Serrano (1992) 11 Cal.App.4th 1672 .............0..0..... 377 People v. Sherren (1979) 89 Cal.App.3d 752 ...........000 ccc cee 197 People v. Silbertson (1985) 41 Cal.3d 296 ...............00.. 268, 271 People v. Silva (2001) 25 Cal.4th 345 2.0.0... cece ee cee eee 133 People v. Slaughter (2002) 27 Cal.4th 1187 ..............00.. 299, 302 People v. Smallwood (1986) 42 Cal.3d 415 ... 118, 126, 127, 133, 135, 151, | 158, 164, 165, 168, 173, 174 People v. Smith (2003) 30 Cal.4th 581 2.0.00... eee eee eee ee 237 People v. Smith (Ill. 1999) 708 N.E.2d 365.2... 0... eee ee eee 44,77 People v. Snead (1993) 20 Cal.App.4th 1088 ..................0.. 354 People v. Snow (2003) 30 Cal.4th 43 ............. beter eee e eee 65 -XXXI- People v. Solomon (2010) 49 Cal.4th 792 .... 100, 101, 106, 265, 277, 280 476, 478, 479, 483, 486, 495, 497 People v. Soojian (2010) 190 Cal.App.4th 491 .... 225, 248, 289, 307, 500 People v. Soper (2009) 45 Cal.4th 759 .........-005- 125, 135, 149, 162 People v. Stanley (1995) 10 Cal.4th 764 2.0.0... 0 secre eee eee ee 476 People v. Stansbury (1995) 9 Cal.4th 824 1.6... 6.0 cece eee ee eee 267 People v. Stanworth (1974) 11 Cal.3d 588 ........ 373-375, 378, 382, 383 People y Stender (1975) 47 Cal.App.3d 413 ......-..--4- 378, 379, 381 People v. Stevens (2007) 41 Cal.4th 182 ........ 6.0. e eee ee eens 69, 399 People v. Stewart (1983) 145 Cal.App.3d 967 ..........-.005. 316, 358 People v. Stone (1999) 75 Cal.App.4th 707 ........ 6c cere eens 204, 207 People v. Sturm (2006) 37 Cal.4th 1218 ......... 0c eee ee eee 299, 300 People v. Sully (1991) 53 Cal.3d 1195 0.2... cee eee ee ee eee 198, 207 People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968 ........... 204 People v. Superior Court (Engert) (1982) 31 Cal.3d 797 ..........-. 371 People v. Superior Court ofOrange County (1967) 67 Cal.2d 929 .... 277, 282 People v. Szeto (1981) 29 Cal.3d. 20 2.2... cece cece eens 400 People v. Tafoya (2007) 42 Cal.4th 147 2.0... eee cece cece 179, 181 People v. Taylor (1982) 31 Cal.3d 488 ©2222... eee eee eee eee 202 People v. Taylor (1990) 52 Cal.3d 719 1.0.0... e cece eee e neers 483 -XXXii- People v. Peoplev. People v. Peoplev. Peoplev. Peoplev. People v. Peoplev. People v. Peoplev. Peoplev. Peoplev. Peoplev. Peoplev. Peoplev. Peoplev. Peoplev. Peoplev. Peoplev. Peoplev. Taylor (2010) 48 Cal.4th $74... 0.00... cece eee eeeeeees 464 Terry (1970) 2 Cal.3d 362 2.0.0... ccc cece eee 196 Thomas(1944) 25 Cal.2d 880 ......... 0.2... eee eee 100 Thomas (2011) 52 Cal.4th 336 ...............0. 132, 146, 162 Thompson (1988) 45 Cal.3d 86 ...........-. cece eee ee 286 Thompson (2010) 49 Cal.4th 79 2... 0... eee eee ee eee 76 Tobias (2001) 25 Cal.4th 327 2.0... ee eee eee 305, 407 Traugott (2010) 184 Cal.App.4th 492 ............0.0.00.. 314 Trevino (1985) 39 Cal.3d 667 .............. 50, 52, 53, 58, 65 Triplett (1993) 16 Cal.App.4th 624 .................00.0. 498 Turner (1984) 37 Cal.3d 302 .... 2... eee eee eee 151 Turner (1990) 50 Cal.3d 668 ......... 0. eee eee eee 353 Turner (1994) 8 Cal.4th 137 20... 51 Underwood(1964) 61 Cal.2d 113 ................00000, 211 Valardi (1966) 240 Cal.App.2d 98 ..................00. 407 Valdez (2004) 32 Cal.4th 73 2.2... eee eee eee eee 114, 115 Vang (2011) 52 Cal.4th 1038.00... 0.0.0 cece cece ees 231 Vargas (1973) 9 Cal.3d 470 20... 0eecece 393 Vargas (1975) 53 Cal.App.3d 516 .........-.. 0c eee 189 Velasquez (1980) 26 Cal.3d 425 ............ eee een, 97, 100 -XXXili- People v. People v. People v. People v. People v. People v. People v. People v. Peoplev. People v. People v. Peoplev. Peoplev. People v. People v. People v. Peoplev. People v. People v. People v. Verdugo (2010) 50 Cal.4th 263 ......... 0. seen eee eee eee 132 Waidla (2000) 22 Cal.4th 690 ......... 44, 59, 65, 69, 282, 461 Warren (1940) 16 Cal.2d 103 1.2... eee eee eee eee 401 Watson (1956) 46 Cal.2d 818 ........ eee eee eee passim Weatherford (1945) 27 Cal.2d 401 ........ 0. ee eee eee eee 280 Webster (1991) 54 Cal.3d 411 .......-- cece eee eee ee ees 215 White (1992) 9 Cal.App.4th 1062 ..........0.--0065 109, 116 Whitt (1984) 36 Cal.3d 724 ....... 266, 267, 269, 272, 274, 276 Wickersham (1982) 32 Cal.3d 307 .... 0.2.02 eee eee eee eee 418 Williams (1860) 17 Cal. 142 0.0... cc eee ee eee eee eee298 Williams (1969) 71 Cal.2d 614 ...... 6. cece eee eee ee eee 355 Williams (1971) 22 Cal.App.3d 34 .....--.2 +e eee eee eee 499 Williams (1990) 220 Cal.App.3d 1165 ..........-----4-- 381 Williams (1997) 16 Cal.4th 153 ...... 0... eee eee eee eee 233 Williams (1998) 17 Cal.4th 148 ........-...6--. 149, 204, 207 Williams (2010) 49 Cal.4th 405 ............--+4- 240, 444, 478 Wilson (1992) 3 Cal.4th 926 1.0... . cece cee eee eee 359 Wilson (2008) 43 Cal.4th 1 ..... 0. cece eee eee ee eens 356, 357 Wilson (2008) 44 Cal.4th 758 0... 6. c eee eee e eee 322 Windham (1977) 19 Cal.3d 121 2.0... cc eee eee ee ee eee 109-111 -XXXiVv- People v. Wolff(1964) 61 Cal.2d 795 1.0... ccc cece cence 98 People v. Yeoman (2003) 31 Cal.4th 93 ..... 0... ee eee eee 208 People v. York (1969) 272 Cal.App.2d 464 ...........0.0......00.., 279 People v. Young (2005) 34 Cal.4th 1149 .................. 76, 199, 464 People v. Zamudio (2008) 43 Cal.4th 327 ...............0000. 440, 495 Price v. State (Tex. Crim. App. 1994) 887 §.W.2d 949 . 267, 269, 271, 272 Price v. Superior Court (2001) 25 Cal.4th 1046 ........0...00..0... 440 State v. Liuzza (La. 1984) 457 So.2d 664 ......bee e eee e ee ees 377 State v. Middlebrooks (Tenn. 1992) 840 S.W.2d 317 ..........0.... 471 State v. Monday (Wash. 2011) 257 P.3d 551.................. 437, 438 State v. Triplett (W.Va. 1992) 421 S.E.2d 511 ..............00..4. 271 State v. Williams (Ohio Ct. App. 1992) 80 Ohio App.3d 648 ..... 269, 270 Verdin v. Superior Court (2008) 43 Cal.4th 1096 ...........0.0..... 440 Williams v. Garcetti (1993) 5 Cal.4th 561 ..........0..... 0.00008, 370 Williams v. Superior Court (1984) 36 Cal.3d 441 .. 119, 124-126, 135, 137, 142, 143, 148-150, 154, 165, 232 Williams v. Superior Court (1989) 49 Cal.3d 736 .............0.005. 50 Federal Cases Anderson v. Nelson (1968) 390 U.S. 523.0... 0... ee eee 392, 393 Apprendi v. New Jersey (2000) 530 U.S. 466 ............. 458, 479, 480 Arizona v. Fulminante (1991) 499 US. 279 2.0... eee eee 317, 505 “XXXV- Atkins v. Virginia (2002) 536 U.S. 304 1.0.6... eee eee ees 468, 471-473 Bains v. Cambra (9th Cir. 2000) 204 F.3d 964 .......-- eee eee eee 439 Ballew v. Georgia (1978) 435 U.S. 223 .. 277, 314, 325, 326, 328, 331, 483 Barclay v. Florida (1983) 463 U.S. 939 1.6... sees e er eee eee ees 436 Baze v. Rees (2008) 553 U.S.35 6... ee eee eee eee eens 457, 461 Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073 .. 125, 126, 149, 150, 161, 162, 168, 171, 173, 174 Beck v. Alabama (1980) 447 U.S. 625 ..... 44, 79, 148, 170, 215, 233, 244 259, 301, 334, 335 Blakely v. Washington (2004) 542 U.S. 296 «1.0... 6. sere eens 479, 480 Blystone v. Pennsylvania (1990) 494 U.S. 299 «0.0.6.0 seer eee 487, 489 Bouie v. City ofColumbia (1964) 378 U.S. 347 6... eee eee eee eee 365 Boyde v. California (1990) 494 U.S. 370 2... eee eee eee eee 490 Bradley v. Henry (9th Cir. 2007) 510 F.3d 1093 0... 0... eee eee eee 216 Brecht v. Abrahamson (1993) 507 U.S. 619 «0.6... eee eee eee 169 Brewer v. Quarterman (2007) 550 U.S. 286 ........--++5- 449, 450, 490 Brown v. Louisiana (1980) 447 U.S. 323 6... eee eee eee 328, 331 Brown v. Sanders (2006) 546 U.S. 212 0... cee eee eens 419 Bruton v. United States (1968) 391 U.S. 123 ........ 20 eee eee 119, 283 Burch v. Louisiana (1979) 441 U.S. 130 2.0... eee eee ee ee 314, 329 Cage v. Louisiana (1990) 498 U.S. 39cee 344, 346, 349, 361 -XXXVI- ~ Calder v. Bull (1798) 3 Dall. 386 1.0.0... eee cece aes 365 Caldwell v. Mississippi (1985) 472 U.S. 320.......... 183, 336, 339, 504 California v. Brown (1987) 479 U.S. 538 2.0... cee nee 337 Carella v. California (1989) 491 U.S. 263 0.0.0... ccc eee eee 360 Carter v. Kentucky (1981) 450 U.S. 288 0.0.0... 0c cece ec eee 480 Chambers v. Mississippi (1973) 410 U.S. 284............ 0.000000, 499 Chapmanv. California (1967) 386 U.S. 18 ....... 00.0.0... passim Clark vy. United States (1933) 289 US.1 ............000. 325, 329, 331 Coates v. City ofCincinnati (1971) 402 U.S. 611 ..........00.. 370, 383 Coker v. Georgia (1977) 433 U.S. 584 20... ccc cece ence 473 Connally v. General Construction Co. (1926) 269 U.S. 385 .. 371, 376, 381 Cookv. Schriro (9th Cir. 2008) 538 F.3d 1000 ................000.. 392 Cool v. United States (1972) 409 U.S. 100 ..... 0... 2... eee eee 313 Cooper v. McGrath (N.D. Cal. 2004) 314 F.Supp.2d 967 ....... 44, 58, 81 Cooper v. Sowders (6th Cir. 1988) 837 F.2d 284 .............0.,‘.. 499 County Court of Ulster v. Allen (1979) 442 U.S. 140 ........... 208, 209 Crawford v. Washington (2004) 541 U.S.36 ..............008. 251-254 Crittenden v. Ayers (9th Cir. 2010) 624 F.3d 943 ............., 445, 446 Cunningham v. California (2007) 549 U.S. 270 ..............0000, 479 Dawson v. Delaware (1992) 503 U.S. 159 2.0... eee eee eee 436, 439 -XXXVil- Delli Paoli v. United States (1957) 352 U.S. 232 «1... cece eee eee 283 Delo v. Lashley (1983) 507 U.S. 272... 6. eee cece eee eens 492 Donnelly v. DeChristoforo (1974) 416 U.S. 637 ....- +02 eee eee 499 Duncan v. Henry (1995) 513 U.S. 364 26... eee ee ee eee 210, 241, 243 Duncan v. Louisiana (1968) 391 US. 145... eee ee eee 323, 325, 336 Dutton v. Evans (1970) 400 USS. 74 2... cece eee eee 275, 281 Eddings v. Oklahoma (1982) 455 U.S. 104... 6... eee cence eee ees 449 Enmundv. Florida (1982) 458 U.S. 782 .....-65 5-055 468-470, 472, 473 Estelle v. McGuire (1991) 502 U.S. 62 ...... 210, 241, 243, 301, 344, 357 Estelle v. Williams (1976) 425 U.S. 501.0... eee eee eee 202, 492 Estes v. Texas (1965) 381 U.S. 532 6.0... cece eee eee eens 498 Faretta v. California (1975) 422 U.S. 806 ......-- eee cree eee e eee 109 Fields v. Brown (9th Cir. 2007) 503 F.3d 755 20... eee e eee eee eee 445 Francis v. Franklin (1985) 471 U.S. 307 0... 0. eee eee eee eee 354, 358 Franklin v. Lynaugh (1988) 487 U.S. 164 2.0... eee eee eee ees 455 Furmanv. Georgia (1972) 408 U.S. 238 2... 6. eee eee eee 476 Gardner v. Florida (1977) 430 U.S. 349 1.0... cece eee eee 170, 335 Giles v. California (2008) 128 S.Ct. 2678 «0.0... 6. eee eee eee 252, 255 Gilmore v. Taylor (1993) 508 U.S. 333 «0... eee eee eee eee eee 44 Godfrey v. Georgia (1980) 446 U.S. 420... 6... eee ee eee eee eee 99, 372 -XXXViit- Graham v. Collins (1993) 506 U.S. 461 «0.0.0.0... 00. cee ce eee 470 Grayned v. City ofRockford (1972) 408 U.S. 104........... 98, 106, 381 Gregg v. Georgia (1976) 428 US. 153 20... eee eee 467, 468, 493 Griffin v. California (1965) 380 U.S. 609 ......... 388-390, 392, 396, 502 Griffith v. Kentucky (1987) 479 US. 314 oo... cee cee 252 Grisby v. Blodgett (9th Cir. 1997) 130 F.3d 365 ................0.. 178 Harmelin v. Michigan (1991) 501 U.S.957 0... ........00025. 484, 485 Herring v. Meachum (2d Cir. 1993) 11 F.3d374 ...............04. 161 Hicks v. Oklahoma (1980) 447 U.S. 343 ..... 215, 244, 314, 333, 412, 431 482, 489 Hitchcock v. Dugger (1987) 481 U.S. 393 20... ec cece eae 504 Holbrook v. Flynn (1986) 475 U.S. 560 2... ccc eee 213 Hopkins v. Reeves (1998) 524 US. 88.0... 0... cece eee 469, 470 House v. Bell (2006) 547 U.S. 518 0.cece eens 66 Illinois v. Allen (1970) 397 U.S. 337 0...ccc e eee es 220 In re Winship (1970) 397 U.S. 358 ........ 43, 75, 96, 243, 301, 313 332, 344-346, 349, 351, 352, 355, 398, 401 Indiana v. Edwards (2008) 554 U.S. 164 0.0... cc cc cee ees 109 Jackson v. Virginia (1979) 443 U.S. 307 ... 43, 68, 75, 77, 94, 96, 344, 346, 398, 401, 412-415 Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918 .. 210, 211, 241, 243 Jeffries v. Blodgett (9th Cir. 1993) 5 F.3d 1180 .........-.....004. 392 -XXXiX- Johnsonv. Mississippi (1988) 486 U.S. 578 «1.60.66 eee ee eee 439 Juan H. v. Allen (9th Cir. 2005) 408 F.3d 1262....... 51, 60, 63-65, 67, 69 Kansas v. Marsh (2006) 548 U.S. 163 .....-. 6 seen eens 453, 457, 46 2 Keeble v. United States (1973) 412 U.S. 205 0... e eee eee eee eee eee 312 Kelly v. Stone (9th Cir. 1975) S14 F.2d 18 ©... . ee eee eee eee eee 437 Kennedy v. Lockyer (9th Cir. 2004) 379 F.3d 1041 ......... 136, 172, 232 Kennedy v. Louisiana (2008) 554 U.S. 407 «0... eee eee eee eee 468 Kindler v. Horn (D. Pa. 2003) 291 F.Supp.2d 323 ....... 2+... esas 182 Kolender v. Lawson (1983) 461 U.S. 352 «60... ee eee eee eens 371 Kyles v. Whitley (1994) 514 U.S. 419 2... cece eee eee eee ees 44,54 Laboa v. Calderon (9th Cir. 2000) 224 F.3d 972 ......5- eee eeeees 412 Lear v. Cowan (7th Cir. 2000) 220 F.3d 825 2.0.0... eee ee eee eee 470 Lincoln v. Sunn (9th Cir. 1987) 807 F.2d 805 ......--- 0 ee eee 390, 499 Lisenba v. California (1941) 314 US. 219 ........--50 ee. 210, 241, 243 Lockett v. Ohio (1978) 438 U.S. 586 .......- 183, 244, 339, 449, 490, 494 Lucero v. Kerby (10th Cir. 1998) 133 F.3d 1299 .........-+-4-: 163, 172 Machv. Stewart (9th Cir. 1998) 137 F.3d 630 «2.2... cece ee eee 237 Manson vy. Brathwaite (1977) 432 U.S.98 2.2... scenes 54 Marylandv. Craig (1990) 497 U.S. 836... 6.66. ee eee eee ee ees 275 Maynard v. Cartwright (1988) 486 U.S. 356.......+--. 99, 371, 478, 486 -xl- McCleskey v. Kemp (1987) 481 U.S. 279 0.0.0... ccc eee 435, 439 McFarland v. Smith (2d Cir. 1979) 611 F.2d 414 ..........000.. 437, 438 McKaskle v. Wiggins (1984) 465 U.S. 168 ........... 0.0.00... 0 ee, 116 McKoyv. North Carolina (1990) 494 US. 433oeeee 484, 491 Melendez-Diaz v. Massachusetts (2009) 129 S.Ct. 2527............. 253 Middleton v. McNeil (2004) 541 US. 433 0... 0. cee eee eee 364 Mills v. Maryland (1988) 486 U.S. 367 ©... 0. eee eee 490, 491, 494 Monge v. California (1998) 524 U.S. 721 0... 2... cece 484, 485 Moorev. City ofEast Cleveland (1977) 431 U.S. 494 .............. 332 Mullaney v. Wilbur (1975) 421 U.S. 684 0.0... eee eee ee eee 313 Myers v. Y1st (9th Cir. 1990) 897 F.2d 417 ...............000, 484, 486 Nederv. United States (1999) 527 U.S.1 wo... cc cee eee eee 364, 366 Neil v. Biggers (1972) 409 US. 188 2.0... cee cc eee eens 54 Newmanv. Metrish (6th Cir. 2008) 543 F.3d 793 ...............0002 64 Offutt v. United States (1954) 348 U.S. 11.0... eee eee eee eee 220 Ohio v. Roberts (1980) 448 U.S. 56.0... 0... eceee eens 252 Park v. California (9th Cir. 2000) 202 F.3d 1146 ..............00.. 173 Parle y. Runnels (9th Cir. 2007) 505 F.3d 922 .................... 498 Perry v. New Hampshire (2012) 132 S.Ct. 716 0.0... eee eee eee 52 Piatkowski v. Bett (7th Cir. 2001) 256 F.3d 687 ................. 64, 67 -xli- Pointer v. Texas (1965) 380 U.S. 400 «0.0... cee cece eee ees 255 Polk v. Sandoval(9th Cir. 2007) 503 F.3d 903 ......65 +e cree eee 98 Poncev. Felker (9th Cir. 2010) 606 F.3d 596 .......--- ee eee eee eee 252 Pounders v. Watson (1997) 521 U.S. 982 ©... cece ee ees 190 Powers v. Ohio (1991) 499 U.S. 400 2.6... eee ee ee eee 438, 441 Quercia v. United States (1933) 289 U.S. 466 ........ 211, 288, 298, 299 Reeves v. Hopkins (8th Cir. 1996) 102 F.3d 977 «1.2... 0.0 cece eens 470 Ring v. Arizona (2002) 536 U.S. 584 2.1... eee ee eee 479, 480, 483, 485 Roper v. Simmons (2005) 543 U.S. 551 0... cece eee eee eee 468, 497 Rose v. Clark (1986) 478 U.S.570 26... cee cee eee eee eens 318 Sandstrom v. Montana (1979) 442 U.S. 510 2.0... eee ee eee 244, 346 Skipper v. South Carolina (1986) 476 U.S.1 1.2... eee ee eee eee ees 504 Smith v. Texas (1940) 311 U.S. 128.0... 6 cece ee eee 444 Smith v. Texas (2007) 550 U.S. 297 0.occee eee ee 313 Snowdenv. Singletary (11th Cir. 1998) 135 F.3d 732 ........ 210, 237, 238 Spencerv. Texas (1967) 385 U.S. 554.1... eee eee ees 210, 241, 243 Standen v. Whitley (9th Cir. 1993) 994 F.2d 1417...........-- 0006. 211 Sullivan v. Louisiana (1993) 508 U.S. 275 2.0... eee ee eee passim Tanner vy. United States (1987) 483 U.S. 107 2.0... 0... eee ee ee eee 324 Taylor v. Illinois (1988) 484 U.S. 400 «1... cece eee eens 281 -xlii- Taylor v. Louisiana (1975) 419 U.S. 522 1.0...eee eee 444 Taylor v. United States (1973) 414 U.S.17 0... cece eee eee 200 Tehan v. United States ex rel. Shott (1966) 382 U.S. 406 ............ 328 Tison v. Arizona (1987) 481 U.S. 137 ...............000. 469, 470, 472 Trop v. Dulles (1958) 356 USS. 86 0...cccece en eas 497 Tuilaepa v. California (1994) 512 U.S. 967 .............000.. 372, 478 Turnerv. Louisiana (1965) 379 U.S. 466 «2.0... ee eee eee 323 Turner v. Marshall (9th Cir. 1995) 63 F.3d 807 ...............000. 281 Turner v. McKaskle (5th Cir. 1983) 721 F.2d 999................ 57, 58 Turner v. Murray (1986) 476 U.S. 28 0.0... ec ccc eee eee 441 United States v. Abel (1984) 469 U.S.45 .. 0...ce eee 237 United States v. Andrews (9th Cir. 1996) 75 F.3d 552 ..............., 67 United States v. Antar (3d Cir. 1994) 38 F.3d 1348 ........0.0..... 324 United States v. Call (10th Cir. 1997) 129 F.3d 1402 ...........00.. 237 United States v. Doe (D.C. Cir. 1990) 903 F.2d 16 .............00.. 436 United States v. Farias (9th Cir. 2010) 618 F.3d 1049 ........0....., 109 United States v. Flannery (1st Cir. 1971) 451 F.2d 880 ............. 390 United States v. Foutz (4th Cir. 1976) 540 F.2d 733 eect ee cece as 160 United States v. Gonzalez-Lopez (2006) 548 U.S. 140 .......... 282, 340 United States v. Hall (Sth Cir. 1976) 525 F.2d 1254 ..........00.... 357 -xliti- United States v. Hernandez (9th Cir. 2000) 203 F.3d 614............ 109 United States v. Jackson (9th Cir. 1984) 726 F.2d 1466 ......... 312, 313 United States v. Johnson (9th Cir. 1987) 820 F.2d 1065 ............. 163 United States v. Lane (1986) 474 U.S. 438 ....--. 6c e eee 126, 171, 178 United States v. Lesina (9th Cir. 1987) 833 F.2d 156 ........Co ooeeee, 99 United States v. Lewis (9th Cir. 1986) 787 F.2d 1318 ....... 118, 127, 171 United States v. Lorick (4th Cir. 1985) 753 F.2d 1295 ............-. 114 United States v. Maclean (3d Cir. 1978) 578 F.2d 64 .........-- 267, 270 United States v. Rockwell (3d Cir. 1986) 781 F.2d 985 .............. 301 United States v. Scheffer (1998) 523 U.S. 303 «6... eee eee eee eee 275 United States v. Shwayder(9th Cir. 2002) 312 F.3d 1109 ........... 297 United States v. Stephens (9th Cir. 1973) 486 F.2d 915 ............. 301 United States v. Symington (9th Cir. 1999) 195 F.3d 1080 ........... 324 United States v. Wade (1967) 388 U.S. 218 «66... eee eee eee ee eee 52 United States v. Watson (8th Cir. 1991) 952 F.2d 982 .........----.. 77 United States v. Webster (5th Cir. 1998) 162 F.3d 308 .........-.... 436 Uphaus v. Wyman (1959) 360 U.S. 72.0... eee eee eee eee eee 181 Vasquez v. Hillery (1986) 474 U.S. 254 1... eee eee eee eens 475 Vazquez v. Hillery (1986) 474 U.S. 254 1.6.6 e cee eens 282 Victor v. Nebraska (1994) 511 U.S. 1 oecece eens 345 -xliv- Waller v. Georgia (1984) 467 U.S. 39 2... cece ee eae 282 Wardius v. Oregon (1973) 412 U.S. 470 2.0... eee ee eee 301, 490 White v. Illinois (1992) 502 U.S. 346 2.0... cece eee ee 254 Whorton v. Bockting (2007) 549 U.S. 406.0... 0... ccc eee ens 252 Wilcox v. Ford (11th Cir. 1987) 813 F.2d 1140...............0..0.. 77 Williams v. Bartlett (2d Cir. 1994) 44F.3d95 ...........00...005., 111 Williams v. Florida (1970) 399 U.S. 78 0.00... cece eee 323, 324, 336 Williamson v. United States (1994) 512 U.S. 594 ........0..... 297, 305 Witherspoonv. Illinois (1968) 391 U.S. 510 .......... 336, 444, 447, 448 Withrow v. Larkin (1975) 421 U.S.35 00.00.cee eee es 216 Woodsonv. North Carolina (1976) 428 U.S. 280 .......... 483, 487, 490 Yates v. Evatt (1991) 500 U.S. 391 Locece eee nae 301 Zafiro v. United States (1993) 506 U.S. 534 ...........000000, 178, 179 Zant v. Stephens (1983) 462 U.S. 862 .............4. 435, 439, 476, 487 State Constitution Article I, section 7.2... eeecece eee eee eens passim Article I, section 15.1...ecce eee eee eens passim Article I, section 16 0... eee cece eee teens passim Article I, section 17 0.0... eeecece eee eee eens passim Article VI, section 10.0... .. cece eeeeee teen nes 299 -xiv- Federal Constitution Fifth Amendment ........... 0: cece eee eee eee eee eens passim Sixth Amendment ......... 20. e ce ee eee eens passim Eighth Amendment ......... 0.6 e eee e cree ee passim Fourteenth Amendment ........... 000 cece cence eee e eens passim State Statutes Code of Civil Procedure section 647 2.1.0.0... 6. c ce eee eee eee eee 302 Evidence Code section 210 2.00... . 2 cee eee eee eee ene eee 196 Evidence Code section 350 1... .... ccc cece eee eee eens 196, 200 Evidence Codesection 352 ....... 193, 201, 203, 204, 231, 233, 244, 251 Evidence Code section 402 2... 0... cc cece eee eee eee eens 188 Evidence Code section 520 1.0.0... . eee eee eee eee eens 481 Evidence Code section 775 1.2... 0... cece eee eee eens 215, 217 Evidence Code section 1101 ...... 0... cece cee ee eee 203, 244, 408 Evidence Codesection 1250 2.0... .. cece ce ee ene 251, 252 Penal Code section 187 «2.2... . 0 cece cece teeter eens 98 Penal Code section 187(a) ...... 00. c ccc ett etene eee 6-9 Penal Code section 188 2.0... .. 0.0 cece eee ete eens 98 Penal Code section 189 ....... 2... eee eee eee 98, 100, 465 Penal Code section 190.1 0.0... ... cc eee eee eet eee eens 147 Penal Code section 190.2 ........- cece eee cence teen nee eens 476 -xivi- Penal Codesection 190.2(a)(16) ....... 0.0... ce cece ee eens 436 Penal Code section 190.2(a)(17) 2.0... 0... ee ee eee cece ee 6-9 Penal Codesection 190.2(a)(2) ..... 0.0... eee cece 147 Penal Code section 190.2(d) ...... 0... ccc ccc eect e nee 467 Penal Code section 190.3 .......... 0... cece eee eee 477, 489, 494 Penal Code section 207 .................. 373, 374, 376, 379, 380, 383 Penal Code section 207(a) ......... 0.00.0... ce eee 7, 8, 362, 369, 372 Penal Code section 209 ........ 0... ccc cee eee eee aee 379, 380 Penal Code section 211 2.1.0... 0.0.0... ccc cee eee eee cece eeee 6-9 Penal Code section 790(b) ............. 00. cee ee eee eee 146, 148 Penal Code section 954 ...... 0... cee cc ee ete e ee 124, 149 Penal Code section 1097 1.0... . cee ccc cece cece aes 310 Penal Code section 1098 ....... 0... 0... eee eee eee eeeeee 178 Penal Code section 1111 ..................... 385, 399, 401, 412, 430 Penal Codesection 1118.1 .. 69, 70, 398, 399, 401, 402, 408, 409, 412-415, 418 Penal Code section 1137 ......... 0.0... cee ee eee eee 266, 277 Penal Code section 1138 1.0.0.0... . eee eee eee 266, 278, 280 Penal Code section 1158 ........ 0... ccc ee ee eee eee 485 Penal Code section 1158a ........ 0.0... cece cee eee eee 484, 485 Penal Code section 1203.06(a)(1) ... 0... 0... cc cece ee ee eae 7,9 -xlvii- Penal Code section 1259 ........ 000 e eee 268, 301, 364, 417, 47 5 Penal Code section 12022.5(a)(1) ... 0.60. cece eee eee tenes 7,9 Federal Statute 18 U.S.C. § 3591(a2) o.ooeee eee tenet nes 471 State Rules of Court Cal. Rules of Court, Rule 4.420(b) «2.6.0.6... eee eee eee eens 496-497 Cal. Rules of Court, Rule 4.420(e) ...... 0... eee eee eens 496-497 Other Authorities Bradley, A (Genuinely) Modest Proposal Concerning the Death Penalty (1996) 72 Ind. L.J. 25.0... cece eee eee een ene eee 458 Brooks, Thou Shalt Not Quote the Bible: Determining the Propriety of Attorney Use ofReligious Philosophy and Themes in Oral Argument (1998) 33 Ga. L.Rev. 1113... ccc ccc cee teen eee e eens 448 California Commission on the Fair Administration of Justice, Report and Recommendations on the Administration of the Death Penalty in California, June 30, 2008 0...eeene tenn eens 454 Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong (Harvard Univ. Press, 2011) ....--- eee eee eee eee eens 453 Gross, Convicting the Innocent (2008) 4 Ann. Rev.L. Soc. Sci. 173... 453 Koosed, Averting Mistaken Executions (2000) 21 N. Ill. U. L.Rev. 41 . 458 Liebmanetal. (2002).A Broken System, Part II: Why There is So Much Error in Capital Cases, and What Can Be Done About It ......... ».. 458 Lillquist, Recasting Reasonable Doubt: Decision Theory and the Virtues of Variability (2002) 36 U.C. Davis L.Rev. 85 1.6.66... eee eee eee eee 456 Model Penal Code, section 210.6 2.0... . ccc cece eee eee eens 458 Mounts, Premeditation and Deliberation in California: Returning to a Distinction Without a Difference, U.S.F. L. Rev. (Winter, 2002) ...... 106 -xlvili- Newman, Beyond “Reasonable Doubt” (1993) 68 N.Y.U. L.Rev. 979 eneeen ee eee eee eee e teen eee eet e bene e eens 456 Note, Joint and Single Trials Under Rules 8 and 14 ofthe Federal Rules of Criminal Procedure (1965) 74 Yale L.J. 553 2... .........00.. 163, 165 Note, Public Disclosures ofJury Deliberations (1983) 96 Harv. L.Rev. 886 ene ene enn ene e ene ene eee ten en tenet ene enees 324 Note, The Presumption ofLife: A Starting Pointfor Due Process Analysis of Capital Sentencing (1984) 94 Yale L.J.351 .............. 00.0000. 492 Risinger, Innocents Convicted: An Empirically Justified Factual Wrongful Conviction Rate (2007) 97 J. Crim. L. & Crimonology 761 .......... 453 Sand & Rose, ProofBeyond All Possible Doubt: Is there a Needfor a Higher Burden ofProof When the Sentence May Be Death? (2003) 78 Chi.- Kent L.Rev. 1359 0... eeeccc cece ene eens 455, 457-460 Shatz, The Eighth Amendment, the Death Penalty, and Ordinary Robbery- Burglary Murderers: A California Case Study (2007) 59 Fla. L.Rev. 719 7 Witkin, Cal. Procedure (3d ed. 1985) Trial, §319 ................ 358 -xlix- Introduction Ruben Gomez wassentenced to death for the unrelated homicides of Rajandra Patel and Raul Lunaafter a trial in which scant evidenceofhis guilt of either of those crimes was produced. His death sentences, and the convictions on which they were based, can be explained only by the swirling cloud of impermissible factors that were allowedto enter the picture before the jurors deliberating on these charges, eclipsing the evidentiary gaps in the Patel and Lunacasesand then,at the penalty phase, obscuring lingering doubts. Erroneousinstructions given by thetrial court, which in several instances charted its own course in delivering instructions — in oneinstance declaringits intent to be a “pioneer” — further biased the jurors’ consideration ofwitness credibility and of whether Gomez’sguilt had been proven beyonda reasonable doubt. ke Rajandra Patel’s body was found on a freeway on-ramp in May, 1997. His car was found twodayslater, its interior burned. No physical evidence linked Ruben Gomezto the crime; the prosecution’s case that he committed it consisted solely oftestimony by Witness #3, a drug dealer’s wife, who had pawned jewelry belonging to Patel in Las Vegas, and by Witness #1, a drug addict wholived in the apartment where Gomez had been sleeping, and who either had schizophrenia or had feignedits symptomsforyears in order to collect government benefits. Raul Luna was found shot outside his home in June, 1997; a live 12- gauge shotguncartridge lay near his body. Shortly before the shooting, Luna’s brother had heard rustling and whispering near the bushesoutside their home, suggesting the involvementoftwo people. No evidenceatall identified Gomezas the shooter in this case — nor was there any evidence at all regarding the mensrea or motive ofthe other individualpresentat the time of the crime. Jurors considering whether Gomez’s guilt of the Patel and Luna murders had been proven beyond a reasonable doubt wentto the jury room to deliberate after a trial that spanned more than two monthsandput before them not only evidence on the Patel and Lunaincidents, but evidence relating to other charges — which should havebeentried separately — and even evidencethat, while highly prejudicial, bore no relation to any of the charges. The jurors heard evidence that Gomez shot another man,Jesus Escareno, in the head. They heard evidence that Gomez participatedin a homeinvasion robbery. They heard evidence that Gomez washoused in a disciplinary unit in the Los Angeles County Jail and that he had delayed the trial by refusing to cometo court onthefirst day oftestimony aboutthe homicides, repeatedly stating “fuck court” — and they wereinstructed that they could consider this evidence as tending to show his consciousness of guilt. They heard evidence of Gomez’s guilt in the shotgun deaths ofRobert Dunton and Robert Acosta, which was comparatively stronger than that presented regarding the Patel and Lunakillings. And they heard evidence that caused at least one juror to fear for her ownsafety: extensive expert testimony about the history and workings of the Mexican Mafia prison gang, which Gomez’s co-defendant Arthur Grajeda wasassociated with, and at whose behest Gomez hadallegedly acted in killing Dunton and Acosta. The jurors heard testimony that the Mexican Mafia, or “Eme,” extendsits power outside prison walls by fostering terror; that it demands that members andassociates do all within their power to obstruct law enforcement efforts against its members;thatit kills witnesses; that the Los Angeles County Jail, where Gomez was housed,is the centerofits activities; that within the prisons, the gang enlists “soldiers” to engage in criminal activity on behalf ofits full-fledged members; and that it demands loyalty aboveall ties to church and family, requiring brothers to kill brothers. More,in several instances,the trial court deviated from standardjury instructions, hampering and distorting the jurors’ ability to determine witness credibility. It virtually commandedjurorsto take notes,at the expense oftheir observation ofthe witnesses’ demeanor,telling jurorsit would be “very discouraged whenI sit back andsee jurorsjustsitting there with their notes in their laps and they’re looking at the witnesses.” (8RT 1300.) It primed jurors to view the prosecution witnesses, many ofwhom were subject to prosecution for various crimes(including,in onecase,a murder with which Gomez was charged)as less culpable parties, who had been given leniency by the prosecution in exchange for their testimony, in order to prosecute the more culpable actualkiller. Andit instructed jurors, contrary to law,that if they found that Gomez refused to cometo court, they could consider that as a circumstance tending to prove his consciousness of guilt. All these impermissible factors and erroneousinstructions not only prejudiced Gomez with respectto the jury’s consideration of the Patel and Luna homicides, as to which the evidence was,at best, shaky, but also as to its consideration of the Dunton and Acosta double homicide, with respect to which the evidence that the murders were deliberate and premeditated was wanting. At the penalty phase, the prosecution presented evidence of a 1991 robbery conviction and a series of incidents ofviolence in prison and in the Los Angeles County Jail, and defense counsel urged the jury to sentence Gomez to life without parole, so that he could be incapacitated within the walls of the Pelican Bay Special Housing Unit. The jurors — knowingthat the prosecution had selected Gomez alone, and not co-defendant Grajeda, to face the death penalty — sentenced Gomezto death for the Patel and Luna murders,andto life without parole for the Dunton and Acosta murders. Neither these sentences, nor Gomez’s convictions, can stand. STATEMENT OF APPEALABILITY This is an automatic appeal. (See Pen. Code § 1239(b).) STATEMENTOF THE CASE On June 23, 1998, in Los Angeles County, Ruben Perez Gomez was held to answer,after a preliminary hearing, on a 13-count felony complaint. (2CT 401.) Gomez wouldeventually be convicted on six of those counts and sentenced to death on two ofthem. The 13 counts in the June, 1998 complaint alleged crimes occurring during six unrelated incidents:(1) the February 1, robbery and murder of Socorro Jose Valle (count 1, murder of Valle, Pen. Code § 187(a), with the allegation that the murder was committed during the commission of robbery, Pen. Code § 190.2(a)(17); count 2, second degree robbery ofValle, Pen. Code § 211); (2) two robberies occurring on February 25, 1997 (count 3, second degree robbery of Salcedo, Pen. Code § 211; count 4, second degree robbery of Smith, Pen. Code § 211); (3) the May 26, 1997 robbery, kidnaping, and killing of Rajandra Patel (count 5, murderofPatel, Pen. Code § 187(a), with the allegation that the murder was committed during a robbery and kidnaping, Pen. Code § 190.2(a)(17); count 6, second degree robbery of Patel, Pen. Code § 211; count7, kidnaping ofPatel, Pen. Code § 207(a)); (4) the June 9, 1997 robbery and killing of Jesus Escareno (count8, murder of Escareno, Pen. Code § 187(a), with the allegation that the murder was committed during the commission ofrobbery, Pen. Code § 190.2(a)(17); count 9, second degree robbery of Escareno, Pen. Code § 211); (5) the June 10, 1997 homicide of Raul Luna (count 10, murder of Luna, Pen. Code § 187(a); count 11, second degree robbery of Luna, Pen. Code § 211); and (6) the July 1, 1997 double homicide of Robert Acosta and Robert Dunton (count 12, murder ofDunton, Pen. Code § 187(a); count 13, murder of Acosta, Pen. Code § 187(a)). (ACT 21-35.) Personal use of a firearm allegations pursuant to Penal Code section 1203.06(a)(1) and 12022.5(a)(1) were charged with respect to counts 3 through 13. (1CT 24, 29.) The complaint jointly charged Gomez’s co-defendant, Arthur Grajeda, with the July 1, 1997 double homicide. (1CT 21-35; 2CT 401.) The prosecution sought the death penalty against Gomez, but not against Grajeda. (1RT 7-8.) Before trial, the prosecution dropped the two countsrelating to the robbery and murder of Valle (IRT 21), and by information filed July 7, 1998, it charged the remaining counts (2RT 406-412). Duringtrial, it moved to dismiss one of the February 25, 1997 robbery charges (count 2), and the court dismissedit. (11RT 1752-1753.) Count 1 charged the February 25, 1997 second degree robbery (Pen. Code § 211) of Xavier Salcedo. (2CT 407, 408-409.) Count 3 charged the murder of Rajandra Patel (Pen. Code § 187(a); in connection with that count the prosecution charged the special circumstances of murder while engaged in robbery and murder while engaged in kidnaping (Pen. Code § 190.2(a)(17)). Counts 4 and 5 charged the second degree robbery (Pen. Code § 211) and kidnaping (Pen. Code § 207(a)) of Patel, respectively. (2CT 407-409.) Count 6 charged the murder of Jesus Escareno (Pen. Code § 187(a); in connection with that count the prosecution charged the special circumstance ofmurder while engaged in robbery (Pen. Code § 190.2(a)(17)). (2CT 409.) Count 7 charged the second degree robbery (Pen. Code § 211) of Escareno. (2CT 409, 411.) Count 8 charged the murder (Pen. Code § 187(a)) ofRau! Luna. (2CT 410.) Initially, no special circumstance wasalleged in connection with this count, although during deliberations, at the court’s suggestion, the information was amendedbyinterlineation to charge the special circumstance of murder during the commission of a robbery (Pen. Code § 190.2(a)(17)). (2CT 410; see 29RT 4314-4315.) Count 9 chargedthe second degree robbery (Pen. Code § 211) of Raul Luna. (2CT 410.) The murders (Pen. Code § 187(a)) ofRobert Acosta and Robert Dunton were charged as counts 10 and 11.QCT 410-411.) Both Gomez and Grajeda were charged with a multiple-murder special circumstance (Pen. Code § 190.2(a)(3)). (2CT 411.) In connection with each count, the prosecution charged, under Penal Code sections 1203.06(a)(1) and 12022.5(a)(1), that Gomez had personally used a firearm. (2CT 408-409, 411.) Grajeda was charged with personal use of a firearm as well, in connection with counts 10 and 11. (2CT 411.) After a trial of over two months, and eight days of deliberation, the jury found Gomez guilty of the robbery of Xavier Salcedo, and found the associated firearm allegation true. (3CT 836; 29RT 4343-4344.) The jury convicted Gomez ofthe robbery, kidnaping,andfirst degree murder of Rajandra Patel and found the associated firearm allegations and special circumstancestrue. (29RT 4344-4347; 3CT 837- 839.) The jurors deadlocked on counts 6 and 7, relating to the murder of Jesus Escareno;aftertrial, the court dismissed these counts. (29RT 4338- 4440; 32RT 4661.) The jury convicted Gomezofthe first degree murder of Raul Luna, but foundthe associated firearm allegation and robbery special circumstancenottrue and acquitted him ofthe robbery of Raul Luna. 3CT 840-841; 29RT 4339, 4348-4349.) The jury found Gomez and Grajeda guilty of the first degree murder ofRobert Dunton; they found Gomezguilty of first degree murder and Grajeda guilty of second degree murderin the killing of Robert Acosta. (3CT 842-843; 29RT 4349-4351; 4SCT 737-738.) With respectto this double homicide, they found the firearm allegations true as to Gomez and not true as to Grajeda. (3CT 842-843; 29RT 4349-4353; 4SCT 737-738.) The jurors found the multiple-murder special circumstance true as to both Gomez and Grajeda. (3CT 844; 29RT 4353; 4SCT 741.) After a brief penalty phase 30RT 4388-4481; 31RT 4501-4617), and two daysofdeliberation, the jury sentenced Gomez to death for the murders of Raul Luna and Rajandra Patel, and to life without parole for the murders of Robert Dunton and Robert Acosta. (13CT 3423-3429, 3449-3452.) STATEMENTOF FACTS The Salcedo Robbery On February 25, 1997, three men knocked on the back door ofthe 10 Wilmington homeofXavier Salcedo! andhis girlfriend Silvia.” (8RT 1381- 1384.) Salcedo told them to go aroundto the front, and they did. (RT 1383.) Two ofthe men camein; a third stood in the doorway, which was left open. (8RT 1384.) Salcedo wasaskedto sit on the couch, and one ofthe men, Ruben Gomez,sat next to him. (8RT 1384-1385.) The other man stood by the television, about four feet from Salcedo; he had his handin his pocket and Salcedo thought he had a gun but he wasnot sure. (8RT 1387- 1388, 1395-1396.) Gomez took a gun from his waistband, pointed it at Salcedo’s stomach, and demandedhis jewelry; Salcedo gave it to Gomez. (8RT 1388-1389.) Gomez told Salcedo to shut the bedroom doorso that they could talk. (8RT 1390.) When Salcedo wentto the bedroom to shut the door, he told Silvia he was being robbed. (8RT 1390.) She called 911. (8RT 1340.) After Salcedo returned to the living room, Gomez asked Salcedo for money; Salcedo asked Gomez how muchhe wanted and Gomezsaid “whatever you got.” (8RT 1391.) Gomez still had the gun pointed at ' Salcedo’s true name was Alfonso Elizarraraz. (8RT 1337.) Salcedo died of cancer before Gomez’strial began in 1999; his preliminary hearing testimony wasreadto the jury. (8RT1343, 1379-1471.) Xavier and Silvia Salcedo married beforethetrial in this case (8RT 1336-1337); her last name before marriage is unknown.To avoid confusion, she is referred to here by herfirst name. 11 Salcedo’s stomach. (8RT 1391.) Salcedo wentto the bedroom andretrieved $5,000, about half of what he had hidden in his bedroom closet. (8RT 1392, 1447-1448.) When Salcedo got the money, he handed Silvia, who was under the bed, a gun. (SRT 1392.) Gomez was waiting in the hallway. (8RT 1393.) After he gave Gomez the money, Salcedo askedfor his jewelry back, because his parents had givenit to him. (8RT 1397-1398.) Gomez handed Salcedo his gun and asked Salcedo if he wanted to shoot him. (8RT 1398.) Salcedo handedit back and said that he didn’t want any problems. (8RT 1398.) Gomezreturned Salcedo’s jewelry, which was worth about $10,000. (8RT 1356-1358, 1398.) The menleft and Salcedo went to the bedroom, where hetold Silvia, “just grab the kids and let’s go.” (8RT 1401.) As Salcedo andSilvia were getting the children, whohad been sleeping in another room, the three men returned and poundedonthe door,threatening to shoot through the walls. (8RT 1401.) Silvia made a second 911 call. (8RT 1402.) Within minutes, police arrived. (8RT 1358, 1405.) The Patel Homicide Early in the morning ofMay 26, 1997, a body,later identified as that 12 of Rajandra Patel, was found alongside the northbound on-rampto the Terminal Island freeway. (QRT 1476-1478, 1486-1487.) Blood was found on the ground ata point about 75 feet north of where the body lay. (ORT 1479-1481.) One .40 caliber cartridge case lay about 90 feet from the body; two others lay three or four feet from the body. (QRT 1481-1482.) Patel had been shot in the back of the head and there were two major stab wounds, onein the chest and one on theleft side of the neck. (ORT 1524.) The causes of death were the gunshot wound, a contact wound, and the stab woundto the chest. (QRT 1524.) Patel’s car, a white Toyota Camry, was found on May28, 1997, in an alley behind 648 West First Street in San Pedro. (12RT 1878-1879; see 12RT 1871.) The car’s interior was completely burned. (12RT 1880.) Various personal itemsthat did not belong to Patel, including a flashlight, were found in the trunk. (9RT 1497.) An expert lifted fingerprints from the flashlight; none matched Gomez. (Q9RT 1497.) Other items found in the trunk were not traceable to Gomez. (QRT 1499-1500.) Noprints identifiable to Gomez were found on thecar itself. (ORT 1496- 1497.) Bloodstains found in the trunk were DNAtested, and serologist concluded that the DNA could have come from Patel or anyoneelse with 13 the same combination of genetic markers; one in 60,000 people chosen a t random would be expected to have those markers. (12RT 1886-1887, 1 909- 1911.) Eight casts of shoe and boot impressionsat the scene where Patel’s body was found were compared to boots Gomez always wore; they did not match. (12RT 1865-1868; 24RT 3617.) On July 2, 1997, Witness #3 was takento the police station, along with her husband, after a substantial amount of rock cocaine was found in their house. (12RT 1928-1931.) Police found a pawn slip, dated June5, 1997, in her purse and asked her what she had pawned. (12RT 1921-1922, 1928.) She told them she had pawneda watch and bracelet her husband had received in exchange for drugs. (12RT 1920-1922; see 12RT 1926-1927.) The jewelry, she said, had been broughtto her house by Ruben Gomez sometimein late May, 1997. (12RT 1916-1917.) When Gomez broughtthe jewelry over, Witness #3 told her husband she thought the jewelry wasfake, but Gomezsaid, “Yes,it is real. It’s from this Mexican man I havein the trunk ofthe car I just killed.” (12RT 1918- 1919, 1926-1927, 1937-1938.) Witness #3 looked out her window and saw a white car that looked like a Camry or Lexus. (12RT 1919, 1938-1939.) The jewelry pawned by Witness #3 was identified by Sunjal Patel as 14 having belonged to his father, Rajandra Patel. (12RT 1872-1873.) Witness #1 was a drug addict, and either a person who suffered the symptomsofschizophrenia or someone whohad feigned the symptomsfor years in order to collect mental health benefits. (22RT 3219-3231; 23RT 3364-3373; 24RT 3465-3482.) Helived in a small bedroom in the apartment ofRobert Dunton, a San Pedro drug dealer; he first met Ruben Gomez when Gomez began staying on-and-off on the living-room couch in that same apartment sometime in March, April, May, or June of 1997. (I9RT 2922; 22RT 3219-3230.) Witness #1 testified that near the time he first met Gomez, Gomez asked him to burn a car. (19RT 2931.) Witness #1 agreed to dothis, as a favor to Gomez, because “he and I waspretty tight for a while.” (19RT 2933-2934.) Witness #1 took the car to an alley; he used twobottles of rubbing alcohol andlit a rag to burn the car, a small white car he thought was a Honda. (19RT 2932-2933.) Witness #1 also testified that, at some point, he was taken — he did not say who took him — to a freeway entrance near a “Spires” sign to look for keys to the white car. (19RT 2938; 22RT 3257-3258.) Witness #1 believed the car was a “murder car” because he heard Gomez talking about the car’s owner, and Gomez “told me to check the trunk good to make sure there wasn’t no blood init.” (L9RT 15 2938-2939.) On redirect, he testified that he learned from Robert Dunt on that Gomez had “put a hit” on him for not burning the car completely; Dunton told him Gomez was worried abouthis fingerprints. (244RT 3549.) Witness #1 believed the car wasrelated to a watch andbracelet Gomez and another man, “Little Diablo,” had brought to Dunton’s house a few days earlier and to a telephone also broughtto Dunton’s house.’ (19RT 2938; 22RT 3230-3232, 3251-3254.) He identified Patel’s jewelry as having been brought to Dunton’s house by Gomez one or two days before Witness #1 burnedthe car. (19RT 2939.) On redirect, Witness #1 added that aboutthree or four days before he burned the white car, Gomez said, about the ownerofthatcar, “I hated to kill that guy because he hadballs.’ And he said, ‘Ifyou going to doit, go ahead and shoot me, mother fucker.” (24RT 3539.) The spentcartridges found near Patel’s body were matchedto a .40 caliber Smith and Wesson semiautomatic pistol recovered from the Wilmington homeofa person named Angel Rodriguez. (12RT 1944-1948; see 14RT 2134-2143.) Witness #1 testified that Ruben Gomezhadthat gun “when he first started coming around the house.” (20RT 3004.) 3 “1ittle Diablo” was neveridentified. 16 The Escareno Homicide* On June 9, 1997, around 8:00 a.m., the maintenancedirector at the Park Plaza Shopping Center on Western Avenue found a body,later identified as that of Jesus Escareno, lying face down near some dumpsters. (13RT 2034-2039; ORT 1571, 1575, 1578-1579; 13RT 1976-1977, 1980.) Escareno had been killed by a shotgun woundto the head; he had been shot from a distance of one to two feet. (QRT 1546, 1549-1552.) His fingers bore indentations where rings would have been worn. (QRT 1574-1575.) Hisleft front pants pocket wasslightly turned out. (QRT 1593.) He wore a pager. (QRT 1593.) Escareno’s car waslater found at 449 Oliver Street in San Pedro. (QRT 1572-1573.) There was blood and some brain matter on and near the front passenger seat, and the roof of the car had bumpson it, from pellets that had been shotinto the car. (QRT 1581-1582.) Two projectiles consistent with soft shell “double aught” buckshot, typically fired by a 12-gauge shotgun, were foundin the car. (ISRT 2393-2394.) The prosecution sought Gomez’s conviction for the murder and * The jury deadlocked on the charges relating to the robbery and murder ofEscareno. (29RT 4338-4340.) The evidence presented on those counts is included here becausethetrial court allowed jurors who believed Gomezguilty of these crimes to consider them at the penalty phase. (31RT 4562-4563.) 17 robbery of Escareno on the basis of the testimony of Witness #1, who was deemed an accomplice as a matter of law to this killing. 29RT 4136-4137; 3CT 881.) Witness #1 testified that sometime after he was asked to burn the white car, he was out driving Gomez around and they were looking for someone to rob. (19RT 2940-2941.) Witness #1 acknowledgedthat he might have told a detective that when he and Gomez drove around town, Gomez always drove, but Witness #1 noted that he was not under oath whenhesaid that. (22RT 3263.) Witness #1 believed the car he wasdriving was an older gray Ford with a black top, belonging to the father of Gomez’s girlfriend Missy. (19 RT 2941-2942.) On cross-examination, however, he stated that he could have been driving a little black pickup truck; he did not remember. (22RT 3265.) According to Witness #1, Gomez carried a - shotgun that belonged to Witness #1 and Dunton;they called the gun “Shorty.” (19 RT 2942.) Asthey were driving, Witness #1 testified, Gomez noticed a man with rings onhis fingers. (19RT 2943.) They followed the man; he was driving an old Thunderbird. (19RT 2943.) The man parked his car and they pulled up beside him; Gomez spoke to the man in Spanish; the other man seemed “tipsy” and was laughing. (19RT 2944-2946.) Witness #1 testified 18 that Gomez shot the man ashesatin his car, and then told Witness #1 to drive the man’s car back to San Pedro. (19RT 2947-2948.) Though Witness #1 had testified that he wasdriving,hetestified that after Gomez shot the man, “he [Ruben Gomez] pulled up andI got in the driver’s door of the other car.” (19RT 2949.) Witness #1 said he then moved the man’s body so that he could drive, and drove the car with the body in it a couple of blocks to a hamburgerstand, where he removed the man’s wallet and walked back to Dunton’s house in San Pedro. (19RT 2949-2950.) When Witness #1 arrived back at Dunton’s apartment, hesaid, Gomez asked him where the man’s rings were, and Witness #1 replied that he did not wantto take them off a dead man’s fingers. (19RT 2951.) Witness #1 gave Gomez about $70 he had taken from Escareno, and Gomez asked if that wasall the money. (19RT 2951.) Witness #1 respondedthat he spent someofit on “a dime ofstuff,” and Dunton becameangry,telling him,“you didn’t follow orders.” (19RT 2951.) According to Witness #1, Gomez then instructed him to get the car and drive it back to Dunton’s house in San Pedro. (19RT 2952.) Someone drove Witness #1 back to get the car; the man’s body andthe keys werestill in it, and Witness #1 drove it back to an alley near Dunton’s house. (19RT 2952.) He went back to Dunton’s house and Gomez again asked him where 19 the jewelry was; when Witness #1 told him it wasstill on the man’s fingers, Gomeztold him to go back and get it. (I9ORT 2953.) Witness #1 retrieved the jewelry and gave it to Gomez, who gave it to Dunton. (19RT 2953.) Gomez told Witness #1 to dispose of the car and the body; Witness #1 drove to Park Plaza and put the body near two dumpsters. (29RT 3001- 3002.) He drove the car to an open garage andleft it there. (20RT 3002- 3003.) Because Witness #1 was an accomplice to the Escareno homicide (29RT 4338-4340; 3CT 881), the prosecution attempted to provide independent evidencelinking Gomezto that killing by introducing a statement Gomez madeto detectives on July 2, 1997, after his arrest. (13RT 2042-2044.) The statement was,in the words of Detective Winter, “along the line [sic] we must be very busy because he knew things had gone crazy in the Harbor Area lately. And he talked about a guy up on Western,his head being shot off, a female that had been killed and wrapped and disposed in a dumpster, a couple of guys that were shot and brains were splattered all over the place and that these individuals couldn’t be identified. . . . He said that when he hadtalked aboutthe individuals not being identified, their wallets were missing.” (13RT 2044.) The prosecution contendedthat this statement linked Gomez to the Escareno homicide 20 because detectives had not released to the press the information that Escareno’s wallet had been stolen or that no identification had been found on him. (13RT 2045, 2052; see 25RT 3644.) The defense introduced newsarticles from the NewsPilot, a newspaperin the San Pedro/Wilmington area. One, dated May 27, 1997, concernedthe Patel homicide; it indicated that police were trying to identify the body. (13RT 2052-2053; see Defense Exhibit G.) Another, dated June 10, 1997, recounted the discovery of Escareno’s body, with massive trauma from a gunshotto the head, in the shopping center on Western Avenue. (Defense Exhibit M.) This article quoted a detective as saying that items of jewelry were taken from both hands andthat robbery appearedto be the motive. (Defense Exhibit M.) It also stated that the man was killed at the shopping center. (Defense Exhibit M.) Another, dated June 18, 1997, concerned the Escareno homicide and recounted the discovery ofthe car, describing blood and brain matter found in it. (Defense Exhibit L.) Defense exhibits L and M were containedin the detectives’ “murder book”for the Escareno homicide. (26RT 3764-3767.) Homicide At 12:06 a.m. on the night of June 9, 1997 (the early morning of June 21 10), Rudy Luna got home from work and wentto bedat his houseat 3041 OpalStreet, on the corner of Opal and Florwood Avenue in Torrance. (11RT 1698; 13RT 2058-2059.) Lying in bed, he heard a car pull up in front of the house;he then heard a car door opening and closing and the car driving off. (13RT 2059.) A few minuteslater, he heard somerustling in the bushes outside; he looked out the window and saw nothing. (13RT 2059.) A few minutes later he heard someone whispering “[t]here’s somebody in there, there’s somebody in there”; the voice soundedasif it came from near the bushes. (13RT 2059-2060, 2064.) A few minutes later he heard the same voice say “he’s here.” (13RT 2060.) Then heheardhis brother, Raul Luna, say “oh, shit,” and he heard a gunshot. (13RT 2060.) Rudy Lunalay down on the bedroom floor. (13RT 2060.) After some time he got up and went outsideto find his brother’s body. (13RT 2061.) Raul Luna died from a gunshot woundto the left, rear part of his head: he had beenshotat a range ofsix to twelve inches. (1IRT 1702, 1806-1808.) A live 12-gauge shotgun cartridge was foundabout15 feet from his body. (11RT 1701-1703.) A baggie containing methamphetamine and an ATM card werealso found near the body. (11RT 1710-1711, 1714.) Luna’s cell phone was found, after the Dunton and Acosta killings, at Dunton’s house in San Pedro. (11RT 1740-1742; 14RT 2150-2153.) 22 Phonerecordsestablished that about an hour after the Lunakilling, the phone wasusedto place calls to cab companies and paging services. (14RT 2153-2160, 2167-2177.) Almost five hours after the Luna homicide, the phone wasusedto call Dunton’s house. (14RT 2160, 2176-2177.) Witness #1 testified that Gomez had brought Luna’s phone, a white “brick” phone, into the house. (20RT 3005.) He testified that he first saw the brick phone before he saw the white car he was asked to burn. (22RT 3255.) He also testified that he saw the brick phone after he was asked to burn the white car, and that he may have mixed up twodifferent cell phones (24RT 3539- 3541), though he acknowledgedtestifying that he first saw the white brick phone before he wasasked to burn the white car. (24RT 3554-3558.) Police arriving at the scene noticed a silver and black Oldsmobile parked on Florwood, about 150 to 200 yards from the Luna home.(11RT 1703; 13RT 2080-2083.) Its windowswererolled down; the hood was warm andthe tires were wet, as if they had just driven through the water that was in the gutter. (13 RT 2084.) The keys were still in the ignition. (13RT 2084.) A white plastic bag on the rear seat contained live 12-gauge shotgun shells. (11RT 1704.) Thirty-four latent fingerprints werelifted from > A call was made at 12:14 a.m., aroundthe timeofthekilling, to (310) 718-9703. (14RT 2159.) The subscriber to that number was never identified. 23 the car. (13RT 2090.) Ten oftheprints, all on the exterior of the car, were identified as having been made by Gomez. (13RT 2092-2094,2103-2107, 2109.) Otherprints on the car were identified as having been made by individuals named Maria Baca and Sandra Ruvalcaba. (13RT 2102-2107.) The car wasnotregistered to Gomez. (11RT 1713.) Plaster casts of shoe impressions made atthe crime scenedid not match the boots Gomez always wore. (13RT 2096-2096; 14RT 2146-2149; 24RT 3617.) Charles Orr, who lived on OpalStreet, just east ofFlorwood, had been at home working on his computer when he heard what soundedlike an explosion. (13RT 2070-2071.) He then heard running; looking through his window blinds he saw a “heavy footed” person running by. (13RT 2071.) Hecould nottell if the person was male or female; the person was “like a shadow.” (13RT 2072.) He hearda rattling noise; on cross examination he testified he remembered“the keys and the foot running.” (13RT 2071, 2076.) He may havetoldthepolice that the person he saw wasdark- skinned, possibly Hispanic but not Black. (13RT 2075-2078.) The person was running east, towards Maple Avenue. (3RT 2072.) He could not identify the person he saw. (13RT 2071-2072.) William Owens, who lived on Hickory Avenue, wasoutside, across 24 the street from his house, smokinga cigar, in the early morning hours of June 10, 1997. 14RT 2181-2183.) He heard a gunshot, and aboutfive or ten minutes later, a man ran up to him and asked him fora ride to his girlfriend’s house. (14RT 2184.) Shortly afterwards, Owens was interviewedby police and told them that the man he had seen was about 5 feet, 9 or 10 inches, weighing about 180 to 200 pounds. (14RT 2191-21972.) Hetold the police that the man was Hispanic, that his facial structure seemed Central American, though he had lighter than usual complexion for a Central American, and that he had a heavy Spanish accent. (14RT 2192-2193.) He estimated that the man was 25 to 30 years old and reported that he wore a white and red nylon jacket, blue denim pants, and white shoes. (15RT 2326.) The man had nothingin his hands. (15RT 2327.) Owensdid not mention that the man had any tattoos. (1SRT 2327.) Owens viewed a six-pack photographic lineup, and told a detective that photograph numbertwo, a photograph ofRuben Gomez, “somewhat resembled” the person whohad confronted him. (15RT 2325, 2330, 2331.) Detective Lancaster, who showed Owensthesix-pack, did not believe Owenshadidentified Gomez, and thushe did not xerox the six-pack and ask Owensto circle the photograph he hadidentified. (SRT 2328.) Owens himselftestified at trial that while he did not remember how many six-packs 25 he was shown,he hadpointed to one picture and told them there was a “75 to 85 percent” chancethat it showed the running man. (14RT 2199-2201.) Attrial, after Owens had encountered Gomezin court three times (including the day ofhis testimony), Owensforthefirst time positively identified Gomez as the man he had seen running down the street. (14RT 2201-2204, 2249.) The Dunton and Acosta Homicides At 3:46 a.m.on July 1, 1997, Witness #1 called 911 from a business near Robert Dunton’s apartment in San Pedro. (2ORT 3037-303 8, 3064.) He told the operator that he went in the door ofDunton’s apartment at 332 O’Farrell and saw two dead bodies, that of his roommate and somebody else. (3CT 785-786.) He said that he checked them; they were dead,andit looked like they had beenshot with a shotgun. (3CT 785.) He agreed to meet police behind the residence, and told them that the back door was open. (3CT 785-786.) Police arrived at 332 O’Farrell and found the bodies ofDunton, also knownas “Huero,” and Robert Acosta, also known as “Spider.” (11RT 1737-1738.) Acosta had beenshotin the neck andhis bodylay in front of the front door. (1IRT 1739; 1IRT 1810-1811; 25RT 3657-3658.) The 26 wound wasa loose contact wound. (11RT 1812.) A loaded gun wastucked under Acosta’s armpit. (11RT 1757-1758, 1778.) Dunton’s body wasseated on a sofa; he had been shot twice in the body and oncein the head. (11RT 1737-1738; 1IRT 1821-1825.) Four spent shotgun cartridges were found at the scene. (11RT 1745-1751, 1754-1755.) There was blood on the walls and ceilings. (11RT 1738.) Theparties stipulated that Acosta’s blood contained 1.1 micrograms per milliliter of methamphetamine, .10 microgramsper milliliter of amphetamine, and .096 microgramsper milliliter ofPCP. (26RT 3769.) Dunton’s blood alcohol content was .13 grams percent and his blood was .77 microgramsper milliliter of methamphetamine and .06 microgramsper milliliter of amphetamine. (26RT 3769.) Theparties also stipulated that Manuel Hernandez, a 67-year-old man,lived in the residence next door to Dunton’s. (29RT 4292.)° He was homeduring the early morning hours of July 1, 1997. 29RT 4292.) At about 3:15 a.m., he heard what soundedlike three gunshots. (29RT 4292.) Hernandez wentto the windowclosest to the Dunton residence and looked out. (29RT 4292.) The Dunton residence was dark. (29RT 4292.) ° This stipulation was presented during deliberations, and the attorneys were given the opportunity to present argumentregardingits significance. (29RT 4293-4306.) 27 Hernandez saw one man comeout the back door, with something dark pulled downoverhis head. (29RT 4292.) The man was between 5 feet, 6 inchestall and 5 feet, 8 inches tall. (29RT 4292.) The man ran downthe walkway towards O’Farrell Street. (29RT 4292.) Hernandez then heard a car start nearby. (29RT 4292.) Afterwards, Hernandez noticed that someone cameinto the room at 332 O’Farrell and turned onthe lights. (29RT 4292-4293.) Hernandez heard someone say, “Oh, my god.” (29RT 4293.) He then saw the man leave the Dunton residence by the back door. (29RT 4293.) Theparties further stipulated that Gomezis 6 feet, 2 inchestall, and Grajedais 5 feet, 8 inches to 5 feet, 10 inches tall. 29RT 4293.) Witness #1 did not meet police at the house as he had said he probably would. (3CT 785-786; 1SRT 2453-2454.) Police interviewed him on July 2, 1997, however. (22RT 3277-3278.) During that interview, he mentionedthat he had been hallucinating (Defense Exhibit N [4SCT 809- 811]; ZIRT 3130; see 22RT 3277-3278; 23RT 3364.) Attrial, he testified that he suffered visual and auditory hallucinations, and had been prescribed Stelazine, Thorazine, and Artan to control them. (23RT 3364-3368.) He also testified that he had beeninstitutionalized in a locked ward at one time 28 as a result of a “faked attempted suicide.” (23RT 3370-3372.) He subsequently testified, however, that he had never suffered hallucinations but pretendedthat he did, and faked the suicide attempt, in order to receive supplemental security income. (24RT 3467-3482.) Hetestified that he believed he was “entitled to what [he] can get.” (24RT 3474.) In his first few interviews with the police, Witness #1 stated that he wasnot present whenthekillings took place. (2ORT 3039;21RT 3126- 3132; 22RT 3298, 3302-3303.) He told the police that he and Gomez, who had been staying at Dunton’s apartment, sleeping on the couch, on and off for a few weeks, had goneout earlier that night to rob a drug dealer, and that they returned to the apartmentto find Dunton and Acosta. (19RT 2929- 2930; 23RT 3423-3424.) He told police that he thenleft to buy food, but that instead ofbuying food he bought $20 worth of cocaine and smokedit. (23RT 3423-3425; 21RT 3127-3130.) He then returned to the houseto find the bodies. (23RT 3423-3425, 21RT 3130.) Detectives did not believe him becausehesaid that he had found the bodies after entering the house through the front door, and Acosta’s body had blocked any access through the front door. (25RT 3657-3660.) In another interview, Witness #1 said that when he returned to the house and foundthe bodies he had entered the apartment though a window,but detectives did not believe that either 29 because ofvarious items that blocked entrance through that window.(25RT 3659-3660.) Witness #1 acknowledgedtelling “probably more than a few”lies (22RT 3302)during the investigation; explaining onelie, he stated: “That’s the way it goes ifyou guys see what the bad guys got andthe bad guys see what the good guys got.” (22RT 3297.) Attrial, Witness #1 testified that in the evening of June 30, 1997, he and Gomez had gone out and robbeda drugdealerat a junk yard in Wilmington. (20RT 3010-3015.) Afterwards, they returned to Dunton’s house, and as they approached the house, Gomezsaid, “they sent somebody to fuck Huero and Spider up.” (20RT 3016.) When they entered the house, Dunton and Acosta were there, along with Arthur Grajeda. 2ORT 3016.) Acosta wasstanding by the door, Dunton wassitting on the couch, and Grajeda was on another couch. (20RT 3016-3017.) Witness #1 asked Gomez for some ofthe crack they had taken from the drug dealer at the junk yard, and Gomeztold him it was gone. (20RT 3019.) Witness #1 “jumped up and [did] some cuss words at him,” and headed towardshis bedroom. (20RT 3019.) As he passed Acosta, Acosta “back handed” him some crystal methamphetamine, and Witness #1 wentto his room to prepare it for use. (20RT 3019-3020.) 30 When Witness #1 left the room, Gomez wassitting at the dining table and a pump shotgunlay onthe table in front of him. (2ORT 3018- 3019, 3033-3034.) Grajeda was holding a shotgunthey called “Shorty,” which belonged to Dunton and Witness #1. (2ORT 3034.) Witness #1 heard Duntonsay “if I got to go, I’m going to go like a man.” (20RT 3035.) Grajeda said “You know therules,” and Gomez added “Yeah, forward and backward.” (20RT 3035.) Witness #1 then heard Gomez say: “Don’t point that at me. I don’t like people pointing things at me.” (2ORT 3035.) Witness #1 assumed Gomez wasspeaking to Acosta; though he did not see Acosta point the gun at anyone, he had seen Acosta with a gun that night. (24RT 3484-3487.) Witness #1 then heard four shots and then footsteps running, and the sound of someone bumping up against a washing machinenear the back door. (2ORT 3035.) Witness #1 left through the back door, got on his bike, and went to call 911. (2ORT 3036-3038.) Gomezwasarrested at his cousin’s home in Long Beachat approximately 3:30 a.m. on July 2, 1997. (21RT 3099-3103.) His cousin, Witness #4, had called the police after Gomez, whom she had notseen in eight years, arrived at her door with a bag and a gun, looking for a place to stay. (21RT 3084-3086.) A shotgun found in Witness #4’s houseat the time of Gomez’s arrest and bearing his fingerprints was matchedto the shotgun 31 shells found at the Dunton and Acosta homicide scene. (11RT 1754-1756; 18RT 2741-2749; 19RT 2859-2863, 2869-2872; 21RT 3099-3100, 3119.) Gomez’s fingerprints were also found inside Dunton’s apartment. (19RT 2870-2873; LORT 2819-2827; 17RT 2621-2629.) Witness #5, Acosta’s wife, testified that a few days after Acosta’s death, she received a call from Ruben Gomez;he askedherto visit him in the county jail. (16RT 2524.) Shevisited him, and during their conversation he denied shooting Acosta and Dunton, but told her that he wasthelast person there whenit happened,that he had even kissed Dunton, and that he hadleft fingerprints all over the house and even on Dunton’s face. (16RT 2525.) Witness #1 testified that a man named “Boxer” had comeover to 332 O’Farrell Street, two days in a row, in the days before Dunton and Acosta werekilled. The first time he came overhesaid,“you ain’t paying your taxes and they’re getting on me because I’m not doing my job.” (2ORT 3005-3006.) The next day, Boxer, accompaniedby his girlfriend and a “protégé,” was armed with a machete, and he took a hundred dollars and a pistol that had belonged to Gomez. (20RT 3006-3008.) After Boxer took the pistol, Gomez called a friend andtoldthefriend he needed a gunas a matterof “life or death.” (2ORT 3010.) A shotgun, 32 later identified as the gun used to kill Dunton and Acosta, was delivered, and Witness #1 and Gomez cut aboutsix inchesoffthe barrel and cut the stock off. (2ORT 3010.) Witness #2, Grajeda’s girlfriend’s uncle, testified in exchange for an agreement that his sentence on a probation violation would be no more than six years and that his testimony would not be used against him unless he committed perjury.’ (16RT 2577-2583.) On the stand, he first denied and then admitted being a gang member. (17RT 2656-2667; 18RT 2771-2773; 18RT 2784-2786.) Hetestified that the day before the early morning killings, he had encountered Grajeda at a mutual acquaintance’s house; the names Huero and Diablo came up and Grajeda said that Huero and Diablo were not “paying up.” (16RT 2588-2595.) Diablo was supposedto be collecting for the Mexican Mafia; “Huero wasn’t paying his taxes, Diablo wasn’t paying up.” (16RT 2594.) Witness #2 identified Gomez as the person who had beenreferred to as “Diablo.” (16RT 2594.) Grajeda wanted to “take care of Diablo.” (16RT 2595.) 7 The maximum Witness #2 faced was 12 years. (L6RT 2577-2583.) Witness #2’s brother originally approached the police when Witness #2 was facing a third strike case, though he was acquitted on that case. (16RT 2577-2583; 25RT 3723-3724.) After being acquitted on those charges he was charged with a probation violation based on the sameincident, which exposed him to a 12-year sentence, and reached the deal with prosecutors that his sentence would not exceed six years. (17RT 2670-2672.) 33 Witness #2 drove Grajeda to Dunton’s apartmentto checkit out. (16RT 2597.) When they arrived, Gomez, Dunton, and Witness #1 were there. (16RT 2599-2600.) They all made smalltalk, and Gomez was nervous. (16RT 2602-2603.) Witness #2 believed another person was ina back room but he does not know who. (16RT 2602.) Witness #2 testified that as they left, Gomez walked out and had a brief conversation with Grajeda. (16RT 2609-2610.) At the same time, Acosta arrived. (16RT 2609- 2611.) As Witness #2 drove Grajeda back to their mutual acquaintance’s house, Grajeda asked him to drive him back that evening to kill Gomez, and possibly Dunton, because they were not paying their taxes. (16RT 2611- 2614.) Witness #2 testified that he instructed his girlfriend (his wife at the timeoftrial) that when Grajedacalled that evening for a ride to Dunton’s, she should tell Grajeda that he wasasleep. (16RT 2614-2615.) Witness #2’s wife (then girlfriend), Alicia Gandara,testified that her husband gave her these instructions, and that Grajeda called and she complied,telling Grajeda that Witness #2 was asleep and refusing to wake him up. (ORT 2898- 2901.) Witness #2 also testified that he encountered Grajeda sometimeafter the Dunton and Acosta killings and Grajeda told him,in reference to those 34 killings, “I did it.” (16RT 2615-2618.) Witness #6testified that after Dunton waskilled, Grajeda contacted her and asked her whether the police were looking for him; Grajedatold her he was supposed to go to Dunton’s house for a meeting the night Dunton waskilled. (21RT 3078-3080, 3082.) Grajeda did nottell her whetheror not he had gone to Dunton’s housethat night. (21RT 3082-3083.) Finally, the prosecution presented a note, found by Acosta’s girlfriend in the pages of a Bible in their bedroom. (16RT 2521-2522.) The note read: “6-30.97 / Tuesday morning /Mondaynite 1.20/ Went to meet Shady La Rana/ don’t like the/ meeting at Big Huero’s/ RobertAcosta/ Spider.” (3CT 659.) Eddie Maldonado, the son ofAcosta’s girlfriend, also testified that around 11:30 p.m. or midnight on the night before the Dunton and Acosta killings, Acosta received a phone call, paced arounda little bit, went into the bedroom for a few minutes, and then cameout. (16RT 2508- 2510.) Maldonado asked him what was the matter, and Acosta said he had to go to a meeting,and left the house. (16RT 2517.) Grajeda presentedthe alibi testimony of Imelda Solorzano,a friend of Grajeda’s girlfriend Melanie Gandara. (24RT 3569-3570.) Solorzano testified that on the evening of June 30, 1997, she went to Gandara and Grajeda’s house after work, at about 8:00 p.m., to help them get ready for a 35 campingtrip. (24RT 3571-3573.) They had dinner and Solorzano stayed until 3:30 a.m. on July 1. (24RT 3573-3575.) Solorzanoleft the house at some point, around 1:45 a.m., to go to the store to buy beer. (24RT 3576.) Solorzanotestified that Grajeda was present the whole time she wasathis house. (24RT 3577.) In support ofits theory of the Dunton and Acosta killings, the prosecution introduced extensive gang expert testimony from Leo Duarte and Richard Valdemar. (15RT 2331-2385, 2399-2418, 2429-2434; 20RT 2968-2993.) In Duarte’s opinion, based on observations of Arthur Grajeda over a four-month period while he was at Chino State Prison, Grajeda is a Mexican Mafia associate. (20RT 2985, 2989-2990.) Gang membersloyal to the Mexican Mafia identify themselves with tattoos that say “sur,” “surenos,” “13,” or “3-C-E,” which stands for “trece.” (15RT 2366-2367.) Mexican Mafia members andassociates do not always tattoo themselves, as many want to concealtheir association. (15RT 2431.) Grajeda has a tattoo identifying himself with the “La Rana” gang. (1SRT 2430-2431.) Valdemar viewed Gomez’stattoos and concluded that Gomez is a member of the Ghost Town Locossubset of the East Side Wilmas gang, and Surenos; one of Gomez’s tattoos, which says “sur,” showsthathis alliance 36 is more with the prison gang. (ISRT 2429-2430.) Detective Winter also documented Gomez’s tattoos, noting tattoos that said “13,” “3-C-E,” “sur,” “Ghost Town gang,” and “G.T.L./ESW.” (13RT 2045-2046.) Valdemar opined that one of Gomez’s tattoos, which others haveinterpreted as a “13,” was not in fact a “13,” but could be theletter “R.” (1SRT 2442.) Valdemartestified that the Mexican Mafia (sometimes knownas “Eme’’)is a prison gang that controls Hispanic street gangs in Southern California. (1SRT 2432.) It is able to control street gang members because they expect they will at some pointbe incarcerated in a prison controlled by the Mexican Mafia. (15RT 2364-2365.) Valdemar explained the Mexican Mafia’s history and practices, informing jurors that they are accurately depicted in the movie “American Me.” (15RT 2361-2365, 2381-2385.) The Mexican Mafiakills for violationsofits rules. (1SRT 2365.) Oneofits primary rulesis that those loyalto it are not supposed to cooperate with law enforcementor the legal system in any way. (1SRT 2381.) Before retaliating, the Mexican Mafia requires proof, in the form of a police report or a court transcript, showing that a person has cooperated with law enforcement. (15RT 2381-2382.) Witnesses whotestify on behalf of law enforcement assume great risk; the Mexican Mafia has a reputation for seeking them out and killing them. (15RT 2384.) It expects perjury to be 37 committed on its behalfby wives and other relatives of members and associates. (15RT 2384-2385.) The Mexican Mafia expects membersandassociates to place loyalty to it abovereligion, God, family, and friendships. (1SRT 23 82-2383.) In orderto test this loyalty the Mexican Mafia often uses someoneclose to a victim to approach him or carry outhis killing; it has used family members to carry out murders, as depicted in the movie “American Me.” (1I5RT 2383.) Drug dealers operating in areas controlled by the Mexican Mafia are expected to pay “taxes.” (1SRT 2378-2379.) In Valdemar’s opinion, if a street gang memberclaimingloyalty to the Mexican Mafia were to rob drug dealers operating in an area the Mexican Mafia controlled, andin particular if he were robbing drug dealers paying taxes to the Mexican Mafia,that street gang membercould expectto be killed. (1S5RT 2369-2371, 2378- 2381.) Such a person would have a “green light” placed on him, meaning gang members would beauthorizedto assaultor kill him, and he would be on a particularpart ofthe “green light”list for those singled outforkilling. (15RT 2369-2371, 2378-2381.) A “green light” can be removed if a memberofthe Mexican Mafia intervenesor if a large sum of moneyis paid. (1SRT 2380-2381.) It can also 38 be removedby killing someoneelse on behalf of the Mexican Mafia. (15RT 2381.) A person on the green light list may betold he is in trouble and be given an assignment, called a “suicide run,” to kill someone else. (15RT 2381.) If the person on the green light list successfully performs such a killing, the green light may sometimes be removed. (15RT 2381.) Penalty Phase The prosecution presented evidence that Gomez had committed and been convicted of a 1991 robbery in Wilmington (30RT 4400-4412) and that he was convicted of assault by a state prisoner and possession of a deadly weaponbya state prisoner (30RT 4430; see 4SCT 768-784 [Prosecution Exhibit 55]; 4SCT 785-802 [Prosecution Exhibit 56].) The officer who arrested Gomez for the 1991 robbery testified that he had “a bewildered look, eyes wide open and... had stare to his look.” (30RT 4410.) Gomez wastaken to the hospital and doctors reported that he was underthe influence of an opiate. (30RT 4411-4412.) In addition, the prosecution introduced evidenceof severaljail incidents occurring before and during thetrial in this case. Sheriff’s Deputy Chad Millan testified that Gomez stabbed him with a jail-made shank, cutting him three times; Millan received nine stitches. (30RT 4435-4445.) 39 Deputy Timothy Vanderleektestified that in November of 1999, Gomez threw urine at him. GORT 4454-4457.) Deputy Frank Montoyatestified that in December of 1999, Gomez head-butted him and then threatenedto kill Montoyaandall the other deputiesin the jail; the following day, Gomez attempted to slash him with a razor blade attached to a comb and threatened him again. 0RT 4463-4466.) Deputy Keith Holly testified that, after he informed Gomez he would be disciplined for violation ofjail rules, Gomez stated that he should have slashed Deputy Montoya’s throat, and threatened to kill jail deputies when they took him to court. (30RT 4476.) The defense presented the testimony of Michael Pickett, a California DepartmentofCorrections administrator. (31RT 4502-4541 .) Pickett testified that, if sentencedto life without the possibility of parole, Gomez would most likely be held in the Pelican Bay or Corcoran Security Housing Unit (“SHU”), where he would be confined to a cell for 23 hours a day, and would leave his cell only for exercise in a directly adjacent yard, and, escorted and shackled, for medical purposes, to go to the law library, and for visits. 3ORT 4524-2525.) Pickett acknowledged, however, that though Departmentstaff do a “marvelous job”at security, “it’s not a perfect world” even in the most highly secured prisons, and homicides do occurthere. (30RT 4522-4523; see 30RT 4530-4531.) 40 On cross-examination, Pickett described racial riot that had occurred the day before at Pelican Bay, in general population, involving the use ofjail-made weapons. (30RT 4528-4529, 4536.) Healso testified that there is Mexican Mafia influence in the Security Housing Units; murders and assaults on prison staff have been ordered by prison gang membersin Security Housing Units, to be carried out in general population. (30RT 4531-4532.) Shanks have been confiscated from cells in the SHUs. (30RT 4533.) Inmates in the SHU have daily arms-length contact with prison staff; it is fairly commonthat staff are attacked while delivering meals in the SHUs. (30RT 4534.) The defense also called Mercedes Sanabria, Gomez’ssister. (30RT 4543.) She testified that she and Gomez has seven othersiblings, and that he has three children: Coreena, age nine; Richard, age ten; and Ruben, age eleven. (30RT 4543.) Sanabria has taken the children to visit Gomezat the county jail. (30RT 4544.) They love their father; she loves her brother. (30RT 4544-4545.) She realizes that he has been convicted of four murders but, “despite what my brother has done, weare real sorry, but weall love him, and we just don’t want him to be executed.” (30RT 4545.) 41 ARGUMENT I. THE EVIDENCE WASINSUFFICIENT TO PROVE MR. GOMEZ’S GUILT OF THE FIRST DEGREE MURDER OF RAUL LUNA “lE]very crime has two components:(1) an act or omission, sometimes called the actus reus; and (2) a necessary mentalstate, sometimes called the mensrea.” (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) The defendant must do something, and he or she must have a certain mental state. The evidence in this case showed neither. At most, it showed that Gomez was in the area at the time of the crime, at one time touched a car that may havebeen linked to the perpetrators, and later possessed the victim’s cell phone. The evidence showedthat at least two people were present in Raul Luna’s front yard when he waskilled. It did not show that Gomez was one of them. But even ifit is assumed that Gomez was one ofthem— an assumption unsupported by the record — there was simply noevidence at all from which it could be concluded that Gomez shot Luna.In fact, as discussed below,the prosecution’s evidence, to the extent it could be believed, suggested the opposite. The jury thus properly found the firearm allegation not true. Similarly, evenif it is assumed, again, that Gomez waspresent with 42 the unknownkiller when that person shot Raul Luna, there was no evidence that Gomez did anything toaid or abet the killing, nor any evidencethat he knew ofor shared that perpetrator’s intent to kill. The evidence was thus insufficient to sustain his conviction for first degree murder. A. Standard of Review. A conviction violates due process where rational jury could not find the defendant guilty beyond a reasonable doubt. (See Jackson v. Virginia (1979) 443 U.S. 307, 317-319; People v. Johnson (1980) 26 Cal.3d 557, 575-576; see also In re Winship (1970) 397 U.S. 358, 364; U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7, 15.) An appellate court reviewing a sufficiency of the evidence claim must decide whether the evidence of each of the essential elements of the offense was “substantial.” (People v. Johnson, supra, 26 Cal.3d at p. 578; see People v. Barnes (1986) 42 Cal.3d 284, 303-304.) ““[S]ome’ evidence”is “not enough.” (People v. Johnson, supra, 26 Cal.3d at p. 577.) “Substantial evidence’ means that evidence which, when viewedin light ofthe entire record, is of solid probative value, maintains its credibility and inspires confidence that the ultimate fact it addresses has beenjustly determined.” (People v. Conner (1983) 34 Cal.3d 141, 149, citing People v. Perry (1979) 100 Cal.App.3d 251, 259 and People v. Bassett (1968) 69 43 Cal.2d 122, 137-138; see also People v. Morris (1988) 46 Cal.3d 1, 19, overruled on other grounds by In re Sassounian (1995) 9 Cal.4th 535, 543- 544, fn. 5.) Speculation, of course, “is not evidence,less still substantial evidence.”(People v. Waidla (2000) 22 Cal.4th 690, 735; see also Peoplev. Smith (Ill. 1999) 708 N.E.2d 365, 371 [“It is no help to speculate that the defendant may havekilled the victim. Nocitizen would be safe from prosecution under such a standard.”].) Evidence that the defendant “probably” committed the crimeis likewise insufficient. (See Cooperv. McGrath (N.D.Cal. 2004) 314 F.Supp.2d 967, 998.) In the context of a capital case, the sufficiency of the evidence must be assessed with painstaking care, to identify lapses in the evidence and resort to speculation and conjecture, for in a capital case, these not only threaten due process, but underminethereliability of the guilt determination, violating the Eighth Amendment. (See Gilmore v. Taylor (1993) 508 U.S. 333, 342; Kyles v. Whitley (1994) 514 U.S. 419, 422; Beck y. Alabama (1980) 447 U.S. 625, 637-638; but see People v. Howard (2010) 51 Cal.4th 15, 34, fn. 10 [rejecting defendant’s suggestion that there is a higher standard of appellate review for sufficiencyofthe evidenceclaimsin capital cases andstating that cases discussing factfinding 44 proceedingsin the trial court are inapplicable to review on appeal].) B. The Evidence Was NotSufficient to Support Mr. Gomez’s Conviction for the First Degree Murder of Raul Luna. Raul Luna, a drug dealer, was found shotin the headin his front yard in the early morning of June 10, 1997. 11RT 1700-1702, 1806-1808; 13RT 2057-2058, 2061; 14RT 2152-2153.) A live 12-gauge shotgun cartridge was found about 15 feet from his body; an ATM card and a baggie containing methamphetaminewerealso found near the body. (11RT 1701-1703, 1710- 1711, 1713-1714.) A car was found on a nearby street, 150 to 200 yards from Luna’s house; its windows were rolled down,its tires were wet (apparently from water in the gutter), its hood was warm,and the keys were in the ignition; in the back seat lay a bag of 12-gauge shotgun shells. (11RT 1703, 1705-1706; 13RT 2080-2084.) Shortly before the shooting, Luna’s brother Rudy, who wasinside the house, had heard a car pull up in front ofthe house andthen drive off after its door opened and closed; he then hearda rustling in the bushes outside and a voice whispering, “There’s somebodyin there, there’s somebodyin there.” (13RT 2059-2060, 2064.) A few minutes later he heard someonesay, “He’s here.” (13RT 2060.) Immediately before the shooting, Rudy Luna heard his brother say ,“Oh, shit.” (13RT 2060.) A neighbor, Charles Orr, heard what sounded like an explosion 45 around midnight on the night of the killing. (13RT 2070-2071.) He heard running and looked out the window. (13RT 2071.) He saw somebody runningby andheard a rattling noise and the soundofa “heavy footed” person running. (13RT 2071.) The person was “like a shadow”; he could not identify the person. (13RT 2071-2072.) He could nottell if the person was male or female. (13RT 2072.) Noneofthis evidence, of course, addressed the crucial question of whokilled Luna, thoughas the prosecutor himself argued, the whispering heard by Rudy Luna suggested that two individuals were present. (27RT 3838.) Gomez alone was charged with Luna’s murder; the prosecution introduced no evidence regarding any other individual who might have been presentat the scene. Noevidence linked Gomezto the shooting. At best, the evidence placed him in the neighborhood, linked him to the car parked 150 to 200 yards from Luna’s house, which may have been connected with the killing, and linked him to Luna’scell phone. The evidence consisted only of the following: © Ten ofthirty-four fingerprints lifted from the exterior surface of the driver’s side door and window ofthe car parked 150 to 200 yards from the Luna crime scene, which the prosecutor alleged was connected to crime, were matched to Gomez. (13RT 2090-2094, 46 2103-2107, 2109.)° Ruben Gomez, however, wasnot the ownerof the car. (1IRT 1711- 1713.) A radio scanner was foundin thecar; no prints werelifted from the scanner that matched Gomez. (11RT 1713.) Otherprints, including prints on the car’s interior, were matchedto individuals named Maria Baca, Sandra Ruvalcaba, Anthony Pang (or Payne), and another unidentified man. (11RT 1717-1718, 13RT 2101-2107.) Someprints were apparently not matched to any ofthe six individuals whose prints were compared with those lifted from the car. (13RT 2101-2107.) @ Almost five hours after the homicide, Luna’s cell phone was used to call Robert Dunton’s apartment, where Gomezlater began to stay; the phone was found in Dunton’s apartment a few weekslater; and Witness #1 testified that Gomez brought the phone to Dunton’s apartment. (11RT 1740-1742; 14RT 2150-2160, 2167-2177; 20RT 3005.) Earlier calls made from the phone after Luna’s killing were to paging and cab companies, a hotel, and a woman named Marlene Andrews. (14RT 2159-2161, 2170-2177.) None ofthese calls were identified as having been made by Ruben Gomez. The officer who investigated the calls made to the cab companies did not know whether any cabs were ever dispatched as a result of the calls. (1SRT 2329.) No identifiable fingerprints werelifted from the cell phone. (11RT 1714-1715.) @ Witness William Owens, forthe first timeat trial, after seeing Gomez in court three times, identified him as a man he had seen running away from the direction of Luna’s house, seven to nine blocks from the scene, about five or ten minutes after he heard a gunshot. (14RT 2184-2187, 14RT 2202; 4RT 2249; see 28RT 4077; see Prosecution Exh. 46; 27RT 3875 [prosecutor estimates distance of nine blocks].) The man asked Owensfora ride to his girlfriend’s house. (14RT 2184.) ® The driver’s side window wasrolled all the way down. (See Prosecution Exh. 13.) 47 Owensbelieved he heard the gunshot around 1:30 or 1:45 a.m. (14RT 2184.) According to police, he reported hearing a gunshot around 1:00 a.m. (15RT 2323.) Shortly after the crime, Owens had described the manto police as Hispanic, with a thick Spanish accent. (14RT 2192-2193.) Attrial, he estimated that the man was5 feet, 9 or 10 inches. (14RT 2191.) Ruben Gomezis 6 feet, 2 inches. (29RT 4293.) While Owensclaimed that he had viewed a photo array and “pointed out one picture and . . . said 75 to 85 percent,” the detective who showed Owensthe six-packtestified that Owensstated that a photograph of Gomezin a six-pack photo lineup “somewhat resembled”the man he had seen, but that Owenscould not identify him to the detective’s satisfaction. (14RT 2199-2200; 15RT 2325, 2330-2331.) (The detective did not have Owenscircle Gomez’s photo; he asks the witnessto circle a photo whenhe feels the witness has madean accurate identification. (1SRT 2330.)) No evidence suggested that Gomez had a heavy Spanishaccent. After Owens had viewed the photo array, and then, years later, encountered Gomez three times in court, including the morning of his testimony, Owens informed the prosecutorthat he could identify Gomez as the man he had seen running downthestreet. (14RT 2249;see also 14RT 2202.) This evidence wasinsufficient to support Gomez’s conviction for the first degree murder of Luna. At most, this evidence established that Gomez was seven to nine blocks from the scene nearthe time ofthe crime; that Gomez at some time had toucheda car that may have been connected to the crime; that Luna’s cell phone wasused, almost five hours after the killing, to call an apartment where Gomez later began to stay; and that Gomez at some point possessed Luna’s cell phone. That is insufficient to sustain a first degree murder conviction. Far from inspiring confidence in the rightness ofthe verdict (People v. Conner, supra, 34 Cal.3d at p. 149),this 48 scant evidence raises grave suspicion that the verdict was wrong. 1. The EvidenceIs Insufficient to Establish That Mr. Gomez Wasat the Crime Scene or to Link Him to the Actual Killing of Raul Luna. Evidence that Gomez at somepoint touched a car with a possible connection to the crime does not establish that Gomez was everin Luna’s front yard. At most, it shows association with a car that may have been associated with the crime. But, as this Court reasoned in reversing a conviction for insufficiency of the evidence in another case where the evidence included the defendant’s fingerprints on a car connected with the crime: [A]ssociation with a criminal is not to be equated with connection with the crime... . [S]uch a contention asks the jury to speculate on how and whythefingerprints appeared, with no evidenceat all on that question. Even if the fact of the fingerprints be deemedto cast suspicion, even grave suspicion, on [a defendant], suchis insufficient. (People v. Robinson (1964) 61 Cal.2d 373, 399; see id. at pp. 379, 397-399 [evidence, including evidence of defendant’s fingerprints in and around passenger seat and door of getawaycar, insufficient even as slight evidence necessary to corroborate accomplice].) As in Robinson, there was no evidence here as to when or how the 49 prints wereleft on the car.’ (13RT 2109; see People v. Robinson, supra, 61 Cal.2d at pp. 399-400; see People v. Trevino (1985) 39 Cal.3d 667, 697 [evidence,consisting of speculative and equivocal identification testimony and a “fingerprint of some unknown vintage” at crime scene, was insufficient as matter of law], overruled on other grounds as recognized in Williams v. Superior Court (1989) 49 Cal.3d 736, 750; People v. Jenkins (1979) 91 Cal.App.3d 579, 584 [“[T]hereis a limit to the mileage that can be obtained from the fingerprint evidence. The only fact directly inferable from the presence ofthe fingerprints is that sometime, somewhere defendant touched the containers.”].) The presence of Gomez’s prints on a car parked 150 to 200 yards from the crimescene, even if that caris assumed to be connected with the crime, do not establish that he was one of the two individuals in Luna’s front yard at the time ofthe killing.” ° In Robinson, this Court noted that because the prosecution’s evidence showed that defendant wasrelated to a man wholived in the same building as the car’s owner, the evidence that defendant’s fingerprints were found on the car was of dubious value. (People v. Robinson, supra, 61 Cal.2d at pp. 379, 398-399.) Here, by contrast, the prosecution’s evidence did not show who ownedthe car— though the evidence established that Ruben Gomez did not. (11RT 1713.) The prosecution’s failure to introduce any evidence about who ownedthe car, of course, does not make the evidence against Gomez any stronger. 10 The record contained no forensic evidence aside from these fingerprints on the car; nothing linked Gomezto the crime scene. (Compare People v. Hall (1964) 62 Cal.2d 104, 111 [insubstantial evidence further (continued...) 50 William Owens’s surprisetrial testimony identifying Gomez as a manhe had seen running, seven to nine blocks from the scene,five to ten minutes after he heard a gunshot— evenif it constituted evidence of Gomez’s presence in the neighborhood— doesnot establish that Gomez was one ofthe two individuals in Luna’s front yard. At most, the identification would show that Gomez wasseenin the area, running from the direction of the scene, five to ten minutesafter the shooting. Running from the scene of a shooting, of course, does notestablish that oneis guilty ofthe shooting, or even that one waspresent when the shooting tookplace. (See Juan H. v. Allen (9th Cir. 2005) 408 F.3d 1262, 1277 [no rationaltrier of fact could find criminal culpability in decision ofjuvenile to run home from scene of shooting].) And Owens’stestimony did not constitute substantial evidence — “evidence which, when viewedin light of the entire record, is of solid probative value, maintains its credibility and inspires confidence that the '°(...continued) undermined by the “absence of evidence that would normally be forthcoming” such as additional forensic evidence or motive].) Police attemptedto lift latent fingerprints from the bag and shotgun shells found in the back seat, but did not find any prints. (13RT 2096-2097.) There is no evidence that police attemptedto lift prints from the car keysleft in the Oldsmobile’s ignition (13RT 2084), which could have established who had driven the car most recently. (Compare People v. Turner (1994) 8 Cal.4th 137, 154, overruled on other groundsas stated in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) 51 ultimate fact it addresses has been justly determined.” (People v. Conner, supra, 34 Cal.3d at p. 149.) As this Court and the United States Supreme Court have both recognized, eyewitness identifications are often unreliable. (See People v. Cardenas (1982) 31 Cal.3d 897, 908, citing United States v. Wade (1967) 388 U.S. 218, 228; see also Perry v. New Hampshire (2012) 132 S.Ct. 716, 728.) And William Owens’s identification of Ruben Gomez wasnota typical eyewitness identification; it had multiple hallmarks of unreliability. Within a day after the incident, Owens was unable to identify Gomez as the man he encountered running from the direction ofthe scene, stating only that a photograph of Gomez “somewhat resembled”the person he saw. (15RT 2324-2325, 2327-2328, 2330-2331.) (See People v. Cardenas, supra, 31 Cal.3d at p. 909 [in-court identifications were unreliable where witnesses had difficulty in identifying defendant beforetrial]; see also Peoplev. Trevino, supra, 39 Cal.3d at pp. 696-697[in-court identification was speculative and equivocal where witness misremembered circumstances surrounding her viewing ofphoto lineups].) Only after seeing Gomezin court three times did Owensidentify him as the man he saw. (14RT 2187, 2249.) Owensfirst revealed to the prosecutorthat he believed he could identify Gomez during the lunch break before his afternoon 52 testimony. (14RT 2203-2204.) This is not the only reason Owens’s identification fails to inspire confidence. At the time of the crime, more than two years before, Owens had provided a description that did not match Gomez, and was not shown to match Gomez’s appearanceat the time of the crime, in crucial respects. © Owensestimated the man’s height at around 5 feet 9 inches or 5 feet 10 inches and his weight at 180 to 200 pounds. (14RT 2191- 2192.) Gomezis 6 feet, 2 inchestall. (29RT 4293.) The record contains no evidence of his weight at the time ofthe crime. ® Owenshad described to police a man with a thick Spanish accent (14RT 2192-2193); there was no evidence that Ruben Gomez spoke with a heavy Spanish accent. @ Owenstold the police the man had a “fade” crewcuthairstyle and a “trim” mustache. (14RT 2195-2196.) Though Gomez had a mustacheat the timeoftrial (14RT 2195), there was no evidencethat Gomez had such a hairstyle or mustache in June, 1997. © Owensdid not see any tattoos on the man’s neck or hands, despite that, during the five or six seconds of contact, “all I did I looked at his eyes and hands.” (1S5RT 2206-2207.) Gomez had extensive tattoos, including on his hands. (14RT 2206, 2208; see 13RT 2045- 2046.) (Compare People v. Trevino, supra, 39 Cal.3d at p. 696 [in-court identification was speculative and equivocal where witnesstestified that man at scene wastall and slender and did not have a mustache, and defendant wasnot slender and did have a mustacheat the time].) Aside from the discrepancy between Owens’srecollection ofhis 53 viewing of the photo array andthe officer’s (see ISRT 2325; 14RT 2199- 2200), there were additional discrepancies between the description Owens providedpolice and the description he recalled providing to police. (See 15RT 2326; 14RT 2190, 2193, 2207, 2212 [Owens described the man to police as wearing a white and red nylon jacket, blue denim pants, and white shoes;attrial, he recalled telling the police that the man had a red and blue jacket, and he could not recall what kind of shoes the man was wearing or whetherhe had said anything to the detective about what kind of shoesthe man was wearing];see also 14RT 2190, 2206-2207; 15RT 2327 [Owens testified that he saw the manfor only five or ten seconds;he had reported to police that he saw the man for approximately 20 seconds]; see Kyles v. Whitley, supra, 514 U.S. at p. 444 [evolution over time of eyewitness description can befataltoits reliability, citing Manson v. Brathwaite (1977) 432 U.S. 98, 114, and Neil v. Biggers (1972) 409 U.S. 188, 199].) Finally, the identification was cross-cultural, and Owens and Gomez did not know oneanother. (14RT 2189; 4SCT 10 [warrant for William Owens, identifying his race as black];'* see People v. Cardenas, supra, 31 '! See footnote 13, below. 2 Though this document wascontained in the superior court file, the trial court refused to include this documentin the record on appeal. (See ASCT 4; see also 4SCT 12.) In a motion to augmentthe record on appeal, (continued...) 54 Cal.3d at p. 908 [“Eyewitness identifications are especially unreliable where the witnesses identify a memberofa race or ethnic group other than their own.”].) In sum, there waslittle, if anything in the record to inspire confidence that Owens hadaccurately identified Gomez as the man he had seen running on the night of the crime. But even if Owens’sidentification wasofsolid probative value — and for the myriad reasons above,it was not — it does not establish that Gomez wasone of the two men in Luna’s yard when Lunawasshot. Indeed, the only evidence bearing on that question consisted of shoe prints that did not match the shoes Gomez wassaid to have worn." Nor,finally, did evidence that Luna’s cell phone wasusedto call Dunton’s apartment, almost five hours after the killing, or evidencethat Gomez at some point possessed Luna’scell phone, do anythingto establish that Gomez wasin Luna’s front yard when Luna wasshot, or that he had anything to do with Luna’s shooting. Noneofthe calls made on Luna’scell 2(...continued) Gomez asks this Court to take judicial notice of this document. '3 Witness #1 told a detective that Gomez always worea pair of hiking boots. (24RT 3617.) A pair of hiking boots belonging to Gomez were booked into evidence upon hisarrest. (21RT 3113, 3105.) Gomez’s boots were compared to shoe prints on Luna’s front lawn, and they did not match. (14RT 2146-2149.) 35 phone wereidentified as having been made by Gomez. The officer who investigated the calls to cab companiesdid not know whether any cabs had been dispatchedin responseto the calls. (1SRT 2329.) There was no evidence presented regarding the identity of Marlene Andrews, an individual whoseresidence wascalled using Luna’scell phone. (14RT 2160, 2176.) There was no evidence regarding who madethelongest of the calls — to the Holland Hotel at 1:30 a.m. (14RT 2160, 2175-2176.) Speculation that Gomez might have madethesecalls cannot take the place of evidence. (See, e.g., People v. Morris, supra, 46 Cal.3d at pp. 20-21; see also People v. Alkow (1950) 97 Cal.App.2d 797, 802.) Even if Witness #1’s testimony is taken to establish that Gomezis the person who brought Luna’s cell phone to Dunton’s apartment, and that he did so sometimeafter Luna’s killing,'* courts have consistently 14 Witness #1’s testimony that Gomez brought the phoneinto Dunton’s apartment was,to say the least, imprecise and contradictory. On direct examination, hetestified that Gomez had brought Luna’s phone,a white “brick”cell phone, into Dunton’s house. (20RT 3005.) Oncross- examination, he stated that he first saw the brick phone before he was asked to burn a white car (which, assuming that Witness #1 referred to the burning of Rajandra Patel’s Toyota Camry, would have beenin late May of 1997, well before Luna waskilled.) (22RT 3251-3255; see 11RT 1699-1700 [date of Luna’s death]; 9RT 1476 [date of Patel’s death].) Witness #1 alsotestified that he saw the brick phone after he was asked to burn the white car, and that he may have mixed up the large white “brick” phone with a newer, thinner black cellular phone. (24RT 3539- (continued...) 56 emphasized that unexplained possession ofrecently stolen property is insufficient in and ofitself to support a guilty verdict for a theft-related offense. (See People v. Barker (2001) 91 Cal.App.4th 1166, 1174; see also People v. Mendoza (2000) 24 Cal.4th 130, 175-176.) The leap from possession of recently stolen property to murderis even greater, andis all the more unwarranted. Even with slight corroborating evidence, conscious possession of recently stolen property is not sufficient to support a murder conviction. (People v. Barker, supra, 91 Cal.App.4th at p. 1176.) As this Court has explained: “‘Proof a defendant wasin conscious possession of recently stolen property simply does not lead '4(...continued) 3541, 3554-3558.) Witness #1’s contradictory testimony on the timing was not insignificant, as any possession of Luna’scell phone beforehiskilling would have had no probative valueat all with respect to the killing. More, while Luna’s father testified that the cell phone in question was Luna’s, LunaSr. did not live with Raul Luna, and no testimony established that Lunapossessedthe cell phone up until the time of his death. (14RT 2151- 2153.) And more, the evidence showed that Rudy Luna, Raul Luna’s brother, personally knew Gomez (13RT 2064), thus providing a connection that could explain why Gomez might have had Luna’scell phone before he waskilled. (See Turner v. McKaskle (Sth Cir. 1983) 721 F.2d 999, 1002- 1003 [evidence, including evidence of possession of recently stolen property, was insufficient where defendant knew victim, and the jury could not properly have inferred from presenceofvictim’s belongings in defendant’s car that defendant murdered victim to get them; jury could not even infer that defendant had stolen the items, as there was no evidence they were stolen as opposed to given away; evenif items were stolen, someoneelse may have stolen them].) 37 naturally and logically to the conclusion the defendant committed’ a rape or murder.” (People v. Prieto (2003) 30 Cal.4th 226, 249, quoting People v. Barker, supra, 91 Cal.App.4th at p. 1176; see also Turner v. McKaskle, supra, 721 F.2d at pp. 1002-1003 [evidence that defendant admitted being with the victim on the day ofthe murder, was present near the scene of the crime andleft the state the day after the murder, and possessed someofthe victim’s personal belongings wasinsufficient to sustain murder conviction].) Thus, even if it is assumed that Gomez had Luna’scell phone after he waskilled, there is no evidence to suggest Gomez obtained the phone bykilling Luna, and the law doesnot permit the unsupported inference that he did. There is no evidencein this record placing Gomezat the scene ofthe crimeor linking him to the actualkilling ofRaul Luna. (See People v. Trevino, supra, 39 Cal.3d at pp. 696-697 [where evidence included defendant’s fingerprint at scene, but did not establish that defendant wasat the scene at the time of the crime, it was insufficient]; see also Cooperv. McGrath, supra, 314 F.Supp.2dat pp. 996-997[“no properly admitted evidence put [defendant] at the scene of the murder. That gap in evidence would have caused any rationaltrier of fact to find that [defendant’s] guilt 58 wasnot proven beyond a reasonable doubt”].) In People v. Blakeslee, the evidence showed defendant wasat the crime scenefive to ten minutes before the crime, and five to ten minutes after; the Court of Appeal foundit insufficient, noting that it showed “Talt most . . . opportunity”: “No one witnessed the shooting, no one placed defendant in the apartmentat the time of the shooting, no one saw defendant with a weapon, and no oneidentified defendant with any particular weapon.” (People v. Blakeslee (1969) 2 Cal.App.3d 831, 837- 838.) Here, of course, the evidence did not show even that much: a highly suspectidentification, if credited, provided some evidence that Gomez was seven to nine blocks away,five to ten minutes after the crime, but nothing established that Gomez was in Luna’s yardat any time. Asin Hall, “[e]very attempt to connect defendant with the details of the killing failed.” (People v. Hall, supra, 62 Cal.2d at p. 112.) At most, this evidence casts suspicion on Gomez. But suspicion, even grave suspicion,is not enough.(See, e.g., People v. Robinson, supra, 61 Cal.2d at p. 399.) We can speculate that Gomez wasoneofthe individuals in Luna’s front yard — or we can speculate that he wasa third, or fourth person in thearea at the time. There is no evidence either way, and speculation cannot takeits place. (See, e.g., People v. Waidla, supra, 22 Cal.4th at p. 735.) As this Court 59 explained in People v. Morris: We may speculate about any number ofscenarios that may have occurred .. . . A reasonable inference, however, “may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.. _. A finding of fact must be an inference drawn from evidencerather than . . . a mere speculation as to probabilities without evidence. (People v. Morris, supra, 46 Cal.3d at p. 21, originalitalics; see also Juan H. v. Allen, supra, 408 F.3d at p. 1279.) 2. Even If it Is Assumed That Mr. Gomez WasOneofthe Individuals in the Lunas’ Front Yard at the Timeofthe Shooting, the Jury Properly Found That He Did Not Shoot Mr. Luna and There Was No Evidenceat All to Support a Conviction on an Aiding and Abetting Theory. The sounds and whispers Rudy Luna overheard suggested that at least two individuals were in the Lunas’ front yard when they confronted Raul Luna. Evenif speculation could take the place of evidence,anditis assumed that Gomez wasoneofthose two individuals, there was no evidenceatall that Gomez shot Luna.’* Thejury thus properly found the firearm allegation nottrue. (29RT 4348; 3CT 840.) Because there was no substantial evidence — indeed, no evidenceat '5 In fact, the prosecution’s evidence, if it shows anything, suggested that Gomez did not shoot Luna. William Owens, who had seen a man running, seven to nine blocks from the scene, told police andtestified that the man he saw had nothing in his hands; he did not see the man carrying a shotgun. (L4RT 2196-2197; 1SRT 2327.) 60 all — from whichthe jury could conclude that Gomez wasthe actual shooter ofRaul Luna, he could properly be convicted offirst degree murder only if the jurors found that he aided and abetted the shooter, “shar[ing] [his] murderous intent,” and personally premeditating and deliberating. (People v. McCoy, supra, 25 Cal.4th at pp. 1118-1119.) First, there is no evidence whatsoever from which the jury could conclude that Gomez “contemplated the murder . . . much less premeditated and deliberated it.” (People v. Roberts (1992) 2 Cal.4th 271, 320.) Thus, “[o}n that ground, the first degree murder conviction cannot stand... .” (Ibid.)'® The evidence wasinsufficient to sustain any murder conviction, however. Gomez was properly acquitted of the robbery of Raul Luna, and the robbery special circumstance wasproperly foundnottrue, as the evidence could not support a conviction for robbery or the robbery special circumstance. (See 29RT 4348-4349; see also 3CT 840-841.) The evidence wastherefore likewise insufficient to support a murder conviction on a felony-murder theory. (See People v. Morris, supra, 46 Cal.3d at pp. 19- © If Gomez’s conviction for the first degree murder of Raul Lunais upheld based on an interpretation of state law that fails to maintain a meaningful distinction between first and second degree intentional murder, then state law violates due process, for the reasons set forth below in ArgumentIII. 61 22.) Evenif it is assumed that Gomez possessed Luna’scell phoneat sometime after his death,’” as in Morris, there was an “absence of any substantial evidence”that a taking of Luna’s cell phone “was accomplished either before or during the killing by means offorce or fear.” (/d. at p. 21.) More, there was no evidence whatsoeverof a “logical nexus, beyond mere coincidenceoftime and place, between the felony the parties were committing or attempting to commit andthe act resulting in death” — a requirement where a nonkiller is prosecuted under a felony-murdertheory. (People v. Cavitt (2004) 33 Cal.4th 187, 201.) More fundamentally, even if it is assumed that Gomez waspresent at the scene, there was no evidenceat all shedding any light whatsoever on what Gomez may have done, or what his mental state was. The principle that a defendant must both “do something [the actus reus] and have a certain mentalstate [the mens rea]”applies to aiding andabetting liability as well as directliability. (People v. McCoy, supra, 25 Cal.4th at p. 1117, originalitalics.) In order to find a defendantguilty as an aider and abettor, the prosecution must show that the defendant“by act or advice, aid[ed], promote[d], encourage[d] orinstigate[d] the commissionofthe crime,” 17 Asset forth above, no substantial evidence supported such an assumption. 62 “with knowledge ofthe unlawful purpose of the perpetrator . . . and with the intent or purpose of committing, facilitating or encouraging commission of the crime.” (People v. Cooper (1991) 53 Cal.3d 1158, 1164,citing People v. Beeman (1984) 35 Cal.3d 547, 561; see also People v. McCoy, supra, 25 Cal.4th at p. 1118.) The prosecution must establish intent with respectto the specific offense the defendantis alleged to have aided and abetted; intent may not be established based upon “the . . . generalized belief that the defendant intended to assist and/or encourage unspecified ‘nefarious’ conduct.” (Juan H. v. Allen, supra, 408 F.3d at p. 1276, quoting People v. Prettyman (1996) 14 Cal.4th 248, 268.) Evenif it were assumed that Gomez wasin Luna’s front yard with the shooter, there was no evidence atall that he committed any act or gave any advice to aid, promote, encourageor instigate the shooterin the commission ofthe crime. There was no evidenceatall, anywhere in the record, of anything Gomezsaid or did in connection with the killing of Raul Luna. Norwasthere any evidenceatall that Gomez had “knowledge ofthe criminal purpose”ofthe unknownperpetrator or “the intent or purpose of committing, facilitating or encouraging the commission ofthe crime.” 63 (People v. Cooper, supra, 53 Cal.3d at p. 1164; see Juan H. v. Allen, supra, 408 F.3d at p. 1276 [“An aider and abettor must share in the principal’s criminalpurpose orintent . . . ‘In general neither presence at the scene of a crime nor knowledge of, but failure to preventit, is sufficient to establish aiding andabetting its commission.’”], quoting People v. Campbell (1994) 25 Cal.App.4th 402, 409; see Newman v. Metrish (6th Cir. 2008) 543 F.3d 793, 796-797.) There was simply no evidence from which the jury could conclude that the non-shooterpresent at the scene at the timeofthe crime, evenifit were proven to be Gomez,did anythingatall “‘with knowledge of the criminal purposeofthe perpetrator and with an intent or purpose either of committing, or of encouragingorfacilitating commissionof, the offense.’” (People v. McCoy, supra, 25 Cal.4th at p. 1118, original italics, quoting People v. Beeman, supra, 35 Cal.3d at p. 560; see Juan H. v. Allen, supra, 408 F.3d at p. 1276; see also Piatkowski v. Bett (7th Cir. 2001) 256 F.3d 687, 692 [mere presenceat scene not sufficient to sustain conviction on conspiracy theory]; Newmanv. Metrish, supra, 543 F.3d at pp. 796-797; People v. Durham (1969) 70 Cal.2d 171, 181.) That other individual, even if it were shown to be Gomez, may well have accompanied the shooter intending to confront Luna,or surprise him, 64 or purchase drugs from him. That is speculation, of course; but it would equally be speculation to posit that the other individual intended that Luna be killed. There is simply no evidence on this crucial element, and again, speculation cannottake its place. (See, e.g., People v. Waidla, supra, 22 Cal.4th at p. 735; People v. Morris, supra, 46 Cal.3d at p. 21.) Juan H. v. Allen is instructive. There, the Ninth Circuit, applying the additional layer of deference mandated in federal habeas review but not applicable here, concluded that the evidence wasinsufficient to sustain the delinquency petition charging habeaspetitioner Juan H. with first degree murder. (Juan H. v. Allen, supra, 408 F.3d at pp. 1274-1277.) Juan H. was shownto have beenat the scene, standing behind his brother whenhis brother shot the victim; he was shownto have hada prior altercation with the victim; he ran from the scene; and he gave a police a false alibi for the time of the shooting. (Jbid.) The court nonetheless found the evidence of aiding and abetting insufficient, as there was no evidence that Juan H. intendedto aid and abet the killing. (/d. at pp. 1266-1267, 1278-1279.) Here, where there was no evidence of motive,'® any conclusion that Gomez '8 The record is devoid of any motive. (People v. Hall, supra, 62 Cal.2d at p. 112 [in reversing for insufficiency, in addition to weak evidence of guilt, court notes that there was no evidence of motive]; compare People v. Snow (2003) 30 Cal.4th 43, 66-68 [distinguishing People v. Trevino, supra, 39 Cal.3d 667, because evidence of Snow’s motive was (continued...) 65 did anything to aid or abet the shooting or intended that Luna be killed would be even more speculative. The Ninth Circuit explainedits conclusion in Juan H. in language that applies equally to this case: [T]he record doesnotreflect any evidence that [defendant] intended, throughhis actions, to assist [the shooter] in committing first-degree murder. [Defendant] did not do or say anything before, during or after the shootings from which a reasonable factfinder could infer an intent or purposeto aid and abet in the murder.... Speculation and conjecture cannottake the place of reasonable inferences and evidence — whether direct or circumstantial — that [defendant] — through both guilty mind and guilty act — acted in consort with [the shooter] . . . [I]t is only speculation that supports a conclusion that [defendant] knew that[the perpetrator] planned to commit the first-degree murder[] . . . , and that [defendant] took some action intended to encourageor facilitate [the perpetrator] in '8(..continued) “strong”; Snow “had a virtually unique combination of motive and opportunity” and “was connected by other circumstantial evidence . . . to the crime”]; House v. Bell (2006) 547 U.S. 518, 540 [“From beginning to end the case is about who committed the crime. When identity is in question, motive is key.”].) Priorto trial, the prosecution conceded thatit did not believe that robbery was the motive; the prosecutor agreed with the court’s assessment that the charged robbery of Raul Luna was“distinct” from the homicide. (1RT 21-23; see also 1RT 78-80.) The robbery special circumstance was then addedto the information during deliberations, over defense objection, despite the prosecutor’s earlier statementthat he did not believe it was true. (29RT 4314.) Though the prosecution then argued in summation that the motive was “simple greed” (27RT 3846), its argument was belied by its own concessionsbefore trial and the lack of any evidence to support it. 66 completing the killing[]. Such a lack of evidence violates the Fourteenth Amendment guarantee that an accused must go free unless and until the prosecution presents evidence that proves guilt beyond a reasonable doubt. (Juan H. v. Allen, supra, 408 F.3d at pp. 1278-1279; see also In re Michael T. (1978) 84 Cal.App.3d 907, 910, 911 [evidence insufficient to support a determination that juvenile was guilty of murder where it showedonlythat the juvenile was present near the scene and had made statements apparently acknowledging involvement]; Piatkowski v. Bett, supra, 256 F.3d atpp. 692-693 [evidenceinsufficient to support guilt of conspiracy to murder where it showed only that defendant wasat scene of crime].) United States v. Andrews (9th Cir. 1996) 75 F.3d 552 is instructive as well. In that case, the Ninth Circuit found evidence of aiding and abetting insufficient where, although defendant hadjust shot and killed one individual, there was no evidence that he shared his co-defendant’s intent to kill another person secondslater. (/d. at pp. 554-556.) The court’s explanation, again, applies equally here: While mere presenceat the sceneis insufficient to support a conviction of aiding and abetting, [citation], the jury can infer intent from circumstantial evidence. [Citation.] We have been unable, however, to find in the record circumstantial evidence of the requisite intent on [defendant’s] part. The evidence showsthat [defendant], along with [others], accompanied [his co-defendant] to the scene of the crime. There is no evidence that [defendant] shared [his co-defendant’s] intent to hurt [the victim]. 67 (Id. at pp. 555-556.) Here, similarly, the record is devoid of any evidence — circumstantial or otherwise — that Gomez shared the shooter’s intent to kill Raul Luna. 3. Conclusion. Norationaljury, without resort to speculation and conjecture, could conclude beyond a reasonable doubt— reaching the requisite state of near certitude (Jackson v. Virginia, supra, 443 U.S.at p. 315) — that Gomez killed Raul Luna oraided and abettedthe killing ofRaul Luna. Asin People v. Hall, “[e]very attempt to connect defendantwith the details of the killing fails.” (People v. Hall, supra, 62 Cal.2d at p. 112.) One couldspeculate as to any numberof scenarios that might have occurred. (People v. Morris, supra, 46 Cal.3d at p. 21.) Evenifit is assumed that Ruben Gomez wasin the neighborhood aroundthe timeofthe crime — an unwarranted assumption in light of the weak evidence of Owens’s last-minute identification, and the unknownvintage of the fingerprints on a car parked 150 to 200 yards from the Lunas’ house — he may or may not havebeenthe other individual presentin the Luna’s yard with the shooterat the time of Luna’s killing; he may or may not have been a third person whotraveled to the neighborhood with the two individuals who were in Luna’s front yard. If he wasthe other individual presentin the 68 front yard, he may or may not have shared the killer’s intent; he may or may not have merely intended to surprise Luna, or confront him, or scare him, or purchase drugs from him. But none ofthese scenariosrests on anything more than speculation and conjecture. Speculation, of course, is not enough.(See, e.g., People v. Morris, supra, 46 Cal.3d at p. 21; People v. Waidla, supra, 22 Cal.4th at p. 735; Juan H. v. Allen, supra, 408 F.3d at pp. 1277-1278.) Becausethe case against Gomez rested on no more thanthat, his conviction for the murder of Raul Luna mustbe reversed. OF The Trial Court Erred in Denying Mr. Gomez’s Penal Code Section 1118.1 Motion. After the prosecution rested, counsel for Gomez moved to dismiss the count charging Gomez with the killing of Raul Luna. (25RT 3651.) The court denied the motion. (25RT 3651.) Forall the reasons set forth above, the trial court erred in denying Gomez’s motion. (See People v. Stevens (2007) 41 Cal.4th 182, 200 [standard applied to section 1118.1 motionis the sameas standard applied by an appellate court reviewing sufficiency of the evidence].)”” Tt does not appear that any significant evidence relevantto the Lunacase wasintroducedafter the trial court denied defense counsel’s motion to dismiss, although there was sometestimonyrelating to Witness #1’s general credibility (see 25RT 3689-3691) and the Luna homicide was (continued...) 69 D. Mr. Gomez’s Death Sentences Must Be Reversed. In addition to Gomez’s conviction and death sentence for Luna’s murder, his death sentence for the murder ofRajandra Patel must be reversed as well. As argued below, in ArgumentII, the evidence of Gomez’s guilt in the Patel case was also insufficient, thus rendering the conviction and death sentence for that murder invalid. But even shouldthis Court reject that argument, the death sentence for Patel’s murder must be reversed. The error here — Gomez’s conviction for Luna’s murderand the jury’s consideration of that murderin deciding his sentence for killing Patel — violated Gomez’sright to due process andto be free of cruel and unusual punishment, and wasnot harmless beyond a reasonable doubt. (See Chapmanv. California (1967) 386 U.S.18, 24; U.S. Const., 8th & 14th Amends.; see also People v. Brown (1988) 46 Cal.3d 432, 447-449; People v. Gonzalez (2006) 38 Cal.4th 932, 961; People v. Prince (2007) 40 Cal.4th 1179, 1299-1300.) The prosecution cannot prove beyond a reasonable doubt that this error did not contribute to Gomez’s death sentence in the Patel case. 9”. .continued) mentionedbriefly (see 25RT 3722). Thus, essentially the same evidenceis at issue with respectto the sufficiency question and the correctness of the court’s denial of Gomez’s Penal Code section 1118.1 motion. 70 Raul Luna wasa person the jurors (erroneously) believed Gomez guilty of murdering. His parents’ presence in the courtroom wasso palpable that defense counsel felt compelled to noteit in his guilt phase summation, remarking that Luna’s death wasparticularly sad. (27RT 3927-3928; see 14RT 2242-2244.) Removing the Lunakilling from the case would have markedly altered the picture facing the penalty phase jurors. In state law terms, there is a reasonable possibility that, with the Luna homicide removed from thecase, at least one juror would have declined to impose the death penalty for the Patel murder. (See People v. Brown, supra, 46 Cal.3d at p. 448; People v. Hernandez (2003) 30 Cal.4th 835, 877 [reversing death sentence where error skewed jury’s consideration ofprosecution’s most important aggravating evidence, evidence of another murder, and where evidence of stabbing defendant had been acquitted of was erroneously put before penalty phase jurors].) The inquiry is not whether, in a sentencing proceeding that occurred without the error, a death sentence “would surely have been rendered,” but whether the death sentence for Patel’s murder “actually rendered in this trial was surely unattributable to the error.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279, original italics.) The death sentence for Patel’s murder was not “surely unattributable” to the error in placing the murder of another 71 person, within weeksofthe Patel murder, before the jurors deciding Gomez’s sentence in the Patel case. Unlike in People v. Roberts, supra, 2 Cal.4th at pp. 327-329, the conviction at issue (of Luna’s murder) is not one for which the jury, by virtue ofa life without parole verdict, evidently attached a lesser “moral significance.” The jurors sentenced Gomezto death for Luna’s murder despite the fact that they found he did not shoot him and despite the insufficiency of the evidence of Gomez’s guilt. With the Luna murder removedfrom the case, at least one juror might well have viewedthe Patel case differently. More, evenifthis Court were to conclude that the Patel conviction were supported by sufficient evidence,that evidence was far from overwhelming. (See ArgumentII, below.) The prosecution cannot show beyond a reasonable doubtthat placing the Lunacrime before the penalty phase jurors did not affect the verdict by overcoming one or more jurors’ lingering doubts about Gomez’s conviction in the Patel case, in which there wasno physical evidence,but only the testimony oftwo unreliable witnesses. (See ArgumentII.B.2., below; see People v. Gay (2008) 42 Cal.4th 1195, 1226 [lingering doubt defenseat penalty phase could have particular potency where no physical evidence linked defendantto the 72 killing].) This Court thus must reverse Gomez’s conviction and sentence for the murder of Raul Luna, andhis death sentence for the murder of Rajandra Patel. 73 I. THE EVIDENCE WASINSUFFICIENT TO PROVE MR. GOMEZ’S GUILT OF THE KIDNAPING, ROBBERY, AND MURDER OF RAJANDRA PATEL Ruben Gomez was convictedofthe first degree murder ofRajandra Patel, as well as the second degree robbery and kidnaping of Patel. 3CT 837-839.) The only evidence linking Gomezto these crimes was the testimony of two witnesses, Witness #1 and Witness #3. Witness #1 was a heroin addict wholied to the jury and who may have been a schizophrenic whosuffered hallucinations — or merely someone whofeigned a mentaldisorderto collect governmentbenefits, depending on which portion of his sworn testimony is true (if any) and whichis false. This witness was so thoroughly discredited that no rational juror could put any stock in his testimony. Witness #3 was a drug dealer’s wife who cameto the attention of the police when she and her husbandweretaken to the police station after a large amount of cocaine was foundin their bedroom;she implicated Ruben Gomez whenpolice asked about a pawn receipt, found in her possession, for Patel’s jewelry. The evidence supplied by these two witnesses, taken together, was not sufficient to permit rational jurors to conclude beyond a reasonable 74 doubt that Gomez kidnaped, robbed, and murdered Patel. They contradicted each other regarding their claims that Gomez possessed Patel’s jewelry, such that it was physically impossible for both witnesses’ claimsto betrue. Witness #3 offered evidence of a statement by Gomez whichnot only contradicted Witness #1°s testimony, but also was suggestive of unreliability, irrelevance, or even fabrication, as it purported to relate to the killing of a Mexican man. And Witness #1, on the stand, proved himself so lacking in honesty and reliability that no rational juror could credit any unsupported testimonyofhis. A. Standard of Review. A conviction violates due process where rational jurors could not find the defendant guilty beyond a reasonable doubt. (See Jacksonv. Virginia, supra, 443 U.S.at pp. 317-319; People v. Johnson, supra, 26 Cal.3d at pp. 575-576; see also In re Winship, supra, 397 U.S.at p. 364; U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7 & 15.) ““TS]Jome’ evidence” is not enough. (People v. Johnson, supra, 26 Cal.3d at p. 577.) The evidence mustbe substantial. “Substantial evidence’ meansthat evidence which, when viewedin light of the entire record, is of solid probative value, maintainsits credibility and inspires confidence that the ultimate fact it addresses has been justly determined.” (Peoplev. 75 Conner, supra, 34 Cal.3d atp. 149.) To be sure, the assessment ofcredibility properly rests with the trier of fact and the appellate role in this domain is limited. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The factfinder’s determination ofwitness credibility may only be upset where the witness’s testimony is “physically impossible or inherently improbable. . . .”(E.g. People v. Young (2005) 34 Cal.4th 1149, 1181; People v. Thompson (2010) 49 Cal.4th 79, 124-125; see also People v. Ozene (1972) 27 Cal.App.3d 905, 910 [appellate court may find incredible, as amatter of law, testimony apparently credited by the factfinder whereit is physically impossible or “such as to shock the moral sense of the court” — where the testimonyis “inherently improbable and such inherent improbability . . . plainly appear[s]”], questioned on another ground by People v. Gainer (1977) 19 Cal.3d 835, 844; see also People v. Coontz (1953) 119 Cal.App.2d 276, 280; People v. Lang (1974) 11 Cal.3d 134, 139-140 [Court of Appeal might have concluded that alleged assaults “were physically impossible” and prosecution witnesses’ testimony “demonstrably false”].) In People v. Smith, in reversing a conviction for insufficiency of the evidence,the Illinois Supreme Court explained that it while credibility is “within the province ofthetrier of fact . . . .we will reverse a conviction 76 where the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of defendant’s guilt.” (People v. Smith, supra, 708 N.E.2d at p. 370 [evidence insufficient where state witness’s testimony was contradicted in important respects by testimony ofmorereliable state witnesses, and wasin other respects not credible].) The Eighth Circuit has explained that “we must reverse a conviction if no reasonable person could believe the incriminating testimony.” (United States v. Watson (8th Cir. 1991) 952 F.2d 982, 988, citing Jacksonv. Virginia, supra, 443 U.S. at pp. 318-319.) And the Eleventh Circuit has interpreted Jackson’s rationality requirementto allow appellate courts to disregard testimonythat is “*so inherently incredible, so contrary to the teachings ofhuman experience, so completely at odds with ordinary commonsense, that no reasonable person would believe it beyond a reasonable doubt.’ [Citation].” (Wilcox v. Ford (11th Cir. 1987) 813 F.2d 1140, 1146.) At bottom, the constitutional question before an appellate court assessing sufficiency of the evidence is whether “any rationaltrier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia, supra, 443 U.S.at p. 318, originalitalics.) This “familiar standard gives full play to the responsibility of the trier of 77 fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. .. . [T]he factfinder’s role as weigherofthe evidenceis preserved through a legal conclusion that upon judicial review all ofthe evidence is to be considered in the light most favorable to the prosecution.” (Id. at p. 319, original italics.) The question, of course, is not whether the appellate court believes prosecution witnesses are credible or is convinced beyond a reasonable doubtofguilt; rather, the question is whether “any rationaltrier of fact” could have been so persuaded. (People v. Hernandez, supra, 30 Cal.4th at p. 861, originalitalics.) Though the standard defers to the factfinder’s role in judging credibility, some evidence may be so patently incredible as to warrant the conclusion that no rational juror could put stock in it. Where the evidence“is so lacking in substantiality as to truth or credibility thatit falls far short of that quantum ofverity, reasonableness and substantiality required by law in criminalcasesto satisfy the reason and judgment of those bound to act conscientiously upon it as to the existence of guilt beyond a reasonable doubtand to a moral certainty ... [iJt must... be regarded as amounting to no evidenceatall, as a matter oflaw....” (People v. Bodkin (1961) 196 Cal.App.2d 412, 416-417.) Where a life is at stake,it is all the more crucial that the evidence of 78 guilt “[be] of solid probative value, maintain{] its credibility and inspire[] confidence that the ultimate fact it addresses has been justly determined.” (People v. Conner, supra, 34 Cal.3d at p. 149.) In Eighth and Fourteenth Amendmentterms, “the need for the most reliable possible determination of guilt ...is paramount... .” (People v. Jones (1998) 17 Cal.4th 279, 321 (Mosk, J., concurring); see also Beck v. Alabama, supra, 447 U.S.at p. 638; but see People v. Howard, supra, 51 Cal.4th at p. 34, fn. 10.) This Court cannot, and should not, permit Gomez to be executed on the basis of testimony by patently unreliable witnesses. B. The Evidence WasInsufficient to Prove Mr. Gomez’s Guilt of the Kidnaping, Robbery, and Murder of Rajandra Patel. The physical evidencein the Patel case clearly showed that Patel had been killed; it did not, however, in any respect, show that Gomez was involvedin the killing. Early in the morning ofMay 26, 1997, Rajandra Patel’s body was found alongside the northbound on-ramp to the Terminal Island freeway. (ORT 1476-1478, 1486-1487.) Blood was found on the shoulder area of the ramp, between the body and a point about 75 feet north.ORT 1479-1481.) One .40 caliber cartridge case lay about 90 feet from the body; another a few feet closer to the body than that; and another three or four feet from the body. (QRT 1479-1482.) Patel had been shot in the back ofthe head and 79 there were two major stab wounds, one in the chest and one on the left side of the neck. (QRT 1522-1524.) Patel also had some smaller stab wounds on the face and chin. (QRT 1529-1530.) Patel’s car, a white Toyota Camry, was found twodayslater in an alley in San Pedro. (12RT 1878-1879; see 12RT 1870-1872.) The car’s interior was completely burned. (12RT 1880.) Bloodstains found in the trunk contained DNA consistent with Patel’s; one in 60,000 people chosen at random would be expected to share the same DNAcharacteristics. (12RT 1886-1889, 1904-1911.) Jewelry belonging to Patel was pawned in Las Vegas on June5, 1997. (13RT 1970-1974, 12 RT 1873.) On June 8, 1997, a gun which, accordingto the firearms examiner, matched casingsat the crime scene, was recovered from the home of a person named Angel Rodriguez in Wilmington. (12RT 1944-1948; 14RT 2137-2143.)” The only evidence connecting Gomezto the crimes against Patel, however, wasthe highly unreliable testimony of Witnesses #1 and #3. 2 Though the officer whoretrieved the gun from Rodriguez referred to him with masculine pronouns (12RT 1948), the chief investigatorin the Patel homicide apparently believed Angel Rodriguez was a woman, affirming on direct examinationthat he had attempted to locate Angel Rodriguez but had been unableto locate “her.” (12RT 1859-1860.) 80 1. No Forensic or Eyewitness Evidence Linked Mr. Gomezto the Patel Killing. Nophysical or forensic evidence linked Gomezto the Patel killing, despite the fingerprint testing of Patel’s car and multiple items foundin it, including a flashlight that did not belong to Patel.QRT 1495-1500;7! see Cooper v. McGrath, supra, 314 F. Supp.2d at pp. 996-998 [granting habeas corpuspetition for insufficiency of evidence and emphasizing lack of forensic and eyewitness evidence]; see also People v. Hall, supra, 62 Cal.2d at pp. 111-112; People v. Blakeslee, supra, 2 Cal.App.3d at pp. 839-840.) Andno eyewitness saw the kidnaping,killing, or robbery. The weapon usedto stab Patel was not produced. Angel Rodriguez, whogavepolice a pistol, which, according to firearms examiner Anthony Paul, matched cartridges at the Patel crime scene (12RT 1944-1948; see 14RT 2137-2143), did nottestify at trial and there was no evidence whatsoever about who heor she was or whetherhe or she had any connection to Ruben Gomez. The prosecution was reducedto arguingthat the fact that the pistol was recovered in the Harbor Area somehow implicated Ruben Gomezin the killing. (27RT 3826-3827.) Of course, 21 Tn addition, casts of shoe and boot impressionsat the scene where Patel’s body was found did not match boots taken from Gomez (12 RT 1865-1868), boots which Gomez always wore, according to Witness #1 (24 RT 3617). 81 becausethe crimeitself took place in the Harbor Area, the fact that the pistol used to commit it was foundthere bore no probative valueat all. While Witness#1 testified that he had seen Gomez with the pistol used to kill Patel “when hefirst started coming around [Dunton’s] house” (20RT 3004), the record contains no explanation ofhow Witness #1 identified the weapon, such as any reference to distinctive characteristics it bore.” 2. The Testimonial Evidence Purportedly Establishing Mr. Gomez’s Guilt Was Insufficient. Noevidenceatall, other than Gomez’s purported statements to two witnesses — Witness #1 and Witness #3 — linked him to the crimesagainst RajandraPatel.”* 2 Witness #1 testified that some time before the killing of Jesus Escareno (see Argument XVIII, StatementofFacts, pp. 17-21), Gomez told him he threw the gun in a dumpster, and when he went back to retrieveit, it wasnotthere; he did not say when Gomeztold him this or when the incident had happened. (24RT 3538-3539.) 23 The prosecution attempted to shore up its weak evidence against Gomezin the cases involving Rajandra Patel by referring to a statement Gomez madeto Detective Winter, which,it claimed, revealed knowledge of the Patel case not released to the press — that the victim could not be identified because his wallet was missing. (27RT 3826-3827.) Despite the prosecution’s summation argument, there was no evidence that Patel had a wallet, let alone that it was missing. The only evidence relating to this issue wasthe evidence that Patel could not be identified — which was, in any event, the subject of a newspaperarticle introduced by the defense. (See Defense Exhibit G; see also ORT 1498-1499.) More, the prosecutorfailed to (continued...) 82 a. Witness #1 Witness #1 was incredible as a matter of law. He had been a heroin user for 40 years and,at the time of the events hetestified about, he was using heroin and crack on a daily basis, and sometimes methamphetamine as well. (22RT 3221-3227, 3282-3285.) He admitted to working as a doorman for Robert Dunton, a crack dealer; working for a heroin dealer he would not name; and committing “quite a bit” of robberies, mostly using knives. (22RT 3221, 3226, 3273-3275; 22RT 3315-3320; 24RT 3508- 3509.) He either suffered from schizophrenia or for years feignedits symptomsin orderto collect government disability benefits. (23RT 3364- 3373; 24RT 3466-3480.) And he was an accomplice to murder. (29RT 4134-4137 [accomplice instruction]; 19RT 2911-2912; 19RT 2943-2950.) Witness #1’s testimony demonstrated beyond dispute that he had little regard for the truth and that he was willing to lie — andthat he didlie, on the stand, as well as outside court. The following colloquies”illustrate °3(...continued) identify how Gomez’s statementrelatedat all to the killing of Patel, except that it had taken place in the Harbor Area, and Gomez had commentedthat “things had gonecrazy there in the Harbor Arealately.” (13RT 2044.) None ofthe vague references to the circumstancesofthe killings Gomez described fit with the circumstancesin the Patel case. (13RT 2042.) 4 Although someofthese colloquies related to counts other than those involving Rajandra Patel, they nonetheless serveto illustrate Witness (continued...) 83 his attitude towards truth and his oath as a witness: Q. A. ee F > O > 2 P A Q O r e Oo > P P You didn’t tell Detective Winter [that] Diablo always drove? I might have, but I wasn’t underoath then. Okay. So that makesa difference, right? To meit does. (22RT 3263.) ... Did youtell Detective Winter that Boxer took the 12-gauge? Is that when I was being videotaped? I don’t believe so, and it wasn’t under oath. No,I didn’t say it. * * * Andif it’s on thetape, I didn’t [sic] say it. (22RT 3288.) ... Do yourecall telling the police [contrary to your - trial testimony] when they asked you who wasthere when you got back from the junk yard, you only told them Spider [Acosta] and Huero [Dunton]. That’s the way it goes if you guys see what the bad guys got and the bad guys see what the good guysgot. (22RT 3297.) ... So that wasa lie? It wasa lie on mypart. Okay. Prior to your discovering the two dead bodies in the house, did you return to the house, crawl through the front window ofthe living room and find the bodies? That was anotherlie on mypart. Okay. I assumeyoutold a couple oflies in this investigation, right? Probably more than a few. (22RT 3302.) Did youeversay that to the detectives? 4(_..continued) #1’s attitude towards the oath he took when he took the stand in Gomez’s trial. 84 No,I didn’t. Or - I could have. Ifyou said it to the detectives — I could. You could have, but you weren’t under oath then, correct? That wasn’t the truth. (22RT 3306.) Well, from 1981 through 1997, were you collecting SSI? Yup. Were youentitled to it any of that time? You’re entitled to what you can get. I’m sorry. I didn’t — You’re entitled to what you can get. Even ifyou havetolie to get it? Yeah. (24RT 3473-3474.) e P O P P A P A H S LH FF H P A P H D Witness #1 not only lied in the course of the investigation, however; despite his purported distinction between lying to police and lying under oath, he lied on the stand. On the morning of Wednesday, January 26, 2000, Witness #1 testified that he took Thorazine, Stelazine, and Artan for “hearing voices” and hallucinating, though he sometimesstill hallucinated, in spite of the medicine. (23RT 3364-3365.) He said that in late June, 1997, he had not taken his medication for some time — it “could have been a month ....” (23RT 3366.) Hetestified that while he received social security disability (“SSI”), it was “not particularly” because of the hallucinations, though his disability was a mental health disability. (23RT 3369.) He admitted having been placed in a locked ward in the 1980s 85 because he was a dangerto himself; he told the jurors he had “faked attempted suicide”to get into the facility. (23RT 3370-3372.) The following day, Witness #1 admitted that he had told the attorneys, outside the jurors’ presence, that he nevergot hallucinations, and had invented them in order to collect social security for a mental disability. (24RT 3467, 3477-3478.)Hetestified that had told the doctors that he “hallucinate{d] and .. . hear[d] voices and my blood runs backwards”in orderto get social security benefits, knowing he wasnot entitled to them. (24RT 3471-3472.) He nonetheless opined that he was now entitled to social security benefits for mental disability “because I can’t hold a job on account ofmy criminal record,” explaining, “You're entitled to what you can get.” (24RT 3473.) Regarding the Patel case, Witness #1 testified that near the time he 25 After the lunch break on Wednesday, January 26, 2000, on voir dire outside the jury’s presence, Witness #1 hadtestified that he had never hallucinated but told doctors that he did to “play[] that nut game, because that’s a sure way of getting your SSI check.” (23RT 3398.) % Aside from his admitted dishonesty, Witness #1 was unable or unwilling to pinpoint dates and times and unable to identify other circumstancesrelated to the crimes he purportedto describe, such as whethera car or a truck wasinvolved. (22RT 3228-3230; 22RT 3230-3233 [#1 testifying that Gomez and“Little Diablo” broughtPatel’s jewelry to Dunton’s apartmentin an older, black and gray Ford]; 22RT 3253-3258[#1 testifying that the vehicle at issue could have been a graycar ora little black pickup truck].) 86 first met Gomez, Gomez asked him to burn a white car; though he thought the car was a Honda,he identified Patel’s Toyota Camry as the car he was asked to burn. (19RT 2931-2934; see 12RT 1870-1872.) Witness #1 burned the car andleft it in an alley. (19RT 2933.) Witness #1 testified that Gomez “told [him] to check the trunk good to make sure there wasn’t no blood in it.” (ORT 2938-2939.) Healso testified that the car had beenstarted with a socket and ratchet; he was taken to the freeway at some point, by an unspecified person, to look for the car’s keys. (19RT 2938; 22RT 3257- 3258.) On redirect, Witness #1 added that Dunton told him that Gomez had put “a hit” on him (Witness #1) for not burning the white car completely; Witness #1 heard from Dunton that Gomez was worried abouthis fingerprints. (24RT 3549.)°’ Witness #1 believed the car wasrelated to a watch and bracelet Gomez and another man,“Little Diablo,” had brought to Dunton’s house a few days earlier and to a telephone also brought to Dunton’s house.”* (19RT 2938; 22RT 3230-3232, 3251-3254.) While there was no evidence regarding any phone possessedbyor stolen from Patel, Witness #1 identified Patel’s jewelry as the jewelry in question. (19RT 2939.) On *7 This testimony regarding Dunton’s statements to Witness #1 was, of course, patent hearsay. 28 “Tittle Diablo” was neveridentified. 87 redirect examination, Witness #1 testified that Gomezsaid, regarding Patel: “In Indiana vy. Edwards (2008) 554 U.S. 164, 167, the Supreme Court held that a state mayinsist that a defendant who is mentally competent to standtrial, but not mentally competent to represent himself, may be represented by counsel. Neither the state nor the court indicated that there was any issue regarding Gomez’s mental competence. 109 alternative that [defendant] proposesto the court is that he proceed in pro. per. He thinks he would be moreinclinedto get a fair trial that way than he would with —”(Id. at p. 217.) The court interjected: “I am not goingtolet him proceedpro. per.,” andclarified, “[nJot in a death penalty murdertrial.” (Ibid.) This Court foundit unnecessary evento decide whether Dent had made an unequivocalself-representation request, “because . . . thetrial court’s response wasnotonlylegally erroneousbut also unequivocal, and foreclosed anyrealistic possibility defendant would perceive self- representation as an available option.” (/d. at p. 219.) Thecourt here similarly madea legally erroneous preemptive denial of any request for self-representation. While the trial court in Dent foreclosed the right by indicating it would not allow its exercise in a capital case, the trial court here foreclosedthe right by indicating it wouldnot allow its exercise because Gomez had onceasserted the right and then requested the appointment of counsel. Neither is an adequate reason to deny the right. A timely Faretta request — one made within a reasonable time before trial begins — must be granted, after ascertaining that the defendant “has voluntarily andintelligently elected to do so, irrespective ofhow unwise such a choice might appear to be.” (People v. Windham, supra, 19 Cal.3d 121, 127-128; see People v. Jenkins (2000) 22 Cal.4th 900, 959 [a 110 criminal defendant has “a federal constitutional, unconditionalright ofself- representation,” which may be invoked by unequivocalassertion ofthe right “within a reasonable time prior to the commencementoftrial”].) Thetrial court has discretion to deny a request only whenit is untimely. When exercising its discretion in ruling on untimely requests, the trial court may consider factors such as “the quality of counsel’s representation of the defendant, the defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion.” (People v. Windham, supra, 19 Cal.3dat p. 128.) Thetrial court has no discretion to deny a timely request. The fact that a defendant has once exercised the right ofself- representation and then invokedthe right to counsel cannotconstitutionally be deemed to foreclose any further exercise of the right of self- representation, if it is timely invoked. (See Williams v. Bartlett (2d Cir. 1994) 44 F.3d 95, 100 [a defendant’s “pre-trial decision to proceed with counsel does not constitute an absolute waiverofhis right to represent himself”]; People v. Carlisle (2001) 86 Cal.App.4th 1382, 1385-1390 [where defendant made one Faretta request prior to preliminary hearing, but then acceded to counsel’s representation during the preliminary hearing, 111 trial court erred in rejecting subsequent Faretta requests].) This Court affirmed that principle in People v. Lancaster (2007) 41 Cal.4th 50, 61-70. This Court held that the trial court’s remark that the defendant’s decision to be represented by counsel (after defendant had exercised and abandonedhis Faretta right several times) had to be “‘nermanent’” was “precipitous”but not reversible. (/d. at p. 69-70.) Asthis Court noted, “[t]rial was not imminent, and a renewed and timely Faretta motion would have been entitled to the court’s full consideration.” (Jd. at p. 69, citing People v. Dent, supra, 30 Cal.4th at pp. 221-222.) The court’s statement in Lancasterconstituted only a “slight” impropriety, however, because the defendant had exercised and abandoned his Faretta right several times and because “the court did not entirely foreclose the possibility of defendant’s future self-representation;it told him it would makea decision on any renewedapplication, though the request would probably not be viewed with favor.” (People v. Lancaster, supra, 41 Cal.4th at pp. 69-70.) In the circumstances, where the defendant had “intermittent[ly]” represented himself, causing difficulty for thetrial court, its attempt to discourage further vacillation wasunderstandable. (/d. at p. 70.) Here, by contrast, Gomez hadnot “repeated[ly] alternat[ed]” (People 112 v. Lancaster, supra, 41 Cal.4th at pp. 69-70) between representation by counsel and self-representation. (IRT 101-118.)*° Morecrucially, in this *° In the Lancaster case, as set forth in this Court’s opinion (People v. Lancaster, supra, 41 Cal.4th at pp. 61-66), defendant’s first request to represent himselfwas granted on May 23, 1996 (id. at p. 61). On June 6, he reaffirmedhis desire to represent himselfbut then, in the course of the same hearing, moved for appointment of counsel. (/bid.) On June 13, defendant requested appointmentof co-counsel. (/bid.) On June 25, defendant stated he wished to remain in pro. per. (/bid.) On July 23, defendant appeared with private counsel whotold the court defendant sought his representation but had not paid him. (/d. at p. 62.) On August 6, private counselassisted defendant with the arraignment. (/bid.) On August 9, defendant requested appointment of counsel, because he could not afford to hire the private attorney. (Jbid.) On September 10, a new attorney appeared with defendant as appointed and standby counsel, stating that he expected that defendant would eventually abandonhis prose status, but that he wishedto retainit for the time being. (/d. at p. 63.) On October 16, defendant reaffirmedhis desire to represent himself. (/bid.) On November 26, defendanttold the court he had found another attorney — the private attorney he had previously appeared with — to act as standby counsel. (/bid.) He then stated that that attorney would “take over this case.” (/bid.) That attorney appeared for pretrial hearings over a period of six months. (/bid.) In July of 1997,that attorney told the court he might not be ready for trial in September. (/d. at p. 64.) That attorney eventually withdrew in Novemberof 1997, and on December1, 1997, the court reappointed the public defender. (/d. at p. 65.) On December3, 1997, the court granted another Faretta request. ([bid.) On January 22, 1998, defendant soughtto relinquish his rightto self- representation. (/d. at p. 66.) It was then that the court warned him that his decision had to be permanent, as any future requests would be “a decision for the court to make, and it probably would not be in your favor.” (/d. at p. 69.) The extensive back-and-forth regarding counsel issues in Lancaster wasa far cry from the circumstances here, where Gomez had made one (unsuccessful) Marsden motion before a different judicial officer (1CT 226), and a single invocation ofright of self-representation, which he then relinquished. (LRT 100-118.) 113 case, the trial court did not merely “discourage” future requests;it did not, as it did in Lancaster, merely tell the defendant that future requests would be viewed with disfavor. Instead, it told him, unequivocally,that if he wishedto be represented by counsel, “I’m going to hold youto this kind of a change. . . . All I’m sayingis I’m not going to let you bounce back and forth... . So at this point you understand that if I’m going to change back, this is a final change.” (IRT 118-119.) As in Dent, the trial court “erred by unequivocally ruling out the possibility of self-representation.” (Peoplev. Lancaster, supra, 41 Cal.4th at p. 69, citing People v. Dent, supra, 30 Cal.4th at p. 219.)°” People v. Valdez, in which this Court noted that “it is generally improperfora trial court to categorically state ‘I wouldn’t let you go pro. per. in this case’ in response to a defendant’s first mention ofthe possibility ofself-representation,”is also distinguishable. (People v. Valdez (2004) 32 Cal.4th 73, 100.) In Valdez, the Court found, the record did not support the inference that the defendant did not renew his request because hebelieved it 37 (See also United States v. Lorick (4th Cir. 1985) 753 F.2d 1295, 1299 [even if defendant waivedright of self-representation by inviting participation of counsel during pretrial proceedings, he “expressly and unambiguously renewedhis request to proceedproseattrial” andtrial court erred in denying request; defendant’s subsequent apparent acquiescence wasnot a waiver where“at the outsetof [the] trial the trial court had unmistakably indicated its intention not to recognize the claimed right from that point on”].) 114 would be futile, for the case was subsequently transferred to a different judge, before whom Valdez could have made a Faretta request. (Ibid.) More, Valdez made a Marsden motion before the new judge, but never indicated he wishedto represent himself. (Jbid.) Finally, Valdez made an untimely Faretta request on the day of trial, underscoring his understanding that he could, if he wished, request to represent himself. (Jd. at pp. 100- 101.) No such circumstances were present in this case: the case remained before the sametrial judge who had told Gomezthat his decision to accept counsel was “final”; and Gomez never made another Faretta or Marsden request. The court erred; its ruling was as mucherroras if it had stated, upon the initial appointment of counselin the case, that the defendant’s acceptance of counsel had to be “final,” foreclosing any future self- representation requests. C. Reversalis Required. Deprivation ofthe right of self-representation cannot be harmless andis reversible per se. As the Supreme Court put it in McKaskle v. Wiggins, Since the right of self-representation is a right that when exercised usually increases the likelihood ofa trial outcome 115 unfavorable to the defendant, its denial is not amenable to ‘harmlesserror’ analysis. Theright is either respected or denied; its deprivation cannot be harmless. (McKaskle v. Wiggins (1984) 465 U.S. 168, 177 n.8; see People v. Dent, supra, 30 Cal.4th at p. 222; People v. White, supra, 9 Cal.App.4th atp. 1076.) The right wasnotrespected here; Gomez’s right to represent himself was unequivocally, preemptively denied, violating his Sixth and Fourteenth Amendmentrights. (U.S. Const., 6th & 14th Amends.; see also Cal. Const., art. I, §§ 7, 15.) Reversal is required. 116 V. THE TRIAL COURT ERRED WHENIT REFUSED TO SEVER THE PATEL AND LUNA HOMICIDE CASES FROM EACH OTHER AND FROM THEO’FARRELL STREET DOUBLE HOMICIDE, THE ESCARENO HOMICIDE, AND THE SALCEDO ROBBERY, VIOLATING MR. GOMEZ’S CONSTITUTIONAL RIGHTS When Gomez’s jurors retired to deliberate on February 3, 2000, at the conclusion ofa trial that had spanned three months, the first of the four homicide incidents facing them wasthe Patel case. (3CT 837-839.) Fresh in their minds was the evidence that had been presented overthe better part of January, 2000: the fingerprints and eyewitness (or ear witness) evidence linking Gomez to the shootings ofRobert Dunton and Robert Acosta (11RT 1754-1756; 18RT 2741-2747; 19RT 2869-2872; 21RT 2859-2863, 3099- 3100, 3119), as well as the gang expert evidence, which had spannedthree court days and which the prosecutor read at length from in his closing argument (27RT 3840-3846, 28RT 4080-4087), identifying Gomezas a street gang memberloyal to the Mexican Mafia and his co-defendantas a Mexican Mafia associate. Also before them was Witness #1’s gruesome testimony purporting to describe the shooting of Jesus Escareno (19RT 2940-2950), and the testimony of Silvia Salcedo, who identified Ruben Gomezas one of three men who had committed a bizarre homeinvasion robbery that apparently frightened her family so profoundly that they moved 117 the next day (8RT 1335-1365). Noneofthis, of course, was relevant to the Patel case — or to the Lunacase. Yet all ofit entered into the picture before the jurors deliberating on the very real questions of Gomez’s guilt or innocence ofthe Patel and Lunacrimes. It is elementary that “the guilt or innocence ofthe accused must be established by evidence relevantto the particular offense being tried, not by showing that the defendant has engagedin other acts ofwrongdoing. [Citation.]” (United States v. Lewis (9th Cir. 1986) 787 F.2d 1318, 1321.) Equally obvious is the harm that ensues whenthis principle is not carefully defended and jurors hear evidence of crimes other than the one for which the defendantis being tried. Indeed, the harm flowing from evidence of other crimes is “too well known to require much restatement.” (People v. Smallwood(1986) 42 Cal.3d 415, 428, disagreed with on other grounds by People v. Bean (1988) 46 Cal.3d 919, 939 fn. 8.): Theseprinciples come to bear whena trial court is faced with a motion to sever counts, or when this Court is faced with the task of reviewing denial of such a motion, for the Court’s “principal concern lies in the dangerthat the jury... would aggregate all of the evidence [ofdistinct 9 counts], though presented separately in relation to each charge... .’ 118 (Williams v. Superior Court, supra, 36 Cal.3d at p. 453, superseded by statute as stated in Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1228- 1229, fn. 19.) That danger intensifies where, as here, the evidence on one or more counts is relatively weak. (/bid.) And the danger of improper cumulation of the evidence on distinct counts is further exacerbated by evidence of gang membership, which not only inflames jurors becauseit evokes the “highly publicized phenomenonofgang warfare in Southern California” but also because it suggests criminal propensity. (/bid.) To imagine that Gomez’sjurors were able to successfully avoid those dangers and compartmentalize the evidence in this case — whenthey were not specifically instructed to do so, and when the prosecutor’s argument, as discussed below,in fact urged them not to — would be to invest them with “a superhumanability to control their emotions and intellects [citation]” and the capability not only to perform a “mental gymnastic which is beyond, not only their powers, but anybody’s else [citation]” (Bruton v. United States (1968) 391 U.S. 123, 132 fn. 8), but also, remarkably, to somehow intuit that they were to attempt that mental gymnastic. To allow the convictions and death sentences to stand on the basis of such fantasy would beto flout not only state law, but due process, the right to a fair trial, the requirementthat the process by whichthe state 119 condemns people to die be reliable, and the protection against cruel and unusual punishment. (U.S. Const., 5th, 6th, 8th, & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16, & 17.) A. The Defense Motion to Sever Counts and the Trial Court’s Ruling. Prior to trial, Gomez moved for severance of counts, arguing that the Salcedo robbery, the Patel homicide, and the Luna homicide shouldbe tried separately from each other and separately from the Escareno homicide and the Dunton and Acosta double homicide. (2CT 472-482.) He conceded that the Escareno homicide and the Dunton and Acosta homicides could properly be tried together. (2CT 476; see IRT 70.) He argued, however,that the Patel and Luna cases should be severed because the evidence of Gomez’s guilt of those charges was weak, with the identity of the perpetrators being a “majorissue,” while Gomez would be implicated by an eyewitness(or ear witness) who knew him in both the Escarenoand the Dunton and Acosta cases. (2CT 476-478.) He further argued that the Dunton and Acosta homicide case would involve highly prejudicial evidence about the Mexican Mafia, and that joining all five homicide counts together was prejudicial because of the sheer numberof crimes. (2CT 478.) Finally, he noted that the capital nature of the case militated against joinder and that the Luna case,iftried alone, would notbea capital 120 case unless Gomez hadbeenfirst convicted of one of the other homicides. (2CT 480-481.) The prosecution opposed the motion.It articulated no theory that would allow the evidence of the Patel or Luna crimes to be admissible in a trial of the Dunton and Acosta and Escareno homicides, or vice versa, and no theory that would allow for the cross-admissibility of the evidence ofthe Patel and Lunacasesin relation to each other. (2CT.552-559; IRT 74-92.) It emphasized that cross-admissibility was not necessary to jointly try multiple offenses. (2CT 552A-553, 555.) The prosecution argued that “extreme” disparity between weak and strong cases, or inflammatory and non-inflammatory offenses, would have to be shown before severance would be required. (2CT 559.) It argued that the Luna and Patel cases were not significantly weaker than the others. (2CT 447-559.) In support of that argument, the prosecution sought to supplement the evidence presentedat the preliminary hearing with an additional offer of proof. (2CT 557-559.) Though the prosecutor never introduced this evidenceattrial, it represented that it intended to prove that Gomez had a motive to kill Luna because sometime before Luna’s killing, Luna had taken a gun from Gomez, and that Gomez had unsuccessfully attempted to 121 kill Luna before Luna waskilled. (2CT 557-558.) It further represented that it would prove that Gomez admitted to police that he knew Anthony Payne, the ownerofthe car found near the Luna crime scene; that he admitted that he once hadpossessionofthe car; and that he told police that shot cartridges at the scene “might have myprints on them, butI wasn’t the trigger man.” (2CT 558.) The prosecution also proffered a statement Gomez allegedly made to Witness #5, which wouldhave allowedfor the inference that Gomez had shot several people on different occasions and come home covered with blood. (2CT 559.) But when, during argument on the motion, defense counsel argued that there was no admissible evidence concerning any alleged motive for Gomezto kill Luna, the prosecution appeared to concede as much. (IRT 77-80.) Moreover, none ofthe proffered evidence detailed above was eventually producedattrial.** Nonetheless, the court did not find that the evidence on any one 38 Only oneofthe itemsin the prosecution’s offer of proof of evidence that had not been presentedat the preliminary hearing was eventually presentedattrial: that Luna’s cell phone was found in Dunton’s apartment after Dunton waskilled, and that Witness #1 would identify Gomezas the person whobroughtthe cell phone to Dunton’s house. (2CT 558-559.) The record provides no explanation as to why the prosecution did not producethe evidenceit had includedinits offer of proof. 122 count wassignificantly stronger than that on any others. (IRT 81.) Despite the prosecutor’s apparent acknowledgment that Gomez’s alleged motive to kill Luna was not based on admissible evidence (1RT 77-80), the court found the proffer “convincingly” explained that the Luna and Patel cases were not “much weaker”than the others. (1RT 81-82.) The court denied the motion to sever. (IRT 92.) It explained: Those counts are tied closely together in time and to some extent in location. They’re also tied together in the manner in which the executions tookplace,at least in large part. Very often [a] shotgun is used. Let’s see, as to Mr. Patel, I think that was a .40 caliber pistol that was used. 9 The items stolen are similar, jewelry, money, of course... .. [W]itness ... No. 1,...is a witness in count — the murder in count 6 and count 10. Count 8 and 10 are tied together, as I’ve indicated before, in my view with the cell phonecall at the residence where Mr. Gomez wasat least a part-time resident. § It just seems to me that they’re tied together all ofthem. Count3 is the onethat seemsless directly tied to the otherthree. It’s a homicide incident, one of which was a double homicide. That also involved the use ofthe cars, which was true with one of the other counts. We’ve gotcar prints in count 8, but that’s not what I’m thinking about. %* OK OK So I’m left with the only concern that I really have, which is numbers, and they are so well tied together that I think they should be tried together. So the motionsto sever. . . are denied. (IRT 91-92.) 123 B. Applicable Law. Penal Code section 954 allowsajoint trial of “two or more different offenses connected together in their commission . . . or two or more different offenses ofthe sameclass of crimes or offenses.” Here, defense counsel concededthat the counts were properly charged together under Penal Code section 954. (IRT 73.) Whether they were properly charged together, however, is only the beginning ofthe inquiry, for the trial court has discretion to sever counts “in the interests ofjustice and for good cause shown.. . .” (Pen. Code § 954.) The discretion to deny severance, of course, mustyield to constitutional requirements;“the joinder laws must never be used to deny a criminal defendant’s fundamental right to due process anda fairtrial.” (Williamsv. Superior Court, supra, 36 Cal.3d at p. 448; see U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, §§ 7 & 15.) Thefactors a trial court must considerin ruling on a severance motion, and which the appellate courts consider in reviewing suchrulings, are clear and well-established: (1) Whetherthe evidence of each charged crimeis cross- admissible as to the other charged crimes. The inquiry here is whether, “had the severance motion been granted, . . . the evidencepertinent to one case [would] have been admissible in the other underthe rules of evidence which limit the use of character evidenceor other prior similar acts to prove conduct 124 ....” (Williams v. Superior Court, supra, 36 Cal.3d at p. 448.) (2) Whether someofthe chargesare particularly inflammatory, involving, for example, gang evidence. (/d. at pp. 452-453.) (3) Whether a weak case has been joined with a strong case or with another weak case, so that the spillover effect might well alter the outcome of someorall of the charges. (/d. at pp. 453-454.) (4) Whether joinderturns the matter into a capital case. (/d. atp. 454.) (See also People v. Ochoa (2001) 26 Cal.4th 398, 423,*° quoting People v. Kraft (2000) 23 Cal.4th 978, 1030; Alcala v. Superior Court, supra, 43 Cal.4th at pp. 1220-1221.) Analysis of cross-admissibility comes first, for “[i]f the evidence underlying the charges in question would be cross-admissible, that factor alone is normally sufficient to dispel any suggestion ofprejudice... .” (People v. Soper (2009) 45 Cal.4th 759, 774-775.) On the other hand, thoughthereis “‘a high risk of undue prejudice whenever. . . joinder of counts allows evidence of other crimes to be introduced in a trialof charges with respect to which the evidence would otherwise be inadmissible’ [citation]” (Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073, 1084), the *° Ochoahas been abrogated on other groundsas stated in People v. Prieto, supra, 30 Cal.4th at p. 263, fn. 14. 125 absence of cross-admissibility does not automatically require severance. (People v. Smallwood, supra, 42 Cal.3dat p. 429). Whena trial court refuses to sever in the face of a clear showing that substantial prejudice will ensue from a jointtrial, it abuses its discretion. (Williams v. Superior Court, supra, 36 Cal.3dat p. 452; see People v. Musselwhite (1998) 17 Cal.4th 1216, 1243-1244.) Further, this Court has recognized that severance may be constitutionally required “ifjoinder of the offenses would be so prejudicial that it would deny a defendanta fair trial.” (People v. Musselwhite, supra, 17 Cal.4th at pp. 1243-1244,citing Williams v. Superior Court, supra, 36 Cal.3d at p. 447.) And,evenif a trial court’s denial of a motion to sever wascorrectat the time it was made,reversalis required ifjoinder “result[ed] in prejudice so great as to deny [defendant] his Fifth Amendmentrightto a fair trial.” (Bean v. Calderon, supra, 163 F.3d at p. 1084, citing United States v. Lane (1986) 474 U.S. 438, 446 fn. 8.) In evaluating whether joinder has created such prejudice, federal courts have “acknowledged. . . ‘a high risk of undue prejudice whenever. . . joinder of counts allows evidence of other crimes to be introducedin a trial of charges with respect to which the evidence would otherwise be inadmissible.’” (Bean v. Calderon, supra, 163 F.3dat pp. 126 1084-1085, quoting United States v. Lewis, supra, 787 F.2d at p. 1322.) A reviewing court thus views two “snapshots” of the case — one taken at the time ofthe trial court’s ruling on the motion to sever, and the other takenat the conclusionofthetrial. In both instances, it must apply careful and individualized, case-specific scrutiny. (People v. Smallwood, supra, 42 Cal.3d at p. 426; People v. Musselwhite, supra, 17 Cal.4th at p- 1244 [in capital case, reviewing court must consider joined cases separately and together to assess whether joinder might tend to produce a conviction not obtainable in a separate trial].) Here,either “snapshot,” viewed from any angle, with or without the benefit of hindsight, showsthat the trial court’s refusal to sever in the unique — and highly prejudicial — constellation of circumstancesofthis case waserror requiring reversal. C. The Trial Court Abused Its Discretion in Refusing to Sever the Patel and Luna Homicides from the Escareno and Dunton and Acosta Homicides and from Each Other. 1. The Evidenceof the Patel and Luna Homicides Would Not Have Been Admissible in a Separate Trial of the Dunton and Acosta and Escareno Homicides and the Salcedo Robbery,or Vice Versa, and Evidence of the Patel Homicide Would Not Have Been Admissible in a Trial of the Luna Case, or Vice Versa. Thetrial court’s denial of the motion to sever is reviewed ““‘in light 999of the showings then madeandthe facts then known.”” (Peoplev. 127 Musselwhite, supra, \7 Cal.4th at p. 1244, original italics.) Whenthetrial court ruled on Gomez’s motion to sever counts, the prosecution had made no attempt to show that evidence of the Patel or Luna homicides would have been admissible in a separate trial of the Salcedo, Escareno and Dunton and Acosta cases, or vice-versa. Nor had it made any attempt to show that the Patel and Luna homicides would each have been admissible in trials of the other. Instead, it emphasized that cross-admissibility is not the “sine qua non”ofjoined trials. (See 2CT 552A-556.) While the prosecution did, in its attempt to defeat severance by arguing that the evidence in the Luna case was not weak, offer to prove that “t]he same gauge shotgun wasused to kill Escareno, Dunton, Acosta and Luna” (2CT 558), it offered no theory under which such evidence would be admissible in a trial of the Luna homicide alone — let alone any theory under which that evidence would be admissible in thePatel case. Evidence that the same gauge shotgun was used in eachof several crimes is patently insufficient to justify cross-admissibility to prove identity. This Court has explained that [t]o be admissible as modus operandi evidence there must be common marks which, considered singly or in combination, support the strong inference that defendant committed both crimes. [Citation.] These common marks mustbe distinctive rather than ordinary aspects of any such category of crime. They must besufficiently distinctive that they bear 128 defendant’s unique “signature.” Reaching a conclusion that offenses are signature crimes requires a comparison ofthe degree of distinctiveness of shared marks with the common or minimally distinctive aspects of each crime. [citations.] (People v. Bean, supra, 46 Cal.3d at pp. 936-937.) The fact that four of the victims in this case were shotin the head, and four with a shotgun (though, except for Dunton and Acosta, the victims of the double homicide, there was no evidence they were shot with the same weapon), hardly constituted a unique “signature.” Glaring differences between the homicides in these cases also undermine any contention that they were cross-admissible to show “modusoperandi,” and thus, identity. @ The Luna homicide, according to the prosecution’s evidence, was an apparently motiveless killing of a drug dealer in his front yard. Though the prosecutionlater, at the court’s suggestion, amended the information to add a robbery special circumstance, it had stated before trial that, though it believed Luna’s cell phone wastaken,it did not believe that the taking of the cell phone was the motive for the killing. (IRT 21-23, 78-80; see 29RT 4314.) @ In the Patel case, according to the evidenceat the preliminary hearing, the victim was both stabbed and shot with a .40 caliber handgun; no shotgun was used; his body wasleft on a freeway on-ramp and his Toyota Camry was abandoned elsewhere, burned; the homicide was accompanied by a kidnaping, auto theft, and robbery ofjewelry;the apparent motive was robbery. (1CT 227-244; see 2CT 408- 409.) @ The O’Farrell street double homicide, according to the prosecution’s evidence and theory ofthe case, took place in a home;the prosecution’s theory wasthat the motive was gang- 129 related, that Dunton waskilled for failing to pay taxesto the Mexican Mafia, and that Acosta, his bodyguard, waskilled along with him. (1RT 23; see 2CT 326-368.) @ The evidenceat the preliminary hearing regarding the Escareno case wasthat the victim was shot as he sat in his car, in furtherance of a robbery of his wallet and jewelry, and that his body and car, which unlike Patel’s car, was not burned, were abandonedelsewhere.(1CT 255-281.)”° In Bean, the similarities between the two crimes at issue — they occurred in the same neighborhood,three days apart; they both involved entry into the victim’s home, blunt traumato the head, and an obvioustheft motive — were far greater than the similarities among the crimesat issue here, and yet the similarities in Bean were not sufficiently unique to render evidence of each of the crimes cross-admissible on the issue of identity in a trial of the other. (People v. Bean, supra, 46 Cal.3d at pp. 937-938.) If this similarity of location, timing, meansof inflicting injury, and motive wasnot sufficient to warrant the inference that the same individual committed both crimes, then a Torrancekilling of a drug dealer with no apparent motiveis hardly sufficiently similar to a San Pedro gang-related double homicide, a Wilmington drive-by killing and robbery ofa stranger, - orakidnap and robbery murder in which the victim was left alongside the freeway and his burned car found elsewhere. The merefact that four of the © The jurors deadlocked on the charges relating to Jesus Escareno. (29RT 4338-4340.) 130 victims were killed by shotgun woundsto the head, in different municipalities south of Los Angeles, in June, 1997, cannot suffice to “support a strong inference”ofidentity. Indeed, in People v. Balderas (1985) 41 Cal.3d 144, a case that involved two homicides with “certain similarities” — “the proximity in time, the commandeering of vehicles, the use of a shotgun, and the partial or complete disrobing of the victims (presumably to hinder them in seeking aid),” this Court was “not certain that [the two homicides] share[d] marks so distinct in numberandsignificancethat they logically tend to isolate the same personas the perpetrator of both.” Ud. at p. 172.) Here, of course, there were even fewer similarities — and there were stark differences, as noted above. Norational person could conclude that the use of a shotgun in crimes committed within a month of each other “logically tend[s] to isolate the samepersonas the perpetrator” of each ofthem. (Jbid.)*! Unfortunately, “| Cases in which this Court has found sufficient similarity to warrant the admission of other crimes to show identity, by contrast, involve much more distinct and numerous common marks, and/or much greater geographic proximity. (See, e.g., People v. Scott (2011) 52 Cal.4th 452, 471-473 [rape burglaries occurred at night, in the samearea, over a four month period; rapist in each case had a genetic profile defendant shared with only 8% ofthe population; perpetrator told victims to clean themselves after the rape; souvenirs of the crimes were found in defendant’s room]; People v. Lynch (2010) 50 Cal.4th 693, 737-738 [all victims were elderly Caucasian women whowereattacked in their homes; three of the victims lived in corner homesand another had regular access to her daughter’s (continued...) 131 the use of shotguns is common.” 41(_.continued) corner house;all of the victims suffered blunt trauma to the head and were robbed, or robbery was attempted; four were attacked during the day, and the jury could haveinferred thatthe fifth attack occurred during the day as well; defendant wasidentified at or near the victim’s house in each incident], abrogated on other grounds by People v. McKinnon,supra, 42 Cal.4th 610, 637-638; People v. Rogers (2006) 39 Cal.4th 826, 852 [commonmarks includedthat both victims were prostitutes last seen alive on Union Avenuein Bakersfield; both suffered multiple gunshot woundsto the torso; both were killed with the same weapon, which belonged to defendant; both bodies were dumpedin the samecanal, in rural areas about seven miles from each other]; People v. Gray (2005) 37 Cal.4th 168, 203 [in both crimes, among other commonfeatures, victim was attacked in her home, victim’s hands weretied behind her back and her ankles weretied together; the assailant wrapped a towel around the victim’s headandleft candy wrappers and personalproperty at the scene; and the assailant ransacked the bedroom and took money]; People v. Catlin (2001) 26 Cal.4th 81, 111-112 [each victim was a close female relative of defendant, in each case defendant stoodto gain financially from the victim’s death; evidence suggested each victim died ofpoisoning by paraquat, a relatively rare type of poisoning]; People v. Bradford (1997) 15 Cal.4th 1229, 1316- 1317 [victims were young white females whodiedasa result ofligature strangulation, were tied up, were killed within nine days of each other, were present at or near the desert near the time of death, were acquainted with the defendant, were induced to accompany him believing that defendant would photograph them to help with their modeling ambitions]; People v. Miller (1990) 50 Cal.3d 954, 988-989 [twelve marks ofsimilarity, including that all the victims were gay;all but one crime occurred in West Hollywood;all attacks occurred around midnight, shortly after victims had left gay bars; all victims were struck on the head; offers of marijuana or use of marijuana waspresent in a numberofthe crimes].) * (See, e.g., People v. Clark (2011) 52 Cal.4th 856,888,fn. 5; People v. Thomas (2011) 52 Cal.4th 336, 346; People v. Verdugo (2010) 50 Cal.4th 263, 269-270; People v. Alexander (2010) 49 Cal.4th 846, 857-858; People v. Lewis (2008) 43 Cal.4th 415, 433; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 978; People v. Huggins (2006) 38 Cal.4th 175, 194- (continued...) 132 Thetrial court, in ruling on the motion, did not indicate any reliance on a belief that evidence ofthe Patel and Luna homicides would be cross- admissible with respect to each other or with respect to the other cases. (See People v. Smallwood, supra, 42 Cal.3d at pp. 427-428.) While it remarked that shotguns were used in the homicides (except for Patel), the trial court did not express any belief that that fact rendered the homicidescross- admissible, and, in any event, as set forth above, such a belief would have been unsupportable. And while the trial court noted that the cases were “tied together” by evidence that Luna’s cell phone was used to call Dunton’s apartment, four and a half hours after the killing (IRT 91-92; see 2RT 322), this single item of evidence did not establish that evidence ofthe Dunton and Acosta homicides — let alone the Escareno andPatel homicides and the Salcedo robbery — would be admissible in a separate trial of the Luna charges alone, or vice versa. Nor did the fact that Luna’s cell phone was eventually found in “(,..continued) 195; People v. Garcia (2005) 36 Cal.4th 777, 782; People v. Samuels (2005) 36 Cal.4th 96, 102; People v. Jones (2003) 30 Cal.4th 1084, 1097; People v. Reynoso (2003) 31 Cal.4th 903, 908; People v. Hernandez, supra, 30 Cal.4th at p. 848; People v. Sapp (2003) 31 Cal.4th 240, 252; People v. Gutierrez (2002) 28 Cal.4th 1083, 1106; People v. Ochoa, supra, 26 Cal.4th at p. 417; People v. Silva (2001) 25 Cal.4th 345, 351; In re Hamilton (1999) 20 Cal.4th 273, 280; People v. Frye (1998) 18 Cal.4th 894, 931; People v. Castillo (1997) 16 Cal.4th 1009, 1012.) 133 Dunton’s apartment (2CT 319, 328) render evidence ofthe Dunton and Acosta homicides admissible in a trial of the Lunacase, or vice versa. People v. Geier (2007) 41 Cal.4th 555,is distinguishable. In that case, Geier was identified through DNAevidence asthe perpetrator of a rape murder, and a gun taken from the victim’s apartment waslater used in an attempted murder. (Id. at pp. 576-577.) This Court reasonedthat evidence that Geier later used the gun taken from the murder victim’s apartment would be admissible to prove his identity as the perpetrator of the murder. (Ibid.) In this case, even if evidence that Luna’s cell phoneturned upin Dunton’s apartment, where Gomez sometimes stayed, would be admissible in the Luna case, nothing atall tied Luna’s cell phone to the Dunton and Acostakilling. Nor did the extensive Mexican Mafia evidence presented regarding the Dunton and Acosta killing have any legitimate connection to either Luna’s killing, or his cell phone.” Nor would evidence regarding Luna’s killing be admissible in the Dunton and Acostakilling, as the presence of Luna’scell phone did nothing to link Gomez to the Dunton and Acosta killing. The presence of an item allegedly taken from a homicide victim in Dunton’s apartmenthad nothing to do with whether Gomez killed Dunton and Acosta. 43 People v. Johnson (1988) 47 Cal.3d 576, 590-591, which involved a fact pattern similar to Geier,is, like Geier, distinguishable fromthis case. 134 Finally, none ofthe evidence in the Luna case would have been admissible in a separate trial of the Patel case, or vice versa. Thus, apparently, as in Smallwood, “{t]he prosecutor did not contend that any legitimate evidentiary purpose would be served by joinder, nor did the trial court base its ruling on the assumption that [each] offense would be admitted in a separate trial of the other[s].” (People v. Smallwood, supra, 42 Cal.3d at pp. 427-428.) 2. The Dunton and Acosta and Escareno Charges Were Particularly Inflammatory. This was not a case in which the crimes were “similar in nature and equally egregious.” (People v. Soper, supra, 45 Cal.4th at p. 780.) As defense counsel arguedat trial, the Dunton and Acosta homicide case was particularly inflammatory because it would involve testimony about the Mexican Mafia. (2CT 478.) Even where twojoined cases both involve evidence of gang membership, this Court has found that that factor “might indeed have a very prejudicial, if not inflammatory effect on the jury in a joint trial. The implication that gangs were involved andthe allegation that petitioner is a gang member might very well lead a jury to cumulate the evidence and concludethat petitioner must have participated in some way in the murdersor, alternatively, that involvement in one shooting necessarily implies involvementin the other.” (Williams v. Superior Court, supra, 36 135 Cal.3d at pp. 453; see also People v. Hartsch (2010) 49 Cal.4th 472, 492- 495 [notingthattrial court told prosecutor it would sever a gang-related count from other charges unless prosecutor agreed not to use gang evidence].) Here,of course,juries trying the Patel and Luna casesseparately would have heard no evidenceat all of gang membership; but a jury deciding those cases together with the Dunton and Acosta double homicide would hear testimony about the Mexican Mafia— labeled by the prosecutor as “the gangofall gangs.” (3 1RT 4572.) Even where relevant, gang evidence is to be treated with extreme caution becauseofits potentially “highly inflammatory impact.” (People v. Champion (1995) 9 Cal.4th 879, 922, overruled on other groundsas stated in People v. Combs (2004) 34 Cal.4th 821, 860 and disapproved on other groundsas stated in People v. Ray (1996) 9 Cal.4th 879, 949 [concurring opn. of George, C.J., joined by a majority of the justices]; see People v. Cardenas, supra, 31 Cal.3d at pp. 905-906; Kennedy v. Lockyer (9th Cir. 2004) 379 F.3d 1041, 1055; People v. Ayala (2000) 23 Cal.4th 225, 276-277[trial court excluded any mention of the Mexican Mafia because it would be “unduly prejudicial” and court madediligent efforts to avoid such references]; People v. Albarran (2007) 149 Cal.App.4th 214, 230-231 & fn. 15.) 136 Evidence of gang membership not only suggests criminal propensity but evokes prejudices and preconceptions fostered by widespread publicity about phenomenaand eventsthat bear no relevance to the defendant’s guilt of the charged crime. (Williams v. Superior Court, supra, 36 Cal.3dat p. 453.) Here, the gang evidencebore no relevanceat all to the Patel and Luna cases and joinder ofthese cases with the Dunton and Acosta homicide added nothing but prejudice in this regard. Indeed, in the context of opposing the motion to sever defendants made by co-defendant Grajeda, the prosecution itself opined that the Dunton and Acosta homicides, because of the Mexican Mafia connection, were “much more grievous and much more aggravated” than the others. (1RT 22-23.) The Escarenocase too, as defense counsel argued below, involved particularly gruesome and inflammatory evidence regarding the condition and handling of Escareno’s body after he was shot. (2CT 478.) As presented at the preliminary hearing, Escareno’s body was found face-downnear some dumpsters, with part of his skull missing, exposing his brain; there wasblood andbrain matter on his suit. (1CT 247-258.) Blood, bone, and brain matter were found in the passengerseat of his car. (ACT 264.) Witness #1 told police that after Gomez shot Escarenoin the headas 137 he satin his parked car, he instructed Witness #1 to get in Escareno’s car anddrive it; Witness #1 did so with some difficulty because one of Escareno’s feet was in the driver’s side floorboard area and the other was behind the steering wheel, but he managed to push the body over towards the passengerside so that he could drive. (See 1CT 273-280.) Even the magistrate presiding over the preliminary hearing — certainly more accustomedto hearing the details ofhomicide investigations than the average potential juror — expressed surprise and incredulity when presented with further testimony regarding the transportation of the body from the crime scene to a hamburgerstand, back to Dunton’s apartment, and then to the location where the body was abandoned by a dumpster. (1CT 273-280; see 1CT 277 [“I just want to know if] am hearing what I am hearing, that’s all.”].) While Patel and Luna ofcourse suffered the gunshot woundsthat caused their deaths, and Patel suffered stab woundsas well, neither case featured the gruesomedetails ofthose in the Escarenocase. In sum, trying the cases together would exposejurors considering the Patel and Lunacases to inflammatory evidence they never would have otherwise heard, and evidence about the Mexican Mafia that otherwise would haveplayed nopart. 138 3. The Luna and Patel Cases Were Much Weakerthanthe Salcedo Robbery and the Escareno and Dunton and Acosta Homicide Cases. a. The Evidence Implicating Mr. Gomezin the Luna and Patel Crimes Was Much Weakerthan the Evidence Implicating Him in the Other Cases. Atthe time of the motion to sever, evidence implicating Gomez in the Patel homicide consisted solely of evidence that Patel had a white car and statements by Witness #3, who spoketo police at the Harbor Division Station when she and her husband werebeing detained by narcotics detectives. She told police that Gomez hadsold jewelry, confirmed to be Patel’s, to her husband and that Gomez hadstated that he had killed the jewelry’s ownerand had him inthe trunk of a white car parked outside her house. (1CT 237-245.)“ She told police that Gomez had a nine-millimeter or .45 caliber, semiautomatic, chrome handgun. (1CT 239.) The evidence before the court implicating Gomez in the Luna homicide consisted only of (1) Gomez’s fingerprints (amongthe “ In its opposition to Gomez’s motion to sever, the prosecution contended that the evidence showed that Gomez told Witness #1 to burn Patel’s car; Witness #1 did so; and when Patel’s car was recovered there was humanblood found in the trunk. (2CT 557.) Evenifthis information, which wasnot presented at the preliminary hearing, could properly be considered in weighing the strength ofthe evidence in the Patel case, the sum ofthe evidence against Gomez remained weak — far weaker, by comparison, than evidence of Gomez’s involvementin the Dunton and Acosta homicides. 139 fingerprints of others) on a car found 150 to 200 yards from the crime scene; the car’s hood wasstill warm whenpolice arrived at the scene; and (2) evidence that Luna’s cell phone wasusedto call the apartment of Robert Dunton, where Gomez sometimesstayed, four and a half hours after the killing, and evidence suggesting that the phone was foundthereafter Dunton waskilled. (2CT 315-322, 2CT 328.) Luna’s phone had been used to make several other calls before the call to Dunton’s apartment; there was no evidencetracing any ofthe calls to Gomez. (2CT 322; see 1RT 70.) By contrast, fingerprints on the weapon which, according to a firearms examiner, was usedto kill Dunton and Acosta— which wasfound after Gomez’s arrest at his cousin’s house, where he had arrived the day after the homicides, seeking a place to hide — and statements by Witness #1, who waspresent (thoughin a different room)at the time ofthe killings, implicated Gomez in that double homicide. (2CT 335-342, 347-357.) Witness #1 also provided eyewitness evidence that Gomez shot Jesus Escareno. (1CT 268-274.) Finally, the preliminary hearing suggestedthat there would be eyewitness testimony implicating Gomez in an armed home invasion robbery in which the victim (Salcedo) feared that he and his wife and children would be shot. (1CT 202-209.) While circumstantial evidence is inherently neither stronger or 140 weaker than direct evidence (see People v. Mendoza, supra, 24 Cal.4that p. 162), the circumstantial evidence here, in the Luna and Patel cases, was exceedingly weak. (Indeed, the evidence in the Luna and Patel cases, as argued in Arguments I and IJ,as ultimately presented at trial, was insufficient.) The evidence in the Lunacase in no way linked Gomez to Luna’s killing. The presence of his fingerprints on a car near the scene — along with, presumably, the prints of other individuals, as only 10 of 34 prints were matched to Gomez (2CT 317-318) — establishes at most that he at one time touched a car that may have had somerelation to the homicide. In the sufficiency context, this Court has found such evidence far from compelling, to say the least. (See People v. Robinson, supra, 61 Cal.2d at pp. 379, 397-399.) The cell phone evidence similarly provided no link to the actual killing of Raul Luna; the fact that it was used to call an apartment where Gomez sometimes stayed andthat it was eventually found there provides only a weak connection even to the cell phoneitself, as two other people lived in the apartment — which belonged to a drug dealer — andatleast one person other than Gomez sometimesstayed there. (2CT 315-322, 328- 329, 348; see IRT 23.) Therisk that the jurors would supply the missing 141 links with evidence of Gomez’s guilt of the Dunton and Acosta and Escareno homicides, evidence of his gang membership, and evidenceofhis guilt in the Salcedo robbery — orthat this evidence would cause them to overlook the missinglinksin the first place — loomed overthejointtrial. (See, e.g., Williams v. Superior Court, supra, 36 Cal.3d at pp. 453-454; Coleman v. Superior Court (1981) 116 Cal.App.3d 129, 138.) The evidencein the Patel case similarly paled in comparison to the fingerprints and eyewitness (or ear witness) testimony in the Dunton and Acosta and Escarenocases. Statements by one witness, Witness #3, detained with her husband whenhewasarrested on a drug charge, after she was questioned about a pawnslip found in her possession (1CT 237-243), hardly rest on an evidentiary par with fingerprints found on a homicide weapon, or eyewitness testimony, even by an accomplice (1CT 268-274; 2CT 335-342). Again, the risk that the jurors would find Witness #3’s testimony true beyond a reasonable doubt because they were confident of Gomez’s guilt in other cases was patent. (See Coleman v. Superior Court, supra, 116 Cal.App.3d at p. 138 [“Ifa juror has a reasonable and appropriate doubt aboutthe identity of the murderer [in a primarily circumstantial case], the juror mayfind it difficult to maintain that doubt in the face of direct evidence concerning repulsive crimes... .”].) 142 More, joint trial of the Luna and Patel cases — both characterized by weak evidence — risked conviction based on spillover prejudice. (Williams v. Superior Court, supra, 36 Cal.3d at pp. 453-454.) b. In Determining Whether the Trial Court Abused Its Discretion in Denying the Motion to Sever, This Court Should Not Consider Evidence that Was Not Ultimately Presented at Trial. The prosecution’s attempt to supplement the evidence before the court at the time ofthe ruling on the motion to sever with an offer of proof cannot justify the trial court’s conclusion that the evidence on the Luna case wasnot significantly weaker than the evidence in the Dunton and Acosta and Escarenocases. (2CT 557-559, IRT 81-82.) A trial court deciding a motion to sever rules on the basis of “the showings then madeandthe facts then known”(People v. Johnson, supra, 47 Cal.3d at p. 588); accordingly, this Court reviews denial of a severance motion by examining “the record before the trial court when it ruled.” (People v. Price (1991) 1 Cal.4th 324, 388.) But bald statements about evidence the prosecution intends to produceat trial should have noplacein the analysis. This Court cannot and should not countenancea rule that would allow prosecutors, with impunity, to defeat a severance motion by shoring up weak cases with offers to prove 143 evidencethat either is not admissible or does notexist in the first place.” (See People v. Arias, supra, 13 Cal.4th at p. 128 & fn. 9 [rejecting defendant’s claim that pretrial evidence, as opposed to prosecutor’s representations, did not support theory of cross-admissibility, because the trial court madeclear it was also considering evidence presented in hearings on otherpretrial motions, and noting that defendant suffered no prejudice from court’s consideration of pretrial representations because they were later fulfilled]; People v. Balderas, supra, 41 Cal.3d at pp. 176-177 [rejecting argumentthattrial court nevertruly exercised discretion in ruling on severance because prosecutorfalsely stated that from half to three quarters of the prosecution witnesses were commonto bothcases; noting that this was a minor element ofthetrial and several of the most important witnesses were commonto both cases]; People v. Bradford, supra, 15 Cal.4th at p. 1316 [noting thattrial court found cross-admissibility “based upon the recordofthe preliminary hearing as well as the evidence presented at the hearing on the motion to suppress”); People v. Bean, supra, 46 Cal.3d 45 The fact that, with only one exception, the prosecution failed to put on evidenceattrial of any ofthe itemsin its offer of proof, cannot of course be used to determine the correctness ofthe trial court’s ruling here. It does, however,illustrate the problem with allowingtrial courts to stray from the evidentiary record before them in ruling on motionsto sever, and the prejudice that ensues where thoserepresentationsare notfulfilled. (See People v. Arias (1996) 13 Cal.4th 92, 128 & fn. 9.) 144 at pp. 936, 939 & fn. 9 [suggesting that motion to severis to be decided based on evidenceby noting that if prosecution fails to present evidence at the preliminary hearing or at a hearing on a motionto sever, andits failure to do so makesthe case appear relatively weak, prosecution runsthe risk of severance]; cf. People v. Memro (1995) 11 Cal.4th 786, 849 [noting that trial court had emphasized that prosecution did not have to present its entire case to defeat severance; its offer ofproofwas enough].) In any event, even if a trial court’s consideration of offers of proof might in some cases be appropriate, the prosecution seems to have conceded that it did not have admissible evidence regarding a motive on Gomez’spart to kil! Luna— the chief item it had listed in its offer of proof. (2CT 557, IRT 80.) That concession naturally poses the question whether the remainderofthe offer ofproof consisted of admissible evidence, and renders thetrial court’s reliance on the prosecution’s offer ofproof unreasonable. Finally, in People v. Ruiz, this Court suggested that even if evidence that turned out to be inadmissible was consideredbythetrial court in ruling on a motionto sever, this Court would not considerit in determining whetherthetrial court abusedits discretion. (See People v. Ruiz (1988) 44 Cal.3d 589, 606 [inadmissible hearsay will not be considered in determining 145 whethercourt abused discretion in denying severance motion].) Here, the prosecution conceded that some ofthe evidence was inadmissible, and with one exception, the remainderwasnotpresented atall. If inadmissible evidence cannot be considered in reviewing a denial of severance, then neither can a proffer of evidence that the prosecution never even attempted to admit, either at the preliminary hearing or subsequently attrial. 4. ThePatel, Escareno, and Dunton and Acosta Cases Were Chargedas Capital Cases, While the Luna Case Was Not. This Court’s severance analysis takes into account whether a noncapital case has been joined with a capital case.*° Though the prosecution later acceded to the court’s suggestion that a robbery special circumstance be added to the Lunacase, before trial it had told the court that it did not charge the robbery special circumstance in that case because it believed the robbery and homicide weredistinct. (IRT 21-23; IRT 79-80; 29RT 4314.) Thus, the Luna case wasnot, at the time of the motion to sever, a capital case. In Alcala v. Superior Court, supra, 43 Cal.4th 1205, 1229,this Court recently disavowedthe notion that heightened scrutiny should be applied to severance decisions in capital cases, noting that an amendmentto Penal Codesection 790(b) specifically provided for joinder in capital cases, thus making clear that heightened scrutiny was no longer required. (Id.atp. 1225, fn. 19; but see People v. Thomas, supra, 52 Cal.4th at p. 350 [noting, without disapproval, that trial court applied highest degree ofscrutiny to severance issue in a capital case].) 146 The prosecution correctly asserted below that a joint trial would not necessarily create a capital case ofthe Luna homicide, becauseif the cases were severed, the prosecution might not try the Lunacase first. (2CT 554.) Tried separately, however, the Luna case could only have been charged as a capital case, however, if Gomez werefirst convicted of anotherfirst or second degree murder. (See Pen. Code § 190.2(a)(2).) More, given the weaknessesin the other cases — particularly the Patel case and the Escareno case, as evidencedby the jury’s deadlock in the latter — it was notat all a foregone conclusion that Gomez would be convicted of another first or second degree murder before he facedtrial in the Lunakilling. Finally, even if Gomez werefirst convicted of anotherfirst or second degree murder, that conviction would not be admissible at the guilt phase of a subsequentcapital trial on the Luna charges; the special circumstance would betried separately. (Pen. Code § 190.1.) This case presents a set of circumstances quite different from those in Alcala, where this Court found that the trial court did not abuse its discretion in denying severance where all five of the homicide cases carried their own special circumstances allegations. (Alcala v. Superior Court, supra, 43 Cal.4th at pp. 1228- 1229.) ‘7 Tn addition, Alcala, unlike this case, presented the very problem (continued...) 147 In any event, at the least, the fact that some ofthe cases were capital can hardly besaid to weigh against severance,as the risks inherentin joint trials — of unwarranted or otherwise unobtainable convictions — are precisely the type ofrisk the Eighth Amendmentdoes not tolerate in capital cases. (Beck v. Alabama, supra, 447 U.S.at pp. 637-638.) 5. The Trial Court Abused Its Discretion in Denying Severance. To be sure, the absence of cross-admissibility does notby itself establish prejudice. (Williams v. Superior Court, supra, 36 Cal.3d atp. 451.) But when,as here, the absence of cross-admissibility is combined with weak evidence on the counts to be severed, and inflammatory gang evidence and much stronger evidence of guilt on the other counts, as well as more graphic and gruesometestimony on those other counts, the prejudice could not be any moreclearor substantial. In fact, the only factor weighing against severance wasthe “judicial economy”factor that is weighed in every case. (People v. Bean, supra, 46 47(,..continued) that the 1998 amendmentto Penal Code section 790(b) sought to address — the problem ofa serial killer such as the “Night Stalker”or “Freeway Killer” who committed murdersin different counties. (Alcala v. Superior Court, supra, 43 Cal.4th at pp. 1215, fn. 7.) More, aside from the factthat all five of the counts in Alcala were capital, the crimes evinced a “common schemeorplan” and were “similar in nature and equally gruesome.”(Id. at pp. 1225- 1227.) 148 Cal.3d at p. 936; Williams v. Superior Court, supra, 36 Cal.3d at pp. 451- 452; People v. Earle (2009) 172 Cal.App.4th 372, 407-408.) While this factor must be considered, manifestly, it alone cannot appropriately defeat a motion to sever whenall the other factors weigh in favor of severance. (Williams v. Superior Court, supra, 36 Cal.3d at pp. 451-452 [“Quite simply, the pursuit ofjudicial economy and efficiency may neverbe used to deny a defendanthis rightto a fair trial.”]; People v. Soper, supra, 45 Cal.4th at p. 781; People v. Earle, supra, 172 Cal.App.4th at p. 408; see also Bean v. Calderon, supra, 163 F.3d at p. 1086.) If that were the case, severance would neverbe required, and the only question would be whether the cases were properly joined in the first instance under Penal Codesection 954.*8 Yet this Court has madeclearthat that is not the case. (See Williams v. Superior Court, supra, 36 Cal.3d at pp. 447-448.) The abuse of discretion standard, of course, is deferential, but it is not toothless. (See People v. Williams (1998) 17 Cal.4th 148, 162 [abuse of discretion standard “is not empty”]; People v. Jacobs (2007) 156 Cal.App.4th 728, 735-738.) If refusal to sever were properhere, it “would never be improper.” *8 As set forth above, Penal Code section 954 allowsa joint trial of “two or more different offenses connected together in their commission . . or two or more different offenses ofthe same class of crimes or offenses.” 149 (Bean v. Calderon, supra, 163 F.3d at p. 1086.) Ifa trial court may properly deny a defendant’s motion to sever non-gang related homicide cases characterized by singularly weak evidence ofguilt from a Mexican Mafia- related double homicide in which defendant’s fingerprints have beenlifted from the homicide weapon and another homicide in which a purported eyewitness would testify that the defendantshotpart ofthe victim’s head off for no apparent reason, and then directed that his body be driven around in his blood and brain-splattered car, it would no longer be an “overstate[ment]” to say that “the difficulty of showing prejudice from denial of severanceis so great that the courts almost invariably reject the claim of abuse of discretion.” (Williams v. Superior Court, supra, 36 Cal.3d at pp. 447-448.) Gomez has shownprejudice in every relevant respect; the trial court ~ here abusedits discretion. 6. In the Alternative, Even if the Court Did Not Err In Refusing to Sever the Patel and Luna Cases From Each Other, It Nonetheless Erred In Refusing to Sever these Cases from the Dunton and Acosta Double Homicide. Evenif, arguendo,the trial court did not err in refusing to sever the Patel and Luna cases — both ofwhich were characterized by weak evidence — from one another, the court nonetheless, for all the reasonsset forth above, abusedits discretion in refusing to sever these non-gangrelated 150 cases from the Escareno case and from the Dunton and Acosta double homicide case, which was characterized notonly by relatively stronger evidence, but highly inflammatory evidence involving the Mexican Mafia, for the reasons stated above. D. Reversal is Required. “[T]he appropriate review of a post-verdict appeal of a severance ruling requires examination of the evidence producedat trial to determine whetherjoinder wasprejudicial.” (People v. Smallwood, supra, 42 Cal.4th at p. 431, fn. 11, citing People v. Turner (1984) 37 Cal.3d 302, 312.) Here, the full record of the trial leaves no doubt that placing the Salcedo, Dunton and Acosta, and Escarenocases before the jury considering Gomez’s guilt of the Patel and Luna murders (as well as placing the Patel case before the jury considering the Luna case, and vice versa) was highly prejudicial, and that there is a reasonable probability that had the cases been severed (or even had the Patel and Lunacasesbeentried together, but severed from the Escareno and Dunton and Acosta cases), the result would have been different, particularly in the Patel and Luna cases. The evidenceat trial was not appreciably stronger than it had been at the time ofthe motion to sever. In the Luna case, as noted above, with only one exception, the additional evidence the prosecution had offered to prove 151 did not materialize. (See Argument V.C.3.b, above.) The jury was thusleft with the evidence of Gomez’s fingerprints on the car near the scene (13RT 2092-2094, 2103-2107, 2109); the evidence that Luna’scell phone was used, four and a half hoursafter the killing, to call Dunton’s apartment, where Gomezat some point began to stay, and that it was eventually found in Dunton’s apartment (11RT 1740-1742; 14RT 2150-2160, 2167-2177); and Witness #1’s confused testimony that Gomez at somepoint brought Luna’scell phone to Dunton’s apartment (11RT 1740-1742, 14RT 2151- 2153, 2167-2177, 20RT 3005, 22RT 3252-3255, 24RT 3539-3541, 3554- 3558.) In addition, a man who had seen a man running from the direction of the crime scene, seven to nine blocks away— who was unableto identify Gomezat the time — identified him at trial, after seeing Gomez in court several times, as the running man. (14RT 2187, 2249.) This evidence did not significantly strengthen the case against Gomez, for the law itself identifies many ofthe factors attending this identification as suspect, and the witness’s testimony, in any event, did not establish Gomez’s presenceat the scene at the time of the crime. (See ArgumentI.B., above.) In any event, the evidenceattrial, while suggesting that there were two people in the vicinity immediately before Luna wasshot, included nothing from whichit could be inferred that Gomez wasthe shooter. (And, 152 in fact, the jury properly rejected the firearm allegation associated with the Luna case. (See 29RT 4348; 3CT 840.)) Indeed, to the extent that William Owens’s identification wasto be credited at all, the evidence suggested the opposite, as the running man he saw did not have a shotgun. (14RT 2196- 2197, 15RT 2327.) No evidence at all was produced as to the mental state of any person, other than, possibly, the shooter (whose mentalstate could be inferred only,if at all, from the nature of the shooting). (See Argument I.B.2., above.) In the Patel case, the testimony of Witness #3, the drug dealer’s wife whostated that Gomez had sold Patel’s jewelry to her husband and hadtold them he had the jewelry’s deceased ownerin the trunk of a car parked outside their house was supplemented at trial by Witness #1’s testimony that Gomez had asked him to burn Patel’s white car and that Gomez had admitted killing the white car’s owner. (19RT 2931-2934, 2937-2938, 24RT 3539.) Witness #1, however, was beset by a host of credibility problems, which indisputably weakenedthe force of his testimony. (See Argument II.B.2.a., above.) And as with the Luna case, the additional evidence presentedat trial also suggested the involvement of more than one person in the crime, as Witness #1 testified that Gomez and another man, “Little Diablo,” brought Patel’s jewelry into the house. (22RT 3230-3232.) 153 This Court has identified that factor — present in both the Luna and Patel cases — as significant in analyzing the prejudice fostered by joint trials: “[A]Ithoughit is apparent that more than one assailant wasinvolved in both killings, only petitioner will be standingtrial in front ofthe jury. The absence of other known suspectedparticipants coupled with the evidence oftwo seemingly senseless, gang-related shootings could indeed produce an over-strong tendencyto believe the defendant guilty of the charge merely becauseheis a likely person to do such acts.” (Williamsv. Superior Court, supra, 36 Cal.3d at p. 453 [citations and internal quotation marks omitted].) Jurors deciding Gomez’s guilt in each of these two far from open- and-shut cases heard not only the weak evidence ofthe other case, but stronger, eyewitness evidence of Gomez’s involvement in a homeinvasion robbery, including testimonyby the victim’s wife, who waspresent, along with their three children, at the time (RT 1335-1365), and Witness #1’s description of an uncharged robbery he and Gomez had committed after driving a stolen pickup truck to the “third world,” a junk yard andstorage area for containers from container ships, inhabited by drug dealers. (2ORT 3011-3016.) 49 Fven the Patel and Luna cases had beentried together, had the (continued...) 154 The evidence in the Dunton and Acosta and Escarenocases, moreover, was as strong as it had appearedit would beat the preliminary hearing — and as inflammatory, if not more so. Although the jury deadlocked on the chargesrelating to Escareno’s killing and robbery (29RT 433-4340), the evidence provided by Witness #1 — to the extent any jurors believed it — was powerful, graphic, and inflammatory: Witness #1 told the jury that he and Gomez were driving around looking for someoneto rob; that Gomez noticed a man with manyrings on his fingers; that they followed him for a while and eventually pulled up their car next to his; and that after talking and laughing with him for a short time Gomez drew up a shotgun and shot him. (19RT 2940-2947.) Witness #1 further testified that, largely at Gomez’s direction, he drove Escareno’s body aroundin his blood and brain-splattered car and removedhis wallet and his jewelry, and then left the body by some dumpsters at a shopping center and parked the car elsewhere. (ORT 2948-2954, 20RT 2999-3003.) Gomezwasimplicated in the Dunton and Acosta killing by evidence that his fingerprints were found on the shotgun that, according to a firearms examiner, matched bullet evidence at the scene ofthe killings (a shotgun “°(...continued) court severed them from the Escareno and Dunton and Acostacases, there is a reasonable probability that there would have been a more favorable result for Gomez, for the reasons set forth above. 155 found in his cousin’s home whenhe wasarrested there after she had reported to police that he had arrived on her doorstep with a shotgun), and Witness #1’s testimony about what he had seen and overheardjust before the shooting. (1IRT 1754-1756; 21RT 3119; 18RT 2741-2747; 21RT 3099- 3100; 19RT 2869-2872; 20RT 3016-3021, 3033-3038.) Last, but far from least, the Mexican Mafia evidence which defense counsel had warned would “alone [be] extremely prejudicial” (2CT 478) turned outto be just so. Jurors considering whether Gomez wasthe person responsible for the non-gang-related killings of Patel and Lunaheard far- reaching testimony about the inner workings ofthe Mexican Mafia. Gang expert Richard Valdemartold the jury, among other things, that at the Los Angeles County Jail, he had observed gang members commit “just about every crime that you can imagine that’s committed on the outside . . . assaults, battery, murder, the making of contraband weapons, the transportation, sales and use ofnarcotics, robbery, extortion, and rape” (14RT 2220); and that members of“hard core gangs”created mostofthe problemsin the county jail system, andthat the problems could be minimized by isolating those individuals in special units (SRT 2346-2347). Valdemarrecounted the history of the Mexican Mafia, telling jurors that the movie “American Me”“fairly accurately” depicts that history. 156 (15RT 2361-2363.) He told the jury that the Mexican Mafia controls most of the prison andjail systems in California, and thatit kills to enforceits rules and regulations, such as the requirement that drug dealers payit taxes. (15RT 2364-2365, 2369.) At Mexican Mafia meetings that Valdemar had surveilled, committing murders “was primarily the subject of most ofthe conversations.” (1SRT 2354.) | Valdemar told jurors that the Mafia expects members, associates, and street gang membersloyalto it not to cooperate with law enforcement or the courts in any way; the penalty for such cooperation is death. (1SRT 2381-2382.) The Mexican Mafia has a reputation for seeking out witnesses and killing them. (1SRT 2384.) Membersand associates are supposed to place loyalty to “Eme” abovereligion, God, families, and friendships; the Mexican Mafia often uses individuals close to a victim to approach or commit a killing. (1SRT 2383.) Valdemartestified that the Mafia has used family membersto carry out retaliatory murders onits behalf, adding that this practice was depicted in the movie “American Me.” (15RT 2383.) Valdemar told jurors that “Eme” wives andrelatives commit perjury; over objection, he added that he has had personal experience with such cases. (15RT 2384.) He added that “Eme expects that loyal gang members would use any meanspossible to delay, obstruct or reverse any kind of a 157 criminal prosecution against its members.” (SRT 2385.) The testimony wasso chilling that it prompted a juror to ask the court ifjurors were at any risk. (ISRT 2386; 3SCT 591.) Indeed, at the conclusion ofthe guilt phase, the jury as a whole senta note evincing concern fortheir safety, and thetrial judge himself opined that he could not tell them “there’s nothing wrong, there’s no reason to be concerned... . They might well be concerned that there’s some danger that they’re in... .” (29RT 4335.) Reviewing courts “must analyzerealistically the prejudice which flowsfrom joinderin light ofall the circumstancesofthe individualcase.” (People v. Smallwood, supra, 42 Cal.3d at p. 425.) Realistically, of course, it would have beenhardto for the jurors to banish the extensive and frightening gang evidencein this case to a separate region oftheir mindsas they contemplated whether Gomez wasguilty ofthe non-gang-related killings. More, the prosecution’s arguments and the court’s instructions increased the danger that the jurors would find themselves unableto compartmentalize the evidence on each incident. While the prosecution had failed to make any argument for cross-admissibility when the motion to sever wasbefore the trial court, it nonetheless lumped the cases together in 158 its summations.It argued: @ the prosecutor’s belief that “by the time I’m finished reviewing the evidence and sum up andthe time youfinish deliberating, you will conclude that the — you will find irresistible the conclusion that the box holding the evidence of these defendants’ guilt is overflowing and that the box holding the evidence oftheir innocence is empty.” (26RT 3803-3804.) @ that “unless you believe in an unbelievable coincidence, unbelievable coincidences. . . unless you believe in an unbelievable conspiracy, which would haveto involveatleast a dozen of our witnesses, including many ofwhom donot know eachother, then the answeris plain as the nose on your face as to who committed these murders.” (27RT 3826.) @ that because of the evidence the jury had heard regarding the lifestyle of Gomez, Witness #1, Grajeda, and Witness #2 (the latter two involved only in the Dunton and Acosta homicide incident) the jury could conclude that Gomez was not the type ofperson to read his morning newspaper with a cup of coffee — thus, according to the prosecution, showing that he could only have learned about the Escareno homicide by committing it. (27RT 3837-3838.) @ that Gomez was guilty of the Luna killing because “a shotgun wasused as the murder weapon.It’s the same gauge as the one used, the 12-gauge shotgunis the one usedin the Escareno, the Dunton and Acosta murders. And it’s the same gauge, although not the same shotgun, that was used — that Ruben Gomezwasarrested with.” (27RT 3838.) ® that the female witnesses — including Witness #3, who testified only as to the Patel case — riskedtheir lives by testifying, as shown by the gang experts’ testimony, thus encouraging jurors to consider the gang experts’ testimony in relation to the entire case. (27RT 3883.) @ “What the defense lawyers have put forth is what I call the 159 defense of the two C’s, coincidence or conspiracy. § In other words, if— that all this evidence that we have and that we presented,all of it that points to guilt, all of it that points to guilt is just a coincidence. They’re just unbelievable coincidences,just incredible coincidences. § But ifyou don’t believe that then it’s a conspiracy. Thatall of these witnesses, many ofwhom do not even know eachother, got together and decided to frame these two defendants.” (28RT 4073-4074.) © that “[iJt’s just a coincidence that Escareno wasshotin the head just as were Patel, Luna and Dunton.{ It’s just a coincidence that Escareno wasshot with a 12-gauge shotgun just as were Luna, Dunton and Acosta.” (28RT 4075.) @ that “you look at all the evidence together. You lookatall the evidence together. We’re not asking you to believe that these people between them are responsible for five murders on the testimony just of (Witness No. 1), we’re not asking you to believe it just on the testimony of (Witness No. 2). ... You look at all the evidence together. I mean is William Owens lying? Is Orr lying . . . ? Are all these people lying? Theyall got together and decided to frame these two defendants? Of course not. That’s silly. There’s nobody in this courtroom that believes that.” (28RT 4078-4079.) @ that it “has to be an incredible coincidence for these people to be innocent, or it has to be a conspiracy, theyall lied. (Witness No.5) lied, (Witness No. 6) lied[,] (Witness No.4) lied, William Owenslied, theyall lied. It’s got to be one or the other, or these two fellowsare guilty.” (28RT 4091.) The “coincidence or conspiracy” themein particular, invoked in many of these arguments, encouraged the jury to aggregate the evidence, appealing to the jurors’ natural inclination to believe that “with so much smoke there mustbe fire.” (United States v. Foutz (4th Cir. 1976) 540 F.2d 733, 739.) More, the prosecutor’s “box” metaphor improperly urged the 160 jury to packagethe evidenceonall the counts together. The argumentsthat Gomez was guilty of the Escareno and Luna homicides because,as in the Dunton and Acosta cases, the victims were killed by shotgun woundsto the head, improperly urged conviction on the theory that evidence of each count provided identity evidence on the other counts — a legal theory that the prosecutor madenoeffort to establish, and that, in any event, was insupportable, as set forth above. (See subsection C.1., above.) Thetrial court’s instructions further failed to provide any safeguard against jurors aggregating the evidence. While it instructed jurors that “TejJach Count chargesa distinct crime”andthat they “must decide each Count separately” (3CT 890; 29RT 4165), as in Bean v. Calderon,it failed to “specifically admonishthe jurors that they could not consider evidence of oneset of offenses as evidence establishing the other.” (Bean v. Calderon, supra, 163 F.3d at p. 1084 [emphasis added]; compare Herring v. Meachum (2d Cir. 1993) 11 F.3d 374, 378 [finding no showing ofactual prejudice in part because jury was instructed “on three separate occasions that evidence of one murder wasnot to be used to determinepetitioner’s guilt with respect to the other”].) To be sure, often, as a witness took the stand, the court asked the prosecutorto identify which counts the testimonyrelatedto. (E.g., ISRT 2391-2393; 16RT 2518.) The jurors were never specifically 161 told, however, that they could not consider evidence on one count in determining Gomez’s guilt of the others. (See People v. Soper, supra, 45 Cal.4th at pp. 783-784 [absence oflimiting instructionis a fact in assessing whether resulting trial was unfair].)”° More, the length and complexity ofthe trial contributed to the danger that the jurors would be unable to compartmentalize the evidence. Federal courts have repeatedly notedthat the prejudice ensuing from joint trials may © In People v. Thomas, supra, 52 Cal.4th at p. 352, this Court rejected the defendant’s contention that the trial court should have instructed the jury that the evidence in one case was not admissible to prove guilt in the other, and vice versa. The Court stated that the jury “received properinstruction. The point was addressed by CALJIC No. 17.02...” (Ibid.) First, unlike Thomas, Gomez does not contendin this direct appeal that the trial court should have sua sponte instructed jurors that the evidence in each case wasnot admissible to prove the other cases. Rather, Gomez contendsthat the absenceofan instruction specifically informing jurors that they could not consider evidence on onecase in determining guilt in the others compoundedthe prejudice ofthe joint trial. Gomez respectfully contends that a specific admonishment that evidence on one countis not to be considered in deciding the otheris different than an instruction that each countis to be decided separately — without reference to what evidence could be considered in deciding each count. (See Bean v. Calderon, supra, 163 F.3d at p. 1084 [referring to court’s failure to give jurors a specific admonishmentthat they could not consider evidence of one set of offenses as evidenceestablishing the other].) Indeed, in this case, jurors would have clearly understoodthat the instruction that each count was to be decided separately did not mean that evidence on one countcould not be considered in determining guilt on any other count — for each incidentchargedin this case was reflected in more than one count. (E.g., counts 6 and 7 charged the Escareno crimes; counts 10 and 11 charged the Dunton and Acosta double homicide.) The missing instruction here, thus, was any instruction that evidence relating to each incidentor case could not be considered in determining Gomez’s guilt in the other cases. 162 be minimal wherethetrial is short, the issues are simple, and evidence on each case is presented in sequence. (See, e.g., United States v. Johnson (9th Cir. 1987) 820 F.2d 1065, 1071; see also Lucero v. Kerby (10th Cir. 1998) 133 F.3d 1299, 1316.) Such wasnotthe case here. In this trial that spanned three months, the sets of charges were not presented seriatim. Instead, while the order of witnesses wasnot entirely straightforward, the prosecution, generally, first called police witnesses regarding each of the crime scenes, then presented medical examiner testimony for each ofthe cases, and then various other witnesses, culminating in the testimony of Witness #1. (See, e.g., ORT 1476-1477 [Patel crime scene]; ORT 1517, 1522, 1542 [Patel and Escareno autopsies]; 9RT 1569-1574 [Escareno crime scene]; 11RT 1695 [Luna crime scene]; 11RT 1727-1729 [Dunton and Acosta crime scene]; 11RT 1801 [Luna and Dunton and Acosta autopsies]; 12RT 1870-1873 {identification of Patel’s jewelry].) In summation, again, the prosecutor did not address the cases in sequence but jumped back and forth among them. (See, e.g., 26RT 3811-3815, 27RT 3825-3846.) Furthermore, as this Court found in Smallwood, rejecting the “cure by verdict” theory a commentatorhadcriticized,°! “the error in denying >! (See Note, Joint and Single Trials Under Rules 8 and 14 ofthe Federal Rules ofCriminal Procedure (1965) 74 Yale L.J. 553, 555 [criticizing theory that acquittal on one count establishes that jury (continued...) 163 severance cannotbe saved by the fact” of the jury deadlock in the Escareno case. (People v. Smallwood, supra, 42 Cal.3d at p. 433.) As in Smallwood, “althoughit could be argued that the mistrial [on one set of charges] demonstrates that the jury was able to distinguish” among the various charges, there are equally persuasive explanations. (bid. [noting verdict could have reflected compromise].) The verdict may have represented a compromise, or the jurors may have simply concludedthat after having convicted Gomezoffour first degree murders, it did not matter if they could agree onthe fifth. (See 29RT 4338 [jury had reached verdicts on other charges whenit declared deadlock on the Escareno counts].) Morespecifically, Witness #1’s accomplice testimony in the Escareno case was not corroborated (see Argument XVIII, below); in that light, the fact that half of the jurors nonetheless voted to convict him does not show that refusal to sever was not prejudicial. Rather,it is reasonably likely that those jurors voted to convict despite the patent inadequacy ofthe asserted corroboration because of the spillover effect of the other charges. Andit is also reasonably probablethat the “weight of the [multiple] *1(,..continued) compartmentalized evidence; assumption that the jury’s verdict was in accord with the weight of the evidence is unwarranted, and “ignores the possibility that, had there been no prejudice from the joinder, the defendant might have been acquitted on all counts”].) 164 accusations was a majorfactor in [defendant’s] conviction[s]” of the Patel and Luna crimes. (People v. Smallwood, supra, 42 Cal.3d at p. 432.) Thisis | not a case where, for example, the jury, faced with two counts, one strong and one weak, deadlocked or acquitted on the weaker count, thus suggesting that the jury was able to compartmentalize the evidence andthat its verdict was entirely in accord with the weight of the evidence, and that the defendant suffered no prejudice because he was not convicted in any count on which he would have had any chance of a more favorable verdict in a separate trial. (See Joint and Single Trials, supra, 74 Yale L.J. at p. 555.) Here, instead, even if the jury deadlock in the Escareno case were to suggest that Gomez suffered no prejudice with respect to that case,> it does not suggest that Gomez suffered no prejudice with respect to the Patel and Lunacases. This Court, of course, must analyze each case separately in reviewing severance. (See Williams v. Superior Court, supra, 36 Cal.3d at p. 454.) Indeed, to the extent that some of the jurors voted to acquit Gomez ofthe Escareno crimes because they found Witness #1’s accomplice 2 It did not, of course, as six jurors evidently would have found Gomezguilty of that crime despite the accomplice corroboration requirement, and jurors who believed Gomez guilty of that crime were permitted to consider it at the penalty phase. (See Arguments XVIII and XIX, below.) 165 testimony not to be corroborated — as opposed to not credible — the evidenceofthis killing was all the more prejudicial. This Court has noted that evidence of uncharged crimes may be more prejudicial than evidence of jointly tried crimes because the defendant may have “escaped wae punishment”for the uncharged crimes; in the case of the Escareno homicide, however, the samerisk ofprejudice applies to this jointly charged crime, as any juror whobelieved that Gomez was guilty of the killing but had escaped conviction because ofthe accomplice corroboration requirement may be “tempt[ed] . . . to condemn”him in the other cases. (Frank v. Superior Court (1989) 48 Cal.3d 632, 639-640.) Gomez’s acquittal of the Luna robbery and the robbery special circumstance likewise hardly demonstrates that the jury successfully compartmentalized the evidence on the various incidents. The robbery special circumstance was added to the information during deliberations, over defense objection, after the trial court noted that despite the fact that it had instructed the jurors in accordance with such anallegation,it had not been charged. (29RT 4314.) The prosecutor confirmed the court’s view that this reflected an oversight when in fact, priorto trial, the court had twice inquired of the prosecutor whyit had not been charged, and the prosecutor had explainedthat he did not believe that the special circumstance wastrue. 166 (29RT 4314; see IRT 21-22, 1RT 79-80.) This special circumstance never should have been part of the case to begin with; that the jurors did not find true a special circumstance that the prosecutor himself apparently did not believe true hardly demonstrates that they successfully compartmentalized the evidence of the various homicide incidents. Indeed, to the extent the prosecutor and court may have simply forgotten that he did not believe the special circumstance wastrue, the whole episodeillustrates the risk that a trial of multiple, unrelated counts will simply overwhelm jurors, causing them to forget evidentiary gaps they had previously noted. That the jurors acquitted Gomezofthe robbery of Lunais similarly unremarkable. (29RT 4348; 3CT 840-841.) Their apparentbelief, suggested by a jury note (4SCT 729), that if Luna’s cell phone wastaken, it was taken as an afterthought does not demonstrate an ability to compartmentalize evidence about five homicides and forbear from drawing the impermissible conclusion that Gomez had a propensity to kill. The Luna verdicts, if anything, suggest that the jurors convicted Gomezoffirst degree murder despite the weak evidence and lack of any evidenceat all as to the mental state of the non-shooter. (See ArgumentI, above.) Simply put, where a prosecutor has overreachedto begin with, jury deadlock or even acquittal on counts for which the evidenceis grossly 167 insufficient will hardly show that the jury has been able to successfully compartmentalize the evidence with respect to all the charges. “Reasonable probability” “does not mean morelikely than not, but merely a reasonable chance, more than an abstractpossibility. [Citations.]” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715, original italics, citing, inter alia, People v. Watson (1956) 46 Cal.2d 818, 837.) Given the weakness ofthe evidence in the Patel and Lunacases,there is a “reasonable chance, more than an abstractpossibility” that if those cases weretried separately, in trials in which the evidence on each count was made to standorfall on its own, without gang evidence or evidence of Gomez’s guilt on other charges, at least one juror would have found a reasonable doubt about Gomez’sguilt in one or both of those cases, and the result would have been different. Reversal of the judgment is required. (See People v. Smallwood, supra, 42 Cal.3d at p. 433 [reversing judgmentforerrorin denying severance, though judgment included conviction on only one count].) At a minimum,reversal of the Patel and Lunacasesis required. 3 This Court has not explicitly addressed whether error in denying severance in a multiple count case requires reversal of the entire judgment or reversal only of the counts characterized by much weaker evidence and susceptible to prejudice from otherwise inadmissible, inflammatory evidence. In Bean v. Calderon, supra, 163 F.3d 1073, applying a stringent standard ofharmless error review not applicable here, the Ninth Circuit concluded that reversal was required only in the weakercase that had been (continued...) 168 And even ifthis Court were to conclude that there is no reasonable chancethat, had thetrial court not erred in refusing to sever, the result at the guilt phase would have been different, Gomez’s death sentencesfor the Luna and Patel murders must be reversed,as the error bore on the penalty phase. Thereis, at the very least a “reasonable possibility” that, had thetrial court not erred, the result at the guilt phase in at least one of those cases would have been different — thus, of course, foreclosing the possibility of one or both of the death sentences and seriously altering the penalty phase picture before a jury weighing punishment for any remaining convictions. (See People v. Brown, supra, 46 Cal.3d at pp. 447-449; People v. Prince, supra, 40 Cal.4th at pp. 1299-1300 [addressing claim that prejudice of guilt phaseerrorspilled over to penalty phase and noting that for such purposes the Brown “reasonable possibility” standard is the same as Chapman harmless beyond a “reasonable doubt”test].) The erroneousrefusal to sever further demandsreversal of the death sentences because it undermined Gomez’sright to a reliable guilt °3(,..continued) prejudiced by joinder with the stronger case. (U/d. at p. 1086, applying Brecht v. Abrahamson (1993) 507 U.S. 619, 637, standard and concludingthat severanceerror had no “substantial and injurious effect or influence in determining the jury’s verdict” with regard to case supported by strong evidence.) 169 determination,risking, as it did, unwarranted convictions in cases marked by weak evidence. (See Beck v. Alabama, supra, 447 U.S.at pp. 63 7-638; Gardnerv. Florida (1977) 430 U.S. 349, 357-358 [opinion of Stevens,J.]; see U.S. Const., 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, & 17.) More,at the penalty phasein this case, the error in refusing to sever counts synergistically combined with the court’s refusal to sever defendants (see Argument VI, below) — whetheror notthat in andofitself waserror. The jurors then, knowingthat the prosecution had singled out Gomezin seeking the death penalty (29RT 4355), couldfairly assumethat Grajeda would receive a life sentence,** and may well have concludedthat the prosecutor had been judicious in seeking punishmentfor the two men, and sentenced Gomezaccordingly. E. Even if the Court Did Not Err WhenIt Refused to Sever, the Joint Trial Violated Mr. Gomez’s Constitutional Rights to Due Process and a Fair Trial, Requiring Reversal. Evenif a trial court’s severance ruling was correct at the time it was made, a reviewing court must reverse the judgmentif “defendant showsthat The jury questionnaire filled out by all prospective jurors, for example,told jurors that “[i]f you find the defendant guilty and the special circumstancesto be true, then there will be a second phaseofthetrial to determine whetherthe penalty will be (1) death or (2) life in prison without the possibility of parole.” (E.g. SCT 1315.) The jurors, having been asked to determine the truth of a multiple-murder special circumstance as to Grajeda, would beentitled to assume that he would receive life without parole. 170 joinder actually resulted in ‘gross unfairness’ amounting to a denial of due process.” (People v. Mendoza, supra, 24 Cal.4th at p. 162, quoting People v. Arias, supra, 13 Cal.4th at p. 127.) As the Supreme Court has putit, refusal to sever rises to the level of a constitutional violation “if it results in prejudice so great as to deny a defendanthis Fifth Amendmentrightto a fair trial.” (United States v. Lane, supra, 474 U.S.at p. 446 & fn. 8 [addressing joinder of defendants and stating generally that refusal to sever may be a constitutional violation]; see U.S. Const., 5th, 6th, & 14th Amends.; Cal. Const., art. I, §§ 7, 15, & 16.) In evaluating whether joinder has created such prejudice, federal courts have “acknowledged . . . ‘a high risk of undue prejudice whenever. . . joinder of counts allows evidence of other crimes to be introduced in a trial of charges with respect to which the evidence would otherwise be 999 inadmissible,’” as well as the prejudice that inheres whenthereis a substantial disparity in the strength of the evidence between cases that have been joined. (Bean v. Calderon, supra, 163 F.3d at pp. 1084-1085, quoting United States v. Lewis, supra, 787 F.2d at p. 1322.) As demonstrated above, the evidence in these cases was not cross-admissible, and there was a substantial disparity in the strength of the evidence. While the Dunton and Acosta and Escarenocases involved an eyewitness(or, in the case of 171 Dunton and Acosta, an ear witness) who knew Gomez, andthe prosecution introduced fingerprint and firearms comparison evidence implicating Gomezin the Dunton and Acosta homicides, no eyewitnesstestified to Gomez’s involvementin the Patel case, and the eyewitness identification of Gomezashaving beenin the neighborhoodshortly after the Luna shooting suffered serious flaws. (See ArgumentI, above; People v. Earle, supra, 172 Cal.App.4th at pp. 401-407[trial court abusedits discretion in refusing to sever strong case with positive identification from weak case in which the victim’s identification suffered myriad problems].) Inflammatory evidence of gang involvement — which “will almost alwaysbeprejudicial and will constitute reversible error” (Kennedy v. Lockyer, supra, 379 F.3d at p. 1055) — further prejudiced the jury’s consideration of the Patel and Lunacases, in which evidence that Gomez was a gang memberwith allegiance to the Mexican Mafia had no legitimate role. Federal courts have also assigned significance to the length and complexity of a joint trial, concluding, in manycases, that joinder in a short trial, with evidence on eachincident presented separately, is less likely to be prejudicial. (Lucero v. Kerby, supra, 133 F.3d at p. 1316 [nothing in record indicated jurors would be unable to compartmentalize evidence where 172 three-day trial was “not unduly long or complex”and issues wererelatively simple].) This, as set forth above, was no suchtrial. Finally, federal courts have further looked to the prosecution’s arguments, the trial court’s instructions, and any affirmative evidence that the jury was able to assess the evidence on each incident separately. (Bean v. Calderon, supra, 163 F.3d at pp. 1084-1086.) As demonstrated in greater detail above, each of these factors additionally supports a finding that joinder here prejudiced Gomez’s right to due process anda fairtrial: the prosecution’s arguments urged the jury to cumulate the evidence, and the trial court’s instructions failed to caution them not to do so. (See subsection D., above.) Asthis Court has recognized (see People v. Smallwood, supra, 42 Cal.3d at pp. 430-433), any presumption created by an acquittal or deadlock must yield to a case-specific determination whether the defendant received a fair trial. In Park v. California, for example, the Ninth Circuit examined the acquittals in detail, noting that the jurors acquitted the defendant on someofthe counts supported by strong evidence — notthe effect one would expectif a set of strong counts prejudiced the consideration ofa set of weaker counts. (See Park v. California (9th Cir. 2000) 202 F.3d 1146, 1150.) That is not the case here. Asset forth at greater length above, the 173 jury’s deadlock on the Escarenochargesandits acquittal of Gomez ofthe robbery of Raul Lunaandthe associated special circumstance —- charges so weakthat the prosecutor himself did not believe in the truth of the special circumstance (IRT 21-22, 79-80; but see 29RT 4314) — does not “save[]” the error in denying severance. (People v. Smallwood, supra, 42 Cal.3d at p. 433; see pp. 163-168, above.) In light of the other factors relevant to the due process determination — the prosecution’s arguments, the court’s instructions, the length of the trial, the disparity in the strength of the evidencein the different sets of charges, the lack of cross-admissibility, and interweaving of the evidence on the various sets of charges — it cannot be concludedthat the jurors successfully compartmentalized the evidence. (See Bean v. Calderon, supra, 163 F.3d at pp. 1084-1085 [emphasizing that prosecutor encouraged jurors to considersets of charges in concert; that instructions did not specifically admonish jurors that they could not consider evidence of one set of offenses as establishing the other; that there is a high risk ofundue prejudice wheneverjointly tried charges are not cross-admissible; and that a substantial disparity in the strength of the evidence between twocases tainted jurors’ consideration of weaker case]; People v. Earle, supra, 172 Cal.App.4th at pp. 409-410.) 174 Thus, regardless of whetherthetrial court erred at the time it ruled on Gomez’s motion to sever counts, the resulting trial and the ensuing sentencing proceeding were unconstitutionally, fundamentally unfair, and for all the reasonsset forth here and in subsection D., above,this fundamental unfairness cannot be proven harmless beyond a reasonable doubt with respect to the verdicts and sentences. (Chapmanv. California, supra, 386 U.S.at p. 24; U.S. Const., 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 17.) For all the reasons set forth above, Gomez’s due process rights were violated by the refusal to sever the Patel and Luna cases from the Escareno and Dunton and Acostacases, as well as by the refusal to separate the Patel and Luna cases from one another. The prosecution cannot provethat the verdicts, particularly in the Patel and Luna cases, were “surely unattributable to”this error. (Sullivan v. Louisiana, supra, 508 U.S. at p. 279.) Muchis expected ofjurors in capitaltrials. But we should not expect of them the type of superhuman mental and emotional gymnastics that would be required to separate the evidence of each set of charges they were to determine in this case — to banish the Mexican Mafia evidence from their mind as they considered whether Gomez had killed Patel or Luna and 175 to forget, as they considered whether doubts about Gomez’s guilt in the Luna and Patel cases were reasonable, that Witness #1 had implicated him in a double homicideandthat police had identified his fingerprints on the weapon used in the double homicide. The danger that their understandable inability to do so resulted in guilt and penalty verdicts that otherwise would have been different is too great to allow the judgmenthere to stand. The judgmentshould bereversed; at a minimum, reversal of the convictions and sentences in the Patel and Lunacases, in which Gomez was most _ egregiously prejudiced, is required. 176 VI. THE TRIAL COURT’S REFUSAL TO SEVER MR. GOMEZ’S TRIAL FROM THATOF HIS CO-DEFENDANT REQUIRES REVERSAL Prior to trial, Gomez movedto severhis trial from that of Arthur Grajeda, who was charged with him in the double homicide of Robert Dunton and Robert Acosta. (2CT 531-551.) In moving to sever, Gomez noted, among other grounds, that Grajeda would likely seek to cast blame on him for the double homicide for which they were jointly charged. (2CT 538.) Gomez further noted that while he was charged in five homicides occurring in four separate incidents, Grajeda was charged in only two homicides occurring in one incident. Thus, he contended, there would be a “built-in windfall to Grajeda in keeping these cases together... .” (2CT | 538.) The windfall for Grajeda, he argued, would result in an unfair penalty for him; keeping the cases together would “prejudice Mr. Gomez tremendously.” (2CT 538.) Thetrial court denied the motionto sever, noting, “[I]t’s obvious that in my view that the defendants should betried together on counts 10 and 11 ....” (IRT 90; see IRT 92.)The denial of the motion and ensuing joint trial violated Gomez’s rights to due process andto fairtrial, his rights to a ** The trial court had earlier denied Grajeda’s motionto sever, without prejudice. (JRT 30.) 177 reliable guilt and penalty determination, and hisright to be free from cruel and unusual punishment. (U.S. Const., Sth, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16, & 17.) While Penal Code section 1098 expresses a legislative preference for jointtrials, the trial court has discretion to grant severance. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40.) Severance may be warranted, for example, on groundsof “prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, [or] conflicting defenses ... .” Ibid.) Severance may also be required where “there is a serious risk thata joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about uilt or innocence.’” (/d., quoting Zafiro v. United States (1993) 506 U.S. 534, 539.) Thetrial court’s denial of a severance motion is subject to review for abuse of discretion. (/d. at p. 41.) Regardless of state law governing severance, however,a jointtrial violates the federal Constitution if it results in prejudice so great as to deny a defendanthis right to a fair trial. (See United States v. Lane, supra, 474 U.S.at p. 446 fn. 8; Grisby v. Blodgett (9th Cir. 1997) 130 F.3d 365, 370.) Thetrial court’s refusal to sever denied Gomezhisright to a fair trial. Counsel’s fear that Gomez would be prejudiced by the joint trial was 178 realized. During the guilt phase, Grajeda sought to shift blamefor the Dunton and Acosta double homicide to Gomez alone, suggesting that the crime wasnotrelated to the Mexican Mafia, with which he wasassociated, but reflected the actions of a “violent, paranoid and drug crazed” murderer —a thinly veiled reference to Gomez, who, counsel for Grajeda argued by way of cross-examining a witness, had “murdered before.” (28RT 3988; see 22RT 3318 [cross examination of Witness #1 by counsel for Grajeda]; see also 1SRT 2407-2418.) This defense was not only antagonistic, but improperly suggested Gomez’s guilt on a propensity theory. Jurors were thus confronted with not just a prosecutor arguing Gomez’s guilt of the crimes with which he was charged, but with counsel for his co-defendant, wholabeled him a murderer. (22RT 3316-3318; see also 28RT 3988.) Gomez acknowledges that the Supreme Court hasstated that “(mutually antagonistic defenses are not prejudicial per se.” (Zafirov. United States, supra, 506 U.S.at p. 538; see also People v. Tafoya (2007) 42 Cal.4th 147, 162 [“[a]ntagonistic defenses do notper se require severance, even if the defendants are hostile or attempt to cast blame on each other”]; see also People v. Carasi (2008) 44 Cal.4th 1263, 1297-1298 {suggesting that no constitutional error arises from a refusal to sever in a case involving inconsistent defenses unless the co-defendant’s defense 179 “could have so tainted defendant as to have caused the jury to convict him solely on that ground”]; People v. Letner (2010) 50 Cal.4th 99, 150.) In this case, however, Grajeda’s attemptto shift the blame to Gomez combined with other factors to unfairly advantage Grajeda and disadvantage Gomez. That Grajeda believed himself better off in a joint trial with Gomez (illustrating the “windfall” for Grajeda that Gomez’s counsel had warned of, see 2CT 538)is apparent from Grajeda’s failure to immediately move for a mistrial when his lead counsel was hospitalized for surgery, and his apparentreluctance in eventually doing so. (See 20RT 2956-2957; 22RT 3201-3204.)°° Indeed, even the court apparently believed that Grajeda was better off in a joint trial, even though it was before a death-qualified jury. Whenthe possibility of granting a mistrial as to Grajeda cameup,thetrial court itself opined that Grajeda would bebetter off continuing the jointtrial with Gomez,telling him that his attorneys had selected a very good jury “that is very likely to go your way, especially given the fact that you were the lesser of the two asparticipants ... .” (See 19RT 2811.) Any such advantageto a “lesser” participant, of course, is bound to 6 Grajeda’s remaining attorneyfiled a motionfor a mistrial, noting that he thought Grajeda would opposeit. (22RT 3201-3202.) After some discussion in court, Grajeda decided he wanted to move for a mistrial. (22RT 3203.) The court denied the motion. (22RT 3216.) 180 work to the disadvantage of a “greater” participant, and indeed the very existence of such advantages and disadvantages underminesthe principle of individual guilt. (See People v. Chambers (1964) 231 Cal.App.2d 23, 28-29 [rejecting doctrine of guilt by association and noting that “personalguilt . . . is a fundamentalprinciple of American jurisprudence, inhabiting a central place in the concept of due process”], citing Uphaus v. Wyman (1959) 360 U.S. 72, 79.) The prejudice at the penalty phase was even starker. There, the jurors whohad found Grajeda guilty oftwo murders and Gomez guilty of four were charged only with determining whether Gomez wouldliveordie. Unlike in People v. Box (2000) 23 Cal.4th 1153, 1196,°’ wherethe jury was awarethat the co-defendant wasineligible for the death penalty because of his age, the jury here was informed — by the court — that Grajeda did not ~ face death because the prosecution did not seek it against him. (29RT 4355; see also 4RT 607 [instruction during voir dire].)*® The jurors thus knew that °7 Box has been disapproved on other grounds by People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10. °° In People v. Tafoya, supra, 42 CalAth at p. 163, this Court rejected the defendant’s argumentthatthe joint trial was unfair becausethetrial court told jurors during voir dire that the prosecution was seeking death only against Tafoya’s codefendant. The Court deemed Tafoya’s argument forfeited because Tafoya had notraised it in his severance motion. (/bid.) (continued...) 181 the prosecution had singled out Gomezalone as deserving of death. (See Kindler vy. Horn (D.Pa. 2003) 291 F.Supp.2d 323, 362-363 [granting habeasrelief based on prosecutor’s argument that his office urged the death penalty for defendant Kindler, but would “present both sides” regarding his co-defendant’s sentence], affirmed in part and reversed in part, Kindler v. Horn (3d Cir. 2011) 642 F.3d 398.) Nowhere in their penalty phase instructions were the jurors told that they could notconsiderthe fact that the prosecutor sought death for Gomez. Indeed, to the extent that jurors were encouraged to consider evidence from the guilt phase ofthe trial as well as the penalty phase (see 13CT 3440; 31RT 4595), they may well have deemedit appropriate to consider Gomez’s culpability in comparison with Grajeda’s or credited the prosecutor with having already appropriately distinguished between the codefendant whoshould receive a life without parole sentence and the defendant who deserved death. *8(...continued) Tafoya rejected, on the merits, the argumentthat a capital defendant wasprejudicedby a joint trial with a noncapital defendant, finding no prejudice in Tafoya’s case and noting authority for the proposition that capital and noncapital defendants can betried together. (People v. Tafoya, supra, 42 Cal.4th at pp. 163-164.) 182 Likely assuming that Grajeda wouldreceive a life sentence,°’ and aware that the prosecution had sought the death penalty against Gomez alone, the jurors may well have wondered howto else to punish Gomez,if not with death sentences, for the additional murders they had foundthat he alone committed. Therisk that jurors engaged in a comparative — as opposed to individual — assessment ofpunishment cannotbetolerated in a capital case, where the Eighth Amendment demandsa “heightened ‘need for reliability in the determination that death is the appropriate punishment in a specific case.’ [Citation.]” (Caldwell v. Mississippi (1985) 472 U.S. 320, 323; see Lockett v. Ohio (1978) 438 U.S. 586, 605.) Thetrial court’s refusal to sever thetrials of the two defendants — both alone, and in combination with thetrial court’s refusal to sever the Patel and Luna counts from Gomez’strial on the double homicide (see Argument V, above) — violated Gomez’srights to due process,a fairtrial, and a reliable determination of his guilt and of the sentence he should receive. The prosecution cannot prove the error harmless beyond a reasonable doubt (Chapmanv. California, supra, 386 U.S.at p. 24); it cannot prove,in this case, that the verdicts were “surely unattributable to” this error. (Sullivan v. Louisiana, supra, 508 U.S.at p. 279; see also People »° See footnote 53, above. 183 v. Brown, supra, 46 Cal.3d at pp. 447-449; People v. Prince, supra, 40 Cal.4th at pp. 1299-1300; People v. Gonzalez, supra, 38 Cal.4th at p. 961.) Reversal is required. 184 VII. THE TRIAL COURT ERRONEOUSLY REQUIRED THE PRESENTATION OF EVIDENCE REGARDING MR. GOMEZ?’S REFUSAL TO COME TO COURT ONE MORNING, ERRONEOUSLY INSTRUCTED THE JURORS THAT THEY COULD CONSIDER THE REFUSAL TO COME TO COURT AS EVIDENCE OF A CONSCIOUSNESSOF GUILT, AND FAILED TO PERFORM THE ROLE OF A NEUTRAL ARBITER; THESE ERRORS VIOLATED MR. GOMEZ’S RIGHTS UNDER CALIFORNIA LAW AND THE STATE AND FEDERAL CONSTITUTIONS On December 14, 1999, the second day oftrial, Gomez refused to cometo court, resulting in a 38-minute delayin starting trial. (ORT 1473- 1474; see 12RT 1850-1851, 1857.) Incidentslike this, while no doubttrying to all affected, unfortunately are not uncommon.(See People v. Concepcion (2008) 45 Cal.4th 77, 83-84 [delay is always disruptive to some degree]; see, e.g., People v. Price, supra, 1 Cal.4th at p. 405; People v. Medina (1995) 11 Cal.4th 694, 736; People v. Gutierrez (2003) 29 Cal.4th 1196, 1199.) Whatdistinguishes this case from the many other cases in which similar incidents have occurred, however,is the trial court’s reaction to this 38-minute delay. First, it informed the jurors that it was frustrated by the delay, and told them they maylater learn the reason for it. QRT 1475.) Then, after defense counsel moved for a mistrial on the basis of this commentto the jurors, the court “respond[ed] to the challenge” by 185 expressing its intention to call witnesses from thejail to testify before the jury about Gomez’s refusal to cometo court, as evidence of a consciousness of guilt.QRT 1507, LORT 1609-1610.) The prosecutionultimately agreedto call the witness, Deputy John Ganarial,© whotestified not only that Gomez had refused to cometo court, but about the obscenities Gomez had uttered at the time and the security measures taken in housing andtransporting him. (12RT 1841-1850.) The court instructed the jurors that they could consider the evidence of Gomez’s refusal to come to court as tending to prove a consciousnessof guilt. 3CT 876; 29RT 4124.) Thetrial court’s reaction to this incident, and to defense counsel’s motion for a mistrial, constituted evidentiary and instructional error, violating Gomez’s rights under state law and underthe state and federal Constitutions. A. Facts. 1. The Delayed Start to Court Proceedings on December14, 1999. On the second dayof guilt phase testimony — the first day of ® The prosecution agreedto call the witness after defense counsel objectedthat the court’s calling of a witness to provide consciousness of guilt evidence would be undulyprejudicial. (1ORT 1666-1668.) It did not, however, offer any legal argument to support the court’s decision to put Deputy Ganarial’s testimony before the jury. (1ORT 1660, 1669.) 186 testimony about the homicides — the court began the proceedings by noting that they were beginning half an hour late because Gomez had refused to come out of his cell. (QRT 1473.) The court ordered a cell extraction, and then Gomez decided to come out. (QRT 1473.) The court told the attorneys: “At somepointthis is probably information that’s going to go to the jury. They buzzedustwice, ... . so I assumethat they’re irritated .... I’m not sure what the optionsare, but it does seem to methat atleast it will come out eventually in the penalty phase.” (9RT 1473-1474.) In the presence of the jury, the court then stated: The reason for the delay may well be presented to you later during thetrial. If you’re frustrated by it, you’re no less frustrated than I was. We’ll do our best to be on time, and I appreciate the fact that you were on time. (9RT 1475.) Testimony about the homicide of Rajandra Patel then began, with a detective describing the crime scene. (QRT 1475-1505.) 2. Counsel’s Mistrial Motion and the Court’s Response. At the next jury break, counsel for Gomez moved for a mistrial on the groundsthat the trial court had “informed the jury that the reason for the delay may be broughtoutin trial at some later time,” and had implied that one of the defendants was the cause. Defense counsel contended that the incident would not be admissible unless, perhaps, Gomez weretotestify. 187 (QRT 1507.) The court responded that the incident would be admissible “[t]o show a consciousnessofguilt.” (QRT 1508.) Counsel noted that though it was arguable that the incident might be admissible at the penalty phase, the information should not have been put before the jury at that point: “You know,I’m nottrying to be obstinate with you, but . . . I do think it was something stated by the court that should not have beenstated to the jury at this time.” (QRT 1508.) The court countered:“I disagree, and that’s why I said it, and I intend to do even morethanthat if this happens again.I can call my own witnesses. It does show a consciousnessofguilt. . . . so the jury will find out about it one way or the other through evidence ... .” (QRT 1508.) Defense counsel requested an Evidence Codesection 402 hearing prior to the presentation of any evidenceon the subject to the jury, and the court responded: “On what subject? On what? .. .On whetherhe refused? . .. WhenI haveto issue an order of extraction, we know pretty well it’s a refusal. As I said, what the jury would get is evidence on the subject, not my statement about whatI’ve been informed about. But your motion for mistrial is denied.” (QRT 1509.) 188 3. The Trial Court’s Argument that Mr. Gomez’s Action Showed Consciousness of Guilt. The following day, the court informed counselthatit had prepared an analysis of the law that applied to Gomez’s refusal to cometo court. (10ORT 1604-1606.) It again noted that it could call its own witnesses, and that it would not “put[] the onus on the prosecution, unless they’re willing to do that.” (1ORT 1605.) The court, citing a case addressing escape as evidence of consciousnessof guilt,°' argued that the refusal to cometo court showed a consciousnessofguilt, “so I intend to pursue it. I have found witnesses whocan testify to the difficulty on Tuesday,and I intendto offer that to the jury to explain not only whythere was a delay of 40 minutes in the trial, but more importantly I think it goes to consciousness ofguilt.” (10RT 1605.) Counsel for Gomez asked to be permitted to respondat later time; he requested that the court reconsiderits legal analysis, noting that absence from trial had a different significance when the defendant wasin custody. (10RT 1606-1607.) The court respondedthat the pointis “refusal to be in court. Someone whois guilty and feels that he’s going to be found guilty hasa reason not to come to court to allow that proceeding. .. . You may have anothersolution to this, but I don’t plan to let it go. I don’t plan to let *! (People v. Vargas (1975) 53 Cal.App.3d 516, 530.) 189 either defendant play with the court and the jury and say I’m going to come when I’m ready . . . I’ve ordered them to be extracted, both ofthem from their jail cell and broughtforcefully to court, if necessary, and I want the jury to knowthat’s what’s necessary.” (ORT 1607.) The court granted counsel the opportunity to cite authority on the issue, but noted, “I was here until 8 o’clock last night doing researchon the computertrying to find a case exactly in point, and I didn’t find one. So I’m going to be a pioneer. It won’t bethefirst time.” (LORT 1608.) The court then noted that it had been a “pioneer”in “jail[ing] a female attorney after a trial on contempt charges. Everybodysaid it couldn’t be done,I did it andit stuck, and the U.S. Supreme Court decision affirming whatI did in summary judgment, . . . exactly what I did was appropriate. I’m going to do the same thing again, if necessary. I’m not going to let this go. I’m not goingto let the defendants control the court.” (ORT 1608.)” Defense counsel, perhaps chastened by the reference tothe jailing of an attorney on contempt charges, then responded:“I understand your thought, and I’m notin disagreement with that approach asfaras either of these men regarding the court. Please understand one thing, I am not arguing with you.” (10RT 1608.) The court replied: “Well, you are arguing. ® The court evidently was referring to Pounders v. Watson (1997) 521 U.S. 982. 190 I'll give you that opportunity. . . . All I’m saying is that you challenged me, and I’m respondingto the challenge . . . . [Y]ou did move for a mistrial making it a majorissue.I intended at the beginning, because I didn’t check it out with you in advance, to do something about this. This is what I’m doing.” (ORT 1609-1610.) Defense counsel inquired whetherthe court intendedto tell jurors that an innocent person would not absent himself from court. The court stated that it had not yet crafted an instruction but that the issue wassimilar to flight, and that it would tell the jury that the weight and significance of the evidence wasforit to decide. (1ORT 1611-1612.) 4, The Trial Court’s Proffer of Deputy Ganarial’s Testimony and Further Argumenton Its Admissibility. Outside the presence ofthe jury, the court called Deputy Ganarial. (1ORT 1630-1631.) Ganarialtestified that Gomez was a K-10 inmate;at 5:50 a.m. on the morning ofDecember 14, 1999, he told Gomezto get ready for court. (1ORT 1632-1633.) Gomez responded,“Fuck court.” (10RT 1632.) He responded the same way when Ganarial contacted him again at 6:15 and at 7:30 a.m. (1ORT 1633.) Around 8:00 Gomez got ready for court, saying, “They bring me back wheneverthey want, I’ll go to court whenever I want... .” (1ORT 1634.) On cross-examination, Ganarial testified that Gomez did not try to 191 escape. (LORT 1638, 1642.) Healso testified that after Gomezinitially responded, “fuck court,” he “basically . . . said, ‘if you want to go to court get ready. If not, do whatever you want.’” (ORT 1640.) After Ganarial was excused, the court stated that its intention “is the sameas before.” (LORT 1650-1651.) Counsel for Gomez again noted that the authority the court relied on addressedflight, and that Gomez’s absence did notentail “the idea of avoiding being tried, avoiding prosecution ... .” (10RT 1655; see 10RT 1652-1660.) Counsel explained that under California Supreme Court precedent, a flight instruction cannot be given without evidence that the purposeoftheflight is to avoid arrest or prosecution. (IORT 1655-1656.) Counsel conceded that Gomez’s actions were defiant and disruptive, “[b]ut because somebody is not respectful to the court, respectful to the prosecution,respectfulto the jury, I don’t believe is tantamount to saying I’m guilty, Pm trying to avoid the wholetrial.” (ORT 1656.) Counsel continued, “[Y]Jou maynotlikeit, I may notlike it, none of uslike it, but let’s focus on the legal theory of consciousness of guilt, and gosh, I’m not trying to —” The court interrupted: “Why don’t you deal with his comment at the time, ‘Fuck court.’ .. . What does that mean? Does that mean I’m an innocent man,let’s go to court, I want to exonerate myself?” (LORT 1658.) 192 Counsel respondedthat the comment meant that Gomez didn’t “give a darn,” and again distinguished the cases dealing with a defendant’s flight to avoid being prosecuted. (LORT 1659-1660.) The court adheredtoits earlier decision, noting that its only reluctance was that Ganarial’s testimony would show that Gomez wasin custody. (1ORT 1660.) Defense counsel further objected to the evidence under Evidence Code section 352. (1ORT 1661-1663.) The court said it had already analyzed the issue under Evidence Code section 352 and had concluded that the evidence was admissible. (1ORT 1664-1665.) The court thenreiterated that “primary thing is consciousnessof guilt,” but “[i]f nothing else, this prevents a defendant whois charged with a capital case from constantly holding up thetrial.” (ORT 1665-1666.) Finally, after defense counsel objected that this evidence would be particularly prejudicial if elicited from a witness called by the trial judge himself, the prosecutor volunteered to offer the evidence. (LORT 1667.) The court agreed, noting that it had not wanted to interfere “with either side,” but simply to exposeto the jury something that is “uniquely appropriate to the court’s control.” (1ORT 1667.) 5. Deputy Ganarial’s Testimony Before the Jury. On January 4, 2000, the second day after a two-weekrecess, the 193 prosecutor called Deputy Ganarialto testify before the jury. (A2RT 1841- 1842.) Ganarial told the jurors that he was a deputy sheriff at the Men’s Central Jail, assigned to a module for “K-10 inmates for discipline,” where Gomez washoused. (12RT 1842.) He recounted the procedure for getting inmatesready for court: After they are fed through slots in their cell door (12RT 1843, 1846-1847), inmates going to court are waist-chained; they comeoutoftheir cells one at a time, and are walked downstairs by the “movement team”to wait in line to be escorted to court. (12RT 1843-1844.) On the morning of December14th, after trying to wake Gomez up twice, Ganarial succeeded in waking him upbyyelling into his cell. (12RT 1844-1847.) Gomez responded,“fuck court.” (12RT 1847.) When Ganarial went back again, Gomez said “fuck court” again. (12RT 1848.) Gomez refused to go to court again at 8:30. (12RT 1849.) Ganarial contacted the court bailiff, and subsequently an extraction order wasissued, requiring a team of deputies to forcibly remove the defendant from his cell. (1L2RT 1849-1850.) About 15 or 20 minutesafter he wastold there was an extraction order, Gomez told Ganarial he would go to court, and he did. (12RT 1850.) The parties stipulated that on December14th, the parties had been instructed to begin trial at 10:30 a.m. (12RT 1851.) 194 At a sidebar, defense counsel movedtostrike the testimony “as being irrelevant to the charges for what Mr. Gomezis presently ontrial,” and the trial court denied the motion “[b]ased on the earlier discussions we had about the relevance of the testimony.” (12RT 1854.) The court then presented the parties with a draft instruction regarding consciousness of guilt. (2RT 1854.) At the prosecutor’s request, before the jury, the court then took judicial notice of the fact that the court session on Tuesday, December 14, 1999, had begun at 11:08 a.m. (I2RT 1857.) 6. The Trial Court’s Instruction to the Jury. Duringits final instructions, the court instructed the jurors as follows: Ifyou find that defendant Gomez voluntarily absented himself from this trial by refusing to cometo court, you may consider that as a circumstance tending to prove a consciousness of guilt. That conduct, however,is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide. (3CT 876; 29RT 4124.) 195 B. Mr. Gomez’s Refusal to Come to Court Was Not Relevant or Admissible to Show Consciousness of Guilt and the Trial Court Erred in Insisting on the Presentation of Evidence AboutIt and Instructing Jurors That They Could Consider The Evidence As Tending to Prove His Consciousness of Guilt. 1. The Evidence That Mr. Gomez Refused to Come to Court WasNot Relevant to Show Consciousness of Guilt. As counsel argued, Gomez’s refusal to cometo court was not relevant to show consciousnessof guilt. (See Evid. Code § 350 [only relevant evidence is admissible; Evid. Code § 210 [relevant evidenceis evidence having any tendencyin reason to prove or disprove any disputed fact that is of consequence to determination of the case].) This Court has repeatedly held that flight from the scene of a crime, escape or attempted escape from custody, attempts to suppress evidenceor preventits presentationattrial, and false and misleading statementsby a defendant may manifest a consciousness ofguilt. (See, e.g., People v. Crandell (1988) 46 Cal.3d 833, 869-870 [flight], abrogated on other grounds, People v. Crayton (2002) 28 Cal.4th 346, 364-365; Peoplev. Jurado (2006) 38 Cal.4th 72, 126 [same]; People v. Farnham (2002) 28 Cal.4th 107, 152 [threatening to resist order for production ofhair and | blood samples]; People v. Ramirez (2006) 39 Cal.4th 398, 456 [refusal to removesunglassesto allow witness identification]; People v. Terry (1970) 2 Cal.3d 362, 395 [escape], overruled on other groundsasstated in People v. 196 Carpenter (1997) 15 Cal.4th 312, 381-382.) These matters have one thing in common: a purpose to avoid being observedorarrested, to prevent the production or presentation of incriminating evidence, or to avoid punishment.® Refusal, by a defendant in custody, to come to court does not share this characteristic; it cannot be explained by a desire to prevent prosecution or punishment.” Thatis particularly the case here, where Gomez knewthat he could be forcibly extracted from his cell and brought to court if he refused to come onhis own. (See IRT 196-198 [court noted that Grajeda had refused to leave his cell and court had ordered him forcibly extracted].) Indeed, far from including an in-custody defendant’s voluntary absence from court, or his refusal to come to court, among those ° The trial court’s example of a defendant whorefused a court order to stand up in orderthat a witness could judge his height (1ORT 1667-1668) shares this characteristic. Similarly, People v. Sherren (1979) 89 Cal.App.3d 752, 762-764, cited by the trial court at 27RT 3960, involved an out of custody defendant who hadtwice failed to appear for a pretrial hearing. An out-of-custody defendant’s failure to appear may well reveal an intent to avoid prosecution or punishment. * Rather, it might be better explained, as defense counsel suggested, as manifesting an intentto sleep late, or to be defiant or disrespectful. (10RT 1656; see also 1ORT 1634 [Deputy Ganarial’s testimony during the proffer outside the jury’s presence, that when he asked Gomezto get ready for court, he stated: “They bring me back whenever they want, I’Il go to court wheneverI want.”].) 197 circumstances permitting an inference of consciousnessofguilt, this Court has madeclear that such absenceis not a proper matter for the jury to consider. In People v. Sully (1991) 53 Cal.3d 1195, this Court, addressing a case in which a defendant had voluntarily absented himself from the penalty phase of his case, concluded that “[a]n instruction to disregard defendant’s absence would have beenproper on defendant’s timely request.” (Id. at p. 1241.) Sully establishes that evidence of a defendant’s refusal to be present in court is not relevant. If an instruction to disregard the matter would be properin a case where a defendant walked outofthe courtroom,so that jurors witnessed his refusal to be in court, then it can hardly be properto bring the defendant’s refusal to be in court before the jury, in a case where they would not otherwise be awareofit. (See People v. Sully, supra, 53. Cal.3d at pp. 1238, 1241.) In People v. Medina (1995) 11 Cal.4th 694, this Court, reaffirming Sully, madeclear that its conclusionsapply to the guilt phase ofa capital trial as well. In Medina, this Court concludedthat the trial court’s admonishment, given to each juror individually during voir dire, that jurors were not to draw adverse inferences from the defendant’s absence, was sufficient, and again notedthat in the absence of a request, the trial court 198 need notinstruct the jury regarding a defendant’s absence from thetrial. (/d. at pp. 735, 739-740.) Additional cases from this Court and others are in accord. (See People v. Lewis (1983) 144 Cal.App.3d 267, 280-282 [wheretrial court questioned jury panel as to whether defendant’s absence would affect them, and each juror indicated it would not, trial court did noterr in failing to instruct jurors, sua sponte, to disregard his absence]; People v. Gutierrez, supra, 29 Cal.4th at p. 1200 [court admonishedjury not to consider or speculate about defendant’s absence]; People v. Dickey (2005) 35 Cal.4th 884, 924 [court instructed jurors not to consider defendant’s penalty phase absence in deliberations]; People v. Majors (1998) 18 Cal.4th 385, 414 [court admonishedjurors not to draw any inferences from defendant’s absence from penalty phase]; People v. Young, supra, 34 Cal.4th at p. 1214 [jury admonishednotto speculate about defendant’s penalty phase absence or infer anything from it]; People v. Pigage (2003) 112 Cal.App.4th 1359, 1366, 1370, 1374-1375 & fn. 5 [trial court did not abuse discretion in concluding that out-of-custody defendant’s absence from trial was not to be considered by jury]; People v. Arias, supra, 13 Cal.4th at pp. 144-148 [court twice admonishedjurors to ignore defendant’s “acts or antics” which included and culminated in a request to be excused from the courtroom]; 199 see also Taylor v. United States (1973) 414 U.S. 17, 17-18 [where out-of- custody defendantfailed to appear aftertrial had begun,“[t]hroughoutthe remainderofthetrial, the court admonishedthe jury that no inference of guilt could be drawn from [defendant’s] absence”].) Bycontrast, no case supports thetrial court’s opposite conclusion— that a criminal defendant’s decision not to cometo court bears on his guilt. Equally irrelevant — andirrelevant, even, to the court’s consciousnessof guilt theory — werethe additional details revealed by Ganarial’s testimony: that Gomez was in a disciplinary unit in the jail; that inmates in his unit were fed throughslots in their cell; and that they were waist-chained and handled by a “movement team” when going to court. (12RT 1841-1847.) The trial court, of course, has no discretion to admit irrelevant evidence. (Evid. Code § 350; People v. Cowan (2010) 50 Cal.4th 401, 482.) 6° The court also suggested that the evidence would berelevantto explain the delay in starting the court day. (1ORT 1605.) It was not. That delay was not a material issue in the case; it bore no conceivable relation to Gomez’s guilt or innocence. Indeed, the court day began later than scheduled on other occasions, as well, and there was no suggestion that evidence neededto be presented aboutthe reasons for those delays. (See, e.g., LIRT 1694-1695, 16RT 2504, 22RT 3181-3182.) Indeed, on the day Deputy Ganarial testified before the jury, there was a delay in beginning trial, and the trial court told jurors: “Again delay this morning not due to anyone’s fault in the court. Lack of communication getting everyone necessary here at the same time, so we’re working on trying to prevent that.” (12RT 1840.) 200 2. Even if There Were Any Probative Value in the Evidence that Mr. Gomez Refused to Come to Court, It Was Substantially Outweighed by Its Undue Prejudicial Effect Even if there were any probative value in an in-custody defendant’s refusal to cometo court, that probative value would be substantially outweighed by the substantial danger of undue prejudice. (Evid. Code § 352.) “Undue prejudice” refers to matters that inflame the jury and distract them from their true task. As this Court wrote in People v. Scheid (1997) 16 Cal.4th 1, 19: “[T]he ‘prejudice’ referred to in Evidence Code section 352. . . characteriz[es] evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues. [Citation.]” Ganarial’s testimonyfits this description: While havinglittle if anything to do with the very real question of Gomez’s guilt or innocence of the crimes with which he was charged,it was precisely the type of testimony that “uniquely tends to evoke an emotional bias against a party as an individual.” (/bid.) As the trial court had recognizedat the time, jurors werelikely already frustrated by the delayin starting the trial. (ORT 1475.) Ganarial’s testimony not only served to direct the jurors’ frustration (a frustration the court had validated bytelling jurors it shared) at Gomez personally, but gave jurors reasons to view Gomez as dangerousandhostile. 201 Asthe court itself noted, the testimony also would necessarily reveal that Gomez wasin custody. (1ORT 1660.) While jurors might certainly have suspected that on their own, presentation ofthe testimony only served to solidify that impression, much in the way that a defendant’s being required to standtrial in jail clothes would. (See People v. Taylor (1982) 31 Cal.3d 488, 494-497; see also Estelle v. Williams (1976) 425 U.S. 501, 504-505.) Here, of course, the testimony went well beyond the mere fact that Gomez was in custody; Ganarial told the jury that he wasin a disciplinary unit in the jail, was fed througha slotin his cell, and was waist-chained and handled by a “movement team” when going to court. (12RT 1841-1847.) Thetestimony also included Ganarial’s accounts of Gomez’s obscenities, directed at court. While thetrial court apparently believed the obscenities themselves revealed a consciousness of guilt (ORT 1658; see also 10ORT 1663), these expletives carried much morein the way of prejudice than probative value. Thetrial court answered defense counsel’s argumentthat the evidence was akin to improperandprejudicial character evidence by drawing an analogy to a defendant who killed a witness duringtrial, before the jurors, and commenting,“[t]he same thing here. He did this. Thisis his own action. He’s responsible for his own actions... .” (ORT 1665.) That 202 analogy wasnotapt. The principle that individuals are responsible for their own actions would serve to license admission of any bad acts a defendant had ever committed — whichis not the law. Deputy Ganarial’s testimony bore all the hallmarks of prejudice:it hadlittle, if anything, to do with the 1997 crimes Gomez wascharged with; it waslikely to evoke an emotional response personally directed at Gomez — frustration or worse, anger; and it painted a picture of someone who was dangerousand hostile. All this substantially outweighed any probative value in an in-custody defendant’s refusal to come to court — for there is none, as this Court’s cases well establish. The evidence should have been excluded under Evidence Code section 352 as well as on the groundsthat it was irrelevant. 3. The Evidence Violated the Bar on Introduction of Character Evidence. Asdefense counsel contended below,the evidence violated the bar on introduction of character evidence. (Evid. Code § 1101.) The only logical relevance of this evidence was to portray Gomez as a dangerous and hostile individual. (See People v. Fritz (2007) 153 Cal.App.4th 949, 958- 959 [asserted consciousness of guilt evidence was improper under Evid. Code § 1101]; see also People v. Avitia (2005) 127 Cal.App.4th 185, 192- 194.) 203 4. The Trial Court Abused Its Discretion In Causing the Presentation of the Evidence of Mr. Gomez’s Refusal to Cometo Court. While rulings on relevance and Evidence Code section 352 rulings are subjectto the trial court’s discretion, the court’s discretion must be “neither arbitrary or capricious, but . . . an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not impede or defeat the ends ofsubstantial justice. [Citations.].” (People v. Stone (1999) 75 Cal.App.4th 707, 716.) It must be “groundedin reasoned judgment and guided bylegalprinciples and legal policies appropriate to the particular matter at issue. [Citations.]” (/bid., quoting People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) Exercises of discretion are reviewed for abuse; though the standard is deferential, “it is not empty.” (People v. Williams, supra, 17 Cal.4th atp. 162.) The standard “asks in substance whether the ruling in question ‘falls outside the bounds of reason’ under the applicable law andthe relevant facts. [Citations.].” bid.) “TS]ound discretion ‘is compatible only with decisions‘controlled by sound principles of law . . . free from partiality, not swayed by sympathy or warped byprejudice . . . .” (People v. Cluff(2001) 87 Cal.App.4th 991, 998, 204 quoting People v. Bolton (1979) 23 Cal.3d 208, 216.) But a trial court’s decision neednot beirrational to constitute an abuse ofdiscretion. (See People v. Jacobs, supra, 156 Cal.App.4th at p. 737 [““Although irrationality is beyond the legal pale it does.not mark the legal boundaries which fence in discretion.’ [Citation.]”].) Thetrial court, of course, has no discretion to admit irrelevant evidence (People v. Cowan, supra, 50 Cal.4th at p. 482) or apply an incorrect legal standard (Jn re Charlisse C. (2008) 45 Cal.4th 145, 160- 161). Thetrial court’s ruling here was an abuse ofdiscretion. Rather than evincing impartial discretion, the circumstances suggest the trial court was motivated in large part by anger at Gomez’saffront to the court and his attorney’s subsequent mistrial motion, and frustration at the delay caused by Gomez’s conduct. (See 9RT 1475 [“If you’re frustrated by it, you’re no less frustrated than J was.”]; 1ORT 1607 [“You may have another solution to this, but I don’t plan to let it go. I don’t plan to let either defendant play with the court and the jury and say I’m going to come when I’m ready, and if I’m not ready I’m not going to comeat all. That’s not going to be a choice either of them has.”]; 1ORT 1608 [“I’m not going tolet this go. I’m not going to let the defendants control the court.”’]; 1ORT 1609-1610 205 [“[Y]ou challenged me, and I’m responding to the challenge .... You did movefor a mistrial making it a major issue.”]; ORT 1613 [“I am tired of issuing orders of extraction in this case. . . . 1 don’t allow a defendanttotell me he’s not going to come to court... .”];ORT 1665-1666 [“If nothing else, this prevents a defendant whois charged with a capital case from constantly holding upthe trial.”].) Thetrial court, rather than being a neutral arbiter, wasin fact the proponentofthe testimony — testimony it had previously telegraphed its belief in whenit told jurors: “[t]he reason for the delay may well be presented to youlater during thetrial.” (QRT 1475.) Thetrial court then floated a theory of admissibility, and researched that theory — and whenits extensive researchfailed to reveal support for its position, the court nonethelessreiterated its firm belief in the theory and declaredits intent to be a “pioneer.” (QRT 1507-1508, 10RT 1608.) “Pioneer[ing]” is incompatible with a trial court’s sound exercise of discretion under the law as it exists. The trial court has no discretion to test the waters with a new legal theory — particular one,like the court’s here, which flouts existing law. Andthetrial court’s ruling, in any event, was beyond pioneering — it was ungroundedin any “reasoned judgment”or “fixed legal principles” 206 (People v. Stone, supra, 75 Cal.App.4th at p. 716) and lay “outside the bounds of reason under the applicable law” (People v. Williams, supra, 17 Cal.4th at p. 162) which, as set forth above, limits consciousnessof guilt evidenceto situations evincing a desire to escape apprehension, conviction, or punishment, and, more specifically, holds that a custodial defendant’s absenceis not a matter for jurors to consider. 5. The Trial Court Erred in Instructing the Jurors That They Could Consider Mr. Gomez’s Refusal to Cometo Court as Evidence Showing a Consciousnessof Guilt. Asset forth above, this Court’s case law establishes that a defendant’s voluntary absence from court, rather than being a matter legitimately probative of guilt and proper for the jury to consider,is something the jurors must, on request, be told to disregard. (See People v. Sully, supra, 53 Cal.3d at p. 1241; People v. Medina, supra, 11 Cal4th atp. 740; see also additional authorities cited in subsection B.1., above.) The trial court’s instruction was to the opposite effect. “Even if the court has no sua sponte duty to instruct on a particular legal point,” however, “whenit does chooseto instruct, it must do so correctly.” (People v. Castillo, supra, 16 Cal.4th at p. 1015.) The trial court’s instruction here waserror. 207 C. The Admission of the Evidence Regarding Mr. Gomez’s Refusal to Come to Court and the Court’s Instruction That Jurors Could Consider It as Consciousness of Guilt Evidence Violated Mr. Gomez’s Constitutional Rights. The court’s insistence on the presentation of Ganarial’s testimony and its instruction that it could be considered as showing Gomez’s consciousness of guilt violated not only state law, but the federal Constitution. It diminished the proof beyond a reasonable doubt standard, violating Gomez’srights to a fair trial, to the presumption of innocence, to a properly instructed jury, to counsel, to due processoflaw, to a reliable determination of his guilt and sentence, andto be free of cruel and unusual punishment. (U.S. Const., 5th, 6th, 8th, & 14th Amends.; see also Cal. Const., art. I, §§ 7, 15, 16, & 17; see People v. Gutierrez (2009) 45 Cal.4th 789, 809; see also People v. Boyer (2006) 38 Cal.4th 412, 441 & fn. 17; People v. Partida (2005) 37 Cal.4th 428, 433-439; People v. Cole (2004) 33 Cal.4th 1158, 1195, fn. 6; People v. Yeoman (2003) 31 Cal.4th 93, 117.) Permissive inferences — such as the inference of consciousness of guilt authorized by the court’s instruction here — diminish the prosecution’s burden of proof beyond a reasonable doubt where “there is no rational way thetrier could make the connection permitted bythe inference.” (County CourtofUlster v. Allen (1979) 442 U.S. 140, 157, 165.) In this situation,there is a risk that “an explanation of the permissible 208 inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.” (/d. at p. 157.) Thus,as this Court put it in analyzing the standard California flight instruction, “[t]he due process clauses of the federal Constitution (U.S. Const., 5th & 14th Amends.) require a relationship between the permissively inferred fact and the proven fact on which it depends.” (People v. Mendoza, supra, 24 Cal.4th at p. 180.) The standard for evaluating this “relationship” has been variously described as “rational connection,” “more likely than not,” and “reasonable doubt.” (Jbid.) A permissive inference violates the due process clause when “the suggested conclusion is not one that reason and commonsensejustify in light of the proven facts before the jury.” (bid., quoting County Court of Ulster v. Allen, supra, 442 U.S.at pp. 157-163.) The inference of consciousness of guilt authorized by the court’s instruction does not meetthis test, regardless ofhow thetest is articulated. Reason and commonsense do notjustify the inference that, because an in- custody defendant has refused to cometo court, he knowshimselfto be guilty: reason provides no logical link, and common sense suggests that manyinherently more likely inferences can be drawn from jail inmate’s 209 refusal to leave his cell to come to court. This Court’s cases recognize as much;asset forth at length above, they provide that upon request, thetrial court shouldinstruct the jury to disregard a defendant’s absence from court. The court’s instruction thus violated due process. The court’s evidentiary and instructional errors also violated due process by rendering Gomez’strial fundamentally unfair. (Peoplev. Partida, supra, 37 Cal.4th at p. 439,citing Estelle v. McGuire (1991) 502 U.S. 62, 70; Spencer v. Texas (1967) 385 U.S. 554, 563-564; People v. Falsetta (1999) 21 Cal.4th 903, 913; Duncan v. Henry (1995) 513 U.S.364, 366; see also Lisenba v. California (1941) 314 U.S.219, 236 [“The aim of the requirement of due processis not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence whethertrue or false.”]; U.S. Const., 14th Amend.) The evidence here lacked any legitimate probative value, serving only to unfairly prejudice Gomezin the jury’s eyes. Whenthere are no permissible inferences to be drawn from the evidence,andit is of “such quality as necessarily prevents a fairtrial,” due process is violated. (See Jammalv. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920.) Such evidence violates due process whenit “is material in the sense of a crucial, critical, highly significant factor.” (Snowden v. Singletary (11th Cir. 1998) 135 F.3d 210 732, 737.) The evidenceat issue here was of “such quality as necessarily preventsa fair trial” (Jammal v. Van de Kamp, supra, 926 F.2d at p. 920), as it lent itself to two powerful, and equally impermissible inferences. The first impermissible adverse inference, consciousnessof guilt, was suggested by the court itself in its instruction to the jury. Consciousnessofguilt can be a critical factor. (See People v. Benavides (2005) 35 Cal.4th 69, 100 [consciousnessof guilt evidence can be highly incriminating, quoting People v. Underwood(1964) 61 Cal.2d 113, 121]; see also Standenv. Whitley (9th Cir. 1993) 994 F.2d 1417, 1418, 1422-1423 [errorin admitting defendant’s earlier guilty plea and instructing jury that it could be considered as evidence of guilt violated due process].) It was especially significant here because the evidence of Gomez’s guilt, in the Luna and Patel cases in particular, was exceedingly weak. (See Arguments I & II, above.) And though Gomez’s refusal to come to court wasnot, as demonstrated above, probative of a consciousness of guilt, the trial court nonetheless told jurors it could be. As the Supreme Court hasputit, a trial judge’s “lightest word or intimation is received with deference, and may prove controlling.” (Quercia v. United States (1933) 289 U.S. 466, 470.) 211 More,this area is one in which jurors are even morelikely than usual to deferto thetrial judge. Afterall, if the judge, who surely has daily experience with defendants’attitudes towards coming to court and with defendants’ guilt or innocence,tells jurors that refusal to come to court can be evidence of a consciousness of guilt, then whoare the jurors to disagree? Other equally impermissible and prejudicial inferences flowed from Ganarial’s inflammatory testimony regarding the conditions in which Gomez was held and his refusal to come to court on the morning of December 14, 1999. Ganarial told jurors he ran a module housing “K-10 inmatesfor discipline,” and that Gomez wasone of the inmates in his module. (12RT 1842-1843.) Hetold jurors that such inmates are fed through a slot. (12RT 1843, 1846-1847.) He detailed the security procedures for escorting them to court: they comeout oftheir cells one at a time; they are waist-chained; and then brought downstairs by the “movement team.” (12RT 1843-1844.) He told jurors that on the morning of December 14, 1999, he made multiple attempts to get Gomez to get ready for court, and Gomez responded twoor three times by saying “Fuck court.” (12RT 1847-1848.) He recounted for jurors how he communicated to the court’s bailiff that Gomez was refusing to come to court, and how an extraction order was issued, which meantthe jail would have to assemble a 212 team of deputies to forcibly remove him from his cell. (12RT 1849-1850.) Becausethe trial court failed to give any instruction limiting the jurors’ use ofthis evidence, this testimony further allowed for the inferences that Gomez was dangerousandhostile. None ofthis testimony aided jurors in the actual task before them — deciding Gomez’sguilt or innocence of the charged crimes — butall of it provided a picture of a prisoner who wasespecially dangerous (because he wasin a disciplinary unit within the jail and had to be fed through a slot and hadto be waist- chained in order to be broughtto court), likely guilty, and hostile to the proceedingsjurors werea part of. Consciousnessof guilt is a powerful concept. Likewise, evidence about security procedures employed in housing, feeding, and transporting an inmate provide an “unmistakable indication[] of the need to separate [him] from the community at large,” in other words, a “sign that he is particularly dangerous [and] culpable.” (Holbrook v. Flynn (1986) 475 U.S. 560, 569.) To introduce highly inflammatory evidence painting a picture of a dangerous man with a badattitude, and then to put the court’s stamp of approval on the adverse inference that that evidence showsa consciousness of guilt, renders a trial fundamentally unfair. Finally, yet another factor contributed to the due processviolation 213 here: thetrial court’s commentsto the jurors foretelling the production of the evidence, which ensuredthat jurors would view the evidence notonly as important, but as the truth. The court telegraphedits belief that Ganarial’s testimony would betrue and accurate, whenit told jurors that “the reason” for the delay in starting court on December 14, 1999 might be presented to them later in the trial. (QRT 1475.) Its comment at the time ofthe delayed start not only credited, in advance, Ganarial’s testimony, but validated jurors’ feelings offrustration or anger aboutthe delay, which could only have been exacerbated — and trained upon Gomez— by Ganarial’s testimony. (See ORT 1475 [court addressing jurors: “If you’re frustrated by [the delay], you’re no less frustrated than I was.”]; 20RT 3032 [court notes that jury is a “difficult jury” and delays cause problems with them].)® The presentation of Deputy Ganarial’s testimony andthe court’s associated comments and jury instruction not only rendered Gomez’s trial fundamentally unfair and violated his federal constitutional right to due 66 The court made matters worse when, on other occasions when court was delayed it told jurors the various reasonsfor the delays. (See, e.g., LIRT 1694-1695; 16RT 2504, 22RT 3181-3182.) Indeed, on the morning Ganarial testified, there was a delayin starting court, and the court told jurors that the delay was“not due to anyone’s fault in the court. Lack of communication getting everyone necessary here at the same time, so we’re working ontrying to prevent that.” (12RT 1840.) By negative implication, of course, the earlier delay they were about to hear Ganarial’s testimony about was someone’s fault. 214 process of law, but also violated Gomez’s right to a reliable determination of guilt in this capital trial. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17; Beck v. Alabama, supra, 447 U.S.at pp. 637-638.) Finally, the trial court’s error violated Gomez’s due processliberty interest in the state’s adherenceto its own rule that a criminal defendant’s absence from trial is not a matter for the jury to consider. (See subsection B.1., above; see Hicks v. Oklahoma (1980) 447 U.S. 343, 346; U.S. Const., 14th Amend.; People v. Webster (1991) 54 Cal.3d 411, 439.) D. The Trial Court Improperly Assumed the Role of an Advocate Against Mr. Gomez And Used Its Power to Call Witnesses and Instruct the Jury to Punish Mr. Gomez For His Disrespect to the Court, to Deter Similar Conduct, and to Punish Gomez and Counsel For Counsel’s Mistrial Motion, Violating Mr. Gomez’s Right to Due Process and His Right to Counsel. Thetrial court also erred by assumingthe role of an advocate and improperly using its powerto call witnesses and to instruct the jury on the law in an effort to punish Gomezfor his disrespect to the court. While the prosecutor ultimately called Deputy Ganarial and conductedhis direct examination, the court madeclear that, given its power under Evidence Code section 775, Ganarial’s testimony would be presentedto the jury one way or the other. (See, e.g., IRT 1508; 1ORT 1605; 1ORT 1667-1668; 27RT 3960 [trial court stating: “I’m the one that fostered the testimony about Mr. Gomez’ [s] refusal to cometo court that day”].) Indeed, the court apparently 215 determined that the jury might hear about it — and so informedthe jury — before counsel had a chanceto argue that the matter was irrelevant. QRT 1473-1474 [“it does seem to methat at least it will come out eventually in the penalty phase”]; 9RT 1475 [court informing jurors: “The reason for the delay may well be presented to you later during thetrial.”].) Only after counsel movedfor a mistrial did the court state that the matter was relevant to show consciousnessofguilt. “Decide first, defend later is not an axiom of constitutional law.” (Bradley v. Henry (9th Cir. 2007) 510 F.3d 1093, 1098, amended on denial of rehearing, Bradley v. Henry (9th Cir. 2008) 518 F.3d 657.) A fair and neutral arbiter is fundamental to due process. (See People v. Harris (2005) 37 Cal.4th 310, 346, citing Withrow v. Larkin (1975) 421 U.S. 35, 46.) Judges must be scrupulouslyfair; they must not adoptthe role of advocates making the case against a criminal defendant. “Every defendant . . . is entitled to a fair trial on the facts and nota trial on the temper or whimsiesofthe judge whosits in his case.” (People v. Mahoney (1927) 201 Cal. 618, 626 [adopting opinion of Court ofAppeal]; see also People v. Campbell (1958) 162 Cal.App.2d 776, 787 [“Judges have been admonishedtime and time again oftheir duty to maintain a strictly judicial attitude and to refrain from commentor other conduct which borders upon 216 advocacy.”’].) While Evidence Code section 775 indisputably grants trial courts the powerto call witnesses, it goes without saying that such power must be exercised impartially, with an eye toward clarifying testimony,or thelike, in support of the search for truth. (See People v. Hawkins, supra, 10 Cal.4th at p. 948 [“Evidence Code section 775, which is a codification of case law, ‘confers upon thetrial judge the power, discretion and affirmative duty . . . [to] participate in the examination ofwitnesses wheneverhe believes that he mayfairly aid in eliciting the truth, in preventing misunderstanding,in clarifying the testimony or covering omissions, in allowing a witnesshis right of explanation, and in eliciting facts material to a just determination of the cause.’”],°’ quoting People v. Carlucci (1979) 23 Cal.3d 249, 256; see also People v. Monterroso (2004) 34 Cal.4th 743, 782 [questions posed by judge under Evid. Code § 775 were “for purposesofclarification, not advocacy”]; McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d 512, 533 [powerto call witnesses must be impartially exercised; courts should undertake examination ofwitnesses only whenit appearsthat relevant and material testimony will not be elicited by counsel], overruled on other grounds by Spruance v. Commission on Judicial Qualifications 67 Hawkins has been limited on other grounds by People v. Lasko (2000) 23 Cal.4th 101, 110. 217 (1975) 13 Cal.3d 778, 799, fn. 18 and Doan v. Commission on Judicial Performance (1995) 11 Cal.4th 294, 325.) Andnoprovision grantstrial courts the powerto call witnesses, rule on the admissibility of evidence,or craft jury instructions in order to punish a criminal defendantfor an affront to the dignity of the court or deter future, similar affronts. Yet several of the trial court’s comments on the record leave the troubling impressionthat its determination to present the jurors with Ganarial’s testimony and to instruct them that the refusal to come to court could show consciousness of guilt was borne less from the desire to “fairly aid in eliciting the truth” (People v. Hawkins, supra, 10 CalAth at p. 948) regarding the 1997 crimes Gomez was charged with, and more from a desire to punish Gomez forhis actions on December 14, 1999. (See 1ORT 1607 [addressing defense counsel: “You may have anothersolutionto this, but I don’t planto let it go. I don’t plan to let either defendant play with the court and the jury andsay I’m going to come when I’m ready, andif I’m not ready I’m not going to comeatall. That’s not going to be a choice either of them has.”]; ORT 1608 [“I’m not goingto let this go. I’m not goingto let the defendants control this court.”]; 1ORT 1613 [“I am tired of issuing orders of extraction in this case. . . . I don’t allow a defendantto tell me he’s 218 not going to come to court... .”]; 1ORT 1665-1666 [“If nothingelse, this prevents a defendant whois charged with a capital case from constantly holding up the trial.”]; see ORT 1475 [“If you’re frustrated byit, you’re no less frustrated than I was.”’].) An additional comment — “[Y]ou challenged me, and I’m respondingto the challenge .. . . [Y]ou did movefor a mistrial makingit a major issue” (1ORT 1609-1610) — suggested that the court may have believed the extent of its response warranted because defense counsel had moved for a mistrial after the court told the jurors they might find out the reason for the delay in starting court. This wasnot only unbefitting a neutral arbiter, but it also violated Gomez’s right to counsel by punishing him for his attorney’s having movedfor a mistrial. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) Thetrial court’s determination to be a “pioneer,” blazing its owntrail outside the familiar terrain of consciousness of guilt evidence — while drawing an analogy to its having held an attorney in summary contempt (10RT 1608) — befit an advocate more than a neutral arbiter. It was incompatible with the level of care and discretion required oftrial courts exercising the powerto call witnesses (see Peoplev. Bowman (1966) 240 Cal.App.2d 358, 382 [power to examine witnesses should be exercised with 219 discretion and in such a way as notto prejudice the rights of either party]) and created, at the very least, an appearance of impropriety (see Offutt v. United States (1954) 348 U.S. 11, 14 [“justice mustsatisfy the appearance ofjustice”].) As acknowledgedat the outset, incidents such as the one portrayed in Ganarial’s testimonytest the patience ofall involved. That said, the court’s actions here were improper; they were not only contrary to law but appeared to stem atleast in part from pique. Gomez wasentitled to a fair trial in which his guilt would be determined onthe basis of relevant evidence and legitimate inferences — and in which the admission of evidence and the drawing of inferences would be guided solely by the law. He did not receive that. The court was correct, of course, that a criminal defendant cannot be permitted to control a courtroom. (See Illinois v. Allen (1970) 397 US. 337, 343-347.) It erred, however, in using evidence and jury instruction to attempt to control Gomez.® Theseerrors violated not only state law but federal due process. (U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7, 15.) More,to the extent the court’s statements suggestedit believedits 68 As the court itself understood, it was not without recourse. Earlier in the trial, and indeed in the course ofthe incidentat issue, the court issued extraction orders. (See IRT 196-198; ORT 1473.) Later duringthetrial,it issued a standing “extraction order” to ensure that if Gomez did not voluntarily leave his cell to go to court, he would be forcibly extracted. (See 10RT 1611; see also IRT 196-198 [extraction order for Grajeda].) 220 rulings warranted as a response to defense counsel’s motion for a mistrial, the court’s actions violated Gomez’sright to counsel. (See U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15.) E. Reversalis Required. Theseerrors require reversal. The prosecution cannot meetits burden of showing, beyond a reasonable doubt, that the constitutional violations did not contribute to the verdicts and the death sentences. (Chapman v. California, supra, 386 U.S.at p. 24.) “The inquiry . . . is not whether, in a trial that occurred withoutthe error, a guilty verdict would surely have been rendered”(Sullivan v. Louisiana, supra, 508 U.S. at p. 279) — though in this case the prosecution could not even meet that standard. Rather, the question is whether the guilty verdicts “actually rendered in ‘his trial [were] surely unattributable to the error.” (/bid., originalitalics.) The prosecution cannot prove that beyond a reasonable doubt. The cases wereclose, with guilt phase deliberations spanning eight days, and producing a deadlock in one of the homicide cases. The evidence against Gomezin two of the homicide cases was exceedingly thin, and, aside from law enforcement, most ofthe prosecution’s chief witnesses were beset withserious credibility problems. (See generally ArgumentsI &II, above.) 221 The only evidence of Gomez’s involvementin the Patel killing consisted oftestimony by two highly suspect witnesses — one, an admitted liar whotold jurors he was “entitled to what[he could] get” even if he had to lie to getit (24RT 3473-3474), and another, the wife of a drug dealer who wasarrested and found to have in her possession a pawnslip for Patel’s jewelry. (12RT 1928-1931; 13RT 1972-1973.) The prosecution cannot show beyond a reasonable doubt that Gomez’s conviction — resting as it did on the contradictory and dubious testimony ofthese witnesses — wassurely unattributable to the court’s evidentiary and instructionalerror. (See ArgumentII, above.) In the Luna case, the evidence was even weakerstill, with the prosecution’s case,atits best, showing that Gomez wasnear the scene of the crime, at one time toucheda car that may have been linkedto the perpetrators, and later possessed the victim’s cell phone. (See Argument LB., and I.B.1., above.) The jury appropriately found that Gomez hadnot shot Luna, leavinghis role in the killing — if he hadanyrole at all —a matter ofpure speculation, ungrounded in any evidenceatall. (See ArgumentI.B.2., above.) As set forth in detail in ArgumentI, above, there was simply no evidence from whichjurors could conclude that Gomez had the necessary mental state of an accomplice, even if they foundthat he was 222 in Luna’s front yard when the unknownshooter killed Luna. (See Argument I.B.2., above.) The prosecution cannot show beyond a reasonable doubtthat the conviction in the Luna case wassurely unattributable to the court’s having erroneously told jurors that they could infer that Gomez, because he refused to come to court one day, knew himselfto be guilty. Norcan the prosecution prove beyond a reasonable doubtthat the errors did not affect the verdicts in the O’Farrell Street killings. The prosecution’s main witnesses both suffered serious credibility problems — indeed, the prosecution conceded that Witness #1 was “not a credible man” and that Witness #2 was not a “public spirited person” and would not have testified had he not been facing prosecution in another case. (See 27RT 3834-3836, 3849-3850.) A mistrial, or an inability to agree as to whether the killings were first or second degree murder, were not out of the realm of possibility”; in light of the entire record, the evidence of premeditation and deliberation was,if sufficient, nonetheless thin. (See ArgumentIII, above.)”° ° The jurors convicted co-defendant Grajeda only of second degree murderin the killing of Robert Acosta. (4SCT 738.) ” More, though a shotgun found in Gomez’s cousin’s house when he was arrested waslinked to spent shells found at the scene (11RT 1754-1756 21RT 3119; 18RT 2741-2747; 21RT 3099-3100; 19RT 2869-2872), the defense contested the fingerprint evidence obtained from that weapon and (continued...) 223 In these circumstances,the trial court’s injection of this evidence and instruction going directly to the idea that Gomez wasguilty in his ownmind cannot have been harmless beyond a reasonable doubt. Deputy Ganarial’s testimony painted a picture ofa hostile, dangerous, and out-of-control prisoner. The court compoundedthe prejudice by suggesting and allowing the further inference that Gomez had engaged in such behavior— which occurred just as the evidence on the Patel homicide (the first homicide case) was beginning — because he knew himself to be guilty. This error, by its nature, provided an all-purpose rejoinder — suggested and sanctionedby the court itself— to jurors’ doubts about Gomez’s guilt. How better to resolve such doubts — whatevertheir nature — than to follow the judge’s suggestion that Gomez himselfknew he was guilty and behaved accordingly? Even underthe state law “reasonable probability” standard, reversal would be required. The phrase “reasonable probability” in the context of prejudicial error “does not mean morelikely than not, but merely a reasonable chance, more than an abstract possibility. [Citations.]” (College Hospital Inc. v. Superior Court, supra, 8 Cal.4th at p. 715, originalitalics, 7(...continued) raised questions about whether Gomez wasthe shooter. (21RT 3105-3109; 27RT 3946-3950.) 224 citing, inter alia, People v. Watson, supra, 46 Cal.2d at p. 837.) There is a reasonable chance, to say the least, that in the absence ofthese errors at least one juror would have found, and maintained, a reasonable doubtas to Gomez’s guilt, and the results would have been different. A mistrial, of course, is a more favorable result for the defendant than a conviction. (People v. Soojian (2010) 190 Cal.App.4th 491, 520-524; People v. Bowers (2001) 87 Cal.App.4th 722, 736.) Thus, the error was not harmless if there is a reasonable chancethat in the absence ofthe error at least one juror would have cometo a different conclusion about Gomez’sguilt. Gomez’s death sentences for the murders of Patel and Luna must be reversed, for there is a reasonable possibility that they would not have been returned in the absence ofthese errors (People v. Brown, supra, 46 Cal.3d at pp. 447-449), which invited jurors to assuage any lingering doubts about Gomez’sguilt with the thoughtthat if Gomez himselfknew he wasguilty, he must be. (See People v. Gay, supra, 42 Cal.4th at p. 1226 [lingering doubt has particular potency where physical evidenceis lacking and eyewitness testimony is contradictory].) 225 VIII. THE TRIAL COURT’S ERRONEOUS ADMISSION OF HIGHLY INFLAMMATORYEXPERT TESTIMONY ABOUT THE MEXICAN MAFIA, WHICH RENDERED JURORS FEARFUL FOR THEIR OWNSAFETY, DEPRIVED MR. GOMEZ OFHIS RIGHT TO DUE PROCESSANDAFAIR TRIAL Chilling testimony about ruthless and violent crimes committed by the Mexican Mafia cast a shadow over Gomez’s trial, prompting a note from onejuror inquiring whether the jurors wereat risk and another note from the jury as a group evincing similar concern. Some gang-related evidence was arguably relevant to the O’Farrell Street double homicide. But the expert testimony aboutthe history of the Mexican Mafia and about shocking crimes committed on its behalf— both generally and in specific cases unrelated to this case or either defendant in this case in any way— ranged far beyond any proper purpose, serving onlyto instill fear. The trial court erred in overruling counsels’ objectionsto this testimony, violating Gomez’s constitutional rights and rendering his trial fundamentally unfair. A. Procedural Background and the Gang Expert Testimony. Before opening statements, and again before gang expert Richard Valdemar took the stand, the trial court ruled that evidence regarding the Mexican Mafia would be admissible to demonstrate motive in connection with counts 10 and 11, the O’Farrell Street double homicide. (8RT 1282- 226 1287; 14RT 2125.) The prosecution’s theory of the case was that Robert Dunton waskilled for failure to pay “taxes” to the Mexican Mafia. (8RT 1282-1287; 14RT 2115-2116, 2122-2125.) Valdemar’s testimony, however, ranged far beyond what arguably would have been relevant to demonstrate motive for the Duntonkilling. The trial court overruled defense objections to Valdemar’s testimony about the history of the Mexican Mafia and numerousunrelated crimes that had been committed on its behalf and bymembers of “hardcore gangs”generally.It allowed, over defense objection,” ® testimony that “just about every crime that you can imagine that’s committed on the outside in some way was committed [by gang members] onthe inside ofthejail facility. That ” Eachofthe items of evidence listed below came in over the objection of either counsel for Gomez or counsel for his codefendant. In the instances in which counsel for Grajeda objected, any further objection by counsel for Gomez would have been futile, as the trial court overruled the objection. (People v. Gamache (2010) 48 Cal.4th 347, 373 [claim is preserved where codefendant’s counsel objected andtrial court overruled objection before defendant had a chanceto join; it would have been futile to make the same objection that had been rejected]; People v. Hill (1998) 17 Cal.4th 800, 820-821; People v. Pitts (1990) 223 Cal.App.3d 606, 693; People v. Carrillo (2004) 119 Cal.App.4th 94, 101; see also Peoplev. McKinnon, supra, 52 Cal.4th at pp. 653-654 [reviewing admissibility of gang evidence where further objection to gang evidence would have been futile].) While this Court should resolve any close and difficult preservation questions in favor of the defendant (People v. Ayala, supra, 23 Cal.4th at p. 273), should this Court nonetheless conclude that counsel failed to preserve any ofthese issues for review, Gomezbelieves such ineffective assistance of counsel would be more appropriately addressed in habeas corpus proceedings (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267). 227 would beassaults, battery, murder, the making of contraband weapons, the transportation, sales and use of narcotics, robbery, extortion and rape” (14RT 2220; see 14RT 2220- 2221), and that while most ofthe inmates were not a problem in thejail, “a small minority, normally membersofhard core gangs were creating much ofthe problemsthat we were experiencing, so by isolating these people and placing them in special units, we eliminated a lot of the assaults that were going on.” (15RT 2346-2347). © testimony that at Mexican Mafia meetings Valdemar had surveilled, murder“was primarily the subject of most of the conversations.” (15RT 2353-2354.) ® detailed testimony aboutthe creation of the Mexican Mafia in 1956 by a gang member from Hawaiian Gardens, Luis Flores, known as “Huero Buff.” (15RT 2361-2362.) Valdemarfurther explained that by attempting to disband the gangin its early years by sending its membersoutto different prisons, the Department of Corrections unwittingly allowed the gangto spreadits influence, a phenomenon which was “fairly accurately” depicted in the film “American Me.” (15RT 2362-2363.)” © testimony that the Mexican Mafia in “several instances” has used family membersto carry out retaliatory murders, once ordering a manto kill his brother, as depicted in the movie “American Me.” (15RT 2383-2384.) ? Counsel for Gomez implicitly seconded Grajeda’s objection to testimony about the history of the Mexican Mafia on the groundsthat it was irrelevant and inflammatory. (15RT 2356, 2358, 2359.) Even if he had not, as set forth above, further objection would have beenfutile. As set forth above, while this Court should resolve any close and difficult preservation questions in favor of the defendant (People v. Ayala, supra, 23 Cal.4that p. 273), should this Court nonetheless concludethat counsel failed to preserve any ofthese issues for review, Gomez believes such ineffective assistance of counsel would be more appropriately addressed in habeas corpus proceedings (People v. Mendoza Tello, supra, 15 Cal.Ath at pp. 266-267). 228 ® testimony about the Mexican Mafia’s enlisting of individuals to commit perjury on behalfof its associates or members, about a particular Baldwin Park shooting in which “a father identified a Mexican Mafia suspect and the son testified to the contrary,” and the Mexican Mafia’s expectation that “loyal gang members would use any means possible to delay, obstruct or reverse any kind ofa criminal prosecution against its members.” (15RT 2384-2385; see 14RT 2231-2232.) During a break in Valdemar’s direct testimony, immediately following Valdemar’s testimony that the Mexican Mafia expected loyal gang membersto use “any meanspossible” to hinder prosecution of Mafia crimes, Juror 10 sent the court a note: “Judge, I have a question! What about jury members. Are weat risk?” (SRT 2386-2387; 3SCT 591.) The court told the jury that a juror had sent out a note, and the answerto the question was “no.” (15RT 2391.) The prosecutor then concluded Valdemar’s direct examination by eliciting his opinion that the Mexican Mafia foster[s] a feeling of terror among the communities in which they operate, and especially amongstreet gang members, and their reputation for violence and murder causes gang members to comply with their wishes. (15RT 2400.) Asguilt phase deliberations concluded, the jury sent a note to the court, signed by the foreperson, stating that the jurors were “concerned about possible harassment or problems after we are dismissed once the 229 verdicts are read.” (4SCT 746.) The court resisted counsel’s requests to tell jurors there was nothing to worry about: I can’t tell them that they can’t be concerned. .... I cannot falsely tell them that there’s no reason to be concerned. ** They’re concerned about harassment and other problemsthat they mentionedin the note. Andthey orally added to one of the bailiffs, I think, they were concerned aboutthe next phase, ifwe get into that..... They’ve now expressed as a unit, as a body, the concern for themselves, and I can’t say,listen, people, you’re crazy, there’s nothing wrong,there is no reason to be concerned. We’ve been talking about somethings here that not everyone is acquainted with like the Mexican Mafia. They might well be concernedthat there’s some danger that they’re in because ofthat. (29RT 4332, 4335.) Thecourt ultimately told the jurors “I don’t think you should be concerned about[any problems], but we are going to change the procedures so you feel more at ease . . . . the Bailiffs will . . . briefyou on the new procedures that will be instituted so that you don’t feel any concern about any problemsthat might arise after the verdicts.” (29RT 4343.) Jurors were then instructed as to new procedures (29RT 4343, 4364- 4367), andthetrial resumed the following week to determine whether Gomez should be sentenced to death. 230 B. The Trial Court Abused Its Discretion in Allowing Highly Inflammatory Gang Evidence. 1. Applicable Law. Gang evidence evokes an emotional bias against the defendant, precisely the type of bias that distracts jurors from, rather than focusing them on, the material issues in the case, and precisely the kind of bias Evidence Code section 352 is designed to protect against. (See People v. Killebrew (2002) 103 Cal.App.4th 644, 650, disapproved on other grounds, People v. Vang (2011) 52 Cal.4th 1038, 1047-1048; see People v. Cox (1991) 53 Cal.3d 618, 660 [court condemned introduction of gang evidence where only tangentially relevant, given its inflammatory impact], disapproved on other grounds, People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22].) Evidence about organized crime, prison gangs, or the Mexican Mafia, in particular, evokes intense fear, and is thus uniquely capable of distracting jurors from the relevant issues. (See People v. Ayala, supra, 23 Cal.4th at pp. 276-277 [trial court excluded any mention of the Mexican Mafia because it would be “extremely prejudicial” and court made diligent efforts to avoid such references]; People v. Memory (2010) 182 Cal.App.4th 835, 862 [“‘Legions of cases and other legal authorities have recognized the 999 prejudicial effect of gang evidence uponjurors. [Citations.]’”], quoting 231 People v. Albarran, supra, 149 Cal.App.4th at p. 231, fn. 17; see also People v. Albarran, supra, 149 Cal.App.4th at p. 230 & fn. 15.) It evokes “the highly publicized phenomenon of gang warfare in Southern California _.. thereby raising the spectre of prejudice far beyondthe facts of the actual case.” (Williamsv. Superior Court, supra, 36 Cal.3d at p. 453; see also People v. Cardenas, supra, 31 Cal.3d at p. 905 [“In Southern California, Chicano youth gangs have received widespread media publicity for their purported criminalactivities.”].) Gang-related evidenceis a particularly prejudicial form of bad character evidence because, in addition to the risk of conviction on an improper propensity theory (id. at pp. 905-906),it also carries the risk that the defendant will be convicted on a “guilt by association”theory that runs counter to fundamental principles ofjustice. (Kennedy v. Lockyer, supra, 379 F.3d at pp. 1055-1056.) | Where expert gang evidence includes evidence of a gang’s criminal activities unrelated to the charges the defendantfaces,it is particularly inflammatory. As the Court of Appeal hasputit, such evidenceis inflammatory and has a “tendency to imply criminal disposition, or actual culpability.” (People v. Bojorquez (2002) 104 Cal.App.4th 335, 345.) It violates the right of “every defendant. . . to be tried based on evidence 232 tying him to the specific crime charged, and not on generalfacts accumulated by law enforcement.” (/bid.) Some gang evidence, to be sure, may have probative value wherethe crimeis alleged to be gang-related and the gang evidenceis offered to prove motive. (People v. Williams (1997) 16 Cal.4th 153, 193.) But even where gang evidenceis relevant, courts must scrutinizeit carefully because of its inflammatory impact. (/bid.; see also Kennedy v. Lockyer, supra, 379 F.3d at pp. 1055-1056 [“[E]videncerelating to gang involvementwill almost always be prejudicial and will constitute reversible error.”].) Finally, the exercise of discretion to admit or exclude evidence under Evidence Code section 352 should favor the defendantin cases of doubt, because in comparing prejudice and probative value, the balance “Is particularly delicate andcritical where whatis at stake is a criminal defendant’s liberty.” (People v. Lavergne (1971) 4 Cal.3d 735, 744.) It is all the more delicate and critical, of course, where not only the defendant’s liberty, but his life, is at stake. (See, e.g., Beck v. Alabama, supra, 447 U.S. at pp. 637-638 [reliability of guilt determination is crucialin a capital case; death must be imposed onthe basis of reason rather than caprice or emotion].) 233 2. The Trial Court Abused Its Discretion In Permitting Testimony About the History of the Mexican Mafia, About Crimes Committed By “Hardcore” Gang Members in Jail, and About Other Cases of Ruthless Retaliatory Crimes Committed on Behalf of the Mexican Mafia. Thetestimony the trial court allowed over defense objection involved a litany of crimes committed by “hardcore gang” members and, more specifically, by the Mexican Mafia. Noneofthese other crimes were in any way connectedto either of the defendants. All of this testimony was substantially more inflammatory than it was probative or relevant with respect to whether Gomez and Grajeda killed Dunton and Acosta. Evenif this evidence had some minimalprobative value, that probative value was far outweighed bythe risk that jurors would beso horrified and fearful that they would be unableto assess the evidence for any probative value with respect to the case. Testimony aboutrape and murderand a laundry list of other crimes committed by gang membersin jail (14RT 2220) was,to say theleast, unnecessary to establish Valdemar’s expertise, the asserted purpose forits presentation, and, as counsel argued, it bore no relation to the ultimate expert opinion being sought. More, it was particularly prejudicialin this case because, as counsel noted, the jury had been informed that Gomez was in the county jail. (14RT 2221.) In fact, they had been informed that he was 234 in a disciplinary module, further exacerbating the prejudice by suggesting that he may have engaged in someofthese crimesin jail. (See 12RT 1842.) Ascounsel noted, this testimony served as a form of impropercharacter evidence, linking Gomezby virtue of his gang status and the fact that he wasin the county jail to seemingly unlimited criminalactivities in the jail — as Valdemar told thejury, “just about every crime that you can imagine that’s committed on the outside.” (14RT 2220.) Valdemar’s testimony that murder wasthe primary topic of conversation in Mexican Mafia meetings he surveilled was similarly irrelevant, as counsel for Gomez argued (15RT 2353-2354) — as there was no suggestion that either Grajeda or Gomez waspresent at any of those meetings. This testimony served only to create an atmosphere of fear and foster the improperinference that because Gomez was a memberofa street gang subservient to the Mexican Mafia, he must have committed murder. Testimony aboutthe history of the Mexican Mafia andits penchant for using family membersto carry out retaliatory murders — whichin both cases veered into an incorporation by reference of a movie (15RT 2362- 2363, 2383-2384) — wasirrelevant; it bore shock value, not probative value. The prosecution contended that such detail was necessary to establish the “longevity” and “strength” of the Mexican Mafia, in order to explain, in 235 turn, why “a Hispanic street memberlike Gomez would kill . . . people that we might consider[he was] at least friendly with. I don’t know whatthey considered themselves to be, but for all intents and purposes they appeared to be friendly.” (ISRT 2357.) This evidence was not “necessary to furnish the jury a context” for the prosecution theory. (See People v. Roberts, supra, 2 Cal.4th at p. 299.) It was hardly necessary to delveinto the history of the Mexican Mafia and its roots in a youth facility starting in 1956, in order to establish why an individual would commit a gang-related killing. Nor was this history any morenecessary or even relevant to show whyan individual would kill someone he “appeared”to be “friendly” with. Testimony that a man had once killed his brother at the Mexican Mafia’s behest similarly was not relevant to Gomez’s guilt, except insofarasit lent itself to improper inferences. (See People v. Bojorquez, supra, 104 Cal.App.4th at p. 345 [reversing for inflammatory gang testimony including testimony about gang retaliation against witnesses unconnected to the defendant.) The willingness of those close to Mexican Mafia members and associates to perjure themselves, and the specific instance of a Baldwin Park case in which a father identified a Mexican Mafia suspect and his son testified to the contrary, were also irrelevant, as counsel contended. (SRT 236 2384.) This testimony had nothing to do with the killing of Dunton and Acosta and served primarily to impermissibly blunt the effect of any testimony the defendants mightoffer. Credibility is not a proper subject for expert witnesses. (People v. Smith (2003) 30 Cal.4th 581, 628 [credibility not generally a subject of expert testimony]; United States v. Call (10th Cir. 1997) 129 F.3d 1402, 1406 [same]; Snowden v. Singletary, supra, 135 F.3d at pp. 737-739 [reversing for due process denial of fundamental fairness where expert testified that in 99.5% of cases childrentell the truth about abuse]; see also Mach y. Stewart (9th Cir. 1998) 137 F.3d 630, 631-634 [reversal where venireperson, a social worker with child services, stated in presence ofjury panelthat in her experience, children did not lie about being sexually abused].)” Asthe Court ofAppeal has put it, addressing the admissibility of testimony, by a sociologist, that prison inmates sometimeslie and give false 7? Allowing an expert to opine on the credibility of a particular group of potential witnessesis different from allowing a defense witnessto be impeached with evidence of his membership, along with the defendant, in a group that required its members to commit perjury on behalf of other . membersofthe group. The latter has been approved under the Federal Rules of Evidence. (United States v. Abel (1984) 469 U.S. 45, 46, 52.) Mote,in this case, the expert’s opinion tarnished the credibility of anyone associated with the defense, even if that individual were not himself shown to have any association with the Mexican Mafia or any gang. 237 testimony in exchangefor leniency: “Evidenceofa generalized tendency of some groupsofwitnessesto lie, unrelated to the credibility of the specific witnessesin issue, is irrelevant and not the subject of legitimate scientific evidence from expert witnesses.” (People v. Johnson (1993) 19 CalApp.4th 778, 785, 786-791.) Gomez acknowledgesthat in People v. Hernandez (2006) 38 Cal.4th 932, 947, this Court held that expert testimony that a witness had never known a gang member“to lie about a fellow gang member making him a rat or a snitch” was admissible, as it did not involve the expert’s testimony aboutthe credibility of any particular witness. He contends,respectfully, that it was wrongly decided, andthat, as set forth in Snowdenv. Singletary, supra, 135 F.3d at p. 739, when an expert invades the jury’s province as the sole judge of witness credibility, by opining on the credibility of a class of witnesses, not only has evidentiary error occurred, but fundamentalfairness and due processare violated. Finally, Valdemar’s opinion that “Eme expects that loyal gang members would use any meanspossible to delay, obstruct or reverse any kind ofa criminal prosecution against its members” (15RT 2385) was particularly irrelevant, as counsel contended, and prejudicial. It encouraged jurors to automatically discount the entire defense as part of the Mexican 238 Mafia’s dishonesty and allowed for speculation leading to the inference that jurors wereat risk. (Indeed,it was during the break immediately following the elicitation of this testimony that Juror 10 sent the court a note revealing her concern in this regard. (ISRT 2386; see 3SCT 591.)) Even if some measure of relevant gang expert testimony were admissible to demonstrate motive, the evidentiary “overkill” threatened to overwhelm the jurors with fear, obscuring evidentiary gaps in the cases against Gomez. In People v. Albarran, the Court of Appeal reversed a conviction, holding that even if evidence of defendant’s gang membership and some evidence concerning gang behavior were relevant to motive and intent, additional evidence of threats to kill police officers, descriptions of the criminalactivities of other gang members, and reference to the Mexican Mafia had little or no bearing on guilt and “approached being classified as overkill.” (People v. Albarran, supra, 149 Cal.App.4th at p. 228.) Here, as in Albarran, the evidenceat issue “was so extraordinarily prejudicial and of suchlittle relevance that it raised the distinct potential to sway the jury to convict regardless of [defendant’s] actual guilt.” (/bid.; see also People v. Bojorquez, supra, 104 Cal.App.4th at pp. 343-345 [although court did not abuseits discretion in admitting some gang evidence, “profuse” additional inflammatory and irrelevant gang testimony warranted reversal].) 239 And,as defense counsel pointed out, the gang evidence bore no relevanceatall to the other charges Gomezfaced. As to thosecases, it was entirely irrelevant. (See People v. Avitia, supra, 127 Cal.App.4th at p. 193 [reversing conviction where gang evidence, though quite limited, was irrelevant to charge and highly inflammatory]; see also People v. Pinholster (1992) 1 Cal.4th 865, 942 [“Absent some connection betweenthe prison gang and proofofthe chargedoffenses, of course, a prosecutor’s references to prison gangs is irrelevant and prejudicial’”], disapproved on other grounds, People v. Williams (2010) 49 Cal.4th 405, 459.) It is hardly surprising that, after being told about the Mexican Mafia’s policy of obstructing the legal system in any way and the willingness and apparentability of gang members to commit murder even in jail, a juror turned from concern with the evidence asit bore on the defendants’ guilt or innocence to the evidenceasit bore on the jurors’ own personalsafety. (ISRT 2386-2387; 3SCT 491.) Andit is hardly surprising that the jury as a whole later addressed the court with similar concerns. (29RT 4332, 4335; 4SCT 746.) That the gang evidence presented here regarding crimes committed by hardcore gang membersin jail, brutal retaliatory murders, and the Mafia’s expectation that gang membersuse “any meanspossible” (1IS5RT 240 2384-2385) to hinder prosecution allowed jurors to infer (legitimately, accordingto the trial court) that they were somehowatrisk — without a shred of evidence ofactual risk to jurors in this case or even any other case involving the Mexican Mafia— showsthat its inflammatory effect far surpassed any probative value. Thetrial court erred in allowing this evidence. C. The Court’s Errors in Allowing the Inflammatory Gang Expert Testimony Violated Mr. Gomez’s Constitutional Rights. The gang expert testimony detailed above — which the court allowedto stray into horrifying and irrelevant detail about crimes committed by gang membersin jail and the Mexican Mafia’s penchant for enlisting family members to carry out murders — rendered Gomez’strial fundamentally unfair, violating his constitutional rights to a fair trial and due process of law. (See People v. Partida, supra, 37 Cal.4th at p. 439, citing Estelle v. McGuire, supra, 502 U.S. at p. 70; Spencer v. Texas, supra, 385 U.S. at pp. 563-564; People v. Falsetta, supra, 21 Cal.4th at p. 913; Duncan v. Henry, supra, 513 U.S.at p. 366; see also Lisenba v. California, supra, 314 U.S.at p. 236; U.S. Const., 14th Amend.; see also Jammalv. Van de Kamp, supra, 926 F.2d at pp. 919-920; People v. Albarran, supra, 149 Cal.App.4th at p. 228 [gang evidencethat “approached . . . overkill” violated due process].) 241 The expert opinion that the Mexican Mafia would use “any means possible to delay, obstruct or reverse any kind of a criminal prosecution against its members” (15RT 2385) in particular served to undermine the very purposeofa trial — to determine the defendant’s guilt or innocence in accordance with legal standards. Afterall, if the Mexican Mafia would use “any means possible” to thwart prosecution, then how could anything the defense said or did be trusted? And would such meansinclude violence against innocentindividuals? Jurors? Given the testimony aboutthe brutal lengths to which Mafia-associated individuals had gone in other instances — aman whokilled his brother on Mexican Mafia orders (15RT 2383- 2384) — such speculation, though lacking anybasis in the facts ofthis case, would hardly seem farfetched. This testimony invited — and indeed, may well have produced — fear-inducing speculation about what “any means possible” would entail: it directly preceded the break during which a juror sent a note to the court evincing concern for jurors’ safety. Jurors focused on their own safety are necessarily focusing on matters other than the factual questions before them and are necessarily speculating — with nobasis in fact — aboutacts the defendants might commit or direct. The court’s view that jurors in fact did have reasonto be concerned showsthetruly inflammatory nature ofthe evidence. 242 The gang testimony rendered Gomez’strial all the more fundamentally unfair with respect to the counts which had no connection to gang activity or the Mexican Mafia. It would be nothing short of fundamentally unfair, of course, to introduce such testimonyin a case in whichit wastotally irrelevant; it was no less fundamentally unfair with regard to Gomez’strial on the killings of Rajandra Patel and Raul Luna, in which no gang involvement wasalleged and with respect to which the gang evidence wastotally irrelevant. (See Estelle v. McGuire, supra, 502 U.S.at p. 70; Spencer v. Texas, supra, 385 U.S.at pp. 563-564; Duncan v. Henry, supra, 513 U.S.at p. 366; see also Lisenba v. California, supra, 314 US.at p. 236; U.S. Const., 14th Amend.; see also Jammal v. Van de Kamp, supra, 926 F.2d at p. 919.) The erroneously admitted gang expert testimony rendered Gomez’s trial on the O’Farrell street homicides fundamentally unfair as well. The testimony went well beyond what may have been properly admitted to demonstrate motive, detailing horrendous crimesentirely unconnected to either of the defendantsin this case and prejudicially suggesting guilt by association. The testimonylightened the prosecution’s burden of proof, permitting the jury to find Gomez guilty based on criminal propensity. (Jn 243 re Winship, supra, 397 U.S. at p. 364; Sandstrom v. Montana (1979) 442 U.S. 510, 520-524; U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7, 15, & 16.) It also infringed onthe right to confront witnesses and the right to presenta defense, insofar as it implied that any action taken by the defendants waspart ofthe Mexican Mafia’s policy of thwarting law enforcementand the judicial process in any way. (U.S. Const., 6th & 14th Amends.) Thetestimonyalso violated Gomez’s due process rights by arbitrarily depriving him of a liberty interest, created by Evidence Code sections 352 and 1101, not to have his guilt determined by inflammatory propensity evidence. (Hicks v. Oklahoma, supra, 447 U.S.at pp. 346-347; U.S. Const., 14th Amend.) Finally, the admission of this evidence violated Gomez’s right to a reliable determination at all stages of a capital case. (See, e.g., Lockett v. Ohio, supra, 438 U.S. at pp. 603-605; Beck v. Alabama, supra, 447 U.S.at p. 638; U.S. Const., 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, & 17.) D. The Gang Expert Testimony Was Not Harmless; Reversalis Required. The prosecution cannot show beyond a reasonable doubtthat the federal constitutional errors did not affect the verdicts. (See Chapmanv. California, supra, 386 U.S. at p. 24.) Given the demonstrable effect on the 244 jurors, it cannot be concluded beyond a reasonable doubt that the verdicts in this case — particularly those in the Luna and Patel cases, as to which the evidence waspatently weak, and as to which the gang evidence wasentirely irrelevant and served only as a distraction and a source of fear — were “surely unattributable to the error.” (Sullivan v. Louisiana, supra, 508 U.S. at p. 279; see also People v. Albarran, supra, 149 Cal.App.4th at p. 232 & fn. 18 [reversing for erroneous admission of gang evidence under Chapman]; see ArgumentsI, Il, V.D., VILE., above.) Even underthe state-law standard, the erroneously admitted gang testimony wasnot harmless. The prosecutor dwelled at length on the gang testimony in his summation. He emphasized that Valdemar’s testimony about the Mafia’s inner workings was “undisputed.” (27RT 3840.) He featured Valdemar’s statement that “Eme expects that loyal gang members would use any meanspossible” to thwart or obstruct criminal prosecutions and emphasized the Mafia’s terroristic methods. (27RT 3845.) Finally, near the end of his opening summation, the prosecution improperly invoked Valdemar’s testimony in support of an argument that the women who testified — including Witness #3, whose testimonyrelated only to the non- gang-related Patel crimes — were “scared”: “[T]hey havekids, they’re scared. They cameinto court here to testify, and as we know from the 245 testimony of Duarte to some extent but Richard Valdemar to a great extent, that they risked their lives by coming into court here to testify against these two men. Andthey’ve done so becauseit’s the right thing to do, andto that extent I think we haveto respect them for doingit.” (27RT 3883.) Thetrial court’s failure to give any limiting instruction whatsoever with respect to the gang evidence — limiting its considerationto the O’Farrell Streetkillings, limiting its consideration to motive, and cautioning jurors not to use the gang evidence as evidenceofbad character or criminal propensity — permitted its unrestricted use. The absence of any limiting instruction increasesthe likelihood that jurors will misuse the evidence “as charactertrait or propensity evidence” and “use such evidence to punish a defendant because heis a person of bad character, rather than focusing upon the question of what happened onthe occasion ofthe charged offense.” (People v. Gibson (1976) 56 Cal.App.3d 119, 128-129.) Asset forth at length in Arguments I andII, above, the evidence against Gomez in the Luna andPatel cases was far from overwhelming.It is, to say the least, reasonably probable that the verdicts in those cases — ” The trial court’s request that the prosecution,as it called each witness, state which counts the testimonyrelated to (see, e.g., 8RT 1300), and the prosecution’s compliance with this request when Valdemar took the stand (14RT 2213), did not serveas instruction to the jury that they could not consider the gang evidencein determining Gomez’s guilt of the other homicides he was charged with. 246 neither of which had any connection whatsoeverto any gang,let alone the Mexican Mafia— would have been different had the prosecution not been allowed to generate such an atmosphereof fear with the entirely irrelevant but highly inflammatory Mexican Mafia evidence. (See People v. Cardenas, supra, 31 Cal.3d at pp. 905-909 [erroneous admission of gang evidence and narcotics addiction evidence not harmless where case involved suspect eyewitness identification].) It is reasonably probable, as well, that the verdicts in the O’Farrell Street killings would have been different had the court limited Valdemar’s testimony by sustaining counsels’ objections. The prosecution’s main witnesses both suffered serious credibility problems — indeed, the prosecution conceded that Witness #1 was “not a credible man, . . . not an honest man” and that Witness #2 was not a “public spirited person” and would not havetestified had he not been facing prosecution in anothercase. (See 27RT 3834-3835, 3849-3851.) In the absence ofthis inflammatory evidence, it is reasonably probable that the Dunton and Acosta cases would haveresulted in a mistrial, or an inability to agree as to whetherthe killings werefirst or second degree murder. In light of the entire record, the prosecution’s evidence of premeditation and deliberation wasat best thin. (See Argument 247 Iil.)” There is a reasonable probability — more than an abstract possibility — that had the prosecutor not reached the point of “overkill” with Valdemar’s fear-inducing testimony about the Mexican Mafia,the result would have been different, with at least one juror finding that premeditation and deliberation on Gomez’s part was not shown. (College Hospital Inc. v. Superior Court, supra, 8 Cal.4th at p. 715, citing, inter alia, Peoplev. Watson, supra, 46 Cal.2d 818, 837; see also People v. Bowers, supra, 87 Cal.App.4th at p. 736 [mistrial is a more favorable result for the defendant than a conviction]; People v. Soojian, supra, 190 Cal.App.4th at pp. 520- 524.) At aminimum, Gomez’s death sentences must be reversed, for there is a reasonable possibility that they would not have been returnedin the absenceofthis erroneously admitted evidence. (People v. Brown, supra, 46 Cal.3d at p. 447.) The jurors’ note to the court as the guilt phase verdicts were returned suggeststhat the frightening gang evidence andtheir resulting concern for their own safety was very much on their minds as they 5 More, though a shotgun found in Gomez’s cousin’s house when he wasatrested waslinked to spent shells foundat the scene (1 IRT 1754- 1755; 21RT 3119; 18RT 2741-2747; 21RT 3099-3100; 19RT 2869-2872), the defense contested the fingerprint evidence obtained from that weapon and raised questions about whether Gomez wasthe shooter. (21RT 3105- 3109; 27RT 3946-3950.) 248 entered the next phase ofthe case, in which they were to decide whether Gomez should live or die. (29RT 4335 [court noting that juror told bailiff jurors were concerned “about the next phase”].) There is a reasonable possibility that in the absence ofthe errors, their decision about whether Gomezwasto live or die would have been different. Reversal is required. 249 IX. THE TRIAL COURT’S ADMISSION OF A NOTE LEFT BY ROBERT ACOSTAIN THE PAGESOFA BIBLE VIOLATED CRAWFORD V. WASHINGTON Five days after Robert Acosta’s death,his wife found, in a Bible in her dresser drawer, a note in her husband’s handwriting. (16RT 2521.) The note read: 6-30. 97 Tuesday morning Mondaynite 1.20 Went to meet Shady La Rana don’t like the meeting at Big Hueros Robert Acosta Spider (3CT 672.)” Thetrial court admitted this note over defense objection. (3CT 653-660; see 8RT 1257-1269.) In summation, the prosecution argued that the note was “almost — the testimony of Robert Acosta from his grave.” (27RT 3851.) Presenting a blow-up ofthe note, the prosecutor arguedthat it proved that Acosta went to Dunton’s apartment onthe night ofthe killings to discuss Mexican Mafia business with Arthur Grajeda, thus helping to establish that the killings 7 “Shady La Rana” was Arthur Grajeda, Gomez’s co-defendant. (16RT 2608-2609.) “Big Huero” was Robert Dunton. (19RT 2922.) “Spider” was Robert Acosta. (19RT 2922-2933.) 250 were Mafia-related. (27RT 3851-3852.) The court’s admission ofthis note violated Crawford v. Washington (2004) 541 U.S. 36, which established that the Sixth Amendment Confrontation Clause bars testimonial hearsay unless the declarantis unavailable and the defendanthas had a prior opportunity to cross-examine that declarant. Because Acosta’s note was a crucial piece of evidence placing Grajeda, a Mexican Mafia associate, at the scene of the crime and supporting the prosecutor’s theory that the killings of Dunton and Acosta were linked to the Mexican Mafia, its admission was not harmless beyond a reasonable doubt. A. This Issue Is Reviewable. Counsel did not object on the groundsthat the note violated the Sixth Amendmentright to confrontation. (See 8RT 1257-1269.) (Counsel and counsel for Grajeda argued that the note was hearsay that was not admissible under Evidence Codesection 1250; that the note was inadmissible under Evidence Code section 352; that the note was “very very suspicious”as its tone did not comport with how oneusually would write a letter to one’s spouse; and that it could not be authenticated. (8RT 1258, 1261; see also 3CT 653-658.)) 251 This claim is reviewable on appeal, nonetheless, as the United States Supreme Court decisions upon whichit is based, Crawford v. Washington, supra, 541 U.S. 36, and Giles v. California (2008) 128 S.Ct. 2678, were not decided by the United States Supreme Court until four and eightyears, respectively, after the 2000trial in this case.”’ Before Crawford,thetrial court’s conclusion that the note was admissible under Evidence Code section 125078 (8RT 1265-1266) rendered any further Confrontation Clause objection futile. (See People v. Majors (1998) 18 Cal.4th 385, 403-405 [statements that were properly admitted under the well-recognizedstate of mind exception to the hearsay rule would not constitute Confrontation Clause violation]; see also Ohio v. Roberts (1980) 448 U.S. 56, 66 [admissibility of hearsay under Confrontation Clause turns on whether the statementfell within a firmly rooted hearsay exception or bore particularized guaranteesoftrustworthiness], abrogated by Crawford v. Washington, supra, 541 U.S.at pp. 60-69; People v. Saffold (2005) 127 77 United States Supreme Court decisions announcing new rules apply to cases pending on direct review. (Griffith v. Kentucky (1987) 479 U.S. 314, 322; Whorton v. Bockting (2007) 549 U.S. 406, 416-417; see also Ponce v. Felker (9th Cir. 2010) 606 F.3d 596, 604 [Giles announced a new rule].) 78 Evidence Code section 1250 allows statements of a declarant’s then-existing state of mind when offered to prove the declarant’s state of mind or to explain his or her conduct. 252 Cal.App.4th 979, 984; see also People v. Birks (1998) 19 Cal.4th 108, 116 fn. 6.) B. Acosta’s Note Was Inadmissible Under Crawford. Crawford bars testimonial hearsay from criminal prosecutions unless the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant. (Crawford v. Washington, supra, 541 U.S.at pp. 68-69.) It is indisputable that Acosta was unavailable at the time oftrial; it is also indisputable that the defendants lacked any prior opportunity to cross-examine him. Acosta’s note was also indisputably testimonial. While there are “(various formulations of[the] core class of ‘testimonial’ statements,” they “share a common nucleus.” (Crawford v. Washington, supra, 541 U.S.at pp. 51-52.) That commonnucleuslies in the reasonable expectation that the statement would later be used in court. (/bid. [formulations of testimonial statements include: “ex parte in-court testimonyor its functional equivalent — that is, material such as affidavits, custodial examinations,prior testimony that the defendant was unable to cross-examine,or similar pretrial statements that declarants would reasonably expect to be used prosecutorially”| [italics added]; see also Melendez-Diaz v. Massachusetts 253 (2009) 129 S.Ct. 2527, 2531.)” That Acosta left the note in a Bible, placed a date and time on the note, and signed his full name as well as his gang moniker, suggested such an expectation. (Acosta’s wife testified that he had never signed a note to her with his full name before. (16RT 2522-2523.)) In fact, that was the basis on which the prosecutor argued its admission: “the formal nature of the note is exactly what I would expectit to be from a man whois leaving a note for his wife to find and to show the authorities when he’s on his way to a meeting where he knowsorbelieves he’s goingto be killed.” (8RT 1263- 1264.) More,the prosecutor, attrial, presented the note as testimonial: Then there’s the almost — the testimony of Robert Acosta from his grave.It’s the note. The note’s in evidence, the actual note’s in evidence. I had this blowup madeso that you could read it. Dated June 30, 1997,it says, “Tuesday morning, Mondaynight, 1:20. Went to meet Shady, La Rana, don’t like the meeting at Big Huero’s.” “Robert Acosta, Spider.” 7? Such an expectation is inherent in the production of “‘extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,”one of the formulations of the category of testimonial statements identified in Crawford. (Crawford v. Washington, supra, 541 U.S.at pp. 51-52, quoting White v. Illinois (1992) 502 U.S. 346, 365 [Thomas,J., joined by Scalia,J., concurring in part and concurring in the judgment].) 254 A very formal note, not the kind of note that a husband would normally leave for his wife. But it’s the kind of note that if one of us was going someplace, God forbid, and we thought we might not come back from that meeting, we might write it to whom it may concern andleave it with a minister or leave it with a confidante, and that’s exactly what Robert Acosta is doing, what Spider is doing with this note. kK From his grave, and whydoeshesignit, “Robert Acosta, Spider?” Because he’s no guarantee — he wants that note identified, he wants the author of that note to be identified, whetherit’s found by someone who knowshis handwriting or not. That’s what he wants.. . . (27RT 3851-3852.) Thus, the admission of Acosta’s note violated Gomez’sright to confront the witnesses against him under the Sixth and Fourteenth Amendments. (Pointer v. Texas (1965) 380 U.S. 400, 403 [Sixth Amendmentis incorporated in Fourteenth Amendment]; U.S. Const., 6th & 14th Amends.; see also Cal. Const., art. I, §§ 7, 15.)®° * The admission ofthe note cannot be upheld on the grounds that Gomez forfeited his Confrontation Clauserights by killing Acosta. In Giles v. California, supra, 128 S.Ct. 2678, the Supreme Court held that unconfronted testimony may not be admitted based on a judicial finding that defendant committed a wrongful act that rendered the witness unavailable, without a finding that defendant committed the act for the purpose of preventing testimony. The prosecution, below, never suggested that the note was admissible because Gomez killed Acosta for the purpose ofpreventing his testimony; the court did not admit the note on this basis; and, finally, there was no evidence to support such a conclusion. 255 C. Reversal of Mr. Gomez’s Convictions for the First Degree Murders of Robert Dunton and Robert Acosta, and of his Death Sentences for the Murders of Raul Luna and RajandraPatel,is Required. As counsel for Grajeda argued in moving to dismiss,at the conclusion ofthe prosecution’s case, aside from the testimony of unreliable witnesses — chiefly, Witness #1, who gave.police contradictory statements regarding Grajeda’s presence at the scene ofthe crime®’ — Acosta’s note was the only evidence placing Grajeda at the scene of the crime. (25RT 3631.)® Without the note, Witness #1’s testimony about Grajeda’s presence 81 Witness #2, another witness whose credibility was in serious question — becausehefirst denied, then admitted being a gang member (17RT 2654-2656, 2658-2665, 2708, 2771, 2784), and becausehetestified in exchange for leniency in sentencing (16RT 2578-2583) — told jurors that he drove Grajeda over to Dunton’s house on the day before the murders, and that Grajeda asked him to drive him back that nightto kill Gomez and Dunton. (16RT 2596-2604, 2612-2614.) Witness #2 instructed his girlfriend (now wife), Alicia Gandara, that when Grajeda called, she shouldtell him Witness #2 wasasleep. (16RT 2614-2616.) Gandara testified that a person who identified himself as Shady called that evening, and that she did as instructed. (19RT 2895-2902.) Witness #2 alsotestified that Grajeda later told him “1 didit,” referring to the killings of Dunton and Acosta. (16RT 2618.) 8 Eddie Maldonado, Acosta’s stepson,testified that Acosta received a telephonecall around 11:30 or 12:00 on the night of June 30, 1997; after talking on the phone for a few minutes, Acosta paced back and forth and then went into his bedroom for a few minutes. As he cameout ofthe bedroom and headed out the door, Maldonado asked him what was wrong; Acostasaid he had to go to a meeting. (16RT 2509-2510, 2517.) Maldonado’s testimony did not refer to Grajeda. In any event, in admitting (continued...) 256 and his statementat the time of the crime would have lacked corroboration, further undermining the prosecution’s theory of the case — that Grajeda ordered Gomez, whohad been placed on a “green light”list, to kill Dunton and Acosta on behalf of the Mexican Mafia, in order to remove his name from the list — and undermining the prosecutor’s case that the murders were deliberate and premeditated. More,as set forth above,to the extent it is credited, Witness #1’s testimony describing the scene before the shooting and his testimony that immediately before the shooting, Gomez said, “Don’t point that at me.I don’t like people pointing things at me” (20RT 3035)calls into question whetherthere wasany clear, deliberate intent to kill that must have been formed upon preexisting reflection and not under a sudden heat ofpassion or other condition precluding the idea of deliberation. (See ArgumentIII, above.) In these circumstances, the prosecution cannot showthatthe error in admitting Acosta’s note was harmless beyond a reasonable doubt, asis required for this federal constitutional error. (Chapman v. California, supra, 386 U.S. at p. 24.) “The inquiry . . . is not whether, in a trial that occurred ®(_.continued) Maldonado’s testimony about Acosta’s statement, the trial court indicated that, though admissibility was a close question, it would admit it becauseit would be “consistent with the note.” (16RT 2514.) 257 without the error, a guilty verdict would surely have been rendered... .” (Sullivan v. Louisiana, supra, 508 U.S.at p. 279.) Rather, the question is whetherthe first degree murderverdicts “actually renderedin this trial [were] surely unattributable to the error.” (/bid., original italics.) The note was powerful evidence — testimony from the grave, as the prosecutor argued. (27RT 3851-3852.) The prosecution cannot prove beyonda reasonable doubtthat the guilty verdicts — and the findings that the murders were first degree®? — on counts 10 and 11 were surely unattributable to this seemingly solid piece ofphysical evidence, communicating a victim’s last intentions and apprehensions, and providing the most convincing proof in the entire case that Arthur Grajeda, a Mexican Mafia associate — and thus the Mexican Mafia itself— was involved in the crime. The prosecution cannot prove beyond a reasonable doubtthat this note did not contribute to a conclusion, on the jury’s part, that the murders were Mexican Mafia-orderedkillings and thus were deliberate and premeditated. Reversal of Gomez’s convictions for the first degree murders of Dunton and Acosta is required. Reversal of Gomez’s death sentences for the Luna and Patel murders 8 Grajeda was convicted only of second degree murder on count11, which chargedthe killing ofRobert Acosta. The personaluse of a firearm allegations were found untrue as to Grajeda. (29RT 4352-4353.) 258 is required as well. This guilt phase error violated Gomez’sright to reliable guilt and penalty phase determinationsin this capital case. (U.S. Const, 8th & 14th Amends.; Beck v. Alabama, supra, 447 U.S. at pp. 637-638; Cal. Const., art. I, §§ 7, 15, & 17.) Though Gomez wasnot sentenced to death for the Dunton and Acosta murders, these murders were before the jury at the penalty phase, where the jury was allowed to considerall the evidence received in either phase ofthe trial in determining the appropriate sentence. The erroneously admitted evidence of the note may well have muted jurors’ doubts about whether the Dunton and Acosta killings were gang-related, and about whether Gomez’s involvement with the Mexican Mafia was well enoughestablished. As noted above, the note the jurors sent to the court as they were returning verdicts in the guilt phase suggested that the gang evidence wasstill very much on their minds. (See 29RT 433, 4335; 4SCT 746.) The prosecution cannot prove beyond a reasonable doubtthat this evidence did not influence the jurors’ penalty phase decisionmaking. (See Chapman v. California, supra, 386 U.S. at p. 24; People v. Brown, supra, 46 Cal.3d at pp. 447-449.) 259 X. THE TRIAL COURT’S IMPROPER AND UNCONSTITUTIONAL INSTRUCTIONS EFFECTIVELY REQUIRED JURORS TO TAKE NOTES AND STERNLY DISCOURAGED READBACKOF TESTIMONY— IN FACT, PROHIBITING IT IN THE FIRST TWO DAYS OF DELIBERATIONS Countless jury verdicts are upheld becauseofthe time-honored principle that credibility ofwitnesses is exclusively a matter for the jury, and appellate courts areill-suited to second-guess determinations made by the jurors who sat through thetrial and had the benefit of being able to see the witnesses testify, assessing their demeanor face to face. (See, e.g., People v. Hamilton (1873) 46 Cal. 540, 543.) Thetrial court’s instructions here called that principle into question, as they elevated the importance ofjuror notetaking over observation of the witnesses, with the trial court at one point going so far asto tell jurors, as the trial was about to begin, that it would be “very discouraged”to “see jurorsjust sitting their with their notes in their laps and they’re looking at the witnesses, and realize it’s all going by and it won’t be recorded in your memories because you aren’t trying to take those notes.” (8RT 1300.) The court would be “infuriate[d],” it also told them,ifjurors requested readbacksearly in deliberations, which would indicate that jurors did not “do their job in recording the information” they would needto decide the 260 case. (8RT 1298.) These erroneousinstructions interfered with the jury’s unique and exclusive responsibility and powerto evaluate the credibility of witnesses, violating a host of state law principles and federal andstate constitutional rights, and requiring reversal. A. The Court’s Instructions Regarding Notetaking and Readbacks. On the morningtrial began,the trial court instructed jurors extensively regarding notetaking:** ... [First thing you did when you came in waspick up your note pads from underneath the seat cushions. Let metalk aboutthat first. Jt’s very very important thatyou take notes during this trial. Those are for your own personaluse, not to prove to somebody else that what you wrote down wasaccurate but to refresh your own recollections of what goes on duringthetrial. You can take notes of any aspect of the case. Ifyou take notes during the opening statementor the final arguments, understand that that is not evidencein thecase. . But ifyou do not take notes, you will not remember what went on during thetrial, and the thing that infuriates me the most aboutjurors is when theyfirst go in to deliberations andthefirst hour or two I get a note sent out saying we want a reread ofthe testimony of, and then I get a list ofwitnesses, which indicates to me thejurors didn’t do theirjob in recording the information that you need to rememberat the end ofthistrial. AsI’ve indicated, it will be some weeks before the 4 Because the very extensiveness of these instructionsis at issue, they are quoted at length below. 261 case is given to you in the guilt phase. You’vegotto be able to rememberthe testimony, and that means you should write downthe names ofwitnesses, dates, times, places, things that are said and done. The offensesin his this [sic] case are alleged to have occurred on four different dates or five different dates, .... You’vegotto try to keepall of this organized in your minds. AndI’ve given this speech many many timesto jurors, and I sit back and watch 90 percent of them not taking enough notes thinking, oh, well, somebody else will remind meorI will remember everything because this is so unusual, I’m going to remembereverything that happens. I know the judge is wrong. I’ve been here 15 years. I know I’m right. You will not rememberifyou don’t take notes. The one caution about that is not to take so many notes that you’re not watching andlistening as the evidenceis being presented. A witness that looks uncomfortable to you may be uncomfortable because that witness isn’t telling the truth. So you should watch the witness while they’re testifying as well. Don’t have your head buried in yournotesall the time taking notes, but take a lot ofnotes to remind yourselves of what happenedduringthetrial. Jfyou don’t, you'll have to rely on other people to refresh your memory, andyou shouldn’t do that. It should be your own memory that you can recall the things that are important to you. ok ok The main thing is I’m going to be very discouraged when I sit back and seejurorsjust sitting there with their notes in their laps and they’re looking at the witnesses, and I realize it’s all going by andit won’t be recorded in your memories because you aren’t trying to take those notes. 262 You've got to try to rememberthe evidencethat’s being presented. I’II tell you honestly at the endofthis trial, you will not have been given the information that you need to know whatwill be the key to you to make decisionsin this case. Wecannotpredict to you the things that are going to make a difference to you in advance. The attorneys will try to do that. It may seem very obvious, but at the end ofthetrial so often what happensis the key to the answer that you are asked to give will be something that occurred earlier and nobody flagged it, nobody put up a red flag saying, listen, people, this is important. That’s for you to do. You’ve got to pay attention to everything, understanding it may be something minorat the end ofthe trial that’s really important to you andyou didn’t recordit, so you're going to be asking what happened. So take notes. Understand they’re for your own personaluse. ... I’m only saying this because I’m so exhausted with saying this so many times tojurors and they don’t take notes. So many ofthem don’t take any notes at all, and that’s a big mistake. % OK Let me mention to you, you can take notes as I said of the opening statements you’re about to hear, but understand what you’re aboutto hear is not evidence in the case .... And... let me mention too J think notes are so important I take mine on a computer. ... I am notplaying a video game, I’m taking notes. I take so many that I don’t remembertaking them. It camefrom me andit happened during the trial, so I know I took the notes, and I thinkyou'll find the samething ifyou take a lot ofnotes. Very important. 263 (8RT 1297-1301, 1308 [emphasis added].) Afterits final guilt phase instructions, delivered on a Thursday morning, the court told jurors: Thefinal final commentis on read back of testimony. You mayfind that that’s necessary, but I would not wantto hear from you today or tomorrow that you think you’ve discussed everything and there’s a dispute about what the witnessactually said. . You've got notesfrom the trial that you've taken. Those should refresh your personalrecollections. As you generally discuss the evidence, that should refresh your recollections. If after a day or two youstill have a disagreementas to what the witness actually said, then . . tell us what you needto have. ... [B]e specific as to what you'dlike to have read back to you if that happens, and then any read back will start then on Monday.... (29RT 4176-4177.) Thetrial court refused the prosecution’s request to instruct jurors with CALJIC No. 1.05, the cautionary instruction regarding notetaking. (3CT 856.)* 8 CALJIC No.1.05, whichthetrial court refused to give, reads in part as follows: [A word of caution: You may take notes; however, you should not permit note-taking to distract you from the ongoing proceedings. Rememberyou are the judges ofthe believability of witnesses.] (continued...) 264 Jurors deliberated briefly on Thursday morning, February 3, 2000, and on Thursday afternoon; for half a day on Friday, February 4, 2000; and resumed deliberations after the weekend on Monday, February 7, 2000. (3CT 809-815.) During deliberations, jurors requested only a single readback oftestimony, which the court called “very very brief,” on Tuesday, February 8, 2000. (29RT 4285.) After that, they resumed deliberations, which spanned an additional four days; they reached a verdict shortly before noon on February 15, 2000. 3CT 818-823, 845-855.) B. The Court Erroneously and Unconstitutionally Insisted That Jurors Take Notes, Telling Them It Would be “Discouraged”to See Them “Looking At The Witnesses” Without Taking Notes. Thetrial court’s extensive instruction insisting on notetaking was %(...continued) Notes are only an aid to memory and should not take precedenceoverrecollection. A juror who doesnot take notes should rely on his or her ownrecollection of the evidence and not be influenced by the fact that other jurors do take notes. Notes are for the note-taker’s own personalusein refreshing his or her recollection of the evidence. Finally, should any discrepancy exist between a juror’s recollection of the evidence and a juror’s notes, or between one juror’s recollection and that of another, you may request that the reporter read back the relevant testimony which must prevail. This Court has upheld CALJIC No. 17.48, which waslater rephrased and incorporated into CALJIC Nos. 0.50 and 1.05. (People v. Solomon, supra, 49 Cal.4th at pp. 822-823.) 265 error. It impermissibly impaired and interfered with the jury’s factfinding and exclusive powerto determinecredibility; it violated Penal Code section 1138; and it deprived Gomez ofthe right to due process,a fairtrial, the right to present a defense,the right to counsel, the right to a jury trial, the right to confront the witnesses against him, anda reliable verdict in this capital case. (U.S. Const., 5th, 6th, 8th, and 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16, & 17.) Thetrial court erred by insisting that jurors take notes — “a lot of notes” — to the detriment of their responsibility to observe the witnesses and powerto assesstheir credibility. To be sure, notetaking can be valuable to jurors attempting to sort through testimony that has been presented to them,particularly in long trials such as this one, and California law expressly permits it. (See Pen. Code § 1137.) Several dangers, however, inhere in notetaking: it may distract jurors, affecting their ability to listen to testimony, observe witnesses, and judge their credibility; notes may be inaccurate or incomplete; notes may take precedence over jurors’ recollections and impressionsofthe testimony; and jurors who do not take notes may rely on the notes of those whodid. (See People v. Whitt (1984) 36 Cal.3d 724, 746-747, quoting People v. DiLuca (N.Y. App. Div. 1982) 448 N.Y.S.2d 730, 734 [summarizing 266 dangers of notetaking]; United States v. Maclean (3d Cir. 1978) 578 F.2d 64, 66 [also summarizing dangers of notetaking]; see also Price v. State (Tex. Crim. App. 1994) 887 S.W.2d 949, 951-955.) For this reason, this Court stated that “the better practice”is to provide jurors with a cautionary instruction regarding notetaking. (People v. Whitt, supra, 36 Cal.3d at p. 747.) In Whitt, the trial court had warned jurors: “[b]e careful as to the amountofnotes that you take. I’d ratherthat you observe the witness, observe the demeanorofthat witness, listen to how that persontestifies rather than taking copiousnotes .. . . [If] you do not recall exactly as to what a witness might have said or you disagree, for instance, during the deliberation [sic] as to what a witness may havesaid, wecan reread that transcript back by that witness back to you. Remember that aspectofit.” (People v. Whitt, supra, 36 Cal.3d at pp. 747-748.) While this Court found that a more complete instruction would have been preferable, it found that the Whitt court’s instruction adequately warned jurors of the dangers of notetaking. (Jbid.) Since Whitt, this Court has madeclear that althoughit is the “better practice” to give a cautionary instruction on notetaking, the trial court is not required to do so sua sponte. (See, e.g., People v. Morris (1991) 53 Cal.3d 152, 214-215, overruled on other grounds in People v. Stansbury (1995) 9 267 Cal.4th 824, 830, fn. 1; People v. Marquez (1992) 1 Cal.4th 553, 578.) “Even if the court has no sua sponte duty to instruct on a particular legal point,” however, “when it does chooseto instruct, it must do so correctly.” (People v. Castillo, supra, 16 Cal.4th at p. 1015.) More, even without objection, “a defendant may challenge on appeal an instruction that affects ‘the substantial rights of the defendant . .. .”” (People v. Hillhouse (2002) 27 Cal.4th 469, 505-506 [defendant may challenge instruction regarding readback on appeal, even in the absence of objection]; see Pen. Code § 1259.) Gomez’s substantial rights were compromised by the court’s erroneousinstructions on notetaking, which not only eschewedthe “better practice” of adequately cautioning jurors on the dangersofnotetaking, but | took the opposite tack, warning jurors extensively of the dangers of not taking notes. Indeed, the court effectively required jurors to take notes, telling them that recording the testimony in notes waspart oftheir “job,” and elevating its importance overthat of the jurors’ unique responsibility to observe witness demeanorandassesscredibility. (3RT 1298; see 8RT 1297- 1301, 1308.) The court’s insistence on notetaking waserror. (See People v. Silbertson (1985) 41 Cal.3d 296, 303-304 [instruction that bailiffs 268 distribution of notepads “doesn’t mean that you haveto take notes, but somepeople do like to take notes” was“sufficient to inform the jurors that they did not haveto take or rely upon their own notes”); see also, e.g., People v. Martinez (Colo. Ct. App. 1981) 652 P.2d 174, 176 [court instructed jury that there was no requirementthat they take notes]; Kelley v. State (Fla. 1986) 486 So.2d 578, 583 [court informedjurors that notetaking wasoptional]; State v. Williams (Ohio Ct. App. 1992) 80 Ohio App.3d 648, 652-654 [court told jurors “I want to emphasize that none of you are required to take notes”]; Commonwealth v. St. Germain (Mass. 1980) 381 Mass. 256, 266 [court carefully explained that no juror was required to take notes]; Price v. State, supra, 887 S.W.2d at pp. 950, 954 [trial court should, as it did, instruct jurors that notetaking is not required].) Thetrial court’s repeated exhortation to “take a lot of notes” made matters worse. (8RT 1299; see also 8RT 1308; compare People v. Whitt, supra, 36 Cal.3d at pp. 747-748 [court told jurors to “[be] careful as to the amount of notes that you take”’]; see also Commonwealth v. St. Germain, supra, 381 Mass.at pp. 265-270 [court cautioned jurors that they should keep notes “brief” so as to be able to carefully assess each witness’s credibility by observing the manner in which hetestified]; Price v. State, supra, 887 8.W.2d at p. 954 [jurors should be instructed to “take notes 269 sparingly”’].) The court proclaimedit “kn[e]w [it was] right” based on fifteen years of experience onthe bench,and evidently itself foundit helpful to take such copious notesthatit did not remembertaking them. (8RT 1299, 1308 [“I take so many[notes] that I don’t remember taking them. It came from meandit happenedduringthetrial, so I know I tookthenotes, and I | think you’ll find the samething ifyou take a lot of notes. Very important.”].) It cannot be assumed, however, that every person’s mind worksthe same way. (Compare Commonwealthv. St. Germain, supra, 381 Mass.at p. 266 [trial court carefully explained that no juror was required to take notes, indicating that “some persons ‘rememberthings more accurately by listening’”]; id. at pp. 267-268,fn. 21 [quoting instruction suggested by commentator, that “[n]o juror, of course, is required to take notes, and some mayfeel that the taking of notesis not helpful because it may be a distraction and mayinterfere with one’s hearing and evaluation ofall of the evidence”]; United States v. Maclean, supra, 578 F.2d at p. 66 [“the value of notetaking will vary . . . according to the abilities and desires of the jurors”]; State v. Williams, supra, 80 Ohio App.3d at p. 653 [court instructed jurors they should nottake notesif it might distract their 270 attention, but shouldifthey believe it might better focus their attention].) Norcanit be assumed that everyone on the jury had enoughliteracy or experience with notetaking to take accurate and useful notes. (See People v. Silbertson, supra, 41 Cal.3d at p. 303 [court appropriately warned jurors “fy]ou must bear in mind, though, that I assumethat you are not professional notetakers, and if there is any question as to what wasactually said the court reporter, of course, can give that information to you”); compare Price v. State, supra, 887 S.W.2d at p. 954 [“If notetaking is to be allowed, the parties should be permitted to question the venireasto their ability to read, write or take notes.”], citing State v. Triplett (W.Va. 1992) 421 S.E.2d 511, 519-520.) The court’s instructions failed to communicate the caveat implicit in the standard notetaking instruction the court refused to give — that notes may conflict with recollection, and that in such a case jurors should resort to readback, which “must prevail.” (CALJIC No. 1.05.) Rather, in informing jurors that they must take notes because they “will not rememberifyou don’t take notes” (8RT 1299), the court essentially informedjurors that notes were superiorto recollection. Finally, it cannot be assumed that everyone is capable oftaking “a lot of notes,” as the court urged (8RT 1299, 1308), while still paying 271 attention to the witnesses’ demeanor. (Compare Price v. State, supra, 887 S.W.2d at p. 950 [trial court’s instruction on notetaking, approved by appellate court, stated that “[i]fyou don’t wantto use the notebooks, you don’t have to. Sometimes taking notes actually impedes one’s ability to follow the testimony.Ifthat’s the case with you, simply put the notebooks aside and do not use them at all’’]; People v. Whitt, supra, 36 Cal.3dat pp. 747-748.) Onlyin an aside during its extensive lecture on the necessity of taking notes did the court acknowledge “one caution”: “The one caution aboutthat is not to take so many notesthat you’re not watching and listening as the evidence is being presented. A witnessthat looks uncomfortable to you may be uncomfortable because that witnessisn’t telling the truth. So you should watch the witness while they’re testifying as well. Don’t have your head buried in your notesall the time taking notes, but take a lot of notes to remind yourselves ofwhat happened during the trial.” (8RT 1299.) This “caution” was hardly adequate, for the admonition that jurors “should watch” the witnesses was presented as a secondary consideration; jurors should take “a lot of notes,” merely avoiding “hav[ing] [their] head[s] buried in [their] notes all the time.” (8RT 1299.) And, in any event, the trial court virtually undid any benefit to this 272 caution later, whenit told jurors: The main thing is /’m going to be very discouraged when I sit back and seejurorsjustsitting there with their notes in their laps and they’re looking at the witnesses, and 1 realizeit’s all going by and it won’t be recorded in your memories because you aren’t trying to take those notes. (8RT 1300 [emphasis added].) The court’s message wasclear: observation ofthe witnesses was not as important as notetaking; jurors must take notes as part of their “job” (8RT 1298); “just . . . looking at the witnesses” was improper, and the court would be disappointed with them if they did not take notes and “infuriated”if they requested too many readbacks. (8RT 1298, 1300.) The court’s insistence on notetaking also elevated the content of the witnesses’ testimony over the crucial questions of whetherit wastrue, accurate, and credible. The court’s exhortation that “[y]ou’ve got to be able to rememberthe testimony, and that means you should write down names of witnesses, dates, times, places, things that are said and done” (8RT 1298) assumedthe truth and accuracy ofthe testimony, urging jurors to memorialize it in notes, while crucial aspects of the witnesses’ demeanor and attitude might well pass jurors by. The court’s description of its own notetaking practices exacerbated this problem:“I take so many that I don’t remembertaking them. It came from me andit happened duringthetrial, so 273 I know I took the notes, and I think you’ll find the same thing if you take a lot of notes. Very important.” (8RT 1308.) A juror’s failure to take in exactly what a witness said, of course, can be remedied by readback — disfavored bythis trial court (see 8RT 1298; see also 29RT 4176-4177) — but a juror’s failure to register an impression of whethera witness was telling the truth, was lying, or was mistaken cannot be remedied in any way. (Compare People v. Whitt, supra, 36 Cal.3d at pp. 747-748 [“I’d rather that you observe the witness, observe the demeanorofthat witness, listen to how that person testifies rather than taking copiousnotes. . . [If] you do notrecall exactly as to what a witness might have said or you disagree, for instance . . . we can rereadthat transcript back . .. .”].) Thetrial court’s instruction violated California law — which, while not requiring a sua sponte instruction on the dangersofnotetaking, nonetheless recognizes those dangers and cannot support an insistence on notetaking that enhances those very dangers. (See People v. Whitt, supra, 36 Cal.3d at pp. 746-748.) The instruction also violated Gomez’s constitutional rights to due process oflaw,his right to a jury trial, his rightto a fair trial, his right to confront the witnesses against him,his right to counsel, his right to present 274 a defense, andhis right to a reliable determination ofguilt. Oneofthe jury’s central functions, of course, is to assess the credibility of witnesses. (See United States v. Scheffer (1998) 523 U.S. 303, 312-313 [“A fundamental premiseofour criminaltrial system is that ‘the juryis the lie detector’ [citation]”], originalitalics.) By interfering with that function, the trial court infringed Gomez’sright to a jury trial andhis right to a reliable determination of guilt. (U.S. Const., 6th, 8th, & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16, & 17.) And “observation of demeanorbythe trier of fact” is a crucial elementofthe right of confrontation. (Marylandv. Craig (1990) 497 U.S. 836, 846; see Dutton v. Evans (1970) 400 U.S. 74, 89 (plurality opinion) [“[T]he mission of the Confrontation Clause is to advancea practical concern for the accuracy ofthe truth-determining processin criminaltrials by assuring that ‘the trier of fact [has] a satisfactory basis for evaluating the truth of the [testimony]”].) Thetrial court’s interference with the jury’s assessmentof credibility thus also compromised Gomez’s Sixth Amendmentright to confrontation. (See also Cal. Const., art. I, § 15.) C. The Court’s Instruction Also Violated Gomez’s Right to A Unanimous Jury Verdict. Finally, while the judge did tell jurors that notes would be for their own “personal use” (8RT 1298, 1301), it did not forbid jurors whose notes 275 may have turned out to be inadequate from relying on the notes of others. While the court did tell jurors they “shouldn’t” rely on the memories of others, it implied that they would be forced to do soiftheir notes turned out to be inadequate:“Ifyou don’t, you'll have to rely on other people to refresh your memory, and you shouldn’t dothat.It should be your own memory that you canrecall the things that are important to you.” (8RT 1299 femphasis added];®* compare, e.g., People v. Whitt, supra, 36 Cal.3d at pp. 747-748[court instructed jurors that if “you do not recall exactly as to what a witness might have said or youdisagree, for instance . . . we can reread . that transcript . . . back to you. Rememberthat aspectofit.”]; see Peoplev. Butler (1975) 47 Cal.App.3d 273, 281 [where readback was refused, noting risk that “one or more ofthe jurors, in agreeing to the verdicts, may have been caused by the court’s rebuff to blend a degree of speculation or surmise into that part of the testimony that they had heard and understood, or — even more costly to the judicial process — may have surrendered their independent judgmentto those whoprofessed better hearing and % Under the conditions the court set, jurors who lacked an independentrecollection would indeed haveto rely on others, at least in the first two days of deliberations, when the court essentially prohibited readbacks. (See 29RT 4176-4177; 8RT 1298; see Subsection D., below.) 276 memory”].)*” By implying that jurors who did not take adequate notes would have to rely on those who had (see 8RT 1299), thetrial court violated Gomez’s right to a unanimousjury verdict. (Cal. Const. art. I, §§ 7, 15, 16; People v. Superior Court ofOrange County (1967) 67 Cal.2d 929, 932 [state constitutional guarantee]; but cf. People v. Solomon, supra, 49 Cal.4that p. 823 [noting that Pen. Code § 1137 may appear to contemplate the “free exchange of notes among jurors”; see id. at p. 824 [approving the instruction that “ifyou should have a conflict in the jury room . . as to what testimony was on a particular issue, you can use the notes to refresh your memory;butifthat conflict is a difficult one to resolve, don’t say, well, my notes say this and therefore it’s so”]; Ballew v. Georgia (1978) 435 U.S. 223, 243; p. 314, below; U.S. Const., 14th Amend.) More, jurors who took notes so assiduously that they failed to observe the witnesses as they testified would be forced to rely on those jurors — if there were any — who hadobserved the witnesses, with no readback possible to cure the harm. For the same reasons,this also violated *’ In People v. Hillhouse, supra, this Court questioned whether Butler and People v. Litteral (1978) 79 Cal.App.3d 790, 796-797, properly allowed the defendantto assert the jury’s right to readback. (People v. Hillhouse, supra, 27 Cal.4th at p. 505.) The Court went onto note, however, that on appeal, a defendant mayassert that the court erred in instructing the jury regarding readback.([bid.) 277 Gomez’sright to a unanimous jury verdict. D. The Court Erroneously and Unconstitutionally Told JurorsIt Would Be “Infuriated” By Requests For Readback Early In Deliberations and Effectively Prohibited Any Readback of Testimony During the First Two Daysof Deliberations. Thetrial court also erred in discouraging readbacks oftestimony — first, by informing jurors before trial began that the thing that “infuriates”it most about jurors is when they request readbacksearly in deliberations (12RT 1298), and then by altering the standard instruction on readbacksby removing the instruction that jurors havethe right to readback of testimony (29RT 4166-4167; see 3CT 890-891)" and informing jurors, as they began deliberations on a Thursday,that there would be no readbackuntil, at the earliest, the following Monday (29RT 4176-4177). Penal Code section 1138 grants jurors the right to have testimony 88 The standard instruction CALJIC No. 17.43 informsjurors that they havethe right to readback oftestimony: If there is any disagreementas to the actual testimony, you havetheright, ifyou choose, to request a readbackby the reporter. You may request a partial or total readback, but any readback should be a fair presentation of that evidence. If an readback of testimony is requested, the reporter will delete objections, rulings, and sidebar conferences so that you will hear only the evidence that was actually presented. Please understand that counsel mustfirst be contacted, and it may taketimeto provide a . . . [readback]. Continue deliberating until you are called back into the courtroom. 278 read back: After the jury haveretired for deliberation, if there be any disagreement between them asto the testimony,. . . the information required must be given .... Case law supportsthetrial court’s ability to caution jurors that readbackstake time. (See, e.g., People v. Anjell (1979) 100 Cal.App.3d 189, 203, disapproved on other grounds, People v. Mason (1991) 52 Cal.3d 909, 942-943.) But nothing allows the court to refuse to provide a readback. (See People v. Henderson (1935) 4 Cal.2d 188, 193-194 [reversing wheretrial court failed to have read backall the testimony jurors had requested]; People v. York (1969) 272 Cal.App.2d 464, 465-466 [due process violated wherebailiff told jurors that transcript of testimony they requested was not available]; People v. Litteral, supra, 79 Cal.App.3dat p. 793 [reversing where court told jurors: “The reporter who tookall ofthe testimony in the caseis ill today, and there’s just no way we can doit... . You will just have to rely on your memories.. . . there is just no way I can get the testimony for you”]; see also People v. Burgener (2003) 29 Cal.4th 833, 880 [“[A]ny juror may request a readbackoftestimony,” though “request may not be used solely to vex or annoythe other jurors or to delay the proceedings”); People v. Anjell, supra, 100 Cal.App.3d at p. 203 [no error where court told jurors oftime involved for readback but “did not attempt to discourage a 279 reading, and in fact emphasized that the jurors were ‘entitled’ to have the testimony rereadifthey felt it was needed”); see also Peoplev. Solomon, supra, 49 Cal.4th at pp. 824-825 [CALJIC No. 17.48 did not discourage readback;court assuredjurors that “there wouldn’t be any problem rereading any testimony to you should you need that done” and “it’s not going to be any serious problem for us to read back any testimony that you may need duringthe course ofyour deliberations”].) Thetrial court’s instructions violated Penal Code section 1138. This Court has explainedthat“[a]lthough the primary concern ofsection 1138is thejury’s right to be apprised of the evidence, a violation ofthe statutory mandate implicates a defendant’s right to a fair trial conducted ‘substantially [in] accord[ance with] law.’” (People v. Frye, supra, 18 Cal.4th at p. 1007, originalitalics, quoting People v. Weatherford (1945) 27 Cal.2d 401, 420.) It was for the jurors — not the court — to determine whether there wasa disagreementthat required resolution by means of a readback. And there is no reason why such a disagreement wouldbeanyless likely to arise during the first few days of deliberations than later. Theerror, both alone and in conjunction with the court’s insistence 89 People v. Frye, supra, 18 Cal.4th 894, has been disapproved on other grounds by People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22. 280 on notetaking, violated Gomez’s constitutional right to due process of law, his right to a jury trial, his right to confront the witnesses against him,his right to counsel, his right to present a defense,his rightto a reliable determination of guilt, and his right to a unanimous verdict. To be sure, somecourts haveheld that the refusal to allow readback does not amount to a federal constitutional violation — absent a showing ofprejudice. (See, e.g., Turner v. Marshall (9th Cir. 1995) 63 F.3d 807, 819 [no federal constitutional error whentrial court asked jury “not to abusetheright to have the court reporter read back testimony”], overruled on other grounds by Tolbert v. Page (9th Cir. 1999) 182 F.3d 677, 685.) This case is different, as the court’s instructionsto the jurors interfered with the jury’s assessment of credibility — as jurors afraid to “infuriate” the judge by requesting readback were proneto focus on their notes at the expense of their evaluation of the witnesses’ demeanor — and thusinfringed Gomez’s right to a jury trial, to a reliable determination of guilt, to confrontation, and to a fair trial and to due process of law. (Taylorv. Illinois (1988) 484 U.S. 400, 430 fn. 5; U.S. Const., 5th, 6th, 8th, & 14th Amends.; Marylandv. Craig, supra, 497 U.S.at p. 846; see Dutton v. Evans, supra, 400 U.S.at p. 89 (plurality opinion); see also Cal. Const., art. I, §§ 7, 15, 16, & 17.) Finally, by discouraging readback — and effectively foreclosingit 281 in the first few days of deliberations — the court forced jurors who did not take adequate notesto rely on those whohad,or to resort to speculation, thus violating Gomez’s right to a jury trial, to a reliable determination of guilt or innocence, to a unanimousjury verdict, and to a fair trial and to due process of law. (U.S. Const., 5th, 6th, 8th, & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16, & 17; People v. Superior Court ofOrange County, supra, 67 Cal.2d at p. 932; People v. Waidla, supra, 22 Cal.4th at p. 735 [speculation is not evidence].) Thoughthe court had told jurors they “shouldn’t do that,” it implied they would haveto if they did not take enough notes (8RT 1299), and indeed,in the first days of deliberation it left them no other option. (29RT 4176-4177.) E. Reversal is Required. Harmless error analysis does not apply; the errors here are ofthe type that “deflies] analysis by ‘harmless-error’ standards” because they permeatedthetrial. (United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 148-149 & fn. 4.) Whenthe effect of an error is “difficult[] [to] assess[]” (ibid.), “difficult to prove” (Waller v. Georgia (1984) 467 U.S.39, 49,fn. 9), or “cannot be ascertained” (Vasquez v. Hillery (1986) 474 U.S. 254, 263), the erroris structural. (United States v. Gonzalez-Lopez, supra, 548 U.S.at pp. 148-149 & fn.4.) 282 Beyondthe assumption that jurors follow the trial court’s instructions — an assumption this Court makesroutinely (see, e.g., People v. Bonin (1988) 46 Cal.3d 659, 699,”citing Delli Paoli v. United States (1957) 352 U.S. 232, 242, overruled on other grounds in Bruton v. United States, supra, 391 U.S. at pp. 126-137 — and beyondthe fact that jurors here did heed the court’s exhortation to take notes,”' it is difficult to assess the extent to which the jurors were hinderedin their ability to judge the witness’s credibility or were forced to rely on fellow jurors’ notes or even mere speculation. Nonetheless, there is a clear risk that jurors keen on pleasing the judge by studiously recording the proceedings in notes (or appearing to do so) — orat least not “discourag[ing]’” him by “just sitting there with their notes in their laps and . . . looking at the witnesses” (8RT * Bonin was overruled on other grounds in People v. Hill, supra, 17 Cal.4th at p. 823 & fn. 1. *! As noted above, the court referred to the notes jurors had taken in informing them that readback would not be providedin the first two days of deliberations. (29RT 4176-4177; 29RT 4167 [court addresses jurors: “During the course ofthe trial you have been attentive and many ofyou have taken notes.”]; see also 26RT 3804 [prosecutor addressing jurors during summation: “And let me say to you, because I see some ofyou writing, that his honor will be instructing you with regard to the law, and. . . you will have the written jury instructions in the jury room. So you don’t need to write down the instructions and you don’t need to write down the law. You will have that with you in the jury room in written form, and it might be better for you instead of trying to write downthe law . . . it might be better if you just listened.”]; 28RT 3976.) 283 1300) — may well have missed seeing a witness’s eyes dart nervously,his body shift in the chair uncomfortably, or her mouth take on a slight smirk — to name just a few ofthe nonverbal cuesjurors rely upon in doing what is uniquely their job. Andjurors loathe to “infuriate[]” the judge by requesting readbacks early in deliberations may chooseto resolve disagreements in ways “costly to the judicial process”: They may have “blend[ed] a degree of speculation or surmise into that part of the testimony that they had heard and understood,” or even worse, “may have surrendered their independent judgmentto those whoprofessedbetter hearing and memory” (Peoplev. Butler, supra, 47 Cal.App.3d at p. 281) — orbetter notes. Becauseofthis potentially grave harm— which cannot be ascertained or proven — theerrors should be deemed structural, and this Court should reverse. Even should this Court conclude that harmless error analysis applies, the prosecution cannot meetits burden ofproving the constitutional errors at issue here, individually or cumulatively, harmless beyond a reasonable doubt (Chapmanv. California, supra, 386 U.S.at pp. 24-26), given the court’s instruction, the fact that jurors followed it (26RT 3804; 29RT 4167; 29RT 4176-4177), and the circumstancesofthis case. 284 The notetaking instructions, as set forth above, compromised the jurors’ ability to judge witness credibility — an essentialtask in thistrial, where many ofthe prosecution’s important witnesses were beset by serious credibility questions. (See, e.g. 22RT 3219-3228; 23RT 3364-3373; 24RT 3465-3476 [Witness #1 was a heroin addict and either a schizophrenic or someone who defrauded the governmentby claiming to be schizophrenic]; 17RT 2657-2667; 18RT 2769-2774; 18RT 2784-2786; 16RT 2577-2583 [though heinitially denied it in his sworn testimony, Witness #2 later _acknowledged he was a gang member;hetestified in exchange for an agreementthat his sentence in another case would be no morethan six years]; 12RT 1920-1922, 1926-1931 [Witness #3 was a drug dealer’s wife who pawnedstolen jewelry in Las Vegas].) Whether these witnesses — particularly Witness #1 and Witness #3, whoprovided the only testimony implicating Gomezin the crimes against Rajandra Patel (see ArgumentII.B.2., above) — weretelling the truth was the crucial issue in this case, and the court’s error here wentto the heart of the jurors’ ability to determine it reliably. Another prosecution witness, William Owens, provided surprise trial testimony identifying Gomez forthefirst time as a man he had seen running near the scene of the Luna homicide. (14RT 2187, 2204; 14RT 2191-2204; 285 see 14RT 2162.) Assessment of Owens’ demeanor— and not merely what he said — would have been crucial to whetherjurors creditedhis identification, yet the court’s errors here elevated rote recording of whathe said over careful observation ofhis demeanor andattitude. Aside from the credibility problems that beset the prosecution’s witnesses, the record also shows that “some”or “many” of the jurors did take notes. (See 29RT 4167 [court instructing “many ofyou have taken notes”], 3CT 890-891, 29RT 4176-4177 [court instruction: “[y]ou’ve got notes from thetrial that you’ve taken”); 26RT 3804 [prosecutor remarking that someofthe jurors are taking notes during closing argument].)”” ® People v. Thompson (1988) 45 Cal.3d 86, 120, and People v. Ghent (1987) 43 Cal.3d 739, 758, in which the court failed to give a cautionary instruction aboutnotetaking, are distinguishable. In Thompson, unlike in this case, the jury “exercised its prerogative to request that substantial amountsoftestimony . . . be reread.” (People v. Thompson, supra, 45 Cal.3d at p. 120.) In Ghent, jurors were reminded by counsel to request readback in case of any discrepancy —— in contrast to the court’s stern warning about doingsoin this case. (See People v. Ghent, supra, 43 Cal.3d at p. 758.) Most important, however, the nature ofthe error in those cases was different. Failure to give a cautionary instruction, at issue in Thompson and Ghent, of course,is quite a different matter from affirmatively insisting that jurors do that which requires caution. In Thompson,there wasnoindication that “jurors appearednotto be paying attention to proceedings as they took notes on certain portions oftestimony.” (People v. Thompson, supra, 45 Cal.3d at p. 120.) Here, by contrast, the trial court’s instructions themselves —- which, unlike the merefailure to caution jurors in Thompson,explicitly condemnedtheidea ofjurors “just sitting there with their notes in their laps (continued...) 286 Finally, though thetrial spanned three months and more than 50 witnessestestified, several taking the stand more than once, the jurors requested only one very brief readback. (29RT 4285.) That readback, significantly, related to the Escareno homicide, on which the jury deadlocked. (29RT 4307-4308; 29RT 4339.) Again, though it is impossible to know whetherjurors not so roundly discouraged from seeking readbacks would have sought more ofthem,it is hardly unlikely in a case ofthis length and complexity. (Compare, e.g., People v. Robinson (2005) 37 Cal.4th 592, 596-597, 633 [in case involving two murder counts, jury requested three readbacks]; see also People v. Cox (2003) 30 Cal.4th 916, 926, 968-969 [in case involving three murder counts, jury requested readback that consumed twodays], disapproved on other grounds in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) Given these circumstances, and given that adherenceto the court’s instructions would be highly likely to impair jurors’ assessment of witness credibility and to skew deliberations, the prosecution cannot showthat the verdicts in this case — particularly the Patel and Luna cases, which were (_. continued) and they’re looking at the witnesses” (8RT 1300) — along with the presumption that jurors follow the court’s instructions, provide an indications of prejudice, bolstered by the other circumstancesofthe case, discussed above. 287 characterized by singularly weak evidence (see ArgumentsI & I, above) — were “surely unattributable to” the errors at issue here, individually or in combination. (Sullivan v. Louisiana, supra, 508 U.S.at p. 279.) Even under the Watson standard, reversal is required. There is a “reasonable chance, more than an abstract possibility,” that in the absence ofthis error, the result in this case would have beendifferent. (College Hospital Inc. v. Superior Court, supra, 8 Cal.4th at p. 715, citing, interalia, People v. Watson, supra, 46 Cal.2d at p. 837.) As the Supreme Court hasputit, a trial judge’s “lightest word or intimation is received with deference, and may provecontrolling.” (Quercia vy. United States, supra, 289 U.S. at p. 470.) Its more heavy-handed words are all the morelikely to influence jurors. By all indications, the judge’s exhortations did influence the jurors here. Because those exhortations threatened to underminethe jurors’ foremost and mostcrucial responsibility and powerin a trial — to observe witnesses and judge their credibility — and because the credibility of the prosecution’s witnesses was both seriously in doubtandcrucial to the outcome,it is reasonably probable that in the absence ofthis error, the result would have been more favorable to Gomez.(College Hospital Inc. v. Superior Court, supra, 8 Cal.4th at p. 715, citing, inter alia, People v. Watson, supra, 46 Cal.2d at p. 837; see also 288 People v. Bowers, supra, 87 Cal.App.4th at p. 736 [mistrial is more favorable result than conviction]; People v. Soojian, supra, 190 Cal.App.4th at pp. 520-524.) Finally, at the very least, Gomez’s death sentences must be reversed, for the errors seriously compromisedthe reliability of both the guilt and penalty phase determinations, in violation of the Eighth Amendmentandits state constitutional counterpart. There is a reasonable possibility (People v. Hamilton (2009) 45 Cal.4th 863, 917; People v. Brown, supra, 46 Cal.3d at pp. 447-449), to say the least, that the court’s errors hampered jurors’ assessment ofcredibility and affected the verdicts. 289 XI. THE TRIAL COURT ERRONEOUSLY AND UNCONSTITUTIONALLY INSTRUCTED JURORS DURING VOIR DIRE REGARDING THE EXCHANGEOF TESTIMONY FOR LENIENCY, EFFECTIVELY TELLING JURORS THAT PROSECUTION WITNESSES WERE LESSER PARTICIPANTSIN THE CHARGED CRIMES AND THAT THE DEFENDANTS WERE THE “GREATER CULPRITS” During voir dire, the trial court, in its explanation of the prosecution practice of exchanging leniencyfor testimony,identified prosecution witnesses aslesser “culprit[s],” in comparison with the defendant, the “greater culprit, the person that’s done greater wrong ... the killer... .” (6RT 951.) This error prejudiced the jurors’ consideration ofthe cases against Gomez, whichrelied heavily on the testimony of a prosecution witness who was an accomplice as a matter of law to one of the charged murders and an accessory after the fact to another, but who had not been charged with any crime (19RT 2909-2913; 1L9RT 2931-2934; see 12RT 1870-1872), as well as on the testimony of other assorted witnesses potentially subject to prosecution, yet not prosecuted, for various crimes. (E.g., 16RT 2577-2583.) A. The Court’s Instructions During Voir Dire. The jury questionnaire asked: “How do youfeel aboutthe situation in which the prosecution decides not to prosecute one person in exchange 290 for that person’s testimony against another person?” (E.g., 4CT 915.) During voir dire, the court addressed several prospective jurors, including at least two jurors whoeventually sat, regarding questionnaire answersthat indicated some discomfort with the idea. All of the jurors who eventually sat heard at least one version ofthe court’s explanation of the prosecution’s exchangeoftestimony for leniency, which referred to a hypothetical in which the prosecution (which the court often referred to as “we”), lacking sufficient evidence to convict a bank robber whohadkilled during the course of the robbery, decided not to prosecute a lesser participant in the robbery in order to obtain that lesser participant’s testimony. The court’s scenario effectively told jurors that a prosecution witness whohas obtained leniency is necessarily less culpable, while the individual being prosecuted —- despite an acknowledgedinsufficiency of evidence, necessitating the need for the testimony ofthe allegedly less culpable participant — was the “greater culprit,” “the killer.” (6RT 950-951.) The court’s extended colloquy with the juror who becameJuror 11 is illustrative: COURT Okay. Page 12, and this was without an explanation of the situation where the prosecution grants immunity of somekind, either a lesser penalty or total immunity to a witness whois involvedin a crimein order to get somebody else — testimony against somebodyelse. 291 Yousaid part of the justice system, you don’t like it or understandit. Did it make somesense to you as I explained the bank robbery situation, where law enforcementis more concerned with the guy that went in and killed someone than the man that wasstanding outside as a lookout so they give some kind of immunity, maybe total immunity to the guy outside in orderto addto the evidence against the person inside’ so they get the greater culprit, the person that’s done greater wrong? Any problem with that concept? PROSPECTIVE JUROR No.After you’ve explainedit, I understand it muchbetter. COURT It would be bad if we did it the other way around. PROSPECTIVE JUROR Oh,yeah. COURT Grant immunity to the killer to get the guy outside who didn’t do it. PROSPECTIVE JUROR Right. (6RT 950-951; see also, e.g., SRT 775-776, SRT 834-835.) In a later colloquy with a prospective alternate juror, in the presence of all the sworn jurors (7RT 1088-1089), the trial court then went even further, not merely “explain[ing]” the process of exchanging testimony for leniency, but taking issue with the prospective juror’s statement that he thoughtit was unfair: COURT Page 12, a question that you didn’t answer about the prosecution granting leniency of somesort, immunity 292 totally or a lesser sentence to one person in orderto get that individual’s testimony against another participant in the same crime. The example I gave to you, of course, that the other jurors haven’t heard out in the audience is two individuals decide to rob a bank. One stands as a guard outside, a lookoutto see if the police are coming to warn the man that goes inside. He goesin to rob the bank, and in the process kills one ofthe tellers, so he’s charged and actually both are liable for bank robbery and murder. But the prosecution doesn’t have enough evidence to prosecute the person that went in to identify that person. There’s some evidence but not enoughto proceedtotrial, but they do have evidence on the person that stood as lookout. They decide to grant some immunity to that person, a lesser sentence or maybetotal immunity in order to get that person’s testimony to add to what they’ve got to find out whothe killer was, whothe personthat pulled the trigger was inside the bank. Do you have any problem with that kind of a concept, granting immunity to one to get somebody whois more involved? PROSPECTIVE ALTERNATE I don’t think it’s fair, but no,I COURT don’t. What’s unfair aboutit? In the situation I gave, obviously if we gave immunity to the guy that went into the bank and killed somebodyin orderto get the lookout, that wouldn’t soundright. Butthis is the other way around. The man outside is a lookout. Maybehe eventold the guy that wentin don’t even take a loaded gun, I don’t want to 293 be involved in anything that soundslike a murder.I know I’m responsible, but do not take a gunin. So he does everything he can to preventthat guy going into the bank andkilling somebody,yetit happens anyway. He’s still responsible. _ Do you see a problem with granting immunity to that man in order to get some evidence against the other person? PROSPECTIVE ALTERNATE In that case, no. COURT In the other case, in the former case then what was unfair aboutit that you felt? PROSPECTIVE ALTERNATE Because felt that both, I mean in any part you’re still — he’s still part of the crime. COURT True. Butthe point is that there is insufficient evidence to establish who the personis that went in to the bank and did thekilling, so the choice is we’ lI prosecute the guy that wasthe lookout and let the other guy go because we can’t prosecute him or give that person some immunity in order to get the testimony that’s necessary to establish whoit was that actually did the killing. Physically did the killing. Doesthat soundright to you orstill wrong? PROSPECTIVE ALTERNATE Yes. (7RT 1096-1098.) B. The Trial Court’s Explanation of Prosecution Testimony Obtained By Leniency Violated Gomez’s Rights Under State Law andthe Federal Constitution. Thetrial court’s explanation to the jurors regarding prosecution 294 witnesses who have beengranted leniency, or who have not been prosecutedat all, improperly informedjurors that the prosecution would only grant leniency to the less culpable party involved in a crime — thatit would always accurately identify the less culpable parties and the real “killer[s]” and prosecute and forbear from prosecuting accordingly. As the court told Juror 11: “It would be bad if we did it the other way around... Grant immunity to the killer to get the guy outside who didn’t do it.” (6RT 951.) The implication — only clearer and moreprejudicial becauseof the court’s use of “we” — wasthat it was not done the “other way around” — that the prosecution would not prosecute a less culpable party using testimony from a more culpable party. As the court stated again in comments madein the presenceofall the seated jurors, “obviously ifwe gave immunity to the guy that went into the bank and killed somebodyin order to get the lookout, that wouldn’t soundright. Butthis is the other way around.” (7RT 1096-1098 [emphasis added].)” 3 The “hypothetical” nature of the court’s comments does not render them any less improper, for the hypothetical was meantto illustrate precisely the erroneous, and prejudicial point: that leniency would only be granted to less culpable parties, in order to prosecute the more culpable. Indeed, the court later, in colloquy with the attorneys, acknowledged making that assumption in this case. (See 8RT 1274 [“I assume [Witness #1 is] less involved than they are. That was the hypothetical I gave the jurors about the lookout outside the bank versus the one that wentin and killed (continued...) 295 In this argument with the prospective alternate juror, the court made clear that it believed the exchangeoftestimony for leniency wasnot,as the juror thought, unfair, precisely because, while there might be “insufficient evidence,” the prosecution nonetheless knew whothe actual killer was, and thus made the choice to give an accomplice witness leniency in orderto avoid “let[ting] [a guilty person] go because we can’t prosecute him... .” (7RT 1098.) Of course, there mightbe “insufficient evidence”to establish that someone wasthe actual killer because he wasnot, in fact, the actual killer. The court’s comments, however, did not admit ofthis possibility, instead communicating that jurors shouldtrust the prosecution to accurately and fairly distinguish the more culpable from the less culpable, and supplementinsufficient evidence with testimony obtained in exchange for leniency in orderto putthe real killer ontrial. The very question jurors are supposed to answerat the end ofa trial, however, is whether the defendant wasthereal “killer” — and whetherthe testimony of prosecution witnesses involved in the homicide truthfully and accurately implicated the defendant, or instead constituted an attempt to shift blame. (See People v. Guiuan (1998) 18 Cal.4th 558, 571-572 (continued) somebody ... .”].) 296 (Kennard, J., concurring) [accomplices have a “powerful built-in motive to aid the prosecution in convicting a defendant, regardless ofthe defendant’s actual guilt or level ofculpability, in the hope or expectation that the prosecution will reward the accomplices’ assistance with immunity or leniency”], italics added; see also Williamson v. United States (1994) 512 U.S. 594, 607-608 (Ginsburg, J., concurring) [“A person arrested in incriminating circumstanceshasa strong incentive to shift blame or downplay his own role in comparison with that of others, in hopes of receiving a shorter sentence and leniency in exchange for cooperation’’].) Thetrial court’s comments here essentially answered the question ofwho the real “killer” was — before the trial even started: The prosecution witnesses who would incriminate the defendants would bethe “less culpable” parties, the defendants the more culpable parties; it would not be done the other way around. Guilt-assuming hypotheticals are improper, and they violate due process and undermine the presumption of innocence when employed by a prosecutor cross-examining a defense character witness. (United States v. Shwayder (9th Cir. 2002) 312 F.3d 1109, 1121-1122, amended on denial of rehearing, United States v. Shwayder (9th Cir. 2003) 320 F.3d 889; U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7 & 15.) When the assumption 297 of guilt comes from thetrial judge, rather than the prosecutor, the damage to the presumption of innocence and the due process violation areall the more acute. As this Court putit long ago: “The court should not directly or indirectly assume the guilt of the accused, nor employ equivocal phrases which may leave such an impression. The experience of every lawyer shows the readiness with which a jury frequently catchat intimations of the court, and the great deference which they pay to the opinions and suggestionsofthe presiding judge, especially in a closely balanced case . . . A word, a look, or a tone may sometimesin such case be ofgreat or even controlling influence. A judge cannotbe too cautious in a criminaltrial in avoiding all interference with the conclusionsof the jury upon the facts; for of this matter under our system they are the exclusive judges.” ... “Instructions should notdirectly or indirectly assume or hypothetically suggest the guilt ofthe defendant.” (People v. Matthai (1902) 135 Cal. 442, 448,italics added, quoting People v. Williams (1860) 17 Cal. 142, 147.) A trial judge’s “lightest wordorintimation is received with deference, and may prove controlling.” (Quercia v. United States, supra, 289 U.S.at p. 470.) The court’s argumentative exchange with the prospectivealternate juror (7RT 1096-1098) was much morethan a light intimation. It exacerbated theerror, for it not only communicated that the court believed that the prosecution only granted leniency to obtain the testimony of less culpable parties, but also communicated that the judge himself approved of the practice because it was “necessary to establish who 298 it was that actually did the killing” (7RT 1098), again cementing the idea that the prosecution — and perhapsthe judge, who used the term “we” — knew whothe killer was, even if the evidence against the killer was insufficient. The court’s statements also constituted improper commenton the evidence. (See People v. Slaughter (2002) 27 Cal.4th 1187, 1217-1218; People v. Sturm (2006) 37 Cal.4th 1218, 1230-1232; Quercia v. United States, supra, 289 U.S. at p. 470; U.S. Const., 8th & 14th Amends.) Article VI, section 10 of the California Constitution provides, in relevant part: “The court may make any commenton the evidence and the testimony and credibility of any witnessas in its opinion is necessary for the proper determination of the cause.” (See also People v. Slaughter, supra, 27 Cal.4th at p. 1217.) Any such commentmust be “accurate, temperate, nonargumentative, and scrupulously fair. The trial court may not, in the guise ofprivileged comment, withdraw material evidence from the jury’s consideration, distort the record, expressly or impliedly direct a verdict, or otherwise usurp the jury’s ultimate factfinding power.” (Peoplev. Slaughter, supra, 27 Cal.4th at pp. 1217-1218, quoting People v. Rodriguez (1986) 42 Cal.3d 730, 766.) In People v. Sturm, supra, 37 Cal.4th at pp. 1230-1232, this Court 299 held that the trial court erred when, duringvoirdire, it told jurors that premeditation wasa “gimme”andthat that issue was “all over and done with.” The Attorney General had argued thatthe trial court’s comments did not refer to Sturm’s case, but were generic. The Court rejected the Attorney General’s argument, noting “[nJeither ofthe trial judge’s comments specified that he was speaking in hypothetical terms.”(/d. at p. 1231.) Here, to be sure, the trial court spoke in hypothetical terms about a bank robbery and murder. The court’s comments, however, strongly implied thatits hypothetical — in which the prosecution gives a lesser party leniency in exchangefor testimony — wasthe way “we[do] it.” (6RT 950-951.) Thus, the court’s comment was tantamount to an improper commenton the evidence that would be presentedattrial. The error violated Gomez’s constitutionalrights. In instructing the. jurors, during voir dire, in a mannerthat assumed the defendants’ guilt and impliedly commented on the evidence that wouldbe presented, the court not only undermined the presumption of innocence,butalso aligned itself with the prosecution, vouching for its witnesses; usurpedthe jury’s powerto determine witness credibility; and reduced the prosecution’s burden of proof beyond a reasonable doubt,all in violation of Gomez’s rightto a fair trial, to an impartial jury, to due process oflaw,andto a reliable 300 determination of guilt in a capital case. (See U.S. Const., 5th, 6th, 8th, and 14th Amends.; Cal. Const. art. I, §§ 7, 15, 16, & 17; see Wardius v. Oregon (1973) 412 U.S. 470, 473-474 & fn.6; In re Winship, supra, 397 U.S.at p. 363; Yates v. Evatt (1991) 500 U.S. 391, 400-401, disapproved on other groundsin Estelle v. McGuire, supra, 502 U.S.at p. 72, fn. 4; United States v. Rockwell (3d Cir. 1986) 781 F.2d 985, 991 [instructions which “improperly invaded the province of the jury to determine the facts and assess the credibility of the witnesses . . . [were] sufficiently misleading to deprive [defendant] ofa fair trial”]; United States v. Stephens (9th Cir. 1973) 486 F.2d 915, 917 [judicial comment on the evidence may violate right to fair trial]; Beck v. Alabama, supra, 447 U.S. at p. 638 .)” *4 Though counsel did not object to the court’s erroneous statements during voir dire, this Court does not deem forfeited any claim of instructional error affecting a defendant’s substantial rights. (People v. Dunkle (2005) 36 Cal.4th 861, 929, disapproved on other grounds, People y. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) This includes instructions during voir dire. (/d. at pp. 928-929.) This is not a case wherethetrial court’s explanations during voir dire were given in “shorthand,” putting the burden on Gomez to request a fuller explanation. (Compare Peoplev. Edwards (1991) 54 Cal.3d 787, 841.) Nor wasthis a case wherethetrial court made “comments” to familiarize prospective jurors with a general idea of the nature ofthe proceedings in a capital case. (People v. Romero (2008) 44 Cal.4th 386, 423.) Rather, the court’s explanations — more “Jonghand”than “shorthand” — were erroneousand prejudicial, violating Gomez’s substantial rights. (Pen. Code § 1259; see People v. Johnson (2004) 115 Cal.App.4th 1169, 1172 [instruction during voirdire that reduced prosecution’s burden of proofviolated defendant’s substantial rights]; see also People v. Johnson (2004) 119 Cal.App.4th 976, 984-985; (continued...) 301 C. Reversal Is Required. While erroneousjury instructions given during voir dire may sometimes be deemed harmless because they are supplanted by correct instructionsat the endofthe trial (see People v. Dunkle, supra, 36 Cal.4th at p. 929), no correct instructions ever supplanted the court’s erroneous explanation here. The trial court’s final instructions did inform jurorsthat they were the sole judges of credibility, and suggested several factors that might tend to prove or disprove truthfulness; they also stated that the judge had not intendedto suggest what jurors should find to be the facts, or that he believed or disbelieved any particular witness. (3CT 874-875, 890; 29RT 4118-4123, 4166.) They also, in the standard language of CALJIC No.3.18, 4..continued) see also People v. Brown (2003) 31 Cal.4th 518, 539, fn. 7; People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1074-1075.) Whena trial court choosesto instruct the jurors in an area, it must do so correctly. (People v. Castillo, supra, 16 Cal.4th at p. 1015.) More,evenifthe instruction is viewed as an implied commenton the evidence, no objection was required. (See Delzell v. Day (1950) 36 Cal.2d 349, 351; Cal. Code Civ. Pro. § 647; see also People v. Slaughter, supra, 27 Cal.4th at p. 1217 [assuming without deciding that improper commenton the evidence may be raised on appeal despite lack of objection].) While this Court should resolve any close and difficult preservation questions in favor of the defendant (People v. Ayala, supra, 23 Cal.4th at p. 273), should this Court nonetheless conclude that counsel failed to preserve this issue for review, Gomez believes such ineffective assistance of counsel would be more appropriately addressed in habeas corpus proceedings (People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267). 302 informedjurors that they should view Witness #1’s testimony with “care and caution andin light ofall the evidence in the case.” (3CT 881; 29RT 4137.) But nothing in the court’s final instructions corrected the erroneous statement that the prosecution only granted leniency to less culpable parties, in order to prosecute more culpable parties. Jurors operating underthat assumption might well approach accomplice testimony with care and caution, but they are still operating under an erroneous assumption that unfairly credits the prosecution’s witnesses, assumesthe guilt of the defendants, and diminishes the prosecution’s burden ofproof, in violation ofthe federal constitutional rights to jury trial, and to a fair trial and due process of law. (See U.S. Const., 5th, 6th and 14th Amends.; Cal. Const. art. I, §§ 7, 15, & 16.) And no instruction warned jurors that the testimony ofprosecution witnesses who werenotidentified as accomplices but who nonetheless had some involvementor were potential accessories, had to be viewedwith caution. The prosecution cannotprovethis constitutional error harmless beyond a reasonable doubt; it cannot showthat the verdicts obtainedinthis case were “surely unattributable” to the error. (Sullivan v. Louisiana, supra, 508 U.S.at p. 279; see Chapmanv. California, supra, 386 U.S.at p. 24.) 303 The prosecution relied heavily on the testimony of Witness #1, an accomplice to the Escareno homicide and, as the prosecution acknowledged, an accessory after the fact to the Patel homicide. (16RT 2564; see ORT 2909-2913; 1ORT 2931-2934; 12RT 1870-1872.) His testimony was unfairly bolstered by the assumption that he wasthe less culpable party. Defense efforts to suggest that he may have beenthe actual killer of Jesus Escareno(see, e.g., 22RT 3263-3270; 25RT 3712-3173; 27RT 3921-3923) were undermined by the assumption, madefor jurors at the outset ofthe case, that the prosecution would not grant leniency to an actual killer in order to prosecute an accomplice. The multiple jury questions regarding the consideration of accomplice testimony, and the jury’s eventual deadlock on the Escareno charges suggests the closeness of the case in this respect. (29RT 4338-4340; see 4SCT 745.) ’ While the jury deadlocked on Gomez’s guilt of the Escareno crimes, Gomez wasnonetheless prejudiced at the penalty phase because jurors who believed him guilty of that murder were allowed to considerit at the penalty phase as evidence weighing in favor of a death sentence. (See Argument XVIII, below.) The error prejudiced Gomezas to the Patel counts as well. Witness #1, an acknowledgedaccessory after the fact, admitted burning and 304 abandoning Patel’s car. (19RT 2931-2934; see 12RT 1870-1872; see also 16RT 2563-2565.) One might well wonder whether Witness #1 understated his own involvementin the crime and fabricated the evidence he provided regarding Gomez’s involvement. (People v. Tobias (2001) 25 Cal.4th 327, 331; see People v. Guiuan, supra, 18 Cal.4th at pp. 574-575 (Kennard,J., concurring); Williamson v. United States, supra, 512 U.S. at pp. 607-608 (Ginsburg, J., concurring).) Yet jurors told by the court that the prosecution granted leniency only to the less culpable parties involved in a crime,in order to prosecute the more culpable party, would not tend to consider such doubts reasonable. Witness #3, the only other witness who linked Gomezto the Patel crimes, was a drug dealer’s wife who had been arrested with her husband after a large amount of cocaine was foundin their bedroom. (12RT 1928- 1931; 13RT 1972-1973.) When she wasarrested, a pawnslip for Patel’s jewelry was foundin her purse. (12RT 1928.) Witness #3 admitted pawning Patel’s jewelry, telling jurors that her husband had obtainedit from Ruben Gomez. (12RT 1913-1914, 1979-1920.) This witness, even if not an accessory after the fact, also had a clear incentive to minimize her own role — and her husband’s — in the Patel case. Yet jurors told by the court that the prosecution granted leniency only to less culpable parties, in order to 305 prosecute the more culpable party, would not tend to consider that witnesses such as Witness #3 mightbe lying or shading the truth abouttheir ownrole, or the defendant’s, in the charged crimes. Andthe prosecution case against Gomezin the O’Farrell Street homicides also rested heavily on the testimony of Witness #1 — as set forth above, an accomplice to one murderand an accessory to another— and of Witness #2, who was,as the prosecutionputit, not a “public spirited person” and who wouldnothavetestified had he not been facing prosecution in another case. (See 27RT 3849-3851.) The court’s instruction unfairly bolstered the testimony of these witnesses and assumed Gomez’s guilt. Indeed, the court’s error affected the jurors’ considerationofall the charges, for it implied that whether or not a case involved an accomplice or someless culpable party, the prosecution would know whohadactually perpetrated a crime, and could be trusted to chargethe right person,evenif it could not muster sufficient evidence to support the charge. This insidious implication unfairly bolstered the prosecution with respectto all the charges Gomez faced — particularly the Patel and Luna charges, supported by only extremely weak evidence. (See Arguments I & IT, above.) The prosecution cannot show beyonda reasonable doubt that this error did not contribute to 306 the verdicts. Even should this Court conclude that the error merely implicated state law, there is a reasonable chance that, had the court not erredin its explanation of the exchangeoftestimony for leniency, and had jurors approachedthe case with an appropriately neutralattitude towards the prosecution’s witnesses, at least one juror would have found reasonable doubt as to whether prosecution witnesses had inaccurately or untruthfully implicated Gomez to minimize their ownrole, and the result would have been different. (College Hospital Inc. v. Superior Court, supra, 8 Cal.4th at p. 715, citing, inter alia, People v. Watson, supra, 46 Cal.2d at p. 837 ; see also People v. Soojian, supra, 190 Cal.App.4th at pp. 520-524; People v. Bowers, supra, 87 Cal.App.4th at p. 736 [mistrial is a more favorable result for the defendant than a conviction].) Finally, there is a reasonable possibility, to say the least, that in the absence ofthis error, the sentence would have been different. (People v. Hamilton, supra, 45 Cal.4th at p. 917; People v. Brown, supra, 46 Cal.3d 432, 447-449; see Chapman v. California, supra, 386 U.S.at p. 24.) Withoutthis error, jurors might well have acquitted Gomez ofthe Escareno crimes, precluding their consideration by any jurors at the penalty phase, and leading to a different penalty phase result. (See Argument XVIII, 307 below.) More, as set forth above, the error affected the verdict on the Patel murder, for which Gomez wassentenced to death. Priming jurors to see Gomezasthe more culpable party because the prosecution had deemed him the real killer, the instruction may well have blunted any lingering doubts about whetherthe prosecution had accused the right person — in any of the counts Gomez faced and on whichthe jury deliberated as to his sentence. Reversal is required. 308 XII. THE CALJIC INSTRUCTIONS DEFINING THE PROCESS BY WHICH JURORS REACH A VERDICT ON THE LESSER OFFENSE OF SECOND DEGREE MURDER, AND THE COURT’S FAILURE TO INSTRUCT THE JURY WITH CALJIC NO.17.11, UNCONSTITUTIONALLY SKEWED THE JURORS’ DELIBERATIONS TOWARD FIRST DEGREE MURDER, REQUIRING REVERSAL Thetrial court instructed Gomez’sjurors that if they agreed that Gomez committed homicide, they must “unanimously” agree that there was a reasonable doubt about the degree of murder before giving Gomez the benefit of that doubt. (29RT 4151-4152; 3CT 885 (CALJIC No.8.71, prior to fall 2011 revision.)) The trial court’s instruction wasas follows: If you are convinced beyond a reasonable doubt and unanimously agree that the crime of murder has been committed by a defendant, but you unanimously agree that you have a reasonable doubt whether the murder wasofthe first or of the second degree, you must give the defendant the benefit of that doubt and return a verdict fixing the murderas of the second degree. (29RT 4151-4152; 3CT 885.) If the jury did not unanimously agreethat it had a reasonable doubt as to whether the murder wasfirst or second degree, then, under this instruction, the jury need not give the defendant the benefit of that doubt. A juror who believed that Gomez was guilty of some murder, but not necessarily first degree murder, would also believe thatfirst degree murder applied in the face of any disagreement. In other words, first degree 309 murder wasthe default verdict under this instruction — applying unlessthe jurors unanimously agreedthat they had a reasonable doubt about the degree of murder. This instruction skewed the jury’s deliberations toward first degree murder and lowered the prosecution’s burden ofproof in violation of Gomez’s rights to due process andtrial by jury. (U.S. Const., 5th, 6th, & 14th Amends.; Cal. Const., art I, §§ 7, 15, & 16.) In People v. Moore (2011) 51 Cal.4th 386, 409-412, this Court addressed a claim that CALJIC No.8.71 violated the defendant’s due processandjury trial rights by suggesting that jurors must return first degree murderverdict unless they unanimously doubted whetherit had been proven.(Id. at pp. 409-411.) The Court concludedthat “the better practice is not to use the 1996 revised version[] of CALJIC [No.] 8.71 .. . as the instruction] carr[ies] at least some potential for confusing jurors about the role oftheir individual judgments in deciding between first and second degree murder... .” (/d. at pp. 411-412.) The Court explained: “[I]nserting this language into CALJIC [No.] 8.71 . . . which address[es] the role of reasonable doubt in choosing between greater and lesser homicide offenses, was unnecessary ... .” (/d. at p. 412.) Penal Code section 1097 provides that if there is a reasonable doubt about the degree ofthe crime a defendant has committed, he or she may be 310 convicted only of the lowest degree. Underthis principle, if the prosecution proved a murder had been committed but a juror has doubt about the degree ofthe offense, that juror must vote for the lesser offense. Previousversions of the CALJIC instructions told jurors to give a defendant the benefit of the doubt without reference to whether they unanimously agreed. (See CALJIC No.8.71, 5th ed., 1988.)”° This was in keeping with this Court’s long-standingrule that jurors must be instructed that “if they entertain a reasonable doubt as to which offense has been committed, they must find the defendant guilty only of the lesser offense.” (People v. Dewberry (1959) 51 Cal.2d 548, 555.) The 1996 revision significantly changed this by instructing jurors to vote for a lesser degree or offense only if they unanimously agreed. In other words, underthe revised instruction given here, before jurors give a defendantthe benefit ofthe doubt, they mustfirst unanimously agree that there is a reasonable doubt. If some, but notall, jurors believed there was a reasonable doubt aboutthe degree of murder, the instruction directs them to first degree murder. The court’s failure to give CALJIC No. 17.11 both compoundedthe °5 CALJIC No. 8.71 formerly provided: “Ifyou are convinced beyond a reasonable doubt that the crime of murder has been committed by a defendant, but you have a reasonable doubt whether such murder wasof the first or second degree, you must give defendantthe benefit of that doubt and return a verdict fixing the murderas ofthe second degree.” (See People v. Moore, supra, 51 Cal.4th at p. 409, fn. 7.) 311 problem anditself constituted error. CALJIC No. 17.11 provides, “[iJfyou find the defendantguilty ofthe crime of___, but have a reasonable doubt as to whetherit is of the first or second degree, you must find [him][her] guilty of that crime in the second degree.” The instruction must be given sua sponte when the crime has separate degrees. (See CALJIC No.17.11, Use Note, citing People v. Dewberry, supra, 51 Cal.2d at pp. 555-557; see also People v. Aikin (1971) 19 Cal.App.3d 685, 703-704 [sua sponte instruction], disapproved on another ground in People v. Lines (1975) 13 Cal.3d 500, 512-513.) CALJIC No. 17.11 would have provided the jury with clear language similar to the previous versions of CALJIC No.8.71. The instructions here — the delivery of CALJIC No. 8.71 and the failure to give CALJIC No. 17.11 — violated due processandlightened the prosecution’s burden of proof. Without direction on what to do in the case of non-unanimous doubt, the jury will likely fail to give full effect to the reasonable doubt standard, resolving its doubts in favor of conviction. (Keeble v. United States (1973) 412 US. 205, 212-213; U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7 & 15.)”° Indeed,the lack of clear direction % In United States v. Jackson (9th Cir. 1984) 726 F.2d 1466, there was overwhelming evidencethat the defendant had committed a crime, but a rational jury may have had a doubtaboutthe nature of the offense. The trial court instructed the jury that if it unanimously found the defendantto be not guilty of the crime charged, then it should determine the defendant’s (continued...) 312 in this case reasonably may betaken to have distorted the factfinding process. (Cool v. United States (1972) 409 U.S. 100, 104 [instruction that reduces burden of proofis “plainly inconsistent with the constitutionally rooted presumption of innocence”’].) Accordingly, it resulted in the kind of juror confusion that implicates constitutional standards. (See Smith v. Texas (2007) 550 U.S. 297, 316 [recognizing that instructions can create “jury- confusion error”}; Mullaney v. Wilbur (1975) 421 U.S. 684, 698-700 {safeguards of due process apply to determination of whether defendantis guilty of murder or manslaughter].)”’ The instructions also violated Gomez’s right to a unanimousverdict. *6(...continued) guilt or innocenceofthe lesser offense. (/d. at p. 1469, fn. 1.) The Jackson court, reversing, recognized that ifjurors were unable to reach a unanimous verdict on any charge, in theory the result would be a mistrial. (/d. at p. 1470.) “Practically, however,” the court explained, “in this case the risk was substantial that jurors harboring a doubt as to defendant’s guilt of the greater offense but at the same time convinced that defendant had committed some offense might wrongly yield to the majority and vote to convict of the greater offense rather than not convict defendant of any offenseat all.’bid.) ” Mullaney v. Wilbur noted that the defendant’s interests in the reasonable doubt standard were implicated more in Wilbur than in Winship: in Winship, petitioner faced an 18-month sentence, with a potential extension of four and a half years, while in Wilbur the defendant faced a differential in sentencing ranging from a nominalfine to a mandatory life sentence. (Mullaney v. Wilbur, supra, 421 U.S. at p. 700; see In re Winship, supra, 397 U.S.at p. 360.) Here, of course, a second degree murder conviction, rather than a first degree murder conviction, would have precluded the death penalty for the Luna, Dunton and Acosta killings. 313 The state Constitution protects a criminal defendant’s entitlement to “a verdict in whichall 12 jurors concur, beyond a reasonable doubt, as to each count charged.’” (People v. Jenkins (1994) 29 Cal.App.4th 287, 298; People v. Traugott (2010) 184 Cal.App.4th 492, 499-500; People v. Collins (1976) 17 Cal.3d 687, 692-693; Cal. Const., art. I, § 16.) Thoughthis right is embodied in the state Constitution, Gomez has a federal due processright to this state-created liberty interest. (See Hicks v. Oklahoma, supra, 447 U.S.at p. 346; U.S. Const., 14th Amend.) And, while the federal Constitution does not require unanimity in a 12-person jury, it certainly would nottolerate a verdict supported by fewerthan six jurors. (See Ballew v. Georgia, supra, 435 U.S.at p. 243 [Sixth and Fourteenth Amendments prohibit trial by jury of fewer than six]; Burch v. Louisiana, supra, 441 U.S.at pp. 138-139 [conviction by onlyfive membersofa six-person jury violates jury trial guarantee].) Here, because the instruction allowed for conviction offirst degree murder even if only a minority ofjurors believed it proven beyonda reasonable doubt, the instruction violated the federal Constitution as well. In Moore, this Court noted two Court of Appeal cases which had addressed the former version CALJIC No.8.71,”8 People v. Pescador % CALJIC No.8.71 wasrevised in the fall of 2011 in response to (continued...) 314 (2004) 119 Cal.App.4th 252, and People v. Gunder (2007) 151 Cal.App.4th 412. (People v. Moore, supra, 51 Cal.4th at pp. 410-411.) In Pescador, the trial court had also given CALJIC No. 17.11, which told jurors, without any unanimity requirement,thatifthey had a reasonable doubt as to the degree of murder proven,they hadto find the defendant guilty of only second degree murder. (People v. Moore, supra, 51 Cal.4th at p. 411; People v. Pescador, supra, 119 Cal.App.4th at p. 257.) And in both Gunder and Pescador,thetrial court had additionally instructed the jury with CALJIC No. 17.40, which instructed jurors not to decide “any question in a particular way because a majority of the jurors, or any of them, favorthat decision.” (People v. Moore, supra, 51 Cal.4th at p. 411; Peoplev. Pescador, supra, 119 Cal.App.4th at p. 257; People v. Gunder, supra, 151 Cal.App.4th at p. 425 & fn. 10.) Gomez’s jury, unlike Pescador’s, was not instructed with CALJIC No. 17.11. Although Gomez’s jury wasinstructed with CALJIC No. 17.40 (29RT 4169; 3CT 891), Gomez respectfully submits that the Gunder court wasincorrect in concluding that, given CALJIC No. 17.40, it was not reasonablylikely that jurors interpreted CALJIC No. 8.71 to require unanimous agreementthat there was a doubt as to defendant’s guilt offirst °8(.. continued) Moore. 315 degree murderbefore the defendant could be convicted of second degree murder. (See People v. Gunder, supra, 151 Cal.App.4th at pp. 424-425.) CALJIC No. 17.40 does notdispel the error in CALJIC No. 8.71. It informs jurors that“[t]he People and the defendantare entitled to the individual opinion of each juror”; it also encourages jurors to “reach[] a verdict if you can do so.” (29RT 4169; 3CT 891.)It instructs jurors that “[e]ach of you must decide the case for yourself, but should doso only after an open- mindeddiscussion of the evidence and instructions with the otherjurors.” (29RT 4169; 3CT 891.) But CALJIC No. 17.40 says nothing specific about the jury’s determination of the degree of murder, and it says nothing to contradict CALJIC No.8.71’s implication that the defendant only receives the benefit of reasonable doubtas to degreeifthe jury unanimously agrees on the existence of that doubt. Thespecific, of course, prevails over the general. (People v. Stewart (1983) 145 Cal.App.3d 967, 975.) “It is particularly difficult to overcome the prejudicial effect of a misstatement when the bad instruction is specific and the supposedly curative instruction is general. [Citation.].” (Buzgheiav. Leasco Sierra Grove (1997) 60 Cal.App.4th 374,395, originalitalics.) Nothing in CALJIC No.17.40, norin the instructions as a whole dispelled the specific, and erroneous direction in CALJIC No.8.71. 316 The court’s supplemental instruction did not serve toclarify the erroneousinstruction. The court told the jurors that they “need only unanimously agree on whetherit is murderin the first degree or murderin the second degree.” (29RT 4246.) Even if understood by the jurors — the court, after delivering the instruction, commented, “I’ve got some frowns there ... Okay. If that answers your question” — this instruction said nothing about reasonable doubt, and said nothing to cure the implication that the jurors must unanimously maintain a reasonable doubtas to defendant’s guilt to convict him of second degree murder.” Theseerrors affected the fundamental framework of Gomez’s trial, requiring reversal. (Arizona v. Fulminante (1991) 499 US. 279, 309-310.) In Sullivan v. Louisiana, supra, 508 U.S. 275,the trial court erroneously instructed the jury on the definition of reasonable doubt. The Court explained that there are certain errors that defy traditional harmlesserror review. These are errors that cannot be measured by weighingthe strength *” CALJIC No.8.74, likewise, informed jurors that they had to agree unanimously whether defendant was guilty of first degree murder or second degree murder, but said nothing about reasonable doubt, and said nothing to cure the implication that the jurors must unanimously maintain a reasonable doubt as to defendant’s guilt of first degree murder to convict him of second degree murder. CALJIC No. 8.71 “explains the process jurors must go through to determine the degree of murder.” (People v. Pescador, supra, 119 Cal.App.4th at p. 256.) Once jurors have gone throughthat process, CALJIC No. 8.74 requires no further consideration of reasonable doubt. 317 of the evidence. “[WJhere the instructional error consists of a misdescription of the burdenofproof. . . [a] reviewing court can only engage in pure speculation — its view of whata reasonable jury would have done. And whenit doesthat, ‘the wrong entity judge[s] the defendant guilty.’”(Id. at p. 281, quoting Rose v. Clark (1986) 478 U.S. 570, 578.) Thus, a deprivation of an importantright “with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as ‘structural error.’” (Sullivan v. Louisiana supra, 508 U.S. at pp. 281-282.) Here, as in Sullivan, harmlesserror analysis would require this Court to speculate aboutthe verdict. This Court should therefore find that the error wasstructural and requires reversal. Even assuming harmlesserror applies, this error was not harmless beyonda reasonable doubt. Moore ultimately concluded that the Court did not need, in that case, to determine whether Gunder wascorrectthat the possibility of confusion is adequately dispelled by CALJIC No. 17.40, because in Moore’s case any error was harmless because the jury had found felony-murder special circumstancestrue. (People v. Moore, supra, 51 Cal.4th at p. 412.) Here, however, the error was not harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 U.S. at p. 24.) Neitherthe first 318 degree murder verdict in the Lunacase, nor the first degree murder verdicts in the Dunton and Acosta cases could have rested on a felony-murder theory. Asset forth above in ArgumentI.B.2., with respectto the killing of Raul Luna, there wasa lack of any evidenceat all as to Gomez’s mental state at the time of the crime — even if Gomez was proven to be oneofthe individuals in Luna’s yard at the time ofthe killing. One or more jurors might easily have had a reasonable doubt as to whetherthe first degree murder of Raul Luna was proven. With respect to the Dunton and Acosta killings, in light of the entire record, the evidence ofpremeditation and deliberation was thin, and the prosecution cannot show beyond a reasonable doubt that one or morejurors could not have harbored doubts about whetherthe killings were premeditated. (See ArgumentIII.) This Court must reverse not only the first degree murder convictions for the killings of Luna, Dunton, and Acosta, but the death sentence imposed for the murder of Rajandra Patel, as well. The prosecution cannot provethis error harmless beyond a reasonable doubt with respect to the death sentences; it cannot show beyond a reasonable doubtthat the additional weight of three first degree murder convictions did nottip the 319 scales towards death. (See Chapmanv. California, supra, 386 U.S.at p. 24; People v. Prince, supra, 40 Cal.4th at p. 1299.) 320. XII. THE TRIAL COURT’S INSTRUCTION OF THE JURY WITH CALJIC NO. 17.41.1 VIOLATED MR. GOMEZ’S RIGHTS UNDER THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS Thetrial court instructed Gomez’s jury with CALJIC No. 17.41.1, delivered as follows: The integrity of a trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty or punishment, or any other improperbasis, it is the obligation ofthe other jurors to immediately advise the Court of the situation. (3CT 891; 29RT 4168-4169.) It repeated the instruction again at the penalty phase, omitting the language regarding decision on the basis ofpenalty or punishment. (13CT 3447; 31RT 4613.) In People v. Engelman (2002) 28 Cal.4th 436, 441, 449, a noncapital case, this Court disapproved CALJIC No. 17.41.1, holding thatit should not be given. This Court also concluded, however, that it did not violate Engelman’srights under the federal Constitution to a jury trial and to due process of law, nor did it violate the state constitutionalright to a unanimousverdict. (People v. Engelman, supra, 28 Cal.4th at pp. 442-445.) Gomez respectfully submits that in this case, the instruction did violate his rights under the Sixth and Fourteenth Amendments; he therefore 321 raises the issue here in order to ask this Court to reconsider its decision in Engelmanandto preserve the error for review in federal court if necessary. He recognizesthat the Court has previously declined to reconsider Engelman. (See People v. McKinnon, supra, 52 Cal.4th at p. 681; People v. Wilson (2008) 44 Cal.4th 758, 805-806; see also People v. Romero, supra, 44 Cal.4th at p. 419.) In addition, Gomez contendsthat the instruction violated his rights under the Eighth Amendment to reliable guilt and penalty phase verdicts, an issue not presented in Engelman.'” A. This Court Should ReconsiderIts Decision in Peoplev. Engelman. Theright to a jury trial is a fundamentalconstitutional right. The 100 In People v. Brady (2010) 50 Cal.4th 547, 587, this Court rejected, without discussion, a claim that the defendant’s constitutional rights were violated by delivery of 17.41.1 at the penalty phase.(/d. at p. 587.) In People v. Brown (2004) 33 Cal.4th 382, 393, a capital case, this Court addressed a claim that CALJIC No. 17.41.1 violated the rights to jury trial, to due process, and a unanimousverdict, and declined to revisit Engelman. Brownalso addressed the oblique incorporation of CALJIC No. 17.41.1 by referenceat the penalty phase of a capital case, rejecting defendant’s argument that the instruction would have pressured jurors disinclined to impose death “to go along with the majority . . . or risk being reported to the court.” (/d. at p. 400.) Gomez’s argument, set forth in detail in subsection B., below, is different, and, to the extent necessary, he asks this Court to reconsider Brown and Brady in light of the arguments he presents below. 322 Sixth Amendmentto the United States Constitution, which protects the right to a jury trial in criminal cases, applies to the states through the Fourteenth Amendment. (Duncan v. Louisiana (1968) 391 U.S. 145, 149.) Evenbefore the Sixth Amendmentguarantee was applied to the states, the Fourteenth Amendmentoperated to insure that, when state did provide a jury trial, the trial would be conducted fairly. (Turner v. Louisiana (1965) 379 U.S. 466, 471-472.) If a criminal defendant showsa sufficient risk that the jury has been improperly influenced,the resulting conviction must be reversed.(E.g., id. at pp. 473-474 [where twobailiffs who were in charge ofthe jury had alsotestified as prosecution witnesses, prejudice inherentin that situation required reversal even though there was no showingthat bailiffs discussed the case with the jurors].) Whethera particular feature of the common-law jury trial right is compelled in state courts as a matter of federal constitutional law depends on “the function that the particular feature performsandits relation to the purposesofthe jury trial.” (Williams v. Florida (1970) 399 U.S. 78, 99- 100.) Thus, for example, the usual size of a jury — 12 people — is not mandated by the federal Constitution because the numberis “a historical accident, unnecessary to effect the purposes of the jury system and wholly 323 without significance ‘except to mystics.’ [Citation.]” Ud. at p. 102.) The secrecy and sanctity ofjury deliberations, and the free exchange of ideas this feature is designed to protect, on the other hand,are far from historical accidents. Rather, as this Court has recognized, this feature is a “‘cornerstone’” of the Anglo-American jury system. (People v. Engelman, supra, 28 Cal.4th at p. 443; see also People v. Cleveland (2001) 25 Cal.4th 466, 475, 481.) The confidentiality, secrecy, and privileged nature of deliberations is an essential prerequisite for the free exchangeofideas in the jury room. “‘Juror privacy is a prerequisite of free debate, without which the decisionmaking process would be crippled.’” (United Statesv. Symington (9th Cir. 1999) 195 F.3d 1080, 1086, quoting Note, Public Disclosures ofJury Deliberations (1983) 96 Harv. L.Rev. 886, 889; see also United States v. Antar (3d Cir. 1994) 38 F.3d 1348, 1367 [conc. opn. of Rosenn,J.] [{“[T]he confidentiality of the thought processes ofjurors, their privileged exchangeofviews, and the freedom to be candidin their deliberations are the soul of the jury system. This interaction must be zealously guarded from any impermissible encroachmentif the system is to survive.”}; see also Tanner v. United States (1987) 483 U.S. 107, 127 [““[L]ong-recognized and very substantial concerns support the protection of jury deliberations from intrusive inquiry.”].) 324 The free and candid exchange ofideas allowsthe jury to fulfill its purposeof fostering community participation, in the form of the “common- sense judgment” of laypeople with varying viewpoints, to determinations of guilt of innocence. (Duncan v. Louisiana, supra, 391 U.S.at pp. 155-156; see Ballew v. Georgia, supra, 435 U.S.at p. 229 [jury’s purpose of protecting individual from governmentoppression “is attained by the participation of the community in determinations of guilt and by the application of the commonsense of laymen who,as jurors, consider the case”; Sixth Amendment mandatesjury of sufficient size to promote group deliberation, to insulate members from outside intimidation, and to provide a representative cross-section of the community].) Long ago, Justice Cardozo notedthat “[f]reedom of debate might be stifled and independence of thought checked ifjurors were made to feel that their arguments andballots were to be freely published to the world.” (Clark v. United States (1933) 289 U.S. 1, 13.) This Court recognized as much in People v. Engelman: Asa general rule, no one — including the judge presiding at a trial — has a right to know how jury, or any individual juror, has deliberated or how a decision wasreachedby ajury or juror. The secrecy of deliberationsis the cornerstone of the modern Anglo-American jury system. . . . Especially troublesomeis the danger that such disclosure [upon inquiry by the court] presents to the operation of the deliberative processitself. . . . Juror privacy is a prerequisite of free 325 debate, without which the decisionmaking process would be crippled. . . . [P]articipants must feel completely free to dissect the credibility, motivations, and just deserts of other people. Sensitive jurors will not engage in such a dialogue without some assurancethat it will never reach a larger audience. ... The mere suggestion that the views ofjurors may be conveyedto the parties and the public ... understandably may cause anxiety and fear in jurors, and distort the process by which a verdict is reached. (People v. Engelman, supra, 28 Cal.4th at p. 443, quoting People v. Cleveland, supra, 25 Cal.4th at pp. 481-482 [other citations andinternal quotation marks omitted].) Thus, just as the Sixth Amendment mandates a jury “of sufficient size to promote group deliberations, to insulate members from outside intimidation, and to provide a representative cross-section ofthe community” (Ballew v. Georgia, supra, 435 U.S.at pp. 229-230), it also requires privacy and confidentiality for deliberations, which similarly promote effective group deliberations that include minority viewpoints. (See also People v. Oliver (1987) 196 Cal.App.3d 423, 429 [“[P]rivate, confidential deliberations outside the presence ofall nonjurors are an essential feature of the right to an impartial jury trial guaranteed by the Sixth Amendment. An infringementofthat essential right therefore constitutes an error of federal constitutional dimension.”].) CALJIC No. 17.41.1 poses a significant threat to the sanctity ofjury 326 deliberations. As this Court recognized in People v. Engelman, CALJIC No. 17.41.1 has the potential to intrude unnecessarily on the deliberative process andaffect it adversely — both with respect to the freedom ofjurors to expresstheir differing views during deliberations, and the proper receptivity they should accord the viewsoftheir fellow jurors. Directing the jury immediately before deliberations begin that jurors are expected to police the reasoning and argumentsoftheir fellow jurors during deliberations, and immediately advise the court if it appears that a fellow juror is deciding the case upon an “improperbasis,” may curtail or distort deliberations. . . . [I]t is not conduciveto the proper functioning of the deliberative processfor thetrial court to declare — before deliberations begin and before any problem develops — that jurors should oversee the reasoning and decisionmaking processoftheir fellow jurors and report perceived improprieties in that process to the court. (People v. Engelman, supra, 28 Cal.4th at p. 440.) The Court concluded, however, that because secrecy is not absolute, and may give wayto reasonable inquiry into juror misconduct, CALJIC No. 17.41.1’s potential to induce a juror to unnecessarily reveal the content of deliberations, or threaten to do so, does not renderit unconstitutional. (People v. Engelman, supra, 28 Cal.4th at pp. 443-444.) Gomez respectfully contendsthat the principle that jury secrecy is not absolute does not warrant the conclusion that this instruction complies with Sixth and Fourteenth Amendmentguarantees. To be sure, as Engelmanstates, refusal to deliberate may constitute 327 groundsfor a juror’s discharge, and intrusion into the content ofjury deliberations is necessarily attendantto the process of discharging a sitting juror in such circumstances. (People v. Engelman, supra, 28 Cal.4th at p. 444.) The vice of CALJIC No. 17.41.1, however, lies not only in its provision for intrusion into jury deliberations in some cases — thoughit needlessly encourages such intrusion, as this Court recognized in Engelman (id. at p. 446) — but more fundamentally, in every case, in the changeit risks effecting on the deliberative processitself. (See People v. Engelman, supra, 28 Cal.4th at pp. 445-449.) As the Supreme Court has explained: “The basic purpose ofa trial is the determination oftruth,” Tehan vy. United States ex rel. Shott, 382 U.S. 406, 416 (1966), and it is the jury to whom wehaveentrusted the responsibility for making this determination in serious criminal cases. Any practice that threatensthe jury’s ability properly to perform that function poses a similar threat to the truth-determining processitself. (Brownv. Louisiana (1980) 447 U.S. 323, 334.) Thus, the relevant constitutional question, Gomez respectfully maintains, is not whether intrusions into deliberations are sometimes allowed; it is well-established that they are. The question, rather, is whetherthis state practice “creat[es] a substantial threat to Sixth and Fourteenth Amendment guarantees,” and if so, whetheranystate interestjustifies it. (Ballew v. Georgia, supra, 435 328 USS.at p. 243; see id. at p. 231; Burch v. Louisiana, supra, 441 U.S.at pp. 138-139 [though state has a substantial interest in reducing time and expense associated with administration of criminal justice, that interest cannotjustify nonunanimousverdicts by six-person juries]; see also Clark v. United States, supra, 289 U.S. at pp. 13-16 [secrecy ofjury deliberations may be invaded only wherestate interest supports such intrusions and overcomesthe “weighty”interest that deliberations be “untrammeled by the fear of embarrassing publicity”].) This Court in Engelmaneffectively recognized that CALJIC No. 17.41.1 does significantly threaten the proper functioning ofthe jury. As this Court explained, “the mere suggestion that the views ofjurors may be conveyed to the parties and the public” — a suggestion indisputably conveyed by CALJIC No. 17.41.1 — “understandably may cause anxiety and fear in jurors, and distort the process by which a verdict is reached.” (People v. Engelman, supra, 28 Cal.4th at p. 443, quoting People v. Cleveland, supra, 25 Cal.4th at pp. 481-482.) Without juror privacy, “the decisionmaking process would be crippled.” (/bid.) In addressing CALJIC No. 17.41.1 itself, the Engelman Court identified the risks that @ because CALJIC No. 17.41.1 fails to specify what “any other improper basis” for decision might be, membersofthe 329 jury providetheir own interpretation ofwhat is improper and seek to impose it on others (id. at p. 447); or that jurors otherwise “confident of their own good faith and understanding of the evidence and the court’s instructions on the law, mistakenly may believe that those individuals who steadfastly disagree with them are refusing to deliberate or are intentionally disregarding the law”(id. at p. 446); ® the instruction “could cause jurors to become hypervigilant during deliberations aboutperceived refusals to deliberate or otherill-defined ‘improprieties,’” threatening the “free exchangeofideasthatlies at the center of the deliberative process”(id. at p. 447, originalitalics); or the risk that “a juror endowedwith confidence in his or her own views. might rely on CALJIC No. 17.41.1 as a license to scrutinize otherjurors for someill-defined misconduct rather than to remain receptive to the viewsof others”(ibid.);'"" @ that the instruction will be used by a juror or jurors as a “tool for browbeating other jurors”(id. at p. 445), or that a juror, without ever communicating with the court, might “place undue pressure on another juror by threateningto accuse that juror in open court of reasoning improperly or not following the court’s instructions”(id. at p. 446); or that the instruction might be used as a meansof“short-circuit[ing] discussions by threatening to call upon the court to arbitrate normal disagreements”(id. at p. 447); @ that jurors, particularly those who may not beable to deliberate “well or skillfully” will censor themselves, unwilling to articulate ideas or opinions that might be deemed “improper”(id. at p. 446; id. at p. 443), thus crippling deliberations and robbing them ofthe free exchange of ideas from differing viewpoints. '0! Put another way,the instruction also unnecessarily burdens jurors with an additional task to perform during deliberations. Jurors are to consider the law and the evidence in orderto arrive at a just verdict, and no more. CALJIC No. 17.41.1’s requirementthat jurors assume an additional task underminesthereliability of their core decision-making function. 330 All ofthese vices strike squarely at the very core of the deliberative process — the free and open exchangeof ideas among members of a representative cross-section of the community who have cometogether to attempt to reach a judgment based on lay commonsense.(See, e.g., Ballew v. Georgia, supra, 435 U.S. at pp. 229-230.) CALJIC No. 17.41.1 — asthis Court noted, an instruction given jurors immediately before they withdraw to deliberate, and concerning the process of deliberation itself (People v. Engelman, supra, 28 Cal.4th at p. 445) — is a “practice that threatens the jury’s ability properly to perform [its] function,” and thus “poses a similar threat to the truth-determining processitself.” (Brown v. Louisiana, supra, 447 U.S.at p. 334; Clark v. United States, supra, 289 U.S. at p. 14 [mere charge ofjuror wrongdoing will not overcome secrecy ofjuror deliberations].) And Engelman’s holding, based on this Court’s supervisory powers, that the instruction should not be given effectively establishes that there is no state interest in instructing juries with CALJIC No. 17.41.1 that justifies the acknowledgedrisk. (People v. Engelman, supra, 28 Cal.4th at p. 448 [other instructions are adequate to guard against jury misconduct]; id. at p. 445 [it is “inadvisable and unnecessary”to create the risk of intrusion on the secrecy of deliberations or of an adverse impact on the course of 331 deliberations]; id. at p. 447 [jurors should not “needlessly be encouraged” to be on thealert for fellow jurors’ failings], originalitalics.) Becausethe instruction poses a significant threat to the proper functioning ofthe jury, whichis not justified by any state interest, it violates the Sixth and Fourteenth Amendmentsto the United States Constitution and its state constitutional counterparts. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, & 16.) Theinstruction also violates due process, which protects rights that are “deeply rootedin this Nation’s history and tradition.” (Moorev. City of East Cleveland (1977) 431 U.S. 494, 503; see In re Winship, supra, 397 U.S.at pp. 361-362 [finding reasonable doubt requirement protected by due process becauseit is firmly entrenchedin history andtradition of Anglo- Americantrial].) The sanctity ofjury deliberations, as acknowledgedby this Court andasset forth above, is such a deep-rooted right. (People v. Engelman, supra, 28 Cal.4th at p. 443, quoting People v. Cleveland, supra, 25 Cal.4th at pp. 481-482.) Finally, the instruction violates the state constitutional rightto trial by jury, not only for the reasonsstated above, to the extent the state constitutional right is coextensive with the federal constitutional right, but also becauseit infringes the state constitutional right, in felony cases, to a 332 jury of 12 persons and to a unanimousverdict. (See Cal. Const., art. I, §§ 7, | 15, & 16; People v. Peters (1982) 128 Cal.App.3d 75, 89-90; People v. Collins, supra, 17 Cal.3d at p. 693.) The instruction’s potential for use as a tool for browbeating jurors, particularly minority jurors, infringes the right to a unanimousverdict reflecting the individual judgmentofeach juror. (See People v. Engelman, supra, 28 Cal.4th at pp. 445, 447; see also People v. Gainer (1977) 19 Cal.3d 835, 848-849.) This state right to a unanimous verdict in turn is protected from arbitrary infringement by the due process clause of the Fourteenth Amendmentto the federal Constitution; its violation thus constitutes a due process violation as well. (Hicks v. Oklahoma, supra, 447 U.S.at p. 346.) Forall the reasons stated above, this Court should reconsiderits constitutional holding in People v. Engelman and hold that CALJIC No. 1741 .1 violates the state and federal Constitutions. B. The Delivery of CALJIC No. 17.41.1 at the Guilt and Penalty Phasesin this Capital Case Violated the Eighth and Fourteenth Amendments. Even if this Court should decline to revisit Engelman, this case presents an additional issue not involved in that case — the delivery of CALJIC No. 17.41.1 at the guilt and penalty phases of a capital trial. In a capital case, CALJIC No. 17.41.1 violates the Eighth and Fourteenth 333 Amendmentrights to reliable determinations of guilt and penalty and the state constitutional counterpart. (See U.S. Const., 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, & 17.) 1. Instructing Guilt Phase Jurors in a Capital Trial with CALJIC No. 17.41.1 Violates the Eighth and Fourteenth Amendments. The Eighth Amendmentrequiresreliability not only in the ultimate determination whether a defendant convicted of murder shouldlive or die, but also in the determination ofwhetherheis guilty or not guilty in the first instance. (Beck v. Alabama, supra, 447 U.S.at p. 638 [“Toinsure that the death penalty is indeed imposed onthe basis of ‘reason rather than caprice or emotion,’ we have invalidated procedural rules that tended to diminish the reliability of the sentencing determination. The same reasoning must apply to rules that diminish the reliability of the guilt determination.” The risk to the integrity of deliberations recognized in People v. Engelman, supra, 28 Cal.4th at pp. 440, 445-448, even if tolerable in noncapital cases, cannot be countenanced wherelife is at stake. As the Supreme Court has repeatedly recognized: [T]here is a significant constitutional difference between the death penalty and lesser punishments: “[D]eath is a different kind of punishment from any other which may be imposedin this country. . . . From the point ofview ofthe defendant,it is different in both its 334 severity and its finality. From the point of view of society, the action of the sovereign in taking thelife of one ofits citizens also differs dramatically from any other legitimate state action. ...” (Beck v. Alabama, supra, 447 U.S.at p. 637, quoting Gardner v. Florida, supra, 430 U.S.at pp. 357-358 [opinion of Stevens, J.].) In this light, this Court should not countenance,in a capital case, the myriad threats to the proper functioning of the jury. (See People v. Engelman, supra, 28 Cal.4th at p. 440; see subsection A., pp. 329-330, above.) As this Court recognized in Engelman,“[jjury deliberation is a sensitive mechanism that most often simply must— and will — accommodateitself to the resolution of strong differences of opinion.” (People v. Engelman, supra, 28 Cal.4th at p. 447.) This Court has found that CALJIC No. 17.41.1’s tinkering with this “sensitive mechanism”(id. at p. 445) is unwarranted in criminal cases in general; in the guilt phase of a capital case, the risks are more than “unnecessary and inadvisable”(ibid. ) but are unconstitutional. 2. Instructing Penalty Phase Jurors With CALJIC No. 17.41.1 Violates the Eighth and Fourteenth Amendments. The use of CALJIC No. 17.41.1 at the penalty phase poses an even moreserious threat to the defendant’s constitutional rights. The instruction is incompatible with the unique role of capital jurors, who serve an all the 335 more important function ofinterposing “between the accused and his accuser of the commonsense judgmentof a group of laymen.” (Williamsv. Florida, supra, 399 U.S.at p. 100; see Duncan v. Louisiana, supra, 391 USS. at p. 156.) The capital jury “express[es] the conscience ofthe community on the ultimate question oflife or death.” (Witherspoonv. Illinois (1968) 391 U.S. 510, 519.) The jurors’ task at the penalty phaseis “inherently moral and normative, not factual . . . . [Citation.]” (People v. Prieto, supra, 30 Cal.4th at p. 263.) Faced with this weighty moral task, however, capital jurors “are given only partial guidance asto howtheir judgment should be exercised, leaving them with substantial discretion.” (Caldwell v. Mississippi, supra, 472 U.S.at p. 333.) As this Court has explained: [T]he focus of the penalty selection phase of a capitaltrial is more normative andless factual than the guilt phase. The penalty jury’s principaltask is the moral endeavorof deciding whether the death sentence should be imposed on a defendant whohasalready been determinedto be “death eligible” as a result of the findings and verdict reached atthe guilt phase. In such a penalty selection undertaking, the Eighth Amendment’sstrictures are less rigid, more open-ended . .. . Thegist of defendant’s argument — thatthe trial court’s penalty phaseinstructionsfailed to guide the jury in reaching a penalty decision, allowing it “complete discretion” — is correct. . . . It is not a mechanical finding of facts that resolves the penalty decision, “but . . . the jury’s moral assessment of those facts as they reflect on whether defendant should be put to death ... . [Citation.]” 336 (People v. Musselwhite, supra, 17 Cal.4th at pp. 1267-1268.) In this moral endeavor, a juror must be “free to reject death if [he or she] decides on the basis of any constitutionally relevant evidence or observationthat it is not the appropriate penalty.” (People v. Brown (1985) 40 Cal.3d 512, 540, original italics, reversed by California v. Brown (1987) 479 U.S. 538.) In this context, all the risks posed by CALJIC No. 17.41.1, set forth aboveat pp. 329-330, are particularly acute. Given only partial guidance, and vested with significant discretion, jurors are even morefree to decide for themselves what might constitute “any . . . improper basis” for decision. (See People v. Engelman, supra, 28 Cal.Ath at p. 447 [language referring to 999 66.“any other improperbasis’” “permits members ofthe jury to providetheir own interpretation of what is improper”].) Permissible exercises of the constitutionally mandated discretion jurors are granted at the penalty phase (as well as the broad discretion afforded by California’s statute) may appear improper, particularly to jurors more familiar with the less-discretionary determinations of guilt or innocence. The moral and discretionary nature of the decision whether to condemn a person to death heightensthe risk of vehement, even harsh disagreements that may be improperly resolved by the threats inherent in CALJIC No. 17.41.1. The risk that a juror may deem anotherjuror’s “constitutionally relevant evidence or observation” (People 337 y. Brown, supra, 40 Cal.3d at p. 540) improper, and attempt to cut off discussion or threaten to report the matter to the judge — or the risk that jurors may censor themselves,fearful that their ideas will be deemed improperor reported to the court — areall the more threateningto a defendant’s constitutionalrights at the penalty phase. In People v. Brady, supra, 50 Cal.4th 547, this Court rejected, without discussion, a claim that the defendant’s constitutional rights were violated by delivery of 17.41.1 at the penalty phase.(/d. at p. 587.)'” Previously, in People v. Brown, supra, 33 Cal.4th at pp. 400-401, this Court rejected the defendant’s claim that the oblique incorporation ofCALJIC No. 17.41.1 at the penalty phase, by reference, interfered with the jurors’ performanceoftheir task at the penalty phase. Here, of course, the instruction was not merely incorporated by reference; it was delivered again. Tothe extentthis Court, in Brown, suggested that the standard instructions cured anyerrorin instructing a penalty phase jury with CALJIC No. 17.41.1, Gomez respectfully disagrees and asks this Court to reconsider. Gomezrespectfully asks this Court to reconsider its holding in Brady as well. The standardinstructionsdelivered at the penalty phase could not cure the defect in CALJIC No. 17.41.1, for the risk remained that 12 Brady cited People v. Wilson, supra, 44 Cal.4th at pp. 805-806, a case addressing delivery of 17.41.1 at the guilt phase. 338 deliberations might be affected by jurors’ use of the instruction to silence other jurors, or by self-censorship resulting from fear of being reported to the judge. CALJIC No. 17.41.1’s manyrisks are inconsistent with “the Eighth Amendment’s heightened ‘needfor reliability in the determination that death is the appropriate punishmentin a specific case.’ [Citation.]” (Caldwell v. Mississippi, supra, 472 U.S. at p. 323.) The risks that led this Court to decide that CALJIC No. 17.41.1 should not be given in a noncapital case are risks that cannot be countenancedatall in cases where life is at stake, where the needforreliability is paramount. The instruction “creates the risk that the death penalty will be imposedin spite of factors which maycall for a less severe penalty” (Lockett v. Ohio, supra, 438 U.S. at p. 605) — because the free exchange of ideas has been chilled, deliberations have been curtailed by the implicit or explicit threat of a report of alleged impropriety to the judge, or an argument forlife has been improperly dismissed. “When the choice is between life and death, that risk is unacceptable and incompatible with the commandsofthe Eighth and Fourteenth Amendments.” (/bid.) OF Reversal is Required. Thetrial court’s delivery of CALJIC No. 17.41.1 at the guilt and 339 penalty phases of Gomez’strial requires reversal of the judgment. The errors are structural, requiring reversal per se. As the Supreme Court has noted, the category of errors deemedstructural and requiring reversal without regard to harmlesserroranalysis includes errors with effects that are difficult to assess. (See United States v. Gonzalez-Lopez, supra, 548 US.at pp. 149-150 & fn. 4.) Errors “‘with consequencesthatare necessarily unquantifiable and indeterminate, unquestionably qualif[y] as ‘structural error.’ [Citation.]” (/d. at p. 150.) The effects of CALJIC No. 17.41.1 are unquantifiable because the instructionis, as this Court has recognized, likely to chill the free exchange of ideas in the jury room — a harm thatis by its nature hardto assessas it relates to things unsaid. There is simply no way ofknowing what arguments for life might have been left unstated in the fear that they were “improper.” And to the extent that CALJIC No. 17.41.1’s potential harm lies in things said among jurors during deliberations, evidentiary rules render the harm difficult to assess, to say the least.’ '03 In People v. Molina (2000) 82 Cal.App.4th 1329, the Court of Appealheld that the erroneous delivery of CALJIC No. 17.41 is subject to harmlesserror analysis. (/d. at pp. 1331-1335.) Gomez respectfully contendsthat, as set forth in the text above, the United States Supreme Court, since Molina, has madeclear that harmless error does not apply in circumstanceslike this. More, Gomez respectfully contends, Molina constitutes a mis-application of the Chapman standard, which requires the (continued...) 340 Even should this Court apply harmlesserror analysis, the prosecution cannot sustain its burden ofproving beyond a reasonable doubt that the errors in delivering CALJIC No. 17.41.1 at the guilt and penalty phases did not contribute to the verdicts obtained. The question is not whether “‘in a trial that occurred without the error, . . .[the] guilty verdict[s] [and death sentences] surely would have been rendered”(Sullivan v. Louisiana, supra, 508 U.S.at p. 279) — thoughin this case the prosecution could not even meetthat standard. Rather, the question is whether the verdicts “actually renderedin this trial [were] surely unattributable to the error.” (/bid., original italics.) The prosecution cannot prove that beyond a reasonable doubt. This instruction poses a myriad ofrisks, all acknowledged bythis Court, and all significant enough that this Court has concluded the instruction should not be given. Given the many acknowledgedrisksthis instruction poses — all of which are entirely reasonable, describing entirely '3(._.continued) state to prove the error harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.) The question is not whetherthereis any indication that the use of the instruction affected the verdict in any way (see People v. Molina, supra, 82 Cal.App.4th at pp. 1335-1336), but rather whetherthe state can prove beyond a reasonable doubtthatit did not affect the verdict in any way. In any event, Molina, a non-capital case, did not address the delivery of CALJIC No. 17.41.1 at the guilt and penalty phases of a capital case. 341 possible scenarios — the prosecution cannotsustain its burden of showing beyonda reasonable doubtthat the errors did not contribute to the verdicts. Assetforth at length elsewhere, the evidence supporting the convictions, particularly in the Luna and Patel cases, wasat best weak. (See Arguments I & Il, above.) The prosecution can offer no basis from which to conclude that this instruction did not contribute to the guilty verdicts. More,otherinstructions delivered by the trial court at the outset of trial exacerbated the harm of CALJIC No. 17.41.1. The court discouraged the jury from requesting readbacks, and intimatedthat jurors who, contrary to the trial court’s mandate, did not take notes would haveto rely on other jurors — though they “shouldn’t do that.” (8RT 1299; see 8RT 1297-1301, 1308; see Argument X, above.) The notetaking instruction, combined with CALJIC No. 17.41.1, gave jurors inclined to dominate deliberations and pressure other jurors two effective tools for doing that: the threat to report others who may not have the same understanding of the court’s instructions, or the application ofthe instructions to the facts, and the use ofjuror notes to overcome other jurors’ honest, albeit unrecorded, recollections ofthe testimony — notes whichcarried increased and unwarranted swayin the jury room becausethe trial court had commandedthat they be taken and becauseit had warned that the request of readbacksearly in deliberations 342 would “infuriate[]”it. (93RT 1297-1301, 1308.) Likewise, there is nothing in this record to support a conclusion that the erroneous delivery of CALJIC No. 17.41.1 at the penalty phase, where the broader discretion granted to the jury only heightenedtherisks that CALJIC No. 17.41.1 would distort deliberations, did not contribute to the death sentences. Reversal, of the death sentences at a minimum,is required. XIV. A SERIES OF GUILT PHASE INSTRUCTIONS IMPERMISSIBLY AND UNCONSTITUTIONALLY UNDERMINEDAND DILUTED THE REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBT “fTJhe Due Process Clause protects the accused against conviction except upon proofbeyond a reasonable doubt of every fact necessary to constitute the crime with whichhe is charged.” (In re Winship, supra, 397 U.S.at p. 364; see Cage v. Louisiana (1990) 498 U.S.39, 39-40, disapproved on another groundin Estelle v. McGuire, supra, 502 US.at p. 72, fn. 4; People v. Roder (1983) 33 Cal.3d 491, 497.) The reasonable doubt standard “provides concrete substance for the presumption of innocence — that bedrock ‘axiomatic and elementary’ principle whose ‘enforcementlies at the foundation ofthe administration of our criminal law’ [citation]” (/n re Winship, supra, 397 U.S.at p. 363) and at the heart of the right to trial by jury (Sullivan v. Louisiana, supra, 508 U.S. atp. 278 [“[T]he jury verdict required by the Sixth Amendmentis a jury verdict of guilty beyond a reasonable doubt.”}.)'™* Jury instructions violate these constitutional requirements if “there is a reasonable likelihood that the jury understoodthe instructions to allow 104 “The constitutional necessity of proof beyond a reasonable doubt is not confined to those defendants who are morally blameless.” (Jacksonv. Virginia, supra, 443 U.S.at p. 323.) 344 conviction based on proof insufficient to meet the Winship standard”of proof beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 6.) Thetrial court in this case gave a series of standard CALJIC instructions, each of which violated the aboveprinciples and enabled the Jury to convict Gomezon lesser standard thanis constitutionally required. Gomez acknowledgesthat this Court has previously rejected similar challengesto the instructions at issue here, but asks this Court to reconsider its prior rulings. (See subsection C., below.) A. The Instructions on Circumstantial Evidence Undermined the Requirement of Proof Beyond a Reasonable Doubt. The jury was given twoinstructions on the meaning of reasonable doubt which discussedthe relationship between proof beyond a reasonable doubt and circumstantial evidence, CALJIC No. 2.01 and CALJIC No. 8.83 (3CT 873, 888; see 29RT4114-4116, 4161-4162.) These instructions informed the jury, in essentially identical terms, that if one interpretation of the evidence “appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.” (3CT 873, see 3CT 888; see also 29RT 4116, 4162.) This twice-repeated directive was contrary to the due process requirementthat the defendant may be convicted only if guilt is proved beyond a reasonable doubt. Un re Winship, supra, 397 U.S. at p. 364; 345 Jacksonv. Virginia, supra, 443 U.S.at p. 309.) Theseinstructions misled the jury into believing that it could find Gomez guilty if he reasonably appeared guilty, even whenjurors still entertained a reasonable doubtofhis guilt. This is constitutionally defective for at least two reasons.First, telling jurors that their duty was to accept a guilty interpretation of the evidenceas long asit “appears to you to be reasonable”is inconsistent with proof beyond a reasonable doubt; it allows a finding of guilt based on a degree of proofbelow that required by the due process clause. (See Cage v. Louisiana, supra, 498 U.S. at pp. 39-40; Inre Winship, supra, 397 US.at p. 364.) In addition, the instructions required the jury to draw an incriminatory inference when such an inference appeared to be “reasonable.” (3CT 873; see 3CT 888; see also 29RT 4116, 4162.) The jurors weretold that they “must” accept such an interpretation. Thus, the instruction operated as an impermissible mandatory conclusive presumption of guilt upon a finding that a guilty interpretation of the evidence “appears to be reasonable.” (See Sandstrom v. Montana, supra, 442 U.S.at pp. 521- 524.) The CALJIC No.2.01 and CALJIC No.8.83 instructions also misled the jury by stating that if there are two reasonable interpretations, one 346 pointing to guilt and the other to innocence (or one pointing to the truth of a special circumstance andthe otherto its untruth), it must accept the one pointing to innocence (or the one pointing to the untruth of the special circumstance). (3CT 873, 888; 29RT 4116, 4162.) The prosecution’s burden of proof beyond a reasonable doubt meansthat a defendantis not required to put forward any theory of innocence in orderto be entitled to an acquittal, or to explain the incriminating evidence; a juror could therefore appropriately conclude from the prosecution’s evidence that only incriminatory inferences “appear” to be reasonable, and yet also conclude that a conviction is unwarranted because there were insufficient incriminating inferences to establish guilt beyond a reasonable doubt. This instruction, however, had the effect of reversing the burden of proof, since it required the jury to find Gomez guilty, and to find the special circumstancestrue, unless he came forward with evidence explaining the incriminatory evidence put forward by the prosecution. Given the prosecution’s reliance on circumstantial evidence to prove Gomez’s guilt and the special circumstances, the erroneous instructions were prejudicial with regard to guilt, special circumstances, and the death sentences. The jury was further confused and misled by CALJIC No. 2.01 because it characterized the jury’s choice as “guilt” or “innocence.” (3CT 347 873; 29RT 4115.) The use ofsuch terminology undercut the prosecution’s burden ofproof because the issue is not one of guilt or innocence, but rather whetherthere is a reasonable doubt as to the prosecution’s evidence. This error encouragedthe jurors to find Gomez guilty because it had not been 99105 proven that he was “innocent. B. OtherInstructions Also Vitiated the Reasonable Doubt Standard. Thetrial court gave several other standardinstructions that individually and collectively diluted the constitutionally mandated reasonable doubt standard: CALJIC No.2.21.2, regarding willfully false witnesses (3CT 875; 29RT 4120-4121); CALJIC No. 2.22, regarding weighing conflicting testimony (3CT 875; 29RT 4121-4122); CALJIC No. 2.27, regarding sufficiency of evidence of one witness (3CT 876; 29RT 4122-4123); CALJIC No.2.51, regarding motive (3CT 876; 29RT 4123); and CALJIC No.8.20, regarding premeditation and deliberation (3CT 883- !05 Ag one court hasstated: “We recognize the semantic difference and appreciate the defense argument. We might even speculate that the instruction will be cleaned up eventually by the CALJIC committee to cure this minor anomaly, for we agree that the language is inapt and potentially misleading in this respect standing alone.” (People v. Han (2000) 78 Cal.App.4th 797, 809; original italics; but see People v. [barra (2007) 156 Cal.App.4th 1174, 1187.) Han concluded that there was no harm because the other standard instructions made the law on the point clear enough. (People v. Han, supra, 78 Cal.App.4th at p. 809.) For reasonsset forth in the text, Gomez disagrees. 348 884; 29RT 4147-4149). Each of these instructions, in one wayor another, urged the jury to decide material issues by determining which side had presented relatively stronger evidence. In so doing, the instructions implicitly replaced the “reasonable doubt” standard with a standard more akin to the “preponderance of the evidence”test, thus vitiating the constitutional protections that forbid convicting a capital defendant upon any lesser standard of proof. (Sullivan v. Louisiana, supra, 508 U.S. at pp. 277-278; Cage v. Louisiana, supra, 498 US. at pp. 39-40; In re Winship, supra, 397 U.S. at p. 364.) For example, CALJIC No. 2.21.2 lessened the prosecution’s burden of proof. It authorized the jury to reject the testimony of a witness “willfully false in one material part of his or her testimony” unless “from all the evidence you believe the probability oftruth favors his or her testimony in other particulars.” (3CT 875; 29RT 4120-4121; emphasis added.) The instruction lightened the prosecution’s burden of proof by allowing the jury to credit prosecution witnesses by finding only a mere “probability of truth” in their testimony — or even requiring them to credit such witnesses, for the instruction told them they could reject the witnesses’ testimony unless they believed the probability of truth favored the witnesses’ testimony, in which case they presumably werenotentitled to reject the witnesses’ whole 349 testimony. (See People v. Rivers (1993) 20 Cal.App.4th 1040, 1046 [instruction telling the jury that a prosecution witness’s testimony could be accepted based on a “probability” standard is “somewhat suspect”’].)'°° This instruction wasparticularly insidiousin this case, where two witnesses openly lied on the stand, each resuming the standthe following day admitting to jurors that they had lied, and where other prosecution witnesses were beset with questions abouttheir credibility."°’ CALJIC No. 2.21.2 in effect told jurors that they couldnot entirely reject these witnesses’ testimony if they foundthat, though they had lied on the stand, “the probability of truth favor[ed] [their] testimony in otherparticulars.” (3CT 875; 29RT 4120-4121.) !°6 The court in Rivers nevertheless followed People v. Salas (1975) 51 Cal.App.3d 151, 155-157, wherein the court found noerror in an instruction which arguably encouraged the jury to decide disputed factual issues based on evidence “which appeals to your mind with more convincingforce”(originalitalics), because the jury was properly instructed on the general governing principle of reasonable doubt. 107 Witness #1 told jurors he took drugs for hallucinations, and then later testified that he feigned schizophrenia in order to collect government benefits. (23RT 3364-3373; 24RT 3466-3480.) He also admitted telling “more than a few”lies during the course of the investigation into the homicides at issue in this case. (22RT 3302.) Witness #2 told jurors he was not a gang member;the following day he admitted he was. (16RT 2583- 2586; 17RT 2654-2667, 2708; 18RT 2784-2786.) Witness #3 was the wife of a drug dealer who implicated Gomezin the Patel case after a pawn slip for Patel’s jewelry was found in her possession. (12RT 1928-1931; 13RT 1972-1973.) 350 The essential mandate of Winship and its progeny —- that each specific fact necessary to prove the prosecution’s case be proven beyond a reasonable doubt — is violated if any fact necessary to any element of an offense can be proven bytestimony that merely appeals to the jurors as more “reasonable”or “probably true.” (See Sullivan v. Louisiana, supra, 508 U.S.at p. 278; In re Winship, supra, 397 U.S.at p. 364.) Furthermore, the jurors were instructed with CALJIC No. 2.22 as follows: You are not bound to decide an issue offact in accordance with the testimony of a number of witnesses, which does not convince you, as against the testimony of a lesser numberor other evidence, which appeals to your mind with more convincing force. You may notdisregard the testimonyofthe greater number of witnesses merely from caprice, whim orprejudice, or from a desire to favor one side against the other. This meansthat you must not decide an issue by the simple process of counting the numberofwitnesses who have testified on the opposing sides. The final test is not in the relative numberofwitnesses, but in the convincing force of the evidence. (3CT 875; 29RT 4121-4122.) This instruction informedthe jurors, in plain English, that their ultimate concern must be to determine which party has presented evidence that is comparatively more convincing than that presented by the other party. It specifically directed the jury to determine each factualissue in the 351 case by deciding which group of witnesses, or which version, was more credible or more convincing than the other. In so doing, the instruction replaced the constitutionally mandated standard of “proof beyond a reasonable doubt” with something that is indistinguishable from the lesser “preponderance of the evidence” standard,i.e., “not in the relative number of witnesses, but in the convincing force of the evidence.” (3CT 875.) As with CALJIC No.2.21.2, discussed above, the Winship requirement of proof beyond a reasonable doubtis violatedby instructing that any fact necessary to any elementof an offense could be proven bytestimony that merely appealed to the jurors as having somewhat greater “convincing force.” (See Sullivan v. Louisiana, supra, 508 U.S. at pp. 277-278; In re Winship, supra, 397 U.S.at p. 364.) CALJIC No. 2.27, regarding the sufficiency of the testimony of a single witness to prove a fact (3CT 876; 29RT 4122-4123), likewise was flawedin its erroneous suggestion that the defense, as well as the prosecution, had the burden ofproving facts. The defenseis not required to establish or prove any “fact.” CALJIC No. 2.27,by telling the jurors that testimony by one witness “concerning any fact” which they believed is “sufficient for the proof ofthat fact” and that they “should carefully review all the evidence upon whichthe proofofthat fact depends” (3CT 876) — 352 without qualifying this language to apply only to prosecution witnesses — permitted reasonable jurors to conclude that (1) Gomez himself had the burden of convincing them that he was innocent of capital murder, and (2) that this burden wasa difficult one to meet. Indeed, this Court has “agree[d] that the instruction’s wording could be altered to have a more neutral effect as between prosecution and defense” and “encourage[d] further effort toward the development of an improvedinstruction.” (People v. Turner (1990) 50 Cal.3d 668, 697.) This Court’s observation does not address the unconstitutional effect of CALJIC No. 2.27, and this Court should find that it violated Gomez’s Sixth and Fourteenth Amendmentrights to due process and a fair jury trial. CALJIC No. 2.27 further violated due process by using the “which you believe” language (3CT 876), thereby allowing proof based on mere “belief” that a single witness wastelling the truth, rather than the constitutionally required proof beyond a reasonable doubt. For example, the instruction clearly implied to the jurors that if they simply “believe[d]’’ the testimony by Witness #1 that Gomez admitted killing the owner of a white car, even if they were not convincedofits truth beyond a reasonable doubt, they could find on that basis alone that Gomez admitted the killing. The instruction also erroneously suggested to the jurors that they need not 353 “carefully review” the testimony of prosecution witnesses when more than one witnesstestified to a particular fact, thereby likewise unconstitutionally lessening the prosecution’s burden ofproof. (3CT 876.) The delivery of CALJIC No. 2.51 also diminished the prosecution’s burden ofproof as to the murder charges bytelling the jury that “{mlotive is not an element of the crime charged and need not be shown.” (3CT 876; 29RT 4123.) This instruction conflicted with otherinstructions regarding criminal intent for finding felony murder (CALJIC No.8.21; see 3CT 884; 29RT 4149)'®by improperly suggesting to the jurors that they need notfind that Gomezintended to commit robbery in order to convict him offirst degree felony murder. (See People v. Hart (1999) 20 Cal.4th 546, 608; but see People v. Snead (1993) 20 Cal.App.4th 1088, 1098, disapproved on another ground in People v. Letner, supra, 50 Cal.4th at p. 181.) Even though a reasonable juror could have understood the contradictory instructions to require such specific intent, there is simply no way of knowing whether any, muchless all 12, of the jurors so concluded. (See, e.g., Francis v. Franklin (1985) 471 U.S. 307, 322.) Finally, the instruction defining premeditation and deliberation 108 The court instructed that “{t]he specific intent to commit Robbery or Kidnapping . . . must be proved beyond a reasonable doubt.” (3CT 884; 29RT 4149-4150.) 354 misled the jury regarding the prosecution’s burden of proofby instructing that deliberation and premeditation “must have been formed uponpre- existing reflection and not under a suddenheat ofpassion or other condition precluding theidea ofdeliberation . . . .’ (CALJIC No. 8.20; 3CT 883; 29RT 4147-4149; emphasis added.) The use of the word “precluding” could be interpreted to require the defendantto absolutely preclude the possibility of premeditation — as opposedto requiring the prosecution to prove premeditation beyond a reasonable doubt. (See People v. Williams (1969) 71 Cal.2d 614, 631-632.) “It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.” (In re Winship, supra, 397 U.S.at p. 364.) Each of the disputed instructions here individually served to contradict and impermissibly dilute the constitutionally mandated standard that requires the prosecution to prove each necessary fact of each element of each offense and special circumstances “beyond a reasonable doubt.” Taking the instructions together, no reasonable juror could have been expected to understand — in the face of so many instructions permitting conviction upon a lesser showing — that he or she must find Gomeznotguilty (and the special circumstancesnot true) unless every element of first degree murder 355 (and the special circumstances) was proven by the prosecution beyond a reasonable doubt. The instructions challenged herein violated the constitutional rights set forth in subsection A. of this argument, above. C. This Court Should Reconsider Its Prior Rulings Upholding the Defective Instructions. Althougheach oneofthe challenged instructions violated Gomez's federal constitutional rights by lessening the prosecution’s burden and by operating as a mandatory conclusive presumption of guilt, this Court has repeatedly rejected constitutional challenges to manyofthe instructions discussed here. (See e.g., People v. Wilson (2008) 43 Cal.4th 1, 23; People v. Riel (2000) 22 Cal.4th 1153, 1200 [addressing false testimony and circumstantial evidence instructions]; People v. Crittenden (1994) 9 Cal.4th 83, 144 [addressing circumstantial evidence instructions]; People v. Noguera (1992) 4 Cal.4th 599, 633-634 [addressing CALJIC Nos. 2.01, 2.02, 2.21, 2.27)]; People v. Jennings (1991) 53 Cal.3d 334, 386 © [addressing circumstantial evidence instructions]; People v. Farley (2009) 46 Cal.4th 1053, 1122.) While recognizing the shortcomings of someofthe instructions, this Court has consistently concluded that the instructions must be viewed as a whole,rather than singly; that the instructions plainly mean that the jury should reject unreasonableinterpretationsofthe evidence and should give the defendant the benefit of any reasonable doubt, and that 356 jurors are not misled whentheyalso are instructed with CALJIC No. 2.90 regarding the presumption of innocence. (See, e.g., People v. Wilson, supra, 43 Cal.4th at p. 23.) The Court’s analysis is flawed. First, what this Court has characterized as the “plain meaning”ofthe instructions is not whatthe instructions say. (See People v. Jennings, supra, 53 Cal.3d at p. 386 [plain meaning of instructions “merely informs the jury to reject unreasonable interpretations of the evidence and to give the defendantthe benefit of any reasonable doubt”]; see Subsections A. and B., above.) The question is whether there is a reasonable likelihood that the jury applied the challenged instructions in a way that violates the Constitution (Estelle v. McGuire, supra, 502 U.S. at p. 72), and there certainly is a reasonable likelihood that the jury applied the challenged instructions according to their express terms. Second, this Court’s essential rationale — that the flawed instructions were “saved” by the language of CALJIC No. 2.90 — requires reconsideration. (See People v. Crittenden, supra, 9 Cal.4th at p. 144; see also People v. Wilson, supra, 43 Cal.4th at p. 23.) An instruction that dilutes the standard of proof beyond a reasonable doubt on a specific point is not cured by a correct general instruction on proof beyond a reasonable doubt. (United States v. Hall (5th Cir. 1976) 525 F.2d 1254, 1256; see generally 357 Francis v. Franklin, supra, 471 U.S.at p. 322 [“Languagethat merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolvethe infirmity.”]; People v. Kainzrants, supra, 45 Cal.App.4th at p. 1075[ifan instruction states an incorrect rule of law, the error cannot be cured by giving a correct instruction elsewhere in the charge]; People v. Stewart, supra, 145 Cal.App.3datp. 975 [specific jury instructions prevail over general ones].) “‘It is particularly difficult to overcomethe prejudicial effect of a misstatement when the bad instruction is specific and the supposedly curative instruction is general.’” (Buzgheia v. Leasco Sierra Grove (1997) 60 Cal.App.4th 374, 395, quoting 7 Witkin, Cal. Procedure (3d ed. 1985) Trial, § 319, p. 364; originalitalics.) Furthermore, nothing in the challenged instructions givenin this case explicitly informed the jury that those instructions were qualified by the reasonable doubtinstruction.’It is just as likely that the jurors concluded that the reasonable doubt instruction was qualified or explained by the other instructions which contain their own independentreferencesto reasonable doubt. Even assumingthat the languageofa lawful instruction somehow 19 A reasonable doubt instruction also was given in People v. Roder, supra, 33 Cal.3d 491, but it was not held not to cure the harm created by the impermissible mandatory presumption.(See id. at pp. 496, 504-505.) 358 can cancel out the language of an erroneous one — rather than vice-versa — the principle does not apply in this case. The allegedly curative instruction was overwhelmedby the unconstitutional ones. Gomez’s jury heard several separate instructions, each of which contained plain language that was antithetical to the reasonable doubt standard. Yet the charge as a whole contained only one countervailing expression of the reasonable doubt standard: the oft-criticized and confusing language of CALJIC No.2.90. (3CT 878; 29RT 4129-4130.) This Court has admonished “‘that the correctness ofjury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particularinstruction.’ [Citation.]” (People v. Wilson (1992) 3 Cal.4th 926, 943.) Under this principle, it cannot seriously be maintained that CALJIC No.2.90is sufficient, by itself, to serve as a counterweight to the mass of contrary pronouncements given in this case. The effect of the “entire charge” wasto misstate and undermine the reasonable doubtstandard, eliminating any possibility that a cure could be realized by a single instruction inconsistent with therest. D. Reversal Is Required. Becausethe erroneousinstructions permitted conviction on a standard ofproofless than proof beyond a reasonable doubt, their delivery 359 was a structural error which is reversible per se. (Sullivan v. Louisiana, supra, 508 U.S.at pp. 280-282.) If the erroneous instructions are viewed only as burden-shifting instructions, the error is reversible unless the prosecution can show that the giving of the instructions was harmless beyond a reasonable doubt. (Carella v. California (1989) 491 U.S. 263, 266-267; Chapmanv. California, supra, 386 U.S.at p. 24.) Here, that showing cannot be made. Onthe contrary, the evidence of Gomez’s guilt — particularly of the crimes against Rajandra Patel and Raul Luna — was,to say the least, weak. (See ArgumentsI andII, above.) It was also entirely circumstantial, maximizing the harm of the erroneous circumstantial evidenceinstructions. As set forth in Argument VI.E., above, the prosecution cannot show the error harmless with respect to the O’Farrell Street killings, either, as a mistrial or an inability to agree as to whetherthe killings were first or second degree murder, was notout of the realm of possibility. (See Arguments II, V.D., VILE.) Giventhe singularly weak evidence in the Patel and Lunacases, and the questions about premeditation raised by the prosecution’s own evidence in the O’Farrell Street cases, this dilution of reasonable doubt by the guilt phaseinstructions must be deemedreversible error no matter what standard of prejudice is applied. (See Sullivan v. Louisiana, supra, 508 U.S. at pp. 360 278-282; Cage v. Louisiana, supra, 498 U.S. at p. 41; People v. Roder, supra, 33 Cal.3d at p. 505.) The guilt phase convictions, the special- circumstance findings, and the death sentences must be reversed. XV. THE TRIAL COURT’S INSTRUCTION ON KIDNAPING ERRONEOUSLY AND UNCONSTITUTIONALLY TOLD JURORS TO CONSIDER THE TOTALITY OF THE CIRCUMSTANCESIN DETERMINING WHETHER THE MOVEMENTOF THE VICTIM WASSUBSTANTIAL, REQUIRING REVERSAL The jury found Gomez guilty of one count of simple kidnaping, found him guilty of murder after having been instructed on a kidnaping theory of felony murder, and found the kidnaping special circumstance allegation to be true. (3CT 837, 839; 29RT 4344-4345, 4347; counts 3 and 5.) Thetrial court instructed the jurors with CALJIC No. 9.50 as follows: Defendant GOMEZis accused in Count 5 of having committed the crime of Kidnapping, a violation of section 207, subdivision (a) of the Penal Code. Every person who unlawfully and with physical force or by any other meansofinstilling fear, steals or takes, or holds, detains, or arrests another person andcarriesthat person without his consent for a distance that is substantial in character, is guilty of the crime of Kidnapping in violation of Penal Code section 207, subdivision (a). A movementthat is only for a slight or trivial distance is not substantial in character. In determining whether a distance that is more than slightor trivial is substantialin character, you should considerthe totality ofthe circumstances attending the movement, including, but not limited to, the actual distance moved, or whether the movementincreasedthe risk ofharm above that which existed 362 prior to the movement, or decreased the likelihood of detection, or increased both the danger inherent in a victim’s foreseeable attempt to escape and the attacker’s enhanced opportunity to commit additional crimes. If an associated crime is involved, the movement also must be more than that whichis incidental to the commission of the other crime. In order to provethis crime, each of the following elements must be proved: 1. A person was unlawfully moved by the use of physical force, or by any other meansofinstilling fear. 2. The movementofthe other person was withouthis consent. 3. The movementofthe other person in distance was substantial in character. (3CT 886-887; 29RT 4155-4157 [emphasis added].) This instruction was error. Gomez was charged with having committed a kidnaping in 1997. For offenses before 1999, the law with respect to asportation is governed by People v. Caudillo (1978) 21 Cal.3d 562, 572-575. Under Caudillo, “the determining factor in the crime of kidnapingis the actual distance of the victim’s movements . . . . [Citation.]” (Id. at p. 572; see also People v. Morgan (2007) 42 Cal.4th 593, 609.)'"° The “totality of the circumstances,” including enhanced dangerto the victim and the defendant’s motivation to escape detection, were not factors to be considered. (People v. Morgan, supra, 42 Cal.4th at pp. 609-611; see also "° While Caudillo was overruled in 1999 by People v. Martinez (1999) 20 Cal.4th 225, 235-238 & fn. 6, Martinez explicitly held that it did not apply retroactively. (/d. at pp. 238-241; see also People v. Morgan, supra, 42 Cal.4th at p. 610.) 363 People v. Castaneda (2011) 51 Cal.4th 1292, 1319-1320.) The court thus erred whenit instructed jurors to considerthe totality of the circumstances and the specific circumstances it enumerated.'"' This error was of constitutional dimension for two reasons.First, jury instructions violate due process where they fail to require the state to prove every element ofthe offense beyond a reasonable doubt. (Peoplev. Flood (1998) 18 Cal.4th 470, 479-480; Neder v. United States (1999) 527 U.S. 1, 8; Middleton v. McNeil (2004) 541 U.S. 433, 437; U.S. Const, 14th Amend.) The court here misinstructed jurors on an essential elementofthe crime — movementofa substantial distance — andrelieved the prosecution of its burden of proving beyond a reasonable doubtthat the actual distance moved was substantial. This misinstruction thus violated Gomez’s right to due process. More,the instruction violated Gomez’s right to due process because it constituted an improperapplication retroactive application of People v. Martinez, supra, 20 Cal.4th at pp. 236-241 & fn. 6. An ex postfacto law has beendefined by the Supreme Court as one “‘that makes an action done before the passing of the law, and which was innocent when done, criminal; "I Erroneous jury instructions are reviewable on appeal evenin the absence of an objection. (Pen. Code § 1259.) Thus, the defense failure to object is immaterial. The defense concessionthat a kidnaping occurred (27RT 3903) is immaterial as well. 364 and punishes suchaction,” or ‘that aggravates a crime, or makesit greater than it was, when committed.’ Calder v. Bull [1798] 3 Dall. 386, 390, 1 L.Ed. 648. [Footnote omitted.] If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the sameresult by judicial construction.” (Bouie v. City ofColumbia (1964) 378 U.S. 347, 353-354; see Rogers v. Tennessee (2001) 532 U.S. 451, 458-459 [explaining that Bouie was firmly rooted in well-established due process principles]; U.S. Const., 14th Amend.) “If a judicial construction of a criminal statute is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conductin issue,’ it must not be given retroactive effect.’” (Bouie v. City of Columbia, supra, 378 U.S. at p. 354.) Indeed, this Court recognized as much in People v. Martinez. (People v. Martinez, supra, 20 Cal.4th at pp. 238-241, citing Bouie v. City ofColumbia, supra, 378 U.S. at pp. 353- 355.) Thetrial court’s retroactive application ofMartinez violated Gomez’s due processrights. This constitutional error requires reversal unless the prosecution can prove it harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S.at p. 24; see Sullivan v. Lousiana, supra, 508 U.S.at p. 365 279; Neder v. United States, supra, 527 U.S. at p. 17; United States v. Gaudin (1995) 515 U.S. 506, 510; U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, §§ 7, 15 & 16.)'The “actual distance moved” should have been the only factor the jury considered in determining whether Patel had been moved a substantial distance. (People v. Caudillo, supra, 21 Cal.3dat p. 572.) Theinstruction, on the other hand, allowedjurors to considera host of other factors. In this case, the evidence of asportation of any distance was shaky,at best. Patel’s body was found on a freeway on-ramp, and trail of blood provided evidencethat he was killed there, but there was no evidenceas to how hearrived there, or whether he wastransported there from anywhere else while alive. (See ArgumentII.) The prosecutor’s theory was that the evidence of Patel’s blood in the trunk, and Witness #3’s testimony that Gomeztold her Patel’s jewelry belonged to a “Mexican man | havein the trunk ofthe carI just killed” (12RT 1918-1919), supported a conclusion that Patel was kidnaped, and moved from Witness #3’s house to the freeway "2 In People v. Castaneda, the Attorney General concedederror in a similar case, and concededthat prejudice had been established underthe Watson standard. (People v. Castaneda, supra, 51 Cal.4th at pp. 13 19-1320; see People v. Watson, supra, 46 Cal.4th at p. 836.) The Court accepted the concession. (People v. Castaneda, supra, 51 Cal.4th at p. 1320.) It was thus unnecessary for the Court to determine whether the Chapmanstandard properly applied to thiserror. 366 on-ramp where he waskilled. (See 27RT 3831-3834 [prosecutor’s summation].) But jurors may well have harbored doubts about whether Patel was transported, while alive, from Witness #3’s house, given the dubious relevance of her report that Gomez had talked about a deceased Mexican man. (12RT 1918-1919.) The evidence of Patel’s blood in the trunk ofhis car (12RT 1886-189, 1904-1911) may showthat Patel was at one time in that trunk, but there was no evidence suggesting that the car was moved while Patel was in the trunk. One or more jurors may well have had doubts about whether the actual distance Patel was moved was“substantial,” rather than “slight or trivial” — concluding, for example, that evidence showed,at most, that the perpetrators moved, or attempted to move Patel a short distance at the on-ramp — but concluded, under the “totality of the circumstances,” that the movement wassubstantial because of, for example, the increased risk of harm to Patel. The prosecution cannot provethis error harmless beyond a reasonable doubt; more,it is reasonably probable that in the absenceofthis error, the result would have been more favorable to Gomez. (People v. Watson, supra, 46 Cal.4th at p. 836.) Reversal of Gomez’s conviction for kidnaping and the kidnaping special circumstance is required. 367 Gomez’s death sentences mustbe reversed as well. The evidence of guilt in the Patel and Lunacases wasfar from overwhelming. (See Arguments I andII.) The improper injection of a kidnaping and a kidnaping special circumstanceinto the jurors’ penalty phase decisionmaking threatened to tip the scales towards death. The prosecution cannot prove the error harmless beyond a reasonable doubt, the standard applicable to any penalty phaseerror. (People v. Lewis, supra, 43 Cal.4th at p. 527; Chapman v. California, supra, 386 U.S.at p. 24.) 368 XVI. THE DEFINITION OF SIMPLE KIDNAPING ANNOUNCED BY THIS COURT AT THE TIME OF THE KIDNAPING CHARGEDIN THIS CASE WAS UNCONSTITUTIONALLY VAGUE The possibility that Gomez had kidnaped Patelin violation of subdivision (a) of Penal Code section 207 influenced the jury’s decisions at both stagesofthe trial. At the guilt phase, the jury found Gomezguilty of one count of simple kidnaping, found him guilty of murder after having been instructed on a kidnaping theory of felony murder, and found the kidnaping special circumstanceallegation to be true. (3CT 837, 839; 29RT 4344-4345, 4347; counts 3 and 5.) At the penalty phase, the jury was instructed that the kidnaping special circumstance was one ofthe factorsit must consider in deciding whether Gomez should live or die. (13CT 3443.) Subdivision (a) of Penal Code section 207 provides that, “Every person whoforcibly, or by any other meansofinstilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.”!'? Because there was no evidencethat Patel was transported acrossstate or county lines, the statutory language applicableto this case is the portion of section 207 that prohibits the '? The statute was the same in 1997, when the kidnapingin this case allegedly occurred. (See People v. Morgan, supra, 42 Cal.4th at p. 605.) 369 forcible movement ofa non-consenting victim “into anotherpart ofthe same county.” Thus, the forcible movement(or “asportation”) of the victim “into another part of the same county” was an essential element of the crime of kidnaping charged herein (see People v. Rayford (1994) 9 Cal.4th 1, 14; People v. Camden (1974) 16 Cal.3d 808, 814) to which the constitutional requirementof specificity discussed hereafter applies. As set forth below, that term, as construed by this Court at the time of the charged crime, was unconstitutionally vague. Gomez recognizesthat this Court has rejected this claim in People v. Morgan, supra, 42 Cal.4th at pp. 604-607. He nonetheless asks this Court to revisit the issue. A. The Constitution Requires Reasonable Specificity in Defining Criminal Conduct. To satisfy the due process requirements of the state and federal Constitutions (U.S. Const., 14th Amend.; Cal. Const., art. 1, §§ 7 & 15), penal statutes must provide reasonably precise definitions of the criminal conductthey prohibit. (Coates v. City ofCincinnati (1971) 402 U.S. 611, 611-615; Williams v. Garcetti (1993) 5 Cal.4th 561, 567.) “[A] statute which either forbids or requires the doing of an act in terms so vague that men of commonintelligence must necessarily guess at its meaning and 370 differ as to its application violates the first essential of due process of law. [Citation.]” (Connally v. General Construction Co. (1926) 269 U.S. 385, 391.) “Under both [state and federal] Constitutions, due process of law in this context requires two elements: a criminal statute must ‘be definite enough to provide (1) a standard of conduct for those whoseactivities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt.’” (Williams v. Garcetti, supra, 5 Cal.4th at p. 567, citing Kolender v. Lawson (1983) 461 U.S. 352, 357; other citations and additional internal quotation marks omitted.) In death penalty cases, additional specificity requirements are imposedby the state and federal Constitutions. (U.S. Const., 8th & 14th Amends.; Cal. Const., art. I, § 17; see Maynard v. Cartwright, supra, 486 US.at pp. 361-363 [the Eighth Amendment imposesstricter requirements than the due process clause of the Fourteenth Amendment]: see also People v. Superior Court (Engert) (1982) 31 Cal.3d 797, 806 [finding a special circumstance unconstitutionally vague under the due process clauses ofthe state and federal Constitutions].) Special circumstances, which determine whetheror not a defendant is eligible for the death penalty, must provide both “clear and objective 37] standards”and “specific and detailed guidance”for the jury. (Godfrey v. Georgia, supra, 446 U.S.at p. 428; People v. Bacigalupo (1993) 6 Cal.4th 457, 468.) Sentencing factors, which are used to determine whether a death- eligible defendant will actually be sentenced to death, must have a common-sense core meaning that juries can understand. (Tuilaepav. California (1994) 512 U.S. 967, 975.) B. The Statutory Definition of Kidnaping is Vague. In determining whethera statute is sufficiently certain to comply with due process and Eighth Amendmentstandards, the courts “‘lookfirst to the languageofthe statute, then to its legislative history, and finally to California decisions construing the statutory language.’ [Citation.]” (People v. Estrada (1995) 11 Cal.4th 568, 581.) Therefore, it is necessary to consider both “the relevant and decidedly nonlinear history of the simple kidnapping [and] kidnapping for robbery . . . statutes” (People v. Rayford, supra, 9 Cal.4th at p. 14) and the judicial decisions that resulted in the courts “not havingan articulable standard for the meaning of” the crucial statutory language atthe time of the crimeat issue here (id. at p. 19, fn. 10). 1. This Court’s Interpretation of the Asportation Elementin Penal Code Section 207. The languageat issue here — “into another part of the same county” — was added to subdivision (a) of Penal Code section 207 in 1905 in response 372 to this Court’s decision in Ex parte Keil (1890) 85 Cal. 309, which held that a forcible movement of 20 miles from San Pedro to Santa Catalina Island, both in Los Angeles County, was not kidnaping within the meaning ofthe statute as it existed at that time. (People v. Rayford, supra, 9 Cal.4th at p. 8, fn. 3.) Thus,it is reasonable to assumethat the Legislature intended miles- long movementslike those involved in Keil to constitute simple kidnaping. Beyondthat, however,the statute’s language and history give no indication of whether movementfor inches, feet, or miles is required. Half a century later, in Cotton v. Superior Court (1961) 56 Cal.2d 459, the Court concluded that the Legislature had not intended to allow every assault to be prosecuted as a kidnaping so long as movement over someslight distance wasinvolved. (/d. at p. 465.) It ruled that a movement of 15 feet incidental to an assault would not constitute a violation ofPenal Codesection 207. (/d. at pp. 464-465.) In People v. Stanworth (1974) 11 Cal.3d 588, the Court articulated a new test to use in determining what wasa sufficient asportation under section 207, and that test was the one that applied at the time of the kidnaping charged herein. According to Stanworth, the statutory requirement of movementinto another part of the same county “implies that the determining factor in the crime of [simple] kidnapingis the actual 373 distance of the victim’s movements.” (People v. Stanworth, supra, at p. 601.) Relying on prior cases which hadheldthat the distance ofthe asportation must be more than “slight” or “trivial,” the Court in Stanworth also held that the distance “must be substantial in character to constitute kidnaping under section 207.” (/bid.) Although Stanworth’s reference to “the actual distance ofthe victim’s movements”(ibid.) strongly implied a quantitative test for sufficient asportation under Penal Code section 207,this Court refused to fix a specific numerical limit on the distance an unwilling victim could be moved without violating the statute. Noting that “the Legislature did not provide a definition of kidnaping that involves movements of an exact distance”(People v. Stanworth, supra, \1 Cal.3d at p. 600), the Court stated that “to define the phrase, “another part ofthe same county,” in terms of a specific numberofinches or feet or miles would be open to a charge of arbitrariness’”(id. at p. 601, quoting People v. Daniels (1969) 71 Cal.2d 1119, 1128-1129). People v. Caudillo, supra, 2\ Cal.3d at p. 572, affirmed Stanworth’s “substantial distance”test and “madethe asportation standard exclusively dependenton the distance involved.” (People v. Martinez, supra, 20 Cal.4th at p. 233.) It specifically rejected the Attorney General’s claim that 374 considerations other than actual distance should be considered in determining whether the movementwassubstantial. “Neither the incidental nature of the movement, the defendant’s motivation to escape detection, nor the possible enhancement of danger to the victim resulting from the movementis a factor to be considered in the determination of substantiality of movementfor the offense of [simple] kidnaping.” (People v. Caudillo, supra, 21 Cal.3d at p. 574.) However, Caudillo did not specify what actual distance would be sufficient. Thus,“[a]lthough purportedly no particular distance was controlling, distance nevertheless becamethesole criterion for assessing asportation, with only ‘morethan slight [citation] or “trivial” [citation]’ as guidance in assessing when movementwas‘substantial in character.’ (People v. Stanworth, supra, 11 Cal.3d at p. 601.)” (People v. Martinez, supra, 20 Cal.4th at p. 234.) Martinez changedthe rule once more. It overruled Caudillo and held that whether the asportation was substantial in character should be determined by considering “the totality of the circumstances,” including the scope and nature of the movement, the changed environment, any increased risk of harm to the victim, and whether the movement was merely incidental to an associated crime. (People v. Martinez, supra, 20 Cal.4th at pp. 235- 375 240, fn. 6.)'" 2. The Lack of an Articulable Standard for What Constituted a “Substantial Distance” Under Penal Code Section 207. As previously noted, under the construction ofPenal Code section 207 that applied at the time the kidnaping chargedin this case, the actual distance ofthe victim’s movements wasthe sole criterion for assessing the sufficiency ofthe asportation, and the requirementthat the movement be more thanslight or trivial was the only guidance provided by the case law as to whether the movement wassubstantial in character. (People v. Martinez, supra, 20 Cal.4th at p. 234.) However,“substantial”is an inherently subjective term, and what seemssubstantial to one person may seem moderateor insignificant to another. (Cf. Connally v. General Construction Co., supra, 269 U.S.at pp. '\4 The new test established by Martinez does not applyto this case. (People v. Martinez, supra, 20 Cal.4th at pp. 238-241; see Argument XV, above.) Martinezillustrates, however, the differing constructions to which the crucial phrase “substantial distance” is susceptible. (See Connally v. General Construction Co., supra, 269 U.S. at p. 393 [“The citizen cannot be held to answer charges based upon penal statutes whose mandatesare so uncertain that they will reasonably admit of different constructions”].) Asset forth in Argument XV,thetrial court erroneously charged the jury using the “totality of the circumstances” language. That error independently requires reversalofthe kidnap conviction and the kidnap special circumstance. 376 394-395 [noting that the terms “Jocality” and “neighborhood”were “elastic and, dependent upon circumstances, may be equally satisfied by areas measured by rodsor by miles”].)'"° Trial jurors and the intermediate appellate courts have recognized this fundamental uncertainty, and this Court has essentially agreed. The jurors in People v. Daniels (1993) 18 Cal.App.4th 1046, for example, sent the trial court a written request which stated: “[N]eed clarification on whatis substantial distance, that is, a distance more than slight or trivial.” (/d. at p. 1051.) Thetrial court respondedbyinstructing the jury to use the common,ordinary meaning of the term, prompting the jury to request a dictionary. (/bid.) The next day, the jurors sentthe trial court another request which read: “It appears we have a hang-up with some peopleofthe jury whointerpret kidnapping as taking a person a [ | few miles in order for him (the defendant) to be charged with kidnapping. Weneed a clarification on what constitutes kidnapping. Does the distance the victim is taken (miles) and the nature ofthe route have any bearing on a person being kidnapped? It seems "5Ithough the word “substantial’ has been found sufficiently certain in somecontexts (e.g., People v. Serrano (1992) 11 Cal.App.4th 1672, 1676 (“substantial likelihood of death”), it has been found unacceptably ambiguous in others (e.g., People v. Belous (1969) 71 Cal.2d 954, 970 [“‘substantially or reasonably’ necessary to preservethelife of the mother”]; State v. Liuzza (La. 1984) 457 So.2d 664, 665-666 [“substantial part of support and maintenance”); Arnold v. State (Ga. 1976) 224 S.E.2d 386, 391-392 [“substantial history of serious assaultive criminal convictions”). 377 weare hungup onthe interpretation of the word kidnapping.” (Id. at pp. 1051-1052.) The jurors were not able to reach a verdict until the trial court erroneously instructed them that a distance of 500 feet was substantial as a matter of law. (/bid.) The intermediate appellate courts also struggled with the concept of “substantial distance.” In People v. Martinez, this Court quoted with approval two decisions in which the courts of appeal had expressly stated that the “substantial distance” test applicable to this case did not provide a meaningful standard for the determination of guilt: As more than one Court of Appeal has observed, decisions of this court provide scant assistance in determining simple kidnapping asportation: ‘The increasing complexity of the law marches on. What [People v. Stanworth, supra, 11 Cal.3d 588] and [People v. Brown (1974) 11 Cal.3d 784] seem to teachis this: the test of simple kidnaping is not (1) whether the movementis incidental to an underlying crime [citation]; (2) whether there is an increase in the risk of harm abovethat present in an underlying crime [citation]; (3) a mathematical formula [citation]; or (4) the crossing of arbitrary boundaries. [Citation.] Thus we areleft to ponder whatthe movementis in simple kidnaping. Wearetold it “is the actual distance of the victim’s movements”and they must be substantial in character [citations] but, of course, it is not a question of mathematical measurementor crossing of arbitrary boundaries. Thus, we are led in circles.’ (Peoplev. Stender (1975) 47 Cal.App.3d 413, 422 [121 Cal.Rptr. 334].) ‘Jury confusion is understandable. Without a frame of reference, “substantial” haslittle or no meaning. To only say, as [the standard jury instruction] does, that it is “more than slightor trivial” scarcely helps.’ (People v. Daniels (1993) 18 Cal.App.4th 1046, 1053, fn. 5 [22 Cal.Rptr.2d 877].)” 378 (People v. Martinez, supra, 20 Cal.4th at pp. 234-235, originalitalics; see also People v. Rayford, supra, 9 Cal.4th at p. 14 [also quoting Daniels]; id. at p. 17, fn. 9 [also quoting Stender.) Another Court of Appeal decision, not cited in Martinez and Rayford,is in accord. In People v. Daniels (1988) 202 Cal.App.3d 671, 673-683, the court focused onthe lack ofclarity in the standard for asportation under Penal Codesection 209, but also noted that “the same confusion occurs when movementofthe victim is followed by offenses other than robbery,” raising the question whether the movement was sufficient to constitute a kidnaping under subdivision (a) of Penal Code section 207. (Id. at p. 679, fn. 8.) “This area of the law,”the court declared, “also requires clarification.” ([bid.)''® Perhaps most significant, this Court itself has recognized the lack of clarity in the definition of simple kidnapingthat prevailed at the time of the kidnaping chargedin this case. It has twice characterized the “substantial distance”test for asportation under Penal Code section 207 as “less clear” "6 The court in People v. Phillips (1959) 173 Cal.App.2d 349,352, concludedthat use ofa “considerable distance” standard would “import into [Penal Code section 207] a hazardous elementof uncertainty.” Phillips was decided before the “substantial distance” standard was adopted in Stanworth, but its criticism of the similar “considerable distance” standard would apply with equal force to the Stanworth rule that applied in the instant case. 379 than the test for asportation under section 209 (People v. Martinez, supra, 20 Cal.4th at p. 233; People v. Rayford, supra, 9 Cal.4th atp. 14), even though the section 209test has itself been criticized as confusing (People v. Daniels, supra, 202 Cal.App.3d at pp. 673-683). In addition, this Court has admitted that the “substantial distance” test applicable to this case provided “little guidance” (People v. Rayford, supra, 9 Cal.4th at p. 14) and “scant assistance” (People v. Martinez, supra, 20 Cal.4th at p. 234) to those charged with determining whether an asportation wassufficient to constitute a violation of Penal Code section 207. Indeed, in People v. Rayford, supra, 9 Cal.4th 1, this Court went further and admitted that its prior decisions had left the lower courts with no articulable standard for determining the length of asportation necessary to constitute kidnaping. (/d. at p. 19, fn. 10.) In the course of discussing People v. Bradley (1993) 15 Cal.App.4th 1144, the Rayford court commented: It is apparent that Bradley reviewed the sufficiency ofthe evidence of asportation for simple kidnapping on bases arguably inconsistent with People v. Caudillo, supra, 21 Cal.3d 562. Perhaps in response to thefrustration ofnot having an articulable standardfor the meaning of ‘substantial distance,’ we note that other Court of Appeal opinions have also reviewed the sufficiency of the evidence for simple kidnapping on similarly inconsistent bases. (People v. Rayford, supra, 9 Cal.4th at p. 19, fn. 10, italics added.) This 380 absence of “an articulable standard for the meaning of‘substantial distance’” madethe definition of simple kidnaping in effect at the time of the crime charged herein unconstitutionally vague. Moreover, the inconsistent application of the “substantial distance” test noted by Rayford is further evidence of constitutional infirmity.''” (Connally v. General Construction Co., supra, 269 U.S.at p. 393.) “A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” (Graynedv. City ofRockford, supra, 408 U.S.at pp. 108-109, fn. omitted.) A test that cannot be uniformly applied, even by appellate courts, will inevitably result in arbitrary and discriminatory application by trial judges andlay juries. Apparently attempting to forestall a vagueness challenge to its new “substantial distance” standard, the Stanworth court quoted from People v. "'7Rayford cited People v. Bradley, supra, 15 Cal.App.4th 1144, People v. Daly (1992) 8 Cal.App.4th 47, and People v. Williams (1990) 220 Cal.App.3d 1165, as examples of decisions that had used reasoning arguably inconsistent with the holding of Caudillo. Dramatic evidence of inconsistency in result can be found by comparing the decision in People v. Stender (1975) 47 Cal.App.3d 413, 423, which held that an asportation of 200 feet was sufficient under the circumstances to establish simple kidnapingin violation of section 207, with the decision in People v. John (1983) 149 Cal.App.3d 798, 807-810, which held that an asportation of 465 feet was notsufficient. The reasoning of Stender wascriticized in Caudillo for relying on factors other than actual distance. (People v. Caudillo, supra, 21 Cal.3d at p. 574.) 38] Daniels, supra, 71 Cal.2d at pp. 1128-1129, and declared: “(Nonetheless| (t]he law is replete with instances in which a person must,at his peril, govern his conduct by such nonmathematical standards as “reasonable,” “prudent,” “necessary andproper,” “substantial,” and the like.’ (Daniels, 71 Cal.2d at pp. 1128-1129.)” (People v. Stanworth, supra, 11 Cal.3d atp. 601.) However, the Stanworth court ignored an important qualification to the language it quoted from Daniels. After noting a variety ofsituationsin which “nonmathematical” standards like “reasonable” and “prudent” were employed, the Danie/s court stated, “Yet standardsofthis kind are not impermissively vague, providedtheir meaning can be objectively ascertained by reference to common experiences ofmankind.” (People v. Daniels, supra, 71 Cal.2d at p. 1129 [emphasis added].) The problem hereis that there is nothing in community standards or the “common experiences of mankind”that specifies how far a person must be movedbefore the length of the asportation can be characterized as “substantial.” The standard established by Stanworth and Caudillo was not a normative test, dependent on how the circumstances of the case were evaluated with reference to personal or community values or the shared experiences ofthe jurors. Instead, it was a purely numericaltest, entirely dependent on the actual distance of the victim’s movements, but with no 382 “bright line” numerical limit to distinguish asportations that were substantial from those that were not. (See People v. Stanworth, supra, 11 Cal.3d at pp. 600-601.) Opinionsas to how long the actual distance of an asportation must be before it can be characterized as substantial can vary widely. The jury in People v. Daniels, supra, 18 Cal.App.4th 1046, included some jurors who believed that a movement for a few miles was necessary to constitute kidnaping (id. at pp. 1051-1052), whereasthe jury in People v. Daly, supra, 8 Cal.App.4th 47, convicted the defendant of kidnaping for an asportation that measured approximately 40 feet(id. at pp. 50-51). Therefore, the term “substantial distance,” as it was construed by this Court in 1994, suffers from the same constitutional infirmity as the term “annoy”at issue in Coates v. City ofCincinnati, supra, 402 U.S.at p. 612. The statute was “vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.” (Coates v. City ofCincinnati, supra, 402 U.S.at p. 614, citation omitted.) C. Reversalof the Kidnaping Conviction, the Kidnaping Special Circumstance, and the Death Sentences is Required. A conviction and special circumstance based on an unconstitutional statute cannot stand. Therefore, because Penal Code section 207, as 383 construed by this Court at the time ofthe alleged kidnapingin this case, was unconstitutionally vague (U.S. Const., 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15,& 17), both Gomez’s conviction for simple kidnaping and the kidnaping special circumstance must be reversed. Gomez’s death sentences must be reversed as well. The evidence of guilt in the Patel and Luna cases wasfar from overwhelming. (See ArgumentsI andII.) The improper injection of a kidnaping and a kidnaping special circumstanceinto the jurors’ penalty phase decisionmaking, particularly in the Patel case, threatenedto tip the scales towards death. The prosecution cannotprove the error harmless beyond a reasonable doubt, the standard applicable to any penalty phase error. (People v. Lewis, supra, 43 Cal.4th at p. 527.) 384 XVII. THE PROSECUTOR VIOLATED GRIFFIN V. CALIFORNIA WHEN, IN AN EFFORT TO FILL A CRUCIAL EVIDENTIARY GAP IN HIS CASE, HE ARGUED THAT THERE WAS NO EVIDENCE THAT MR. GOMEZ READ CERTAIN NEWSPAPER ARTICLES; REVERSAL IS REQUIRED The prosecution offered only one item of evidence to attempt to meet its requirement of corroborating the accomplice testimony of Witness #1, implicating Gomez in the killing of Jesus Escareno. (See 25RT 3644-3645; Pen. Code § 1111.) That evidence consisted of Gomez’s statementto Detective Winter, which, according to the prosecution, revealed knowledge . of the crime that had not been released to the press — the knowledgethat Escareno’s wallet had beenstolen.''® The prosecution also offered this statement to shore up its weak evidence against Gomez in the cases involving Rajandra Patel. (See ArgumentII, above; see fn. 23.) It claimed that Gomez’s statement revealed knowledgeofthe Patel case not released to the press — again,that the "8 Detective Winter testified that Gomez “said something along the line we must be very busy because he knew things had gone crazy there in the Harbor Area lately. And he talked about a guy up on Western, his head being shot off... . a couple of guys that were shot and brains were splattered all over the place and that these individuals could not be identified. .. . He said that when he had talked about the individuals not being identified, their wallets were missing.” (13RT 2044.) 385 victim’s wallet was missing.'” There were significant flaws in the prosecution’s theory, however. As aninitial matter, this statement did not reveal any knowledge of the Patel or Escareno crimes not released to the press — asset forth elsewhere in this brief. (See Arguments XVIII & XIX.) More, the defense presented three newspaperarticles providing information about the Patel and Escareno homicides, including onearticle specifically about the inability of the police to identify Patel’s body and twostating that Escareno was robbed. (See Defense Exhibits G, L, & M.) During its opening summation, the prosecution attemptedto fix the flawsin its theory that Gomez’s statement provided information not released to the press. In support of its argument that Witness #1’s testimony about the Escareno homicide was corroborated, the prosecutor asked jurors to recall Detective Winter’s testimony that Gomez made remarks about the homicide that included details not released to the press. (27RT 3836.) He "9 The prosecutorfailed to identify how Gomez’s statementrelated to the killing of Rajandra Patel, except that it had taken place in the Harbor Area, and Gomez had commentedthat“things had gone crazy there in the Harbor Arealately.” (13RT 2044.) None of the vague referencesto the circumstancesofthe killings Gomez described fit with the circumstances in the Patel case. (13RT 2044.) More, despite the prosecution’s summation argument (27RT 3826-3827), there was no evidence that Patel had a wallet, let alone that it was missing. The only evidence relating to this issue was the evidence that Patel could not be identified — which wasthe subject of a newspaperarticle introduced by the defense. (See Defense Exhibit G.) 386 noted that the defense had only produced three newspaperarticles referring to the Escareno and Patel homicides. (27RT 3837.) He argued that the articles “d[id]n’t give Ruben Gomez enough information to havetold this to Detective Winter, Debra Winter.” (27RT 3837.) But perhapsafraid jurors would concludethatthe articles did in fact contain all the information about the homicides in Gomez’s statement, the prosecutor then attempted to address this crucial weak link in his case. He continued: But there’s something even more important, there’s something even more important. There is absolutely no evidence that Ruben Gomez saw thosearticles. There is absolutely no evidence that Ruben Gomezread thosearticles. There is absolutely no evidence that Ruben Gomez reads any newspaper. You’ve heard the lifestyle of these people, Ruben Gomezes, Arthur Grajedas, the (Witness No. 1), the (Witness No. 2). Are these people who keep up with the current events of the world outside of their drug dealing, outside of the world in which they live? Are these people whoread their morning newspaperover their morning cup of coffee? Of course not. And as I say, there’s absolutely no evidence that Ruben Gomezread these articles or any articles about these crimes from which he could have learned anything about these crimes, other than what he knew from being there and committing these crimes. (27RT 3837-3838.) At the next break, defense counsel moved for a mistrial, arguing that 387 the prosecutor had improperly commented on Gomez’s failure to take the stand:“Basically if somebody reads something, the only person,the only possible witness in all likelihood whocan offer or shed light on the fact that he or she read somethingis the reader himself... . And so I think it’s a back door way of saying, heck, we didn’t hear from Gomez,he didn’t take the stand to say he read . . . the articles .. . .” (27RT 3860-3861.) The court responded that Gomez wasnot the only person who could havetestified that he read the article; there could have been evidence,the court said, that Gomez subscribed to the newspaper,that he avidly readit, or that he had commentedto others about reading an article about the homicides. (27RT 3861-3862.) The court denied the mistrial motion. (27RT 3862.) Defense counsel later asked the court to instruct the prosecutor not to commentany further about Gomez’s failure to present evidence that he read the articles about the homicides. (27RT 3868-3869.) The court refused, reiterating that evidence other than Gomez’s testimony could have shown that he read thearticles, and stating that no Griffin error'”’ had occurred.'*' 20 (Griffin v. California (1965) 380 U.S. 609.) '! The prosecutor returned to the argument in rebuttal, stating “[t}]here is absolutely no evidence that Ruben Gomez reads any newspaper, let alone that he read these three articles. There’s no evidence he subscribes (continued...) 388 (27RT 3869.) The prosecutor’s commentviolated Griffin v. California, supra, 380 US. 609. Griffin forbids prosecutorial comment on a defendant’s failure to testify. (Griffin v. California, supra, 380 U.S.at pp. 614-615; see also People v. Hughes (2002) 27 Cal.4th 287, 371-372; U.S. Const., Sth & 14th Amends.; Cal. Const., art. I, §§ 7, 15.) While Griffin’s rule does not extend to “comments on the state of the evidenceor on the failure of the defense to introduce material evidence or to call logical witnesses”(People v. Miller, supra, 50 Cal.3d at p. 996), it is error, however, “for a prosecutorto state that certain evidence is uncontradicted or unrefuted whenthat evidence could not be contradicted or refuted by anyone other than the defendant testifying on his or her own behalf” (People v. Harrison (2005) 35 Cal.4th 208, 257, quoting People v. Hughes, supra, 27 Cal.4th at p. 371; see People v. Bradford, supra, 15 Cal.4th at p. 1339.) Simply put, “[t}he prosecutor’s argument cannot refer to the absence of evidence that only the defendant’s testimony could provide. [Citation.|” (People v. Brady, supra, 50 Cal.4th at "1.continued) to a newspaper, no evidence he customarily buys a newspaper.” (28RT 4076.) Giventhe trial court’s response to defense counsel’s requests, any further objection or any other request for relief would have been futile. (See People v. Hill, supra, 17 Cal.Ath at p. 820.) 389 pp. 565-566.) Where the defendant has engaged in conversation with another person, and that person hastestified about the conversation, comment that the testimony is unrefuted is Griffin error, as the only other person who could testify about the conversation is the defendant. (See People v. Murtishaw (1981) 29 Cal.3d 733, 757-758,id. at p. 740 [finding Griffin error where prosecutor commented that defendantfailed to contradict testimony by his brother-in-law about statements defendant had madeto him], superseded by statute as stated in People v. Boyd (1985) 38 Cal.3d 762, 772; United States v. Flannery (Ast Cir. 1971) 451 F.2d 880, 881-882 [argument that witness’s testimony about private conversations with defendant was “uncontradicted” violated rule that prosecutor may not comment on defendant’s failure to take the stand]; Lincoln v. Sunn (9th Cir. 1987) 807 F.2d 805, 810 & fn. 1 [Griffin error where prosecutor arguedthat, aside from witness whotestified about phonecall with defendant, only the defendant couldtell jurors what the call was about].) The act of reading a documentorarticle is like a private conversation, except in the case of reading, there is only one person who can testify about it — the reader. In this respect, the prosecutor’s argumentis unlike an argumentthat the defendanthas not, for example, offered alibi evidence — 390 which jurors would not naturally expect the defendant himself to do — or the argumentthat the defendant has not explained the presence of items in an apartmenthe shared with others. (See People v. Sanders (1995) 11 Cal.4th 475, 527-529.) The only logical witnessto testify about whether or not Gomez had read certain newspaperarticles, of course, was Gomez himself. The court’s reasoning that Gomez could have introduced evidence that he subscribed to the newspaperis not persuasive; as the court and the jury knew, Gomez did not havea fixed address (19RT 2929-2930); it was thus somewhat unreasonable to suggest that he could have provided evidence of a newspapersubscription. Whether Gomez read the articles is a matter that uniquely could be addressed by Gomez himself. The court’s additional suggestion that Gomez could have called other witnesses to testify that he avidly read the paper suffers the same problem. The only witness who could testify that Gomez readthearticles in question was Gomez himself. The suggestion that Gomez could havecalled witnessesto testify that he had mentioned readingthearticles at issue suffers a different problem: any evidence that Gomez told others he had read the articles would be subject to a hearsay objection,if the defense attempted to introduce it. (Thus, in the authorities addressed above regarding prosecution arguments that the 39] defendant had not contradicted witness whotestified about a conversation with him, it was not suggested that the commentsfell outside the Griffin rule because the defendant might have mentioned the conversationsto others.)' Because Gomez himselfwas the only logical person who could provide evidence about whether he had read the newspaperarticles, the prosecutor’s commentran afoul of Griffin. The Chapmanv. California standard of harmless error review applies to this federal constitutional error. (Chapmanv. California, supra, 386 U.S. at p. 24.) The prosecution cannotprove this error harmless beyond a reasonable doubt. (/bid.)'* The prosecutor’s argument here ““‘serve[d] to fill 2 Tt bears noting that Witness #1 testified that he himself had read an article about the Escarenocase in the San Pedro NewsPilot. (24RT 3522.) Notwithstanding defense counsel’s attempt to suggest, in summation, that Witness #1 hadtestified that Gomez read thearticle as well (27RT 3909), there was no such testimony;as set forth above, such testimony,if introduced by the defense, would likely be subject to a hearsay objection. '3 Ninth Circuit cases state that “[i]n Anderson v. Nelson, 390 U.S. 523, 524... (1968) (per curiam), the Court announced that Griffin error is reversible only ‘in a case where such commentis extensive, where an inference of guilt from silenceis stressed to the jury as a basis for conviction, and where there is evidence that could have supported acquittal.’” (Cook v. Schriro (9th Cir. 2008) 538 F.3d 1000, 1021; see also, e.g., Jeffries v. Blodgett (9th Cir. 1993) 5 F.3d 1180, 1192.) Gomez respectfully contends that these cases have misread the Supreme Court decision. Anderson v. Nelson states that “comment on a defendant’s failure to testify cannot be labeled harmless error in a case where such commentis extensive, where an inference of guilt from silence is stressed to the jury as (continued...) 392 an evidentiary gap in the prosecution’s case,’ or ‘at least touch a live nerve in the defense,’” demonstrating its prejudice. (People v. Vargas (1973) 9 Cal.3d 470, 481, quoting People v. Modesto (1967) 66 Cal.2d 695, 714.) Gomez’s statement to Detective Winter wasthe only item of evidence the prosecution offered to corroborate Witness #1’s testimony that Gomez killed Jesus Escareno. (See Arguments XVIII & XIX, below.) The prosecutor’s improper argument thus filled the crucial evidentiary gap in the prosecution’s case that Gomez robbed and killed Jesus Escareno: the prosecution contended that Gomez had revealed information only the killer possessed, and whenthe defense introduced evidence showing thatthat information had been published in the local newspaper, the prosecution attempted to backfill that gap by telling jurors that what was “even more important” wasthat there was no evidence Gomez read the newspaper. (27RT 3837.) Thoughthe jury deadlocked on the charges related to Escareno, those jurors who believed Gomez guilty of those crimes were permitted to consider them at the penalty phase; the error thus was not harmless beyond a reasonable doubt with respect to the death sentences. (See Arguments XVIII '3(,_.continued) a basis of conviction, and where there is evidence that could have supported acquittal.” (Anderson v. Nelson (1968) 390 U.S. 523, 523-524.) It does not say that error is prejudicial and requires reversal only in such cases. 393 & XIX, below.) Gomez wasprejudiced with respect to the jury’s determination of the other countsat the guilt phase as well. The prosecution also attemptedto shore up its weak evidence in the Patel cases with reference to Gomez’s statement, arguing that it provided information he could not have, or did not learn from the newspaper. (27RT 3826-3827; 28RT 4075-4076.)'* The prosecution cannot show beyonda reasonable doubtthat the jury’s determinationin this close case was “surely unattributable” to the prosecution’s error in calling attention to Gomez’sfailure to take the stand. (Sullivan v. Louisiana, supra, 508 U.S.at p. 279.) Asset forth at length in ArgumentII, the evidence linking Gomezto the crimes against Rajandra Patel consisted only of the testimony oftwo highly unreliable witnesses, who contradicted each other regarding crucial facts, such that it was physically impossible that both witnesses weretelling the truth. The prosecution’s error here attempted to improve upon this weak case by suggesting that Gomez’s statement betrayed knowledgeofthe crime not gained from reading the newspaper, andthat if Gomez had in fact read aboutthe crimes in the newspaperhe could have taken the stand andtold jurors so himself. 4 As set forth in ArgumentII, fn. 23, above, Gomez contends that the prosecution entirely failed to establish the relevance of the statement to the Patel case. Nonetheless, there remains a reasonablepossibility that the jurors were misled by the prosecutor’s improper arguments. 394 And though the prosecution did not argue that Gomez’s statement contained information about the Lunacasenotreleased to the press, the evidence against Gomezin the Luna case was so weak that it cannot be said that the verdict was “surely unattributable”to this error, which called jurors’ attention to Gomez’s failure to take the stand. (See ArgumentI, above.) With respect to all the charges, improper prosecutorial arguments shifting the burden to the defense ensured that the jurors would consider Gomez’s failure to take the stand not merely insofar as he failed to testify regarding the Patel and Escarenocases, but insofar as he failed to present a defense to all of the charges. The prosecutortold jurors: A defense attorney does not have to present any defenseatall. They’re entitled to rely on the state of the prosecution’s evidence. But if you had a defense, if you were a defense attorney and you had a defense, would not you present it? Would you really sit back there and say, look,let’s sit back, we’re entitled to rely on the state of the prosecution’s evidence, we’ve got this terrific defense, but we’re not going to presentit. Let’s not kid each other. You wouldn’t do that. You’d present your defense, if you were a defense attorney and you had a defenseto present, you’d presentit. (28RT 4071; see also 26RT 3803-3804: “[T]he box holding the evidence of these defendants’ guilt is overflowing and. . . the box holding the evidence 395 oftheir innocenceis empty.”)'?> These comments encouraged jurors to view the entire case in light of Gomez’s failure to present an affirmative defense, increasing the likelihood that the prosecutor’s Griffin error would prejudicially focus the jurors on Gomez’s failure to take the stand. The prosecution cannotshowthat the guilty verdicts in this case were “surely unattributable”to the error in calling attention to Gomez’s failure to take the stand. (Sullivan v. Louisiana, supra, 508 U.S.at p. 279.) Reversalis required. Even should this Court conclude that the Griffin error prejudiced Gomezonly with respect to the Escarenocase, reversal of the death sentences would still be required, as those jurors who had been convinced of Gomez’s guilt of the Escareno crimes were permitted to consider those crimesat the penalty phase. As set forth at length in Argument XVIILE., below, the Escareno crimes were the most aggravating evidence relied on at the penalty phase. The gruesome(¢.g. 19RT 2940-2950) and sad (e.g. 1I3RT 1976-1981) evidence about this homicide — the only killing in the case 5 Defense counsel’s failure to object to these improper comments will necessarily be addressed in Gomez’s habeascorpuspetition. (Peoplev. MendozaTello, supra, 15 Cal.4th at pp. 266-267.) Gomezbrings them to the court’s attention here only because these erroneous comments amplified the prejudice of the Griffin error. 396 described by an eyewitness'*° — can hardly have failed to influence any juror allowedto considerit. Witness #1’s highly prejudicial testimony purporting to describe Gomez’s shooting of Escareno could easily have servedto erase serious lingering doubts about Gomez’s guilt or his role in both the Patel and Luna cases, in which no forensic evidence linked him to the killings and no eyewitnesses saw the killings. (See People v. Gay, supra, 42 Cal.4th at p. 1226 [lingering doubt has particular potency where physical evidenceis lacking and eyewitness testimony is contradictory].) The prosecution cannot prove beyond a reasonable doubtthat the death sentences were “surely unattributable”to this error, which resulted in jurors’ consideration, at the penalty phase, of Escareno’s killing. '6 Witness #1 offered several different accounts of the Dunton and Acosta homicides, though in none of the accounts did he visually witness the killings. At trial he maintained that he was in the next room and heard the shooting. (See pp. 28-31, above.) 397 XVUI. THE TRIAL COURT ERRED IN DENYING MR. GOMEZ’S PENAL CODE SECTION1118.1 MOTION REGARDING THE ESCARENO CASE, AND EVIDENCE OF MR. GOMEZ’S GUILT OF THE MURDEROF JESUS ESCARENO WASINSUFFICIENT; THE TRIAL COURT THUS ERRED AND VIOLATED MR. GOMEZ’S CONSTITUTIONAL RIGHTS WHENIT INSTRUCTED JURORS THAT THOSE WHO BELIEVED MR. GOMEZ GUILTY OF MURDERING JESUS ESCARENO COULD CONSIDER THAT MURDERAT THE PENALTY PHASE Thetrial court allowed penalty phase jurors to consider, as factor (b) evidence, a murder for which Gomez was not convicted — and for which no legal conviction could be obtained, because the prosecution’s evidence was insufficient. Gomez’s death sentences, weighted with the improper consideration of this additional murder — the single most significant aggravating factor in the case — cannotstand. A. Applicable Law. A conviction violates due process where a rational jury could not find the defendant guilty beyond a reasonable doubt. (See Jackson v. Virginia, supra, 443 U.S. at pp. 317-319; People v. Johnson, supra, 26 Cal.3d at pp. 575-576; see also In re Winship, supra, 397 U.S.at p. 364; U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7, 15.) An appellate court reviewing a sufficiency of the evidence claim must decide whether the evidence of each element of the offense was “substantial.” (People v. Johnson, supra, 26 398 Cal.3d at p. 578.) ““[SJome’ evidence”is “not enough.” (/d. at p. 577.) “Substantial evidence’ means that evidence which, when viewedin light of the entire record, is of solid probative value, maintains its credibility and inspires confidence that the ultimate fact it addresses has been justly determined.” (People v. Conner, supra, 34 Cal.3d at p. 149.) A trial court addressing a Penal Code section 1118.1 motion applies the same standard applied by appellate courts addressing the sufficiency of the evidence. (People v. Stevens, supra, 41 Cal.4th at p. 200.) Review of a trial court’s denial of a section 1118.1 motion is de novo. (/bid.) “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstancesthereof.” (Pen. Code § 1111.) Corroborating evidence must “reasonably tend to connect the defendant with the commission of the crime.” (People v. McDermott (2002) 28 Cal.4th 946, 985-986.) While every fact the accomplicetestifies to need not be corroborated, the corroborative evidence must“‘tend[] to connect the defendant with the commission of the offense in such a way as reasonably maysatisfy a jury that the accompliceistelling the truth .. . .” (People v. 399 Perry (1972) 7 Cal.3d 756, 769, overruled in part on another ground in People v. Green (1980) 27 Cal.3d 1, 28.) The corroborating evidence must connectthe defendant to the offense without aid or assistance from the accomplice’s testimony. (People v. Szeto (1981) 29 Cal.3d. 20, 26-27.) As oneearly case from this Court explained, the reviewing court must “eliminate from the case the evidence of the accomplice and then examinethe evidence of the other witness or witnesses with the viewto ascertain if there be inculpatory evidence — evidence tending to connectthe defendantwith the offense. If there is, the accomplice is corroborated;ifthere is no inculpatory evidence,there is no corroboration, though the accomplice maybe corroborated in regard to any number of facts sworn to by him.” (People v. Morton (1903) 139 Cal. 719, 724-725, original italics.) Jurors are similarly instructed with CALJIC No.3.12: “In determining whether an accomplice has been corroborated, you mustfirst assumethe testimony of the accomplice has been removed from the case. You must then determine whether there is any remaining evidence which tends to connect the defendant with the commission of the crime.” Such corroborating evidence must do morethan raise a conjecture or suspicion of guilt. (People v. Perry, supra, 7 Cal.3d at p. 769.) If it doesnot, the evidenceis insubstantial as a matter of law. (People v. Najera (2008) 43 400 Cal.4th 1132, 1137, citing People v. Warren (1940) 16 Cal.2d 103, 117 [accomplice instructions “deal with the vital question of the sufficiency of the evidence to sustain the conviction underthe salutary rule laid down in section 1111 of the Penal Code’’]; see also People v. Riel, supra, 22 Cal.4th at p. 1190 [Pen. Code § 1111 “relates to the sufficiency, not admissibility, of evidence”].) B. The Trial Court Erred in Denying Mr. Gomez’s Penal Code Section 1118.1 Motion Regarding the Escareno Case; The Evidence of Mr. Gomez’s Guilt of the Murder and Robbery of Jesus Escareno Was Insufficient. Aside from the testimony of Witness #1, an accomplice as a matter of law, the only evidence the prosecution introduced that purportedly connected Gomez with this killing consisted of a statement Gomez madeto Detective Winter, in which he referred to a man who had been killed on Western Avenue, where Escareno’s body was found. This evidence wasnotsufficient to connect Gomez with the commission of Escareno’s murder. Thetrial court erred in denying Gomez’s Penal Codesection 1118.1 motion regarding the Escareno case. More,by itself, Witness #1’s testimony was insufficient under both state law and the state and federal Constitutions. (See Jacksonv. Virginia, supra, 443 U.S. at pp. 317-319; People v. Johnson, supra, 26 Cal.3d at pp. 575-576; see also In re Winship, supra, 397 U.S.at p. 364; People v. Barnes, supra, 42 Cal.3d at pp. 303-304.) 401 1. The Trial Court Erred In Denying Mr. Gomez’s Penal Code Section 1118.1 Motion; Detective Winter’s Paraphrase of Mr. Gomez’s Statement Did Not Raise More than a Suspicion of Guilt. After the prosecution rested, counsel for Gomez movedto dismiss the Escarenocase. (25RT 3642-3643.) The trial court denied the motion, stating, nonetheless,“it was a good motion to make.” (25RT 3650.) Underthe standards set forth above in subsection A., above, establishing a defendant’s knowledge that a crime has taken place hardly suffices as corroborating evidence. Yetthatis all the prosecution established here. Aside from the testimony of Witness #1, who the prosecution conceded was an accomplice to the Escareno murder (8RT 1274), the only evidence the prosecution proffered as corroboration wasa statement Gomez made to police.'?” As paraphrased by Detective Winter, Gomez made a remark: along the line we must be very busy because he knew things had gonecrazy there in the Harbor Arealately. And he talked about a guy up on Western, his head being shotoff, a female that had been killed and wrapped and disposed in a dumpster, a couple of guys that were shot andbrains weresplattered all over the place andthat these individuals couldn’t be identified. 27 The prosecution also contended that evidence relating to the other counts connected Gomez to the Escareno crimes. As discussed below, because that evidence was neither admitted nor admissible on the Escareno charges, it could not constitute the requisite corroboration. 402 (13RT 2044.) Prodded by the prosecutor, Detective Winter added, “He said that whenhehad talked aboutthe individuals not being identified, their wallets were missing.” (13RT 2044.)'”8 This statement, the prosecution contended, along with the factthat police had not released to the press the fact that Escareno’s wallet had been stolen, provided the crucial corroborative evidence linking Gomez to the crime. (25RT 3643-3645: 27RT 3835-3838; see 13RT 2045, 2052, 2055- 2056 [no wallet was found on Escareno’s body]; 13RT 2067 [Escareno’s sister testifying that he always carried a wallet].) This evidence, however, was insufficient to link Gomez to the commission of the crime. The only detail in this statement that could have specifically referred to the Escareno crime wasthe reference to “‘a guy up on Western, his head being shot off.” (13RT 2044.) (Escareno’s body was found at a shopping center on Western Avenue, though the evidence suggested he had not been killed at that location. (See ORT 1572-1573, 1582-1583; 13RT 2034-2039.)) The prosecution did not contend that the "8 Though the prosecutor prodded Winter to add that “when [Gomez] had talked about the individuals not being identified, their wallets were missing,” he did not ask Winter to clarify whether Gomez hadtalked about wallets being missing in reference to all the homicides —- including the female in the dumpster and the man shot on Western — or just the last two he had mentioned, the “couple of guys that were shot and brains were splattered all over the place.” (143RT 2044.) 403 information about where Escareno’s body was foundor the fact that he was shot in the head was not public. Detective Winter, in fact, acknowledged o n cross-examination that police had issued a press release about Escareno’s killing, and that it was coveredin the local paper. (13RT 2047-2048, 2053.)'?° Witness #1, in fact, testified that he had seen anarticle in the San Pedro NewsPilot with a headlinethat said “neighbors discover gruesome — gruesome somethingreferring to the car.” (24RT 3522-3533.) As Winter paraphrased Gomez’s statement,it did not specifically identify the homicide on Western as one in which a wallet was taken. (It was unclear whether the individuals who couldnotbe identified included only the “couple of guysthat were shot” or also the previous killings Gomez had mentioned. (See 13RT 2044.))!° Buteven ifthis paraphrase of Gomez’s statement were read to suggestthat he had specifically identified the man on Western as a victim whocould not be identified because his wallet was missing, the statement 9 As set forth below, the defense later introduced into evidence newspaperarticles describing the Escareno case. Detective Flamenco acknowledgedthat these articles were contained in the “murder book”on the Escareno homicide. (26RT 3764-3768.) 130 The defense introduced a newspaperarticle (apparently referring to the killing of Rajandra Patel), which stated that police were seeking to identify a man found fatally shot on a freeway on-ramp;the article stated that no identification was found on the body. (Defense Exh.G.) 404 does not tend to show Gomez had any unique knowledgeofthe crime.First, the fact that a victim could not be identified is not, by nature, something a perpetrator would have direct and unique knowledgeof. A perpetrator may knowthat he hadstolen a victim’s wallet, but he would have no way of knowing whetherthat thwarted the victim’s identification. Whether a homicide victim can beidentified or not is something particularly knownto the police — and knownto others only through them.— Second, a person who did know that a homicide victim could not be identified — having somehow gained the information, which by its nature can only originate with law enforcement — would in mostcases readily assume that the victim could not be identified because identification was not found with the body. Particularly where the killing was knownto be a robbery-killing, one would readily assumethat identification was not found because the victim’s wallet had been taken. It is common knowledge, of course, that identification is usually carried by men in wallets. Finally, Witness #1’s testimony was that he himself had removed Escareno’s wallet at a time when Gomez wasnot present. While Witness #1 testified that he gave Gomez and Dunton money from Escareno’s wallet (after he had first spent someofit to buy heroin), he did nottestify that he gave Gomezthe wallet or even that he told Gomez he had takenit. (See 405 19RT 2949-2954 [Witness #1’s testimony that after Escareno was shot, Gomezdirected him to drive Escareno’s car back to San Pedroso that they could remove Escareno’s jewelry; Witness #1, alone, drove the car to a hamburger stand and removed Escareno’s wallet, stopped and bought a “dime of stuff,” and then went to Dunton’s house, where he gave Gomez the remaining money from Escareno’s wallet]; see also 22RT 3270.) Thus, the prosecution’s proffered corroborative evidence established only that Gomez knew that a man had beenshot in the head on Western Avenue — a crime which Detective Winter acknowledged had been reported in the local papers. (13RT 2047, 2053.) Knowledge that a crime has occurred can hardly evenbesaidto raise suspicion of guilt — let alone provide the requisite evidence connecting a defendantto a crime. (Peoplev. Perry, supra, 7 Cal.3d at p. 769; People v. McDermott, supra, 28 Cal.4th at pp. 985-986.) Gomez’s knowledge that a man had beenshotin the head on Western Avenue does nothing to connect him to the commission of the | crime “in such a way as may reasonablysatisfy [the] jury” that Witness#1 wastelling the truth. (/bid.) Setting Witness #1’s testimony aside, this evidence does not tend to connect Gomezto the crime. Evidence that a defendant waspresentat the scene of a crimeis insufficient to corroborate accomplicetestimony. (See People v. Lloyd 406 (1967) 253 Cal.App.2d 236, 241-242; People vy. Valardi (1966) 240 Cal.App.2d 98, 99; see also People v. Abilez (2007) 41 Cal.4th 472, 506.) Evidence that a defendant had the opportunity to commit a crime is likewise not sufficient. (People v. Robbins (1915) 171 Cal. 466, 474-476, abrogated on other groundsasstated in People v. Tobias, supra, 25 Cal.4th at pp. 336- 337; People v. Lloyd, supra, 253 Cal.App.2d at pp. 241-242; People v. Boyce (1980) 110 Cal.App.3d 726, 737.) Evidence that the defendant was aware a crime had occurred is even less compelling and can hardly be said to provide sufficient corroboration.'*' This is particularly the case where, as here, the defendant resides with a person who has admitted being present whenthe crime was committed. Any details Gomez assertedly knew about the crime might as well have been learned through contact with Witness #1. In arguing that Witness #1’s testimony wassufficiently corroborated, the prosecution relied principally on Detective Winter’s paraphrase of Gomez’s statement, discussed above. (See 27RT 3835-3838.) In opposing 131 Cases in which this Court has found accomplice corroboration sufficient involve more than mere knowledgethat a crime has occurred. (See, e.g., People v. Bunyard (1988) 45 Cal.3d 1189, 1205-1208 [evidence that defendant had solicited another witnessto kill victim sufficed to corroborate accomplice]; People v. McDermott, supra, 28 Cal.4th at pp. 985-986 [evidence of motive, evidence that defendantwas atcrime scene at time of crime, and evidence of 17 phone calls between defendant and accomplice around the time of the murder, wassufficient corroboration].) 407 the defense Penal Codesection 1118.1 motion, however, the prosecution also argued that Witness #1 was corroboratedby the fact that the victims of other, jointly tried homicides were also shot in the head (except for Acosta) and were also shot with 12-gauge shotguns(except for Patel), and by the fact that all these killings took place in the Harbor Area within a 37-day. period. (25RT 3643-3650.) Evidencerelating to the other counts with which Gomez was charged was neither admitted nor admissible in relation to the Escareno charges, despite the prosecution’s argument in opposing the motion to dismiss (25RT 3648)and its improper argumentsto the jury urging the cumulation of the evidence. (See Argument V.D., above.) Evidence Code section 1101 provides that “evidence of a person’s characterortrait of his or her character . . . in the form of . . . evidence ofspecific instances of his or her conduct . . . is inadmissible to prove his or her conduct on a specified occasion.” While there are exceptions to this general rule of exclusion,the prosecutor never argued that any of these exceptions applied. The prosecution never sought to have evidence on each of the homicide counts considered as evidence of a commonschemeorplan or as evidence of Gomez’s identity as the killer of the other victims. In any event,as set forth fully in Argument V.C.1., above, the 408 evidence on each homicide incident was not admissible regarding the other incidents. Thus,the killings of the other victims could not serve to corroborate Witness #1’s testimony about the Escareno crimes, and the court erred in denying Gomez’s Penal Code section 1118.1 motion. 2. The Evidence WasInsufficient to Support Any Conviction for the Crimes Against Escareno. Notonly did the trial court err in denying Gomez’s Penal Code section 1118.1 motion with respect to the Escareno case, but the evidence wasinsufficient, at the conclusion of the guilt phase, to support any conviction for the crimes against Escareno. In combination with defense evidence of newspaperarticles reporting the Patel and Escarenokillings, the prosecution’s allegedly corroborative evidence was even more palpably valueless. During the prosecution case, the defense introduced a newspaper article about the Patel case, and during the defensecase,it introduced two additional newsarticles relating to the Escareno crimes. Defense Exhibit G, dated May 27, 1997, was introduced during the prosecution case. (13RT 2048-2049.) It referred to the discovery of a body on the freeway on-ramp;it stated that police were seeking to identify the man, who wasfatally shot, and that no identification was found on the body. (Defense Exhibit G.) 409 Defense Exhibit M,introduced during the defense case, was dated June 10, 1997, and entitled “Man foundslain at SP shopping center”; it described the discovery of Escareno’s body, with a gunshot wound causing “massive trauma”to the head, at the Park Plaza Shopping Center on Western Avenue in San Pedro.It also noted that Escareno’s car was missing and quoted a detective as saying that Escareno appeared to have been robbed. (Defense Exhibit M.) Defense Exhibit L, dated June 18, 1997, described the discovery of Escareno’s car, andstated thatits interior was covered with blood and brain matter. It also reported that detectives said that Escareno had been robbedof several inexpensive pieces ofjewelry. (Defense Exhibit L.)'*” These articles provided more information than a person would need to know in order to make the general comments Gomez had made aboutthe recent Harbor Areakillings, including Escareno’s killing. Particularly because we do not know Gomer’s exact words — the only evidence | consisted ofDetective Winter’s testimony that “he talked about a guy up on Western, his head being shot off’ (13RT 2044) — it would be an '2 This article refuted Winter’s testimonythat police had not released information about jewelry taken from Escareno. (13RT 2048, 2052.) Indeed, Detective Flamenco acknowledged that Defense Exhibits L and M were contained within detectives’ “murder book”on the Escareno homicide. (26RT 3764-3767.) 410 unwarranted stretch to conclude that his mention of the crime sufficed to connect him to it as a perpetrator. In People v. Robinson, supra, 61 Cal.2d 373, this Court found that three items of assertedly corroborative evidence did not suffice, either independently or cumulatively, for the conviction of Charles Drivers, one of the defendants. The corroborating evidence implicating Drivers consisted of Drivers’s fingerprints in a car, purchased two days earlier by a man who lived in the same building as Drivers’s cousin, and found near the scene of the crime, with its gears jammedsothat it could not be driven and a rag obscuring therear licenseplate; testimony by police that Drivers gave conflicting and evasive answers when being questioned about where he was on the weekendofthe crime; and an alleged adoptive admission. (/d. at pp. 397-403.) Significantly, with respect to the last item, the defendant’s alleged adoptive admission, the Court pointed to the fact that detectives had offered five variations of the reply (in one variation, “I am not copping out to nothing, even if my own mothersaid it”) that was said to constitute an adoptive admission, noting: “To assumethat the questionable quotation infers an admissionofguilt, and thus placing this man’s life in jeopardy, would be to go far beyond the rules which require independent proofto 411 corroborate the testimony of an accomplice.” (People v. Robinson, supra, 61 Cal.2d at pp. 402-403.) Here,particularly in light of the newspaperarticles the defense introduced, deeming Detective Winter’s paraphrase of Gomez’s statement to be sufficient independent proofof his guilt would similarly go far beyond the rule requiring independent corroboration. It raises no more than a mere suspicion of guilt — if even that — and, as such, does notsuffice. (Jackson v. Virginia, supra, 443 U.S. at pp. 317-319; U.S. Const., 14th Amend.) 3. The Accomplice Corroboration Rule Aside, The Trial Court Erred in Denying Gomez’s Penal Code Section 1118.1 Motion and the Evidence WasInsufficient Under State Law and the Federal Constitution. Thetrial court erred in denying Gomez’s Penal Codesection 1118.1 motion, because the evidence before the court at that point was insufficient. The evidence of Gomez’s guilt of any of the crimes against Escareno was insufficient understate law as explained above — because Penal Code section 1111 and decisions of this Court provide that a conviction cannot rest on the uncorroborated testimony of an accomplice. Due processis violated where, as here, a defendantis arbitrarily deprived ofa state-law entitlement. (Hicks v. Oklahoma, supra, 447 U.S. at p. 346; Laboav. Calderon (9th Cir. 2000) 224 F.3d 972, 979 [state violates due process right to fundamental fairness if it arbitrarily deprives the defendant ofa state-law 412 entitlement].) In any event, the accomplice corroboration rule aside, at the time of the Penal Code section 1118.1 motion, the evidence was insufficient under both the state and federal constitutional standards, which provide that a conviction must be supported by substantial evidence. Witness #1’s uncorroborated testimony was not substantial evidence. (See People v. Johnson, supra, 26 Cal.3d at p. 578; Jackson v. Virginia, supra, 443 U.S. 307.) Witness #1 does not “inspire|] confidence” (People v. Conner, supra, 34 Cal.3d at p. 149.) Asset forth in greater detail in Argument II.B.2.a., above, Witness #1, a heroin addict who received $30 a day from the government during trial (19RT 2910-2912), who admitted repeatedly lying to police (22RT 3263, 3297, 3302, 3306) and lying on the stand (23RT 3364-3372, 24RT 3465-3478), and explained that he was entitled to what he could get, even if he had tolie to get it (24RT 3473-3474),'* wasincredible as a matter of law. His testimony with respect to the Escarenokilling (see Statement of Facts, pp. 18-20, above), thus established no more than that he (Witness #1) waspresent when Escareno wasshot. ‘33 Witness #1 madethis statement in reference to the $640 monthly social security benefit he had lied to obtain (22RT 3227-3228); the $30 he received from the governmentduringtrial in this case added up to a greater monthly amount. (19RT 2911-2912) 413 Given his history of lying, his open and admitted lying on the stand in this case, and the specific questionsraised about his testimony that Gomez shot Escarenoashesat in the passenger seat of a vehicle Escareno drove (Witness #1 could not rememberif it was a caror a truck, and at one point indicated that Gomez, whom he hadsaid was the passenger, was driving the car),'** no rational jury could have found Gomez guilty beyond a reasonable doubt on the basis of Witness #1’s testimony. (See Jacksonv. Virginia, supra, 443 U.S.at pp. 3 17-3 19; People v. Johnson, supra, 26 Cal.3d at pp. 575-576; U.S. Const., 14th Amend.) After the defense introduced Exhibits L and M, newspaperarticles revealing all one would need to know to make the general remarks Gomez had made about recent Harbor Area crimes, of course, the evidence wasall the more insufficient, underboth state and federal standards, to support any rational finding, beyond a reasonable doubt, that Gomez had robbed and killed Escareno. (Jackson v. Virginia, supra, 443 U.S. at pp. 317-319; U.S. Const., 14th Amend.) '™(See LORT 2940-2942, 22RT 3263, 3265.) 414 Cc. Even if Witness #1’s Testimony Were Corroborated by Mr. Gomez’s Statement to Detective Winter, the Trial Court Erred in Denying Mr. Gomez’s Penal Code Section 1118.1 Motion, and Evidence of Mr. Gomez’s Guilt of the Escareno Crimes Was Legally Insufficient. Asnoted above, the only evidence of Gomez’s guilt of the murder and robbery of Jesus Escareno wasthe testimony of Witness #1, an accomplice as a matter of law, and Detective Winter’s paraphrase of Gomez’s statement about killings in the Harbor Area. Even if Detective Winter’s testimony could be said to corroborate Witness #1, the sum of the evidence presented against Gomez on these counts wasinsufficient under both state and federal law. As set forth above, Gomez’s statement to Detective Winter established at most his awareness that a crime had occurred. Awarenessthat a crime has occurred, and the unreliable testimony of an admittedly dishonest purported accomplice, is not the kind of substantial evidence that inspires confidence in the rightness of the verdict and passes constitutional muster. (See Jackson v. Virginia, supra, 443 USS. at pp. 317-319; People v. Johnson, supra, 26 Cal.3d at pp. 575-576; People v. Conner, supra, 34 Cal.3d at p. 149; see also People v. Robinson, supra, 61 Cal.2d at pp. 379, 397-399.) 415 D. Because the Trial Court Erred in Denying the Penal Code Section 1118.1 Motion, and Because the Evidence of Mr. Gomez’s Guilt of the Escareno Murder WasNotSufficient, None of the Jurors Should Have Been Allowed to ConsiderIt At the Penalty Phase. At the penalty phase,the trial court instructed the jurors that those who believed Gomezguilty of the Escareno murder could considerit as aggravating evidence underfactor (b). Prior to summations, the court addressedthe jurors as follows, regarding: _.. something special about Counts 6 and7, or 6 in particular, the allegation of the murder of Jesus Escareno. Onething I want to make clear to you in advanceis that that is no longer one of the circumstancesofthe crime. _.. those jurors who concluded beyond a reasonable doubt that the defendant was guilty ofthe murder of Mr. Escareno are permitted to considerthat as an aggravating factor under factor (b), prior acts of violence. The other jurors that did not find that to be true beyond a reasonable doubt cannot consider that as an aggravating factor. So as you discuss aggravating and mitigating circumstances, those ofyou that believe that the evidence established beyond a reasonable doubt that Mr. Gomez murdered Jesus Escareno can considerthat as an aggravating factor. You cannot require or insist or suggestthat jurors that did not reach that conclusion beyond a reasonable doubt can consider that as an aggravating factor. _.. those of you whodid find beyond a reasonable doubtthat Mr. Gomez murdered Jesus Escareno can considerit, those of you whodid not find it beyond a reasonable doubt cannot consider it as an aggravating factor. (31RT 4562-4563.) 416 In its final instructions, the court instructed the jurors as follows: In determining which penalty is to be imposed on the defendant, you shall considerall of the evidence which has been received during any part ofthis trial... . * OK OK Evidence has been introduced for the purpose of showing that the defendant has committed the following criminalacts: ... Murder of Mr. Escareno..., which involved the express or implied use of force or violence or the threat of force or violence. Before a juror may consider any criminal acts as an aggravating circumstance in this case, a juror must first be satisfied beyond a reasonable doubt that the defendant did, in fact, commit the criminal acts. A juror must — may not consider any evidence of any other criminal acts as an aggravating circumstance. It is not necessary for all jurors to agree. If any juroris convinced beyond a reasonable doubt that the criminal activity occurred, that juror may considerthat activity as a fact in aggravation. If a juror is not so convinced, that juror must not consider that evidence for any purpose. (31RT 4605, 4609-4610; 13CT 3444-3446.) The court then explained that “as to unadjudicated criminal acts,” the defendant is presumed innocent and the reasonable doubt standard applies. (31RT 4610-4611; 13CT 3446.)'? '5 Though defense counsel agreed with the prosecution’s argument that jurors who found Gomez’s guilt of the Escareno crimes proven could consider them (31RT 4488), and requested that the court makeclearthat those who did not believe Gomez guilty of killing Escareno beyond a reasonable doubt could not considerit (31RT 4489-4490), this error is reviewable on appeal under Penal Code section 1259, as the court’s (continued...) 417 Because the evidence of Gomez’s guilt of the Escareno murder was legally insufficient, and becausethetrial court erred in denying Gomez’s Penal Code section 1118.1 motion, as set forth above, none of the jurors should have been allowed to consider this crime. Unless there is sufficient evidence that the defendant committed a crime,the trial court should not permit evidenceofthat crime to be considered by a penalty phase jury. (See 135(, continued) instructions affected Gomez’s substantial rights. More,the court’s instructional error cannot be deemed“invited,” as defense counsel manifested no tactical reason — and indeed there could be none — for allowing the court to instruct jurors that they could consider a murder as an aggravating factor if they found it proven. The doctrine of invited error “applies when a defendant, for tactical reasons, makes a request accededto by thetrial court and claims on appealthat the court erred in granting the request. [Citations.]” (People v. Russell (2010) 50 Cal.4th 1228, 1250, citing People v. Wickersham (1982)32 Cal.3d 307, 330 [Wickersham disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 201] [other citations omitted]; see also People v. Harris (2008) 43 Cal.4th 1269, 1299 [invited error does not preclude appellate review if the record fails to show that counselhad a tactical reason for requesting or acquiescingin the instruction]; People v. Carrera (1989) 49 Cal.3d 291, 311, fn. 8.) As this Court explained in Wickersham, “if defense counsel suggests or accedesto the erroneousinstruction because ofneglect or mistake we do not find ‘invited error’; only if counsel expresses a deliberate tactical purpose in suggesting, resisting, or acceding to an instruction, do we deem it to nullify the trial court’s obligation to instruct in the cause. [Citation.]” (People v. Wickersham, supra, 32 Cal.3datp. 332.) Where the record does not reveal that defense counsel had tactical reasons for urging the court to instruct erroneously, the issue is reviewable on appeal. (See also People v. Moore, supra, 51 Cal.4th at p. 410 [invited error doctrine does not preclude review if record fails to show counsel had a tactical reason for requesting or acquiescing in instruction].) 418 People v. Koontz, supra, 27 Cal.4th at p. 1088; People v. Boyer, supra, 38 Cal.4th at p. 481.) Permitting any of the jurors to consider the Escareno murder was unconstitutional under the Eighth and Fourteenth Amendments to the United States Constitution. As the United States Supreme Court made clear in Brownv. Sanders (2006) 546 U.S. 212, 220: “An invalidated sentencing factor (whether an eligibility factor or not) will render the sentence unconstitutional by reasonofits adding an improper elementto the aggravationscale in the weighing process unless one of the other sentencing factors enables the sentencerto give aggravating weight to the samefacts and circumstances.” (/d. at p. 220, footnote omitted, original italics.) More, because the submissionto the jury of the Escareno murderas a sentencing factor allowed the jurors to consider “evidence that would not otherwise have been before it” at the penalty phase, due process mandates reversal as well. (Ud. at pp. 219, 221) This is not a case, like People v. Lewis, supra, 43 Cal.4th at p. 520, or People v. Morgan, supra, 42 Cal Ath at p. 628, in which the submission of an erroneoussentencingfactor “‘did notalter the universe of [aggravating] facts and circumstances to whichthe jury could accord. . . weight... .”” (People v. Morgan, supra, 42 Cal.4th at p. 628, citing People 419 vy. Bonilla (2007) 41 Cal.4th 313, 334.) Rather, the court’s error here significantly altered the universe of aggravating facts before the jurors considering whether Gomez would live or die, skewing the jurors’ balancing of aggravating factors in favor of death in violation of the Eighth Amendment. (Brown v. Sanders, supra, 546 USS.at p. 221.) E. Mr. Gomez’s Death Sentences Cannot Stand. The error here was prejudicial undereither the state law “reasonable possibility” standard orthe federal constitutional “reasonable doubt” standard. (See People v. Brown, supra, 46 Cal.3d at p. 448 [judgment must be reversedifthere is a “reasonable possibility” that the jury would have reacheda different result if state law error at penalty phase had not occurred]; Chapmanv. California, supra, 386 U.S. at p. 24 [federal constitutional error requires reversal unless harmless beyond a reasonable doubt]; People v. Prince, supra, 40 Cal.4th at pp. 1299-1300.) There is a reasonable possibility that Gomez would not have been sentenced to death for the Patel and Luna murders — that at least one juror’s vote would have been different — if not for the instructions improperly allowing jurors to consider the Escareno murderin aggravation. As the Supreme Court has explained, “[t]he inquiry . . . is not whether, in a trial that occurred without the error,” a verdict against the 420 defendant “would surely have been rendered” (Sullivan v. Louisiana, supra, 508 U.S. at p. 279) — thoughin this case the prosecution could not even meet that standard. Rather, the question is whether the death verdicts “actually renderedin this trial [were] surely unattributable to the error.” (/bid.) The prosecution cannot prove that beyond a reasonable doubt. The Escareno murder wasthe single most aggravating circumstance relied on at the penalty phase. (See People v. Hernandez, supra, 30 Cal.4th at p. 877 [where errors may havefatally distorted jury’s consideration of the prosecution’s most important aggravating evidence, that defendant had committed another murder, reversal of death sentence was required].) The evidence about the Escareno murder can hardly have failed to influence any juror allowed to consider it: Escareno was a restaurant busboy who went out dancing after work and ended up in the wrongplaceat the wrong time. (13RT 1976-1981). The photos of Escareno’s body and the forensic evidence detailing blood and brain matter in Escareno’s car can only have evoked jurors’ anger. This homicide wasthe only killing in the case described by an eyewitness'*° — with Witness #1 testifying that Gomez drovethe streets, looking for a victim, and then shot a man in the 6 At trial, Witness #1 testified that he was in Dunton’s apartment, in a different room, when Dunton and Acosta werekilled. (2ORT 3019-3021, 3033-3035.) 421 head after a brief and apparently jovial conversation. (L9RT 2941-2953.) Witness #1’s highly prejudicial testimony describing Gomez’s shooting of Escareno could easily have servedto distract from serious lingering doubts about his guilt in both the Patel and Luna cases, which lacked physical evidencelinking the defendantto the killing and lacked eyewitnesses to the killings. (See People v. Gay, supra, 42 Cal.4th at p. 1226 {lingering doubt has particular potency where physical evidenceis lacking and eyewitness testimony is contradictory].) The prosecution took every advantageofthetrial court’s ruling that jurors whobelieved Gomez guilty of the Escareno homicide could consider it. He urged jurors to consider the asserted motive for killing Escareno, greed. (31RT 4568.) He included the Escareno murder in summing up his case for death: Ask yourself this question: On which side of the scale, death or life without parole, do you put this man’s actions in these five murders, these five homicides? (31RT 4572.) Sentencing deliberations spanned three court days, with a weekend intervening.'*’ The jurors’ unanimous agreementthatlife without parole '37 The jurors began deliberating on Gomez’s sentence on Thursday, February 24, 2000. They deliberated for approximately half an hour. (3 IRT 4618 [jury retires at 3:46 p.m.]; 13CT 3423-3425 [jury excused for day at (continued...) 422 wasthe appropriate sentence for the murders of Dunton and Acosta (31RT 4627-2628) further suggest that sentencing Gomez to death was not a foregone conclusion.'** Finally, with regard to the Luna murder in '37(__ continued) 4:15 p.m.].) The following day, February 25, jurors deliberated from 9:30 a.m. to 2:50 p.m., and after breaking for the weekend they deliberated again on February 28, reaching a verdict at 3:50 p.m. (13CT 3426-3429.) "8 In People v. Cowan, supra, 50 Cal.4th at pp. 487-493, this Court addressed a defendant’s argument that the trial court had failed to instruct penalty phase jurors that they were required to apply the reasonable doubt standard ofproof if they were to consider evidence of a murder on which the jury had hungat the guilt phase. In Cowan, significantly, the jury had not been instructed that it could consider the deadlocked count as factor (b) evidence. (/d. at pp. 490-491.) This Court found that even ifjurors failed to apply the reasonable doubt standard, there wasnorealistic possibility that consideration of that murder by those who had not found it proven beyond a reasonable doubt would have caused those jurors to vote for the death penalty. (/d. at p. 492.) It noted that when the jury reported deadlock, the prosecutor remarkedthat the jurors “sounded extremely emphatic” and the court commented that the foreman was “pretty adamant aboutthe jurors having basically taken their relative positions.” (/d. at p. 492.) The Court finally stated that “the record reflects that the jurors carefully weighed the difference between how [two victims] were murdered in deciding to impose the death penalty for [one] murder andlife without possibility of parole for [another]. The difference between the verdicts suggests that even those jurors who believed beyond a reasonable doubt that defendant murdered [the victim regarding which the jury deadlocked] did not use that fact to vote for death.” (7d. at p. 493.) This case is different. First, Gomez’s argumentis that none of the jurors should have been permitted to consider the Escareno crimes because the evidence wasinsufficient to sustain a finding beyond a reasonable doubt that Gomez was guilty of them. Second,there is nothing in the record in this case to suggest that the jury “carefully weighed the difference” between the Dunton and Acostakillings, on the one hand, and the Luna andPatel (continued...) 423 particular, the jurors apparently had some hesitation about the death sentence: On thelast day of deliberations, they apparently filled out one death verdict form in error, requested a new verdict form, andthen filled out another. (13CT 3450, 3454, 1SIICT 32.) In these circumstances, there is a reasonable possibility that at least one juror’s vote would have beendifferent, had jurors been instructed that the Escarenokilling was no longer appropriate for their consideration. Reversal of Gomez’s death sentencesis required. 88(__ continued) killings, on the other, in imposing death andlife withoutparole, respectively. Jurors may well have imposedlife without parole in the Dunton and Acostacasesout of the sense that it would be unfair to punish Gomez with death for those murders, when co-defendant Grajeda would receive a life sentence. 424 XIX. THE TRIAL COURT NOT ONLY ERREDIN FAILING TO INSTRUCT THE PENALTY PHASE JURORS THAT THEY COULD NOT CONSIDER THE MURDER OF JESUS ESCARENO AS AGGRAVATION UNLESS THEY FOUND THAT WITNESS#1’S TESTIMONY WAS CORROBORATED BY INDEPENDENT EVIDENCE LINKING MR. GOMEZ TO THE CRIME, BUT ALSO INSTRUCTED JURORS TO DISREGARD GUILT PHASE INSTRUCTIONS THAT WERE NOT REPEATED AT THE PENALTY PHASE At the guilt phase, after being given the standard CALJIC instructions on the burden ofproof beyond a reasonable doubt, the jurors were instructed that accomplice testimony must be corroborated by independent evidence tending to connect the defendant to the commission of the crime, and that accomplice testimony should be viewed with caution. (3CT 880-881, 29RT 4134-4137 [CALJIC Nos. 3.11, 3.12, and 3.18].) During guilt deliberations, the jurors submitted three questions regarding these instructions. (4SCT 745.)'°? In answer, the court told the jurors that evidence independentofthe accomplice’s testimony was required, and that they were to first consider whether they believed the '3° The jury askedthe trial court to clarify a perceived conflict between CALJIC Nos. 3.12 and 3.18; it asked whether the jury could find the defendant guilty based solely on accomplice testimony if the accomplice is deemed credible, or whether independent evidence is required; andit asked whether the accomplice testimony should be examinedin light ofall the evidencein the case, or in light of all the evidence in the particular count. (4SCT 745; see 3CT 881.) 425 accomplice testimony, and then decideif it has been corroborated. (29RT 4320-4322.) It also told them that the term “case” in CALJIC No. 3.18 referred to “everything, any evidence you heard about the accomplicethat deals with credibility.” (29RT 4322.) The jury deadlocked on the Escareno charges and the court declared a mistrial. (29ORT 4329-4330, 4338-4340, 4362.) Atthe penalty phase,thetrial court told the jurors that those who believed Gomez guilty beyond a reasonable doubt of the Escareno murder could considerit as aggravation. (31RT 4562-4563, 4605, 4609-4610.) In doingso, it not only failed to reiterate the accomplice corroboration requirement or the admonition to view accomplice testimony with caution, but affirmatively told the jurors to disregard guilt phase instructions that were notrepeated at the penalty phase (31RT 4594-4595, 4617-4618; 13CT 3440), thus suggesting that any juror who believed Gomez guilty of the Escareno murder could considerit regardless ofwhether he or she believed Witness #1’s testimony had been corroborated. Thus, even if the evidence were sufficient to support a finding that Gomez had murdered Jesus Escareno (and it was not; see Argument XVIII, above), the trial court erred in failing to instruct the penalty phase jurors that before they could consider the murder of Escareno as aggravation, they 426 had to find that Witness #1’s testimony implicating Gomez was corroborated by independent evidence linking Gomez to the crime. Because the assertedly corroborative evidence was,at best, “minimal,” asthetrial court itself put it (29RT 4330), this error fatally distorted jury’s consideration of the Escareno murder— the prosecution’s most important aggravating evidence. (See People v. Hernandez, supra, 30 Cal.4th at p. 877.) Gomez’s death sentences, weighted with the improper consideration of this additional murder, cannot stand. A. The Trial Court Erred in Removing the Accomplice Corroboration Requirement from the Jury’s Consideration of the Escareno Murderat the Penalty Phase; The Error Violated Gomez’s Constitutional Rights. The rules requiring that a trial court, sua sponte, instruct the surors that an accomplice’s testimony should be viewed with distrust and that it must be corroborated apply equally at the penalty phase ofa capital case. (People v. Nelson, supra, 51 Cal.4th at pp. 217-218; People v. Hernandez, supra, 30 Cal.4th at pp. 874; People v. Mincey (1992) 2 Cal.4th 408, 460- 462.) Instructing the penalty phase jury regarding the accomplice corroboration requirement wasparticularly necessary here, becausethe trial court told the jurors to disregard the guilt phase instructions. (31RT 4594- 4595, 4617-4618; 13CT 3440.) As this Court has stated: “[I]f the trial court 427 tells the jury to disregard the guilt phase instructions,‘it must later provide it with those instructions applicable to the penalty phase.’ [Citation]. We reiterate that trial courts should take pains to ensure that penalty phase juries are fully and properly instructed. [Citation]” (People v. Harris, supra, 43 Cal.4th at p. 1319; see also People v. Lewis, supra, 43 Cal.4th at p. 535.) Thetrial court, in its penalty phase instructions, failed to fulfillits sua sponte duty to instruct regarding the accomplice corroboration requirement;rather, it removed that requirement from the jury’s consideration of the Escareno case. Before the penalty phase summations, the court told jurors, as set forth in detail in Argument XVIII.D., above, that those who “concluded beyond a reasonable doubt,” “believe that the evidence established”or “did find beyond a reasonable doubt” that Gomez murdered Escareno, could consider the Escareno murder as aggravation, though it was no longer to be considered as “circumstances ofthe crime.” (3 IRT 4562-4563.) Inits final instructions, the court began by informing the jury thatit would “now be instructed asto all of the law that applies to the penalty phaseofthis trial” and that it must “[d]isregardall other instructions given to you in the other phases ofthistrial.” (31RT 4594-4595.) It told the jurors again, after delivering the instructions, that they should be guided by the 428 penalty phase instructions and that it had been necessary to repeat some instructions from the guilt phase because others of the guilt phase instructions no longer applied. (31RT 4617-4618.)'*° The jurors were not so limited with respect to the facts: the court told them that the facts were to be determined“from the evidence received during the entire trial, unless you are instructed otherwise.” (31RT 4595.) The court then told jurors again that “[i]n determining which penalty is to be imposed on the defendant, you shall considerall of the evidence which has been received during any part ofthis trial.” (31RT 4605, 13CT 3444.) It included the Escareno murderin its listing of the factor (b) evidence,telling jurors that they could consider such criminalacts as aggravating circumstancesifthey were “satisfied beyond a reasonable doubt that the defendantdid, in fact, commit the criminal acts.” (31RT 4609-4610; see 13CT 3445-3446.) It stated that unanimity wasnot required, andthat “[i]f any juror is convinced beyond a reasonable doubtthat the criminal activity occurred, that juror may consider that activity as a fact in aggravation.” (31RT 4610; 13CT 3445-3446.) Finally “as to the unadjudicated acts,” the court reiterated the presumption of innocence and the reasonable doubt standard. (3 1 RT 4610-4611; see 13CT 3446.) The court repeated, for example, CALJIC No.2.52, the instruction on flight. (13CT 3443.) 429 At no time did the court, at the penalty phase, communicate the accomplice corroboration requirement, or the admonition to view accomplice testimony with caution. And, to make matters worse,it did instruct jurors with CALJIC No.2.27, which told jurors that they “should give the testimony of a single witness whatever weight you think it deserves. Testimony by one witness which you believe concerning any fact is sufficient for the proofof that fact. You should carefully review all the evidence upon whichthe proofof that fact depends.” (31RT 4603; 13CT 3443.) As this Court has explained: [A]ccomplice testimony requires corroboration not because such evidence is factually insufficient to permit a reasonable trier of fact to find the accused guilty beyond a reasonable doubt, but because ‘[{t]he Legislature has determinedthat because ofthereliability questions posed by certain categories of evidence, evidence in those categories byitself is insufficient as a matter of law to support a conviction.’ {[Citations.] . . . In the absenceofan instruction on the legal requirementthat an accomplicebe corroborated, there is a risk that a jury — especially a jury instructed in accordance with CALJIC No.2.27that the testimony of a single witness whose testimony is believed is sufficient for proof of any fact — might convictthe defendant withoutfinding the corroboration Penal Code section 1111 requires. (People v. Najera, supra, 43 Cal.4th at pp. 1136-1137.) The penalty phaseinstructions here allowed the jurors to consider the Escareno murder without regard to whether Witness #1’s testimony was 430 corroborated — and even affirmatively told them they could convict on the basis of Witness #1’s testimonyalone, as long as they believedit.'*! This instructional error violated state law regarding accomplice corroboration and also infringed Gomez’s right to a reliable penalty determination, to due process of law, andto fair trial by a properly instructed jury. (U.S. Const., 6th, 8th, & 14th Amends.; Cal. Const., art.I, §§ 7, 16 & 17.) More, it violated Gomez’s state-created liberty interest in the requirement that accomplice testimony be corroborated. (Hicks v. Oklahoma, supra, 447 U.S.at p. 346.) B. Mr. Gomez’s Death Sentences Cannot Stand. Asset forth in detail in Argument XVHI.E., above, undereither the state-law “reasonable possibility” standard or the federal constitutional “beyond a reasonable doubt” standard, there is a reasonable possibility that Gomez would not have been sentenced to death for the Patel and Luna murders had the trial court removed the Escareno murder from the jury’s '! The trial court in this case, in responseto the jury’s questionsat the guilt phase, had emphasized that the corroboration requirement was a separate requirement to be considered only after jurors had decided whether they believed the accomplice testimony — i.e., whether they believed that Gomezhad killed Escareno. (29RT 4320-4321.) This supplemental instruction made it more likely that jurors who believed Witness #1’s testimony that Gomez killed Escareno would considerthat crimeat the penalty phase, even though they did not believe Witness #1’s testimony was corroborated. 43] consideration. The court’s failure to instruct jurors regarding the accomplice corroboration requirementat the penalty phase was prejudicial under either standard as well, for the same reasons. (See People v. Brown, supra, 46 Cal.3d at p. 448 [judgment must be reversedifthere is a “reasonable possibility” that the jury would have reacheda different result if state law error at penalty phase had not occurred]; Chapmanv. California, supra, 386 U.S. at p. 24 [federal constitutional error requires reversal unless harmless beyonda reasonable doubt]; People v. Prince, supra, 40 Cal.4th at pp. 1299-1300.) The jury’s questionsat the guilt phase about accomplicetestimony (4SCT 745; 29RT 4320-4322),its failure to reach agreement on the Escareno charges, and its report of an even deadlock (29RT 4338-4440; 32RT 4661) strongly suggests that six jurors, perhaps give or take a few, did not believe the accomplice corroboration requirement was met. Indeed, that wasthe trial court’s interpretation of the jury’s reported deadlock on the chargesrelating to Escareno: “The evidence of corroboration was minimal, and I thinkit’s fairly understandable that some of them don’t find that to be sufficient.” (29RT 4330.) With the accomplice corroboration requirement removed, thereis, to say the least, a reasonable possibility that one or more jurors improperly 432 considered that murderat the penalty phase — thoughtheydid not find Witness #1’s testimony corroborated — and that consideration ofthis murder affected his or her vote, for all the reasons set forth above in Argument XVIILE., above. Reversal of Gomez’s death sentencesis required. 433 XX. THE PROSECUTOR’S ELICITATION, AND THE TRIAL COURT’S ADMISSION, OVER OBJECTION, OF EVIDENCE REGARDING THE ETHNIC BACKGROUND OF TWO JAIL GUARDS MR. _ GOMEZ WAS CHARGEDWITH ASSAULTING, EVIDENCE WHICH THE PROSECUTOR THEN EMPLOYED IN ARGUING FOR DEATH, REQUIRES REVERSAL In the course ofhis direct examination of penalty phase witness Chad Millan,a jail guard whotestified that Gomez stabbed him, the prosecutorelicited, over defense objection, that Millan’s “ancestry” was “Mexican American.” 30RT 4449.)'” After the court approved that inquiry, the prosecutor then elicited the same information from a subsequent penalty phase witness, Frank Montoya, a jail guard whotestified that Gomez threatenedto kill him, head-butted him, and attempted to slash him with a razor. Montoya was also Mexican-American. (30RT 4467.) In summation, the prosecutor used this evidence to argue that Gomez '® Defense counsel objected that Millan’s background was irrelevant. (30RT 4449.) The court overruled the objection, thus rendering futile any objection to the prosecutor’s elicitation of the identical information from Frank Montoya,andhis use of this irrelevant evidence in summation. (People v. Hill, supra, 17 Cal.4th at pp. 820-821; People v. Pitts, supra, 223 Cal.App.3d at p. 693; People v. Carrillo, supra, 119 Cal.App.4th at p. 101.) While this Court should resolve any close and difficult preservation questions in favor of Gomez (People v. Ayala, supra, 23 Cal.4th at p. 273), should this Court nonetheless conclude that counsel failed to preserve this issue for review, such ineffective assistance of counsel would be more appropriately addressed in habeas corpus proceedings (People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267). 434 should be put to death: We’ve shownthis man’s history of past violence, and we’ve shownthat this man’s conduct while in custody is not the result of racial or ethnic conduct, because his conduct, his violent behavior was not directed just at Vanderleek but also against Montoyaand Millan, so that has nothing to do withit. (31RT 4571.) Defense counsel wascorrect; the ethnic backgroundofthejail guards whotestified that Gomez attacked them wasirrelevant. The prosecutor never should have been permittedto elicit evidence of Millan’s and Montoya’s ethnicity in the first place, muchless to urge jurors to considerit as an argument for death. By implication, the prosecutor invited the jurors to consider Gomez’s own ethnicity (Mexican-American), as well as Montoya’s and Millan’s (Mexican-American) and Vanderleek’s (which the prosecutor implied was not Mexican-American). Sentencing jurors may not considerrace, a “constitutionally impermissible” matter whichis “totally irrelevant to the sentencing process.” (Zant v. Stephens (1983) 462 U.S. 862, 885; see also McCleskey v. Kemp (1987) 481 U.S. 279, 291-292 & fn. 8.) This is beyond question. The Fifth Circuit has explained: “[T]he use of race in sentencing determinations is particularly invidious. ... And, in capital sentencing, the use of race becomes more offensivestill... . [A] long line of Supreme Court precedent 435 admonishes that the guillotine must be as color-blindas is the Constitution.” (United States v. Webster (5th Cir. 1998) 162 F.3d 308, 356.) While racial or ethnic animus can constitute aggravating evidence that may be considered in sentencing, and may bear on future dangerousness (Dawson v. Delaware (1992) 503 U.S. 159, 166; see also Barclay v. Florida (1983) 463 U.S. 939, 949),'and while racial animus may maketherace ofthe victim relevant forthis limited purpose,the absence ofracial animusin a case does not entitle the prosecution to elicit the victim’s race or ancestry.'“ Indeed,if racial animus is aggravating, the absence of racial animus can hardly be aggravating as well. The prosecutor’s argumentinvited jurors to consider, as an argument for death, that Gomez attacked individuals of his own ethnic group as well as an individual who was apparently not Mexican-American. By way of illustration, had Gomez attempted to argue, in mitigation, that he attacked only individuals who did notshare his ethnic background, he would '8 Indeed, one of the special circumstances rendering a defendant eligible for the death penalty in California is that “[t]he victim was intentionally killed because ofhis or her race, color, religion, nationality, or country oforigin.” (Pen. Code § 190.2(a)(16).) ‘4 “Tn legal theory, distinctions based upon ancestry are as ‘odious’ and ‘suspect’ as those predicated on race; in practical terms, appeals to either threaten the fairnessofa trial.” (United States v. Doe (D.C.Cir. 1990) 903 F.2d 16, 21-22.) 436 justifiably have been prevented from doing so. The prosecutor’s improper argument wassimply the converse — that jurors should consider, in support of death, that Gomez attacked individuals who shared his ethnic background,as well as another individual who apparently did not. The unseemly — and unconstitutional —- messageis that it would be understandable, or somehow less aggravating, if Gomez had only attacked individuals who were not Mexican-American. Such appeals to the apparent view that it is human nature to favor members of one’s own race or ethnic group are improper. (See State v. Monday (Wash.2011) 257 P.3d 551, 555- 558 [prosecutor repeatedly invoked an alleged African-American anti- snitch code to discredit witnesses]; McFarland v. Smith (2d Cir. 1979) 611 F.2d 414, 416-417 [prosecutor’s argument during summation that black police officer, a prosecution witness, was more likely to be truthful when testifying against a black defendant was reversible constitutional error]; Kelly v. Stone (9th Cir. 1975) 514 F.2d 18, 19 [reversing denial of habeas corpus petition where district attorney argued “maybe the next time it won’t be a little black girl from the other side of the tracks; maybeit will be somebodythat you know; maybeit will be somebodythat I know”}.)'* ' Justice Scalia, dissenting in Powers v. Ohio, in support of an argumentthat race-based peremptory strikes do not imply “criticism or dishonor” noted the “undeniable reality . . . that all groups tend to have (continued...) 437 As the Second Circuit putit in McFarland, “To raise the issue of race is to draw the jury’s attention to a characteristic that the Constitution generally commandsusto ignore. Even a reference that is not derogatory may carry impermissible connotations, or may trigger prejudiced responses in the listeners that the speaker mightneither have predicted nor intended.” (McFarlandv. Smith, supra, 611 F.2d at p. 417.) And as the Washington Supreme Court putit in Monday: “Not all appeals to racial prejudice are blatant. Perhaps more effective but just as insidious are subtle references. Like wolves in sheep’s clothing, a careful word here andthere cantrigger racial bias. [Citations.].” (State v. Monday, supra, 257 P.3d at p. 557.) The prosecution’s elicitation of the ethnic background of Montoya and Millan, and his urging that jurors impose death because Gomez’s “violent behavior was notdirected just at Vanderleek but also against Montoyaand Millan” (31RT 4571) — with its implicit reference to Vanderleek’s race, and that of Montoya, Millan, and Gomez as well — '(_..continued) particular sympathies and hostilities — most notably, sympathies towards their own group members.” (Powers v. Ohio (1991) 499 U.S. 400, 424 (Scalia, J., dissenting].) Regardless of whether or not such sympathies are an “undeniable reality,” arguments founded on group membership carry an undeniable resonance. But the Supreme Court rejected Justice Scalia’s reasoning: “[T]he assumptionthat no stigma or dishonor attaches contravenes accepted equal protection principles. ... We may not accept as a defenseto racial discrimination the very stereotype the law condemns.” (Ud. at p. 410.) 438 violated due process, equal protection, the right to a fair and impartial jury, and the Eighth Amendmentrightto a reliable sentencing proceeding, as well as their state constitutional counterparts. (U.S. Const., 5th, 6th, 8th, & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16, & 17; Zant v. Stephens, supra, 462 U.S.at p. 885 [due process prohibits state from attaching “agoravating” label to factors, such asrace, that are constitutionally impermissible ortotally irrelevant to sentencing]; Dawson v. Delaware, supra, 503 U.S. at p. 160; Johnson v. Mississippi (1988) 486 U.S. 578, 584- 585 [Eighth Amendmentrequiresreliability in penalty determination; sentencing decision cannot be based uponcaprice or irrelevant factors]; McCleskey v. Kemp, supra, 481 U.S.at p. 309, fn. 30 [constitution prohibits racially biased prosecutorial arguments]; Bains v. Cambra (9th Cir. 2000) 204 F.3d 964, 974 [clearly established federal law holds that prosecutor’s invitation to jurors to give in to prejudices violates due process and equal protection, citing McCleskey v. Kemp, supra, 481 U.S.at p. 309 fn. 30]; United States v. Cabrera (9th Cir. 2000) 222 F.3d 590, 594-597; Dawsonv. State (Nev. 1987) 734 P.2d 221, 223-224[reversing death sentence where prosecutor, during closing argument, gratuitously referred to African- American defendant’s asserted preference for white women].) Whether the prosecutor harboredill intent is not relevant. The crucial 439 issue in a prosecutorial misconduct claim is not the prosecutor’s good faith, but potential injury to the defendant. (People v. Coddington (2000) 23 Cal.4th 529, 599-600.)'*° As the Nevada Supreme Court put it in Dawsonv. State, supra, 734 P.2d at p. 223: “Rather than try to parse the niceties of appellate counsel’s attemptto justify the actions ofthe state's trial counsel in using this kind of material in a death penalty hearing, we unhesitatingly declare such conductto be prejudicially improper even if there were some logic to it and even if, as claimed, no racial bias was intendedto be elicited by the remarks.” The prosecutor’s elicitation and use of Millan’s and Montoya’s ethnic background requires reversal, under the federal constitutional standard for harmless error review (Chapmanv. California, supra, 386 U.S. at p. 24) or the state law standard for penalty phase error (People v. Brown, supra, 46 Cal.3d at pp. 447-449), the functional equivalent of the Chapman standard (People v. Prince, supra, 40 Cal.Ath at pp. 1299-1300). “The inquiry . . . is not whether, in a trial that occurred without the error, [death sentences] would surely have been rendered” (Sullivan v. Louisiana, supra, ‘6 Coddington has been overruled on other grounds (Pricev. Superior Court (2001) 25 Cal.4th 1046, 1069 & fn. 13), superseded by statute on other grounds (see People v. Zamudio (2008) 43 Cal.4th 327, 355-356; Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1107 & fn. 4, and disapproved on other grounds (People v. Knoller (2007) 41 Cal.4th 139, 155-156.) 440 508 U.S.at p. 279) — thoughin this case the prosecution could not even meet that standard. Rather, the question is whether the death sentences “actually renderedin this trial [were] surely unattributable to the error.” (/bid., original italics.) The prosecution cannot prove that beyond a reasonable doubt. The prosecution cannot show beyonda reasonable doubt that impermissible reasoning drawn from the prosecutor’s argument— for example, reasoning that “he even attacks ‘his own’” — did not contribute to the death sentences. Such arguments, though impermissible, have undeniable resonance. (See Powers v. Ohio, supra, 499 U.S. at p. 424 [Scalia, J., dissenting] [noting “undeniable reality . . . that all groups tend to have particular sympathies and hostilities — most notably, sympathies towards their own group members”].) And in the context of penalty phase deliberations, as the Supreme Court has explained, “the discretion entrusted 99 66to the jury at a capital sentencing hearing” “gives greater opportunity for racial prejudice to operate than is present when the jury is restricted to factfinding.” (Turner v. Murray (1986) 476 U.S. 28, 35-36 & {n.8 .) Compounding the prejudice in this case wasthe lack of any jury instruction informing jurors that they could not consider such matters as the ethnic backgroundor ancestry of the victims. Indeed, the court’s overruling of 44] defense counsel’s objection that Millan’s ethnic background wasirrelevant effectively told jurors that it was relevant to their determination whether Gomez shouldlive or die. The deliberations and verdicts further suggest that death was not a foregone conclusion, andthusthat the error was not harmless beyond a reasonable doubt. Sentencing deliberations spanned three court days, with a weekendintervening. (31RT 4618; 13CT 3423-3425; 3IRT 3426-3429.) Thejurors’ unanimous agreement that life without parole wasthe appropriate sentence for the murders of Dunton and Acosta (31RT 4627- 4628) further suggest a reasonablepossibility that in the absenceofthis error, the result might have been different. (Chapman v. California, supra, 386 U.S.at p. 24; People v. Prince, supra, 40 Cal.4th at pp. 1299-1300.) Finally, with regard to the Luna murder, the jurors apparently had some hesitation about the death sentence. (13CT 3450, 3454, 1SIICT 32 [jurors apparently filled out one death form in error, requested a new verdict form, and then filled out another].) In these circumstances, given the nature of the error — the injection of an impermissible factor and the appeal to deep-seated prejudices — and the closeness of the case, reversal of the death sentences is required. 442 XXI. THE TRIAL COURT ERRONEOUSLY AND UNCONSTITUTIONALLY TOLD JURORS THAT THEY WERE FORBIDDEN TO “REFER TO BIBLICAL REFERENCES,” REQUIRING REVERSAL Gomez’s mitigation case consisted of a witness from the Department of Corrections, whotestified about the security conditions in which Gomez would likely be held if sentencedto life without parole, and the testimony of his sister, who told jurors that the family loved him and did not want him to be executed. (31RT 4502-4541; 3IRT 4543-4545.) Counsel’s summation focused to a large extent on the moral decision before the jury. (31RT 4579- 4593.) In these circumstances, it was crucial that jurors be permitted to bring to bear, on that moral decision, their personal values, whether religious, philosophical, or secular. (See People v. Danks (2004) 32 Cal.4th 269, 311.) Yet immediately after defense counsel concluded his summation,the court gave an instruction depriving jurors of one common andpotentially crucial source of moral reasoning.It told jurors: I do want to emphasize again as I’ve done before that you’re not to bring anything to the deliberation process. Jurors are sometimes tempted in this phase of the case to refer to biblical references. Don’t bring the bible in, don’t refer to those. You'll be guided by your own conscience andthe law. (31RT 4593.) 443 The court erred. Though the court may well have been correct insofaras it instructed jurors that they could not bring the Bible into the jury room, it went too far in forbidding jurors from even “refer[ring] to biblical references” (31RT 3593), interfering with Gomez’sright to a sentencing decision by a jury reflecting the “conscience of the community on the ultimate question oflife or death.” (Witherspoonv. Illinois, supra, 391 U.S. at p. 519 [state may not exclude prospective jurors from service on a capital jury merely because they express religious scruples]; Smith v. Texas (1940) 311 U.S. 128, 130 [criminal defendants are entitled to be judged by “a body truly representative of the community”]; Taylor v. Louisiana (1975) 419 U.S. 522, 530 [making clear that the importanceofthe “fair cross-section” right derives from the importance of bringing a broad spectrum ofjurorlife experiences to bear]; U.S. Const., 6th, 8th, & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16, & 17.) To be sure, references by either party in summation to “religious doctrine, commandments,or biblical passages tending to undermine”the principle that sentence is to be based on the evidence and the court’s instructions, is improper (People v. Sandoval (1992) 4 Cal.4th 155, 194; People v. Williams, supra, 49 Cal.4th at pp. 465-467), as may be the reading of Bible passages in the jury room during deliberations (People v. Lewis 444 (2001) 26 Cal.4th 334, 389), or discussing the case with religious leaders during deliberations (People v. Danks, supra, 32 Cal.4th at p. 307). Onthe other hand, however, jurors may read the Bible in the privacy of their homes(id. at p. 306; see Crittenden v. Ayers (9th Cir. 2010) 624 F.3d 943, 972-973), and jurors may consider their religious beliefs and even refer to those beliefs during deliberations (People v. Lewis, supra, 26 Cal.4th at p. 390 [“Given the collective nature ofjury deliberations, we do not find it unusual, much less improper, that jurors here may have shared their beliefs with other jurors either through conversations or prayers.”|; see also Fields v. Brown (9th Cir. 2007) 503 F.3d 755, 780-781). Even in the context of argument by counsel, as this Court explained,“all reference to religion or religious figures” is not ruled out, “so long as the reference does not purport to be a religious law or commandment.” (People v. Sandoval, supra, 4 Cal4th at p. 194.) Asthis Court has taken painsto note: [W]e reiterate that nothing in our opinion is intended to convey that a juror’s consideration of personalreligious, philosophical, or secular normative values is improper during penalty deliberations. (See Lewis, supra, 26 Cal.4th at pp. 389-390 ....) As we have repeatedly stated, the task ofjurors at the penalty phase is qualitatively different from that at the guilt phase. At the penalty phase, jurors are asked to make a normative determination — one which necessarily includes moral and ethical considerations designedto reflect community values. [Citations.] “‘The court in no way means 445 to suggest that jurors cannotrely on their personal faith and deeply-held beliefs when facing the awesome decision of whetherto impose the sentence of death on a fellow citizen.’” [Citations.] As one authorhasnoted, “the discretion given to a jury to extend or withhold mercy . . . will never produce a wholly rational, calculated, and logical process’... . [D]eterminations of the appropriate punishmentinvolve factors which are not only ‘too intangible to write into a statue’ but are also too abstract for a jury to rely on independentoftheir personal values.”[Citation.] (People v. Danks, supra, 32 Cal.4th at p. 31 1.) The court’s instruction violated theses principles, erroneously implying that jurors who,in deliberations, engaged in moral reasoning illustrated by or rooted in Biblical passages would be committing misconduct. The court’s instruction here improperly elevated the philosophical and the secular overthe religious, depriving Gomezofthe judgment of a jury reflective of the conscience of the community, as brought to bear by the jurors’ “personalreligious, philosophical, or secular normative values.” (People v. Danks, supra, 32 Cal.4th at p. 311; Crittenden v. Ayers, supra, 624 F.3d at p. 973 [rule that juror’s reading ofreligious text outside jury room established prejudice would be“at the very least, in tension with the Supreme Court’s teaching that ‘a sentencing jury mustbe able to give a reasoned moral response to a defendant’s mitigating evidence.’ [|Citation]”’].) 446 It also improperly singled out the Bible alonein this instruction, which wasdelivered before the court began reading the penalty phase instructions, and which the court told jurors it wanted to “emphasize.” (31RT 4593.) Singling out the Bible as a source jurors might be “tempted” to refer to, the court omitted any warning about referring to other sources of moral reasoning — whethersecular or offered by another religious tradition. A penalty phase jury instructed to disregard one religious point of view in particular (as expressed in the holy bookofthat religion), yet not similarly instructed with respect to other outside sources jurors might refer to at home, or quote from memory in the jury room, cannot legitimately reflect the “conscience of the community.” (Witherspoon v. Illinois, supra, 391 USS. at p. 519.) Thoughit told jurors they were to be guided “by [their] own conscience and the law” (31RT 4593), its concomitant instruction that Biblical references were forbidden left jurors whose consciences were rootedin religious beliefs — specifically, beliefs whose source wasthe Bible — adrift. (See People v. Danks, supra, 32 CalAth at p. 311 [“‘[D]eterminations of the appropriate punishmentinvolve factors . . . too abstract for a jury to rely on independentoftheir personal values. {Citation.]”].) In instructing jurors that they could not refer to Biblical 447 references, the court deprived Gomez’s jury of a commonandpotentially crucial source of moral reasoning, andthus, in addition to violating this Court’s precedent, violated his Sixth Amendmentand due process rights to a penalty determinationreflecting the “conscience of the community.” (Witherspoon v. Illinois, supra, 391 U.S. at p. 519; see U.S. Const., 6th, 8th & 14th Amends.; see also Cal. Const., art. I, §§ 7, 15, 16, & 17; see also Brooks, Thou Shalt Not Quote the Bible: Determining the Propriety of Attorney Use ofReligious Philosophy and Themes in Oral Argument (1998) 33 Ga. L.Rev. 1113, 1154-1160 [jurors who considerreligious-based knowledge and philosophy valid sources of knowledge shouldbe allowed to use that knowledge in reaching a just verdict].) More, under the Eighth and Fourteenth Amendments,a juror must be “free to reject death if [he or she] decides on the basis of any constitutionally relevant evidence or observation thatit is not the . appropriate penalty.” (People v. Brown, supra, 40 Cal.3dat p. 540, original italics.) Religious beliefs may legitimately inform a juror’s subjective assessment of constitutionally relevant evidence, and may giverise to constitutionally relevant observations weighing in favor of a life without parole sentence. The court’s instruction prevented jurors from considering such constitutionally relevant considerations, thus depriving Gomezofhis 448 right to a reliable sentencing proceeding at which the jury is permitted to give full effect to all relevant mitigating considerations. (See U.S. Const., 8th & 14th Amends.; Cal. Const., art. 1, §§ 7, 15, 16, & 17; Lockett v. Ohio, supra, 438 U.S. at p. 604; Eddings v. Oklahoma (1982) 455 U.S. 104, 112; Brewer v. Quarterman (2007) 550 U.S. 286, 289 [jury must be allowed not only to consider mitigating evidence, but to respondto it in a reasoned, moral manner].) The error cannot be deemed harmless, either under the federal constitutional standard for harmless error review (Chapmanv. California, supra, 386 U.S.at p. 24) or the state law standard for penalty phase error (People v. Brown, supra, 46 Cal.3d at pp. 447-449), the functional equivalent of the Chapman standard (People v. Prince, supra, 40 Cal.4th at pp. 1299-1300). “The inquiry . . . is not whether, in a trial that occurred withoutthe error, [death sentences] would surely have been rendered” (Sullivan v. Louisiana, supra, 508 U.S. at p. 279) — thoughin this case the prosecution could not even meetthat standard. Rather, the question is whether the death sentences “actually rendered in this trial [were] surely unattributable to the error.” (/bid., original italics.) The prosecution cannot prove that beyond a reasonable doubt. Sentencing deliberations took place over three court days, with a 449 weekendintervening, indicating that jurors did not consider the question whether Gomez should live or die to be easily answered. (31RT 4618;13CT 3426-3427; 31RT 3426-3429.) The Patel and Lunacases, which resulted in death sentences for Gomez, were both marked by singularly weak evidence at the guilt phase. (See Arguments I andII, above.) And the jury sentenced Gomezto life without parole on two counts. (31RT 4627-4628.) During the course of these extended deliberations, however, the jurors were prohibited from drawing on Biblical references, even if they considered them an essential source of moral reasoning. This error struck at the heart of the sentencing process, which must produce not merely a factual finding, but a “reasoned, moral response” to the evidence before the jury. (Brewer v. Quarterman, supra, 550 U.S. at p. 289.) Theinstruction wasparticularly prejudicial in light of a reading with which the prosecutor concluded his penalty phase summation,to the effect that the defendant “usurps the compassionthatis justly the victim’s. And he will steal his victim’s moral constituency along with his life.” (31RT 4577- 4578.)'*’ While jurors were apparently free to refer to this passage, and use '47 As noted in People v. Rowland (1992) 4 Cal4th 238, 277-278,fn. 17, the reading was from “The Killing of Bonnie Garland,” by Dr. Willard Gatland. This Court, to be sure, has approvedthe useofthis reading in summation. (See ibid.; see also People v. Hines (1997) 15 Cal.4th 997, 1063.) Gomezis not challenging the use of that passage. Rather, Gomez’s (continued...) 450 it during deliberations to marshal arguments for death, they were not permitted to refer to Biblical teachings, no matter how fundamental those were to the jurors’ own conscience and moral reasoning. More, the court’s instruction, delivered immediately after defense counsel’s summation, suggested to the jury that counsel had made improper arguments for a life without parole sentence. Defense counsel had begunhis summation by telling jurors he felt “inadequate” to the task of arguing for Gomez’s life, and suggesting that such matters “perhaps are better argued, are better expressed to you by priest, a rabbi or a minister or even a philosopher. Instead you have twoattorneys.” (30RT 4580.) To the extent that defense counsel’s words — not improperly — emphasizedthat the decision before the jurors was not purely factual or legal, and encouraged them to draw on their personal values, secular or religious, the court’s '7(,..continued) argumenthere is that the trial court’s instructions erroneously forbidding jurors from bringing Biblical teachings or Biblical-based moral reasoning to bear on the penalty decision were renderedparticularly prejudicial because there was no concomitant warning not to bring to bear the secular reasoning propoundedby the prosecutor. That defense counsel also made use of secular sources in mounting his argument against death does not mitigate the harm of the court’s instruction (see 31 RT 4591-4593 [defense summation quoting Terence]), particularly since, as defense counsel acknowledged, he did not have “something fancy to rebut” “that nice quote that puts down mercy or sympathy.” (31RT 4593.) 451 words improperly invalidated those that found root in the Christian Bible. Finally, the error in the court’s instruction was exacerbated by the delivery, at the penalty phase, ofCALJIC No. 17.41.1, which, as set forth at length in Argument XIII, directed “that jurors are expectedto police the reasoning and argumentsoftheir fellow jurors during deliberations, and immediately advise the court if it appears that a fellow juror is deciding the case upon an ‘improper basis.’” (People v. Engelman, supra, 28 Cal.4th at p. 400.) The combinationofthese two instructions can only have made jurors more fearful of voicing any arguments that might be rooted in religious or Biblical values or might appear to draw onBiblical stories or passages. In these circumstances, given the closeness of the case, the jury’s apparent struggle with its decision, thestirring passage from a secular work read to the jurors by the prosecutor during summation, and defense counsel’s entirely proper suggestion that religious values might help in answering the question before the jurors, the prosecution cannot show beyond a reasonable doubt that the court’s error in precluding jurors from considering Biblical references did not contribute to the death sentences. Reversal of the death sentences is required. 452 XXII. A SENTENCE OF DEATH SHOULD NOT BE PERMITTED ABSENT A JURY FINDING THAT THE DEFENDANTIS GUILTY BEYOND ALL POSSIBLE DOUBT The last decade has seen an explosion in exonerations of individuals who have been found guilty beyond a reasonable doubt by juries, and in many cases, sentenced to death. As of 2011, over 250 criminal defendants have been exonerated by DNAevidence; 17 had been sentencedto death, and 80 had been sentenced tolife in prison. (See Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong (Harvard Univ.Press, 2011), at p. 5; see also Gross, Convicting the Innocent (2008) 4 Ann. Rev. L. Soc. Sci. 173, 175-177.) An additional 111 death-sentenced defendants have been exonerated nationwidein the period since 1973. (Gross, Convicting the Innocent, supra, 4 Ann. Rev. L. Soc. Sci. at pp. 175-177.) Studies estimate the wrongful conviction rate in capital cases at 2.3% or more. (Gross, Convicting the Innocent, supra, 4 Ann. Rev. L. Soc. Sci.at pp. 176-177; see also Risinger, Jmnocents Convicted: An Empirically Justified Factual Wrongful Conviction Rate (2007) 97 J. Crim. L. & Crimonology 761, 779-780 [estimating minimum 3.3%, and maximum 5% error rate in capital rape-murder convictions in the 1980s]; Kansas v. Marsh (2006) 548 U.S. 163, 210 [Souter, J., dissenting] [false verdicts are 453 remarkable in number,and probably disproportionately high in capital cases].) In 2008, the California Commission on the Fair Administration of Justice issued a final report on the administration of the death penalty in California. While noting that it had learned ofno credible evidence that California has executed an innocentperson,it identified six California defendants since 1979 who had been sentenced to death, only to be subsequently acquitted or to have murder charges be dismissed for lack of evidence. (California Commission on the Fair Administration of Justice, Report and Recommendations on the Administration of the Death Penalty in California, June 30, 2008, p. 31 & fn. 40 [“California Commission Report”] [describing cases of Ernest Graham,Jerry Bigelow, Patrick Croy, Troy Lee Jones, Oscar Lee Morris, and Lee Perry Farmer].) Thus, the Commission could not “conclude with confidencethat the administration of the death penalty in California eliminates the risk that innocent persons might be convicted and sentenced to death.” (California Commission Report, p. 30.) In order to minimize the risk that an innocent person will be executed in California, a jury finding that the defendantis guilty beyondall possible doubt should be required before a death sentence may be imposed. 454 Gomez acknowledgesthat this Court has rejected the assertion that evidence of guilt must be stronger in a capital case than in a noncapital case. (See People v. Lewis (2009) 46 Cal.4th 1255, 1290 & fn. 23.) Nonetheless, he raises this issue now to urge this Court, in the exercise of its supervisory power over matters of criminal procedure, to establish such a requirement, and in order that he may continueto press the claim in the future, should the needarise. Requiring that jurors, before they sentence a person to death, certify that they are convinced beyondall possible doubt of the defendant’s guilt, would eliminate muchofthe risk of sentencing an innocent person to death.'** This Court has recognized that there is a gap between proof beyond a reasonable doubt and proof beyondall possible doubt. (See People v. Gay, supra, 42 Cal.4th at pp. 1218-1219; see also Franklin v. Lynaugh (1988) 487 U.S. 164, 174; see id. at p. 187 [O’Connor, J., concurring] {no Eighth Amendmentright to jury consideration of lingering 'S Of course, such a requirement cannot entirely eliminate the risk of wrongful conviction. (See Sand & Rose, ProofBeyond All Possible Doubt: Is there a Needfor a Higher Burden ofProof When the Sentence May Be Death? (2003) 78 Chi.-Kent L.Rev. 1359, 1369 [‘‘‘Even in the most extreme case, there will be some possibility that all the witnesses are mistaken, that the defendant has confessed falsely, that photographs are doctored or otherwise misleading, and so forth.’ We are neither suggesting that a trial can produce a flawless factual record nor that our proposal will eliminate erroneous death sentences. Our goal is more modest: we seek to reduce the errorrate.”], footnote omitted.) 455 doubt at the penalty phase].) Empirical evidence suggests this gap is variable, and often large. ProfessorEric Lillquist has examined a meta-analysis of overfifteen different empirical studies, as well as several additional separate studies, which indicated that experimental subjects viewed beyond a reasonable doubt as equivalent to anywhere from 92% certainty to 51%certainty. (Lillquist, Recasting Reasonable Doubt: Decision Theory and the Virtues of Variability (2002) 36 U.C. Davis L.Rev. 85, 111-117.) He concluded that empirical evidence provides no support for the idea that the reasonable doubt standard,as applied by jurors, is a “high, fixed standard”; “[t]o the contrary, the evidence strongly suggests that the standard of proof is much lowerandthat jurors routinely vary the amountofproof needed to convict.” (Id. at p. 117; see also Newman, Beyond “Reasonable Doubt” (1993) 68 N.Y.U. L.Rev. 979, 984-985; see generally id. at pp. 981-990.) In capital cases, this gap between proof beyond a reasonable doubt and proof beyondall possible doubt comesinto play in the sentencing determination. Yet the force of this “lingering” or “residual” doubt — even if substantial — may be blunted. As Justice Stevenshasputit, a “serious concern” about the death penalty is “that the risk of error in capital cases may be greater than in other cases because the facts are often so disturbing 456 that the interest in making sure the crime does not go unpunished may overcomeresidual doubt concerning the identity of the offender.” (Baze v. Rees (2008) 553 U.S. 35, 84-85 [Stevens, J., concurring in the judgment]; see also Kansas v. Marsh, supra, 548 U.S. at p. 210 [Souter, J., dissenting]}.)'*? Requiring jurors to certify guilt beyond all possible doubt would help to ensure that a high, fixed standard ofproof is required before a person maybe sentencedto death, and thus minimize the risk of imposing a death sentence after a wrongful conviction. More, such a requirement would be consistent with our system’s tiered burden-of-proofstandards, with the degree of certainty required corresponding to the nature and significance oftheinterest at stake. (See Sand & Rose, ProofBeyondall Possible Doubt, 78 Chi.-Kent L.Rev.at p. 1367.) As Sand and Rose have putit, “[p]lainly, life is the most fundamental interest ever imperiled by adjudication.” (bid. ) ‘© Thus, instructions such as the one Gomez’s jury received, that jurors may considerlingering doubt as a residual factor do not gofar enough;they allow jurors to conclude, for example, that serious lingering doubts about Gomez’s guilt were outweighed by the aggravating circumstances. (See 13CT 3445[“It is appropriate for the jury to consider in mitigation any lingering doubt it may have concerning the defendant’s guilt. Lingeringor residual doubtis that state of the mind between beyond a reasonable doubt and beyondall possible doubt”]; 31RT 4608.) 457 The Model Penal Code supports such a requirement.’ Andlegal commentators have concluded that such a requirement would constitute a significant and desirable step in attempting to reducetherisk that an innocent person will be executed. (See, e.g., Sand & Rose, ProofBeyond All Possible Doubt, 78 Chi.-Kent L.Rev. at pp. 1361-1362; Koosed, Averting Mistaken Executions by Adopting the Model Penal Code’s Exclusion ofDeath in the Presence ofLingering Doubt, 21 N.Ill. U. L.Rev. at pp. 42-43; Bradley, A (Genuinely) Modest Proposal Concerning the Death Penalty (1996) 72 Ind. L.J. 25, 27; Liebmanet al. (2002) A Broken System, Part II: Why There is So Much Error in Capital Cases, and What Can Be Done AboutIt, p. v [available at www.2law.columbia.edu/broken system2/report.pdf].) Judge Sand,a federal district judge in New York and aneditor of Modern Federal Jury Instructions, has proposed a modelinstruction. His instruction is quoted below: Becausethe death penalty presents a different form of punishmentthan a life sentence in prison, our system provides '50 The Model Penal Code’s provision mandatesthatthe trial judge exclude death if the evidence does not foreclose all doubt about guilt; Apprendi v. New Jersey and its Supreme Court progeny, however, require that any such finding be made,at least in the first instance, by a jury. (See Model Penal Code,section 210.6; see also Koosed, Averting Mistaken Executions (2000) 21 N. II. U. L.Rev. 41, 42-43; see generally Apprendiv. New Jersey (2000) 530 U.S. 466.) 458 a further protection to ensure that this penalty is not imposed on a defendant unless you are absolutely certain of his/her guilt. Therefore, before we hear the submissionsof the parties for the penalty phase, you must advise usofthe strength of yourbelief that the defendantis, in fact, guilty as you have found. At the guilt phase, you found that the defendantis guilty of [specify offense] beyond a reasonable doubt. In so finding, you unanimously concluded that the proofwas such that a reasonable person would rely and act upon it without hesitation in the most important of his or her ownaffairs.['°] Wenow ask whetheryoualso find that defendant’s guilt as to this count has been proven beyond all possible doubt. By proof beyondall possible doubt, we mean proofto an absolute certainty. It means that you do not harboranylingering or residual doubts whatsoeveras to the defendant’s guilt. Proof beyondall possible doubt is, therefore, a more rigorous and higher standard than proof beyond a reasonable doubt. As I instructed you, to find proof beyond a reasonable doubt, you mustbelieve that the evidence presented by the governmentis of such a character that a reasonable person would rely and act upon it without hesitation in the most important matters of his or her own affairs.{!°*] Yet, proof beyond a reasonable doubt does not mean proof beyond all possible doubt. By contrast, proof beyondall possible doubt is proof of such a convincing nature that you have no doubt whatsoeverasto the defendant’s guilt. (Sand & Rose, 78 Chi.-Kent L.Rev. at pp. 1372-1373.) As Judge Sand has explained, proof beyondall possible doubtis not, "| In California, an appropriate instruction would read “. . . such that you felt an abiding conviction of the truth of the charge.” (See CALJIC No. 2.90.) '2 See footnote 151, above. 459 and cannot be, an impossible, objective standard. (See Sand & Rose,78 Chi. Kent L.Rev. at p. 1369 [in arguing for beyondall possible doubt standard, authors “do[] not stray from the collective legal and philosophical wisdomthatit is impossible to determinethe offense underlying the crime to an objective absolute certainty” but rather seck more modest goal: to reduce theerror rate].) While objective absolute certainty is concededly impossible, requiring jurors to take the additionalstep of certifying guilt beyondall possible doubt would help to minimizethe risk of erroneous capital convictions. This Court has exercised its supervisory powerin order to minimize risks that compromise the adjudicative process. (See People v. Engelman, supra, 28 Cal. 4th at p. 449 [because CALJIC No. 17.41.1 creates a risk to the properfunctioningofjury deliberations, Court directs that it not be given]; People v. Pena (2004) 32 Cal.4th 389, 398-399 [because Court of Appeal’s oral argumentnotice form created unnecessary and inadvisable risk ofinterfering with theright to oral argument, this Court directs Court of Appealnot to use it]; Hovey v. Superior Court (1980) 28 Cal.3d 1, 80-81 (‘In order to minimize the potentially prejudicial effects identified by the Haneystudy, this court declares, pursuantto its supervisory authority over California criminal procedure, that in future capital cases” death-qualifying 460 voir dire should be done individually and in sequestration], superseded by statute as stated in People v. Waidla, supra 22 Cal.4th at p. 713.) Therisk at issue here is no less real, and certainly no less consequential, than the risks this Court sought to minimize in Engelman, Pena, and Hovey. This Court should exercise its supervisory powerto require a jury certification of guilt beyondall possible doubt, and it should vacate Gomez’s sentences in the Luna and Patel cases and remandfor a new penalty phase in which death may not be imposed absent such a finding. (See People v. Pena, supra, 32 Cal.4th at pp. 403-405 [directing,in exercise of supervisory power, that Court of Appeal not use particular oral argument form, and remanding to Court of Appeal with directions to calendar matter for oral argument and reconsider case in light of that argument].) Finally, Gomez contendsthat the Eighth Amendment requires such a finding. A system that tolerates a significant risk of executing an innocent person conflicts with evolving standards of decency in the United States; our standards of decency require, at the least, that steps be taken to minimize the risk of executing an innocent person. (U.S. Const., 8th & 14th Amends.; see also Baze v. Rees, supra, 553 U.S. at pp. 85-86 [Stevens, J., 461 concurring]; Cal. Const., art. I, §§ 7, 15, & 17.) AsJustice Souter has putit, addressing, in his dissent in Kansasv. Marsh, a state requirementthat death be imposed where aggravating and mitigating factors are in equipoise: Today, a new body of fact must be accounted for in deciding what, in practical terms, the EighthAmendment guarantees shouldtolerate, for the periodstarting in 1989 has seen repeated exonerations of convicts under death sentences, in numbers never imagined before the development ofDNA tests. We cannot faceupto these facts andstill hold that the guarantee of morally justifiable sentencing is hollow enough to allow maximizing death sentences . . . when, by a State’s own standards and a state’s own characterization, the case for death is “doubtful.” (Kansas v. Marsh, supra, 548 U.S.at pp. 207-208 [Souter,J., dissenting].) In this case, had the jury been requiredto certify guilt beyondall possible doubt, there is a reasonable possibility, to say the least, that Gomez would not have been sentenced to death for the Luna and Patel murders. (See Arguments I & II, above; see Chapmanv. California, supra, 386 U.S. at p. 24; People v. Brown, supra, 46 Cal.3d at pp. 447-449.) Reversalis required. 462 XXII. BECAUSE THE ROBBERY AND KIDNAPING SPECIAL CIRCUMSTANCESIN THIS CASE PERMITTED THE JURY TO IMPOSE DEATH FOR AN ACCIDENTAL OR UNFORESEEABLE KILLING, THE DEATH PENALTY IS UNCONSTITUTIONAL The jury foundtrue three distinct special circumstance allegations which made Gomez death eligible in this case. In light of the guilty verdicts in connection with the murder charges in counts 3, 8, 10, and 11, the jury found true a multiple-murder special circumstance allegation. (3CT 844; 29RT 4351.) And, in connection with the count 3 charge, the murder of Rajandra Patel, the jury found true kidnaping and robbery special circumstances. (3CT 837; 29RT 4345.) As discussed in ArgumentI, the murder conviction in count 8 (the murder of Raul Luna) must be overturned. The evidence to support that conviction was insufficient. (See Argument I.) And even if this Court should find that it was not, multiple prejudicial errors require reversal of that conviction. (See Arguments IV, V, VI, VH, VIU, X, XI, XII, XII, & XIV.) And, as discussed in ArgumentsIII, 1V, V, VI, VH, VIL, IX, X, XT, XII, XI, & XIV, the murder convictions in counts 10 and 11 must be reversed as well. If the convictions in counts 8, 10, and 11 are reversed, the only remaining murder conviction would be in count 3, which charged Patel’s 463 murder. The multiple-murder special circumstance would nolonger support the death sentence. Instead, the only special circumstances remaining to render Gomezdeath eligible would bethe robbery and kidnaping special circumstances attached to the count 3 murder conviction. Ofcourse, as discussed above, there are several reasons to reverse the count 3 murder conviction — notleast, that the evidence to support it wasinsufficient. (See Argument IT.) But even putting these aside,in the circumstancesofthis case, a death eligibility finding based solely on the robbery and kidnapingspecial circumstances would be unconstitutional. As discussed more fully below, where a defendantis the actual killer in a felony-murdercase, California law does not require the state to prove any culpable mentalstate at all in order to render the defendant death- eligible underthe state’s felony-murder special circumstance allegations. To the contrary, under California law, a felony-murder defendantis death- eligible even if the killing is accidental or unforeseeable. Pursuantto authority from the United States Supreme Court, and courts throughout the country, this is unconstitutional. Gomez recognizes that this Court has rejected this claim. (See,e.g., People v. Taylor (2010) 48 Cal.4th 574, 661; People v. Young, supra, 34 Cal.4th at p. 1204.) He nonethelessasks this Court to reconsiderit for the 464 reasonsset forth below. A. Under California Law, a Defendant Can Be Convicted ofFirst Degree Felony Murder, and Found Death-Eligible Under California’s Felony-Murder Special Circumstance Allegations,If the Killing Is Negligent, Accidental, or Even Wholly Unforeseeable. UnderCalifornia law, the state cannot generally obtain a first degree murder conviction without proving that the defendant both premeditated and had the subjective mental state of malice. However, in the case of a killing committed during a robbery or kidnaping, or any other felony listed in Penal Codesection 189, the state can convict a defendant offirst degree felony murder without proof of any mensrea with regard to the killing. California’s first degree felony-murderrule “includes not only [premeditated murders] but also a variety of unintended homicidesresulting from reckless behavior, or ordinary negligence, or pure accident; it embracesboth calculated conduct and acts committed in panic or rage, or under the dominion of mentalillness, drugs, or alcohol; and it condemns alike consequencesthat are highly probable, conceivably possible, or wholly unforeseeable.” (People v. Dillon (1983) 34 Cal.3d 441, 477.) This rule is reflected in the standard jury instructions for felony murder, given in this case. (CALJIC No. 8.21; 3CT 884; 29RT 4149.) UnderCalifornia law,this strict rule of culpability applies not only to 465 the question of guilt, but to the question of death-eligibility as well. Thus, a defendant whois the actualkiller in a felony murderis eligible for death even if the state does not prove that the defendant had any distinct mensrea as to the killing. (See, e.g., People v. Earp (1999) 20 Cal.4th 826, 905, fn. 15 [rejecting defendant’s argumentthat the felony-murder special circumstance could not be applied to one whokilled accidentally]; Peoplev. Musselwhite, supra, \7 Cal.4th at p. 1264 [rejecting the defendant’s argumentthat to prove a felony-murder special circumstance, the prosecution was required to prove malice].) Moreover, as this Court has long madeclear, if a defendantis the actualkiller in a felony murder, he is also death eligible under the felony-murderspecial circumstance. (See People v. Hayes (1990) 52 Cal.3d 577, 63 1-632 [the reach of the special circumstance is as broad as the reach of felony murder].) In other words, where the defendantis the actual killer, California’s felony-murderrule permits a jury to find him guilty of murder even if the killing was negligent, accidental, or wholly unforeseeable. California’s felony-murderspecial circumstances then permit the jury to go further, and find the defendanteligible for death, without proofthat the defendant harbored any culpable mental state as to the murderitself, As Justice Broussard has noted, underthe California scheme“a person can be 466 executed for an accidental or negligent killing.” (People v. Anderson (1987) 43 Cal.3d 1104, 1152 [Broussard,J., dissenting].)'** This lack of any mens rea requirement for death eligibility stands in sharp contrast to the rule applied where the defendantis nor the actual killer, but is an aider and abettor. In that situation, California law is clear that a defendantis not eligible for the death penalty unless the state proves a culpable mentalstate as to the murder— either an intent to kill, or, at least, reckless indifference to humanlife. (See, e.g., People v. Anderson, supra, 43 Cal.3d at p. 1147; Pen. Code § 190.2(d).) The question then becomes whether such a broad special | circumstance — rendering defendants death eligible even where there has been no finding of a culpable mental state as to the actual killer — violates the Eighth Amendment. If the multiple-murder special circumstanceis reversed, this becomesa critical question. Gomez turns to that question now. B. As Applied to an Actual Killer, the Robbery and Kidnaping Special Circumstances Violate the Eighth Amendment Because They Permit Imposition of Death Without Proof of Any Culpable Mens Reaasto the Killing. In a series of cases beginning with Gregg v. Georgia (1976) 428 'S3 Anderson has been superseded by statute on another ground as stated in People v. Letner, supra, 50 Cal4th at p. 163 & fn. 20. 467 U.S. 153, the Supreme Court has recognized that the Eighth Amendment embodies a proportionality principle, and it has applied that principle to hold the death penalty unconstitutional in two generalcircumstances.First, the Court has held death disproportionate for a particular type of crime. (See Kennedy v. Louisiana (2008) 554 U.S. 407, 413 [death penalty disproportionate where victim’s life has not been taken]; Enmundv. Florida (1982) 458 U.S. 782, 797-801 [death penalty disproportionate for aider and abettor to felony murder].) Second, the Court has held death disproportionate for a particular type of defendant.(See, e.g., Atkinsv. Virginia (2002) 536 U.S. 304, 318-321 [death penalty disproportionate for mentally retarded defendant]; Roper v. Simmons (2005) 543 U.S. 551, 568 [death penalty disproportionate for defendant under 18 years old].) In evaluating whether the death penalty is disproportionate for a particular crime or criminal, the Court has applied a two-part test, asking (1) whether the death penalty comports with contemporary values and (2) whetherit can be said to serve one or both of two penological purposes, retribution or deterrence ofcapital crimes by prospective offenders. (Gregg v. Georgia, supra, 428 US. at pp. 182-183.) The Court first addressed the proportionality of the death penalty for felony murder in two cases: Enmund v. Florida, supra, 458 U.S. 782 and 468 Tison v. Arizona (1987) 481 U.S. 137. In Enmund, the Court held that the Eighth Amendmentbarred imposition of the death penalty on an aider and abettor — the “getaway driver” to an armed robbery murder — because he neither took life, attempted to take life, nor intended to take life. Enmundv. Florida, supra, 458 U.S. at pp. 784, 789-793, 797.) In Tison, the Court addressed whetherproofof “intent to kill” was an Eighth Amendment prerequisite for imposition of the death penalty in connection with an aider and abettor to felony murder. The Court held that it was not, and that the Eighth Amendment wouldbesatisfied by proof that such a defendant had acted with “reckless indifference to human life” and as a “major participa{nt]” in the underlying felony. (Tison v. Arizona, supra, 481 U.S.at p. 158.) Both Tison and Enmund involved felony-murder defendants who were not actual killers, but only aiders and abettors. The question hereis whether Tison established a minimum mensrea solely for aiders and abettors, or whether it also established a minimum mensrea requirement also applicable to actual killers. That question was decided in Hopkinsv. Reeves (1998) 524 USS.88. In Reeves defendant wasthe actual killer in a felony murder. (/d. at p. 91.) He contendedthatthe state court had erred in refusing to instruct on 469 lesser offenses which focused on his mentalstate: second degree murder and manslaughter. (See id. at pp. 92-94.) In defending the trial court’s refusal to provide suchinstructions, the state argued that the lesser offenses were inapplicable because felony murder under Nebraska law did not require any culpable mentalstate as to the murderitself. (See id. at pp. 93- 94.) In response, defendant relied on Enmund and Tison forthe proposition that because proof of a more culpable mental state was required by the federal Constitution, the lesser instructions were required. (See id. at pp. 99- 100.) Although Hopkins involved an actual killer (as opposed to an aider and abettor) the Supreme Court made quite clear that the state still had to establish that defendant satisfied the minimum mens rea required under Enmund and Tison at somepointin the case. (Hopkins v. Reeves, supra, 524 U.S. at pp. 99-100; see also Graham v. Collins (1993) 506 U.S. 461, 501 [Stevens, J., concurring] [stating that an accidental homicide may no longer support a death sentence].) Lowerfederal courts considering the issue — both before and after Reeves — have read Tison to establish a minimum mensrea applicable to all defendants. (See, e.g., Lear v. Cowan (7th Cir. 2000) 220 F.3d 825, 838; Reeves v. Hopkins (8th Cir. 196) 102 F.3d 977, 984-985, rev’d on other grounds, Hopkins v. Reeves, supra, 524 U.S. 88; Loving v. Hart (C.A.A.F. 470 1998) 47 M.J. 438, 443; see also State v. Middlebrooks (Tenn. 1992) 840 S.W.2d 317, 345, supersededbystatute as stated in State v. Stout (Tenn. 2001) 46 S.W.2d 689, 705.) More, the Supreme Court’s two-part test for proportionality dictates that the Eighth Amendmentrequires a finding of intentto kill or reckless indifference to humanlife in order to impose the death penalty. In Atkinsv. Virginia, the Court emphasizedthat “the clearest and mostreliable objective evidence of contemporary valuesis the legislation enacted by the country’s legislatures.” (Atkins v. Virginia, supra, 536 U.S. at p. 312.) An analysis oflegislation in the felony murder area confirmsthe unconstitutionality of a schemethat permits a death sentence for felony murder without any culpable intent as to the murderitself. Ofthe death penalty states,'™ there are at most six states — California, Georgia, Maryland, Idaho, Florida, and Mississippi — where a defendant may be death-eligible for felony murder simpliciter. That at least 44 states (28 death penalty states and 16 non-death penalty states) and the federal government'® reject felony murder simpliciter as a basis for death eligibility reflects and even stronger “current legislative judgment” than the '54 (For a list of death penalty and non-death penalty states, see http://www.deathpenaltyinfo.org/documents/FactSheet.pdf.) 55 See 18 U.S.C. § 3591 (a)(2). 471 Court found sufficient in Enmund (Enmundv. Florida, supra, 458 U.S.at pp. 789-791) and Atkins (Atkins v. Virginia, supra, 536 U.S. at pp. 315- 316).'°° Notonly is the imposition ofthe death penalty on one whohaskilled negligently or accidentally contrary to evolving standards of decency,it fails to serve either of the penological purposes — retribution and deterrence of capital crimes by prospective offenders — identified by the Supreme Court. With regard to these purposes, “fujnless the death penalty . . . measurably contributes to one or both ofthese goals, it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.” (Enmund v. Florida, supra, 458 U.S. at pp. 798-799.) With respect to retribution, the Court has made clear that retribution must be calibrated to the defendant’s culpability, which in turn depends on his mental state with regard to the crime. “It is fundamental that ‘causing harm intentionally must be punished more severely than 999causing the same harm unintentionally.’” (/bid.; see also Tison v. Arizona, supra, 481 U.S. at p. 156 [“[T]he more purposefulis the criminal conduct, © One discussion ofthis issue lists six states including California which permit a death sentence for felony murder simpliciter — California, Florida, Georgia, Idaho, Maryland, and Mississippi. (Shatz, The Eighth Amendment, the Death Penalty, and Ordinary Robbery-Burglary Murderers: A California Case Study (2007) 59 Fla. L.Rev. 719, 761-762.) 472 the moreserious is the offense, and therefore, the more severely it ought to be punished.”].) Plainly, treating negligent and accidentalkillers on a par with intentional and recklessly indifferent killers ignores the wide difference in their level of culpability. Nor does the death penalty for negligent and accidental killings serve any deterrent purpose. As the Supreme Court has recognized, “it seems likely that ‘capital punishment can serve as a deterrent only when murderis the result of premeditation and deliberation.’” (Enmundv. Florida, supra, 458 U.S. at p. 799; accord Atkins v. Virginia, supra, 536 U.S.at p. 319.) The law simply cannot deter a person from causing a result he never intended and never himself foresaw. In short, because imposition of the death penalty for felony murder simpliciter is contrary to the judgment of the overwhelming majority of states, it does not comport with contemporary values. Because it serves no penological purposeit “is nothing more than the purposeless and needless imposition of pain and suffering.” (Coker v. Georgia (1977) 433 U.S. 584, 592 [plurality].) Here, the felony-murder special circumstance instructions given to the jury permitted it to find Gomez death eligible without making any findingat all as to whether he harbored a culpable mentalstate as to the killing. Accordingly, the robbery and kidnaping special circumstances are 473 unconstitutional as applied in this case to make Gomezeligible for death. If the multiple-murderspecial circumstance is reversed, the death sentence cannot stand based on the robbery and kidnaping special circumstance. 474 XXIV. CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT MR. GOMEZ’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION Many features of California’s capital-sentencing schemeviolate the United States Constitution. This Court consistently has rejected arguments pointing out these deficiencies. In People v. Schmeck (2005) 37 Cal.4th 240, this Court held that whatit considered to be “routine” challenges to California’s punishment schemewill be deemed “fairly presented”for purposes of federal review “even when the defendant does no more than (1) identify the claim in the context of the facts, (ii) note that we previously have rejected the same or a similar claim in a prior decision, and(111) ask us to reconsiderthat decision.”(/d. at pp. 303-304,citing Vasquez v. Hillery (1986) 474 U.S. 254, 257.)" In light of this Court’s directive in Schmeck, Gomez briefly presents the following challenges to urge their reconsideration and to preserve these claims for federal review. Should the Court decide to reconsider any of these claims, Gomez requests the right to present supplementalbriefing.'”* '57 Schmeck has been abrogated on other grounds. (See People v. McKinnon, supra, 52 Cal.4th at p. 637.) '§ The instructional claims of error raised here are cognizable on appeal under Penal Codesection 1259, although Gomez did not seek the (continued...) 475 A. Penal Code Section 190.2 Is Impermissibly Broad. To meet constitutional muster, a death penalty law must provide a meaningful basis for distinguishing the few cases in whichthe death penalty is imposed from the manycases in whichit is not. (People v. Edelbacher (1989) 47 Cal.3d 983, 1023, citing Furman v. Georgia (1972) 408 U.S. 238, 313 [conc. opn. of White, J.].) Meeting this criteria requires a state to genuinely narrow,byrational and objective criteria, the class of murderers eligible for the death penalty. (Zant v. Stephens, supra, 462 U.S.at pp. 877- 878.) California’s capital sentencing scheme does not meaningfully narrow the pool of murderers eligible for the death penalty. At the time of the offense charged against Gomez, Penal Code section 190.2 contained 21 special circumstances. (See Pen. Code § 190.2(a)(1) through (a)(21).) Given the large number of special circumstances, California’s statutory schemefails to identify the few cases in which the death penalty might be appropriate, but instead makes almostall first degree murders eligible for the death penalty. This Court routinely rejects challenges to the statute’s lack of any meaningful narrowing. (People v. Stanley (1995) 10 Cal.4th 764, 842-843; see People v. Solomon, supra, 49 Cal.4th at p. 843.) This Court should reconsider these cases andstrike down Penal Code 8continued) specific instruction or raise the precise claim asserted here. 476 section 190.2 and the current statutory schemeas soall-inclusive as to guarantee the arbitrary imposition of the death penalty in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. B. The Broad Application Of Section 190.3, Factor (a), Violated Mr. Gomez’s Constitutional Rights. Penal Code section 190.3, factor (a), directs the jury to consider in aggravation the “circumstancesofthe crime.” (See CALJIC No. 8.85; 13CT 3444: 31RT 4605-4606.) Prosecutors throughout California have argued that the jury could weigh in aggravation almost every conceivable circumstanceofthe crime, even those that, from case to case, reflect starkly opposite circumstances. Of equal importance is the use of factor (a) to embrace facts which cover the entire spectrum of circumstancesinevitably present in every homicide; facts such as the age ofthe victim, the age of the defendant, the method ofkilling, the motive forthe killing, the time of the killing, and the location of the killing. This Court never has applied any limiting construction to factor (a). (People v. Blair (2005) 36 Cal.4th 686, 749 [“circumstances of crime” not required to have spatial or temporal connection to crime].) Instead, the conceptof“aggravating factors” has been applied in such a wanton and freakish mannerthat almostall features of every murder can be and have 477 been characterized by prosecutors as “aggravating.” Asa result, California’s capital sentencing schemeviolates the Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution because it permitsthe jury to assess death upon nobasis otherthan that the particular set of circumstances surrounding the instant murder were sufficient, by themselves and without some narrowing principle, to warrant the imposition of death. (See Maynard v. Cartwright, supra, 486 U.S. at pp. 363-364; but see Tuilaepa v. California, supra, 512 U.S. at pp. 975-980 [factor (a) is constitutional]. ) Gomez is aware that the Court has repeatedly rejected the claim that permitting the jury to consider the “circumstancesofthe crime” within the meaning of section 190.3 in the penalty phaseresults in the arbitrary and capricious imposition of the death penalty. (People v. Kennedy (2005) 36 Cal.4th 595, 641, disapproved on other grounds in People v. Williams, supra, 49 Cal.4th at p. 459; People v. Brown, supra, 33 Cal.4th at p. 401; People v. Solomon, supra, 49 Cal.Ath at p. 843.) He urges the Court to reconsiderthis holding. 478 C. The Death Penalty Statute And Accompanying Jury Instructions Fail To Set Forth The Appropriate Burden Of Proof. 1. Mr. Gomez’s Death Sentence is Unconstitutional Because it is Not Premised on Findings Made Beyond a Reasonable Doubt. California law does not require that a reasonable doubt standard be used during any part of the penalty phase, except as to proofofprior criminality. (CALJIC Nos. 8.86, 8.87; see People v. Anderson (2001) 25 Cal.4th 543, 590; see People v. Hawthorne (1992) 4 Cal.4th 43, 79 [penalty phase determinations are moral and not “susceptible to a burden of proof quantification”].) In conformity with this standard, Gomez’s jury was not told that it had to find beyond a reasonable doubt that aggravating factors in this case outweighed the mitigating factors before determining whetheror not to impose a death sentence. (CALJIC No. 8.85; 13CT 3444-3445, 31RT 4605-4608; CALJIC No. 8.88; 13CT 3447-3448, 31RT 4614-4617.) Gomez recognizes that this Court has rejected this claim. (People v. Solomon, supra, 49 Cal.4th at pp. 843-844.) Apprendi v. New Jersey, supra, 530 U.S. at p. 490, Blakely v. Washington (2004) 542 U.S. 296, 303-305, Ring v. Arizona (2002) 536 US. 584, 604, and Cunningham v. California (2007) 549 U.S. 270, 280-282, require any fact that is used to support an increased sentence (other than a prior conviction) be submitted to a jury and proved beyond a reasonable 479 doubt. In order to impose the death penalty in this case, Gomez’s jury had to first make several factual findings: (1) that aggravating factors were present; (2) that the aggravating factors outweighed the mitigating factors; and (3) that the aggravating factors were so substantial as to make death an appropriate punishment. (CALJIC No. 8.88; 13CT 3447-3448, 31RT 4614- 4617; see also CALJIC No.8.86, 8.87; 13CT 3445-3446; 31RT 4608- 4610.) Because these additional findings were required before the jury could impose the death sentence, Ring, Apprendi, Blakely, and Cunningham require that each of these findings be made beyond a reasonable doubt. The court failed to so instruct the jury and thus failed to explain the general principles of law “necessary for the jury’s understanding ofthe case.” (People v. Sedeno (1974) 10 Cal.3d 703, 715, abrogated on other grounds in People v. Breverman (1998) 19 Cal.4th 142, 140, and disapproved on other grounds in People v. Flannel (1980) 25 Cal.3d 668, 684, fn. 12; see Carter v. Kentucky (1981) 450 U.S. 288, 302.) Gomez is mindful that this Court has held that the imposition of the death penalty does not constitute an increased sentence within the meaning ofApprendi (People v. Anderson, supra, 25 Cal.4th at p. 589, fn. 14), and does not require factual findings (People v. Griffin, supra, 33 Cal.4th at p. 595). The Court has rejected the argument that Apprendi, Blakely, and Ring 480 impose a reasonable doubt standard on California’s capital penalty phase proceedings. (People v. Prieto, supra, 30 Cal.4th at p. 263.) Gomez urges the Court to reconsiderits holding in Prieto so that California’s death penalty scheme will comport with the principles set forth in Apprendi, Ring, Blakely, and Cunningham. Setting aside the applicability of the Sixth Amendmentto California’s penalty phase proceedings, Gomez contendsthat the sentencer of a person facing the death penalty is required by due process and the prohibition against cruel and unusual punishment to be convinced beyond a reasonable doubt not only that the factual bases for its decision are true, but that death is the appropriate sentence. This Court previously has rejected the . claim that either Fourteenth Amendmentdueprocess or the Eighth Amendment requires that the jury beinstructed that it must decide beyond a reasonable doubtthat the aggravating factors outweigh the mitigating factors and that death is the appropriate penalty. (People v. Blair, supra, 36 Cal.4th at p. 753.) Gomez requests that the Court reconsiderthis holding. 2. The Statute Unconstitutionally Fails to Require that the Prosecution Bear the Burden of Persuasion at the Penalty Phase. State law provides that the prosecution always bears the burden of proofin a criminal case. (Evid. Code § 520.) Evidence Code section 520 48] creates a legitimate state expectation as to the way a criminal prosecution will be decided, and therefore Gomezis constitutionally entitled under the Fourteenth Amendmentto the burden ofproof provided by that statute. (See Hicks v. Oklahoma, supra, 447 U.S.at p. 346 [defendant constitutionally entitled to procedural protections afforded by state law].) Accordingly, Gomez’s jury should havebeeninstructed that the prosecution had the burden of proof regarding the existence of any factor in aggravation, whetheraggravating factors outweighed mitigating factors, and the appropriateness ofthe death penalty, and that it was presumedthatlife without parole was an appropriate sentence. CALJIC Nos. 8.85 and 8.88, the instructions given here (13CT 3444- 3448; 31RT 4605-4608, 4614-4617), fail to provide the jury with the guidancelegally required for administration ofthe death penalty to meet constitutional minimum standards and consequently violate the Sixth, Eighth, and Fourteenth Amendments. This Court has held that capital sentencing is not susceptible to burdens of proof or persuasion because the task is largely moral and normative, and thusis unlike other sentencing. (People v. Lenart (2004) 32 Cal.4th 1107, 1136-1137.) This Court also has rejected any instruction on the presumption of life. (People v. Arias, supra, 13 Cal.4th at p. 190.) Gomezis entitled to jury instructions that comport 482 with the federal Constitution and thus urges the court to reconsiderits decisions in Lenart and Arias. 3. Mr. Gomez’s Death Verdict Was Not Premised on Unanimous Jury Findings. Imposing a death sentence violates the Fifth, Sixth, Eighth, and Fourteenth Amendments whenthere is no assurance the jury, or even a majority of the jury, ever found a single set of aggravating circumstances that warranted the death penalty. (See Ballew v. Georgia, supra, 435 U.S.at pp. 232-234; Woodson v. North Carolina (1976) 428 U.S. 280, 304-305.)'°” This Court has held that “unanimity with respect to aggravating factors is not required bystatute or as a constitutional procedural safeguard.” (People v. Taylor (1990) 52 Cal.3d 719, 749.) The Court reaffirmed this holding after the decision in Ring v. Arizona, supra, 536 U.S. 584. (See Peoplev. Prieto, supra, 30 Cal.4th at p. 275; see also People v. Solomon, supra, 49 Cal.4th at p. 844.) Gomezasserts that Prieto was incorrectly decided, and that application of Ring’s reasoning mandates jury unanimity underthe overlapping principles of the Sixth, Eighth, and Fourteenth Amendments. “Jury unanimity ... is an accepted, vital mechanism to ensure that real and '? In this case, the error lies not only in the standard instructions, whichfailed to require unanimity (or even a majority) with respect to aggravating factors, but also in the court’s special instruction regarding the crimes against Escareno, on whichthe jury had hung at the guilt phase. (31RT 4562-4563; 31RT 4605, 4609-4610; 13CT 3444-3446.) 483 full deliberation occurs in the jury room, and that the jury’s ultimate decision will reflect the conscience of the community.” (McKoy v. North Carolina (1990) 494 U.S. 433, 452 (conc. opn. of Kennedy, J.).) Thefailure to require that the jury unanimously find the aggravating factors true also violates the equal protection clause of the federal Constitution. In California, when a criminal defendant has been charged with special allegations that may increase the severity of his sentence, the jury must render a separate, unanimousverdict on the truth of such allegations. (See, e.g., Pen. Code § 1158a.) Since capital defendants are entitled to more rigorous protections than those afforded noncapital defendants (see Monge v. California (1998) 524 U.S. 721, 732; Harmelin v. Michigan (1991) 501 U.S. 957, 994), and since providing more protection to a noncapital defendant than a capital defendant violates the equal protection clause of the Fourteenth Amendment(see e.g., Myers v. Y/st (9th Cir. 1990) 897 F.2d 417, 421),it follows that unanimity with regard to aggravating circumstancesis constitutionally required. To apply the requirement to an enhancementfinding that may carry only a maximum punishmentofone year in prison, but not to a finding that could have “a substantial impact on the jury’s determination whether the defendant should live or die” (People v. Medina, supra, 11 Cal.4th at pp. 763-764), would by 484 its inequity violate the equal protection clause of the federal Constitution and byits irrationality violate both the due process and cruel and unusual punishment clauses of the federal Constitution, as well as the Sixth Amendment’s guarantee of a trial by jury. Gomez asks the Court to reconsider Taylor and Prieto and require jury unanimity as mandated by the federal Constitution. The failure to require unanimity with respect to aggravating factors stands in stark contrast to the rules applicable in California to noncapital cases. In cases where a criminal defendant has been charged with special allegations that may increase the severity of his sentence, for example, the jury must render a separate, unanimousverdict on the truth of such allegations. (See, e.g., Pen. Code §§ 1158, 1158a.) Capital defendants are entitled to more rigorous protections than those afforded noncapital defendants. (Mongev. California, supra, 524 U.S. at p. 732; Harmelin v. Michigan, supra, 501 U.S.at p. 994; cf. Ring v. Arizona, supra, 536 U.S. at p. 589.) To apply the unanimity requirement to an enhancementfinding that may carry only a maximum punishmentof one year in prison, but not to a finding that could have “a substantial impact on the jury’s determination whetherthe defendant should live or die” (People v. Medina, supra, \1 Cal.4th at pp. 763-764), violates the equal protection clause ofthe 485 Fourteenth Amendment(see, e.g., Myers v. Yist, supra, 897 F.2d at p. 421). For these reasons, Gomez asks this Court to reconsiderits previous holdings on this issue. (See People v. Solomon, supra, 49 Cal.4th at p. 844.) 4. The Instructions Caused the Penalty Determination to Turn on an Impermissibly Vague and Ambiguous Standard. The question ofwhether to impose the death penalty upon Gomez hinged on whether the jurors were “persuaded that the aggravating circumstancesare so substantial in comparison with the mitigating circumstancesthat it warrants death instead of life without parole.” (CALJIC No. 8.88; 13CT 3447-3448, 31RT 4616-4617.) The phrase “so substantial”is an impermissibly broad phrase that does not channelor limit the sentencer’s discretion in a mannersufficient to minimize therisk of arbitrary and capricious sentencing. Consequently, this instruction violates the Eighth and Fourteenth Amendments becauseit creates a standard thatis vague anddirectionless. (See Maynard v. Cartwright, supra, 486 U.S.at pp. 362-364.) This Court has found that the use of this phrase does not render the instruction constitutionally deficient. (People v. Breaux (1991) 1 Cal.4th 281, 316, fn. 14.) Gomez asks this Court to reconsider that opinion. A86 5. The Instructions Failed to Inform the Jury that the Central Determination is Whether Death is the Appropriate Punishment. The ultimate question in the penalty phase of a capital caseis whetherdeath is the appropriate penalty. (Woodson vy. North Carolina, supra, 428 U.S. at pp. 304-305.) Yet CALJIC No. 8.88 does not makethis clear to jurors; rather, it instructs them they can return a death verdictif the aggravating evidence “warrants” death rather than life without parole. (13CT 3447-3448; 31RT 4614-4617.) These determinations are not the same. To satisfy the Eighth Amendment“requirement of individualized sentencing in capital cases” (Blystone v. Pennsylvania (1990) 494 US. 299, 307), the punishment mustfit the offense and the offender, i.e., it must be appropriate (see Zant v. Stephens, supra, 462 U.S. at p. 879). On the other hand, under California’s scheme, jurors find death to be “warranted” when they find the existence of a special circumstance that authorizes death. (See People v. Bacigalupo, supra, 6 Cal.4th at pp. 462, 464.) By failing to distinguish between these determinations, the jury instructions violate the Eighth and Fourteenth Amendments to the federal Constitution. The Court has previously rejected this claim. (People v. Arias, supra, 13 Cal.4th at p. 171.) Gomez urges this Court to reconsiderthat ruling. 487 6. The Instruction Did Not Tell the Jury It Could Impose a Life Sentence Even if Aggravation Outweighed Mitigation. CALJIC No. 8.88 wasalso defective because it implied that death wasthe only appropriate sentence if the aggravating evidence was“so substantial in comparison with the mitigating circumstances ....” (I3CT 3448; 31RT 4616-4617.) However,it is clear under California law that a penalty jury may always return a verdict of life without the possibility of parole, even if the circumstances in aggravation outweigh those in mitigation. (People v. Brown, supra, 40 Cal.3d at pp. 538-541.) Thus, the instruction in effect improperly told the jurors they had to choose death if the evidence in aggravation substantially outweighed that in mitigation. The jury may imposea life sentence if any one factor in mitigation outweighsall of the factors in aggravation; also, the jury may impose life sentence even if none of the factors in mitigation (even in combination) outweighs the factors in aggravation. The Court has previously rejected this claim. (People v. Kipp (1998) 18 Cal.4th 349, 381; see also People v. Morgan, supra, 42 Cal.4th at p. 625.) Gomez urges this Court to reconsiderthat ruling. 488 7. The Instructions Failed to Inform the Jurors that if They Determined that Mitigation Outweighed Aggravation, They Were Required to Return a Sentence of Life Without the Possibility of Parole. Penal Code section 190.3 directs a jury to imposea sentence oflife imprisonment without parole when the mitigating circumstances outweigh the aggravating circumstances. This mandatory language is consistent with the individualized consideration of a capital defendant’s circumstancesthat is required under the Eighth Amendment. (See Blystone v. Pennsylvania, supra, 494 U.S.at p. 307.) Yet, CALJIC No. 8.88 does not address this proposition, but only informs the jury of the circumstances that permit the rendition of a death verdict. (13CT 3447-3448; 31RT 4614-4617.) By failing to conform to the mandate of Penal Codesection 190.3, the instruction violated Gomez’s right to due process of law. (See Hicks v. Oklahoma, supra, 447 U.S. at p. 346.) This Court has held that since the instruction tells the jury that death can be imposedonlyif it finds that aggravation outweighs mitigation,it is unnecessary to instruct on the converse principle. (People v. Duncan (1991) 53 Cal.3d 955, 978.) Gomez submitsthat this holding conflicts with cases disapproving instructions that emphasize the prosecution theory of the case while ignoring or minimizing the defense theory. (See People v. Moore (1954) 43 Cal.2d 517, 526-529; People v. Kelley (1980) 113 Cal.App.3d 489 1005, 1013-1014; see also People v. Rice (1976) 59 Cal.App.3d 998, 1004 [instructions required on every aspect of case].) It also conflicts with due processprinciples in that the nonreciprocity involved in explaining how a death verdict may be warranted, but failing to explain when a life without parole verdict is required,tilts the balance of forces in favor of the accuser and against the accused. (See Wardius v. Oregon, supra, 412 U.S.at pp. 473-474 & fn. 6.) 8. The Instructions Failed to Inform the Jury Regarding the Standard of Proof and Lack of Need for Unanimity as to Mitigating Circumstances. Thefailure of the jury instructions to set forth a burden of proof impermissibly foreclosed the full consideration of mitigating evidence required by the Eighth Amendment. (See Brewer v. Quarterman, supra, 550 U.S. at pp. 291-296; Mills v. Maryland (1988) 486 U.S. 367, 374; Lockettv. Ohio, supra, 438 U.S. at p. 604; Woodson v. North Carolina, supra, 428 U.S. at pp. 304-305.) Constitutional error occurs whenthere is a likelihood that a jury has applied an instruction in a way that prevents the consideration of constitutionally relevant evidence. (Boyde v. California (1990) 494 U.S. 370, 380.) That occurred here because the jury wasleft with the impression that the defendant bore someparticular burden in proving facts in mitigation. 490 A similar problem is presented by the lack of instruction regarding jury unanimity. Gomez’s jury wastold in the guilt phase that unanimity was required in order to acquit Gomez of any charge or special circumstance. (3CT 885, 887, 892; 29RT 4152, 4159-4160, 4171.) In the absence of an explicit instruction to the contrary, there is a substantial likelihood that the jurors believed unanimity wasalso required for finding the existence of mitigating factors. A requirement of unanimity improperly limits consideration of mitigating evidencein violation of the Eighth Amendmentofthe federal Constitution. (See McKoy v. North Carolina, supra, 494 U.S.at pp. 441-443.) Had the jury been instructed that unanimity was required before mitigating circumstances could be considered, there would be no question that reversal would be required. (/bid.; see also Mills v. Maryland, supra, 486 US. at pp. 374-375.) Because there is a reasonable likelihood that the Jury erroneously believed that unanimity was required, reversalis also required here. In short, the failure to provide the jury with appropriate guidance was prejudicial, and requires reversal of Gomez’s death sentence, since he was deprived ofhis rights to due process, equal protection and a reliable capital-sentencing determination, in violation of the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution. 49] 9. The Penalty Jury Should be Instructed on the Presumption ofLife. The presumption of innocenceis a core constitutional and adjudicative valuethat is essential to protect the accused in a criminal case. (See Estelle v. Williams, supra, 425 U.S.at p. 503.) In the penalty phase of a capital case, the presumptionoflife is the correlate of the presumption of innocence. Paradoxically, however, although the stakes are much higherat the penalty phase, there is no statutory requirementthat the jury be instructed as to the presumption oflife. (See Note, Ze Presumption ofLife: A Starting Pointfor Due Process Analysis ofCapital Sentencing (1984) 94 Yale L.J. 351, 352-353 & fn. 7; cf. Delo v. Lashley (1983) 507 U.S. 272, 278-280.) Thetrial court’s failure to instruct the jury that the law favorslife and presumeslife imprisonment without parole to be the appropriate sentence violated Gomez’s right to due process of law (U.S. Const., 14th Amend.), his right to be free from cruel and unusual punishment and to have his sentence determined in a reliable manner (U.S. Const., 8th & 14th Amends.), and his right to the equal protection of the laws (U.S. Const., 14th Amend.). In People v. Arias, supra, 13 Cal.4th 92, this Court held that an instruction on the presumption oflife is not necessary in California capital 492 cases, in part because the United States Supreme Court has held that “the state may otherwise structure the penalty determinationasit sees fit,” so long as state law otherwise properly limits death eligibility. (/d. at p. 190.) However, as the other sections of this brief demonstrate, California’s death penalty law is remarkably deficient in the protections needed to insure the consistent and reliable imposition of capital punishment. Therefore, a presumptionoflife instruction is constitutionally required. D. Failing to Require That The Jury Make Written Findings Violates Mr. Gomez’s Right To Meaningful Appellate Review. Consistent with state law (People v. Fauber (1992) 2 Cal.4th 792, 859), Gomez’s jury was not required to make any written findings during the penalty phaseofthe trial. The failure to require written or other specific findings by the jury deprived Gomezofhis rights under the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution, as well as his right to meaningful appellate review to ensure that the death penalty was not capriciously imposed. (See Gregg v. Georgia, supra, 428 U.S.at p. 195.) This Court has rejected these contentions. (People v. Cook (2006) 39 Cal.4th 566, 619.) Gomez urges the court to reconsiderits decisions on the necessity of written findings. 493 E. The Instructions To The Jury On Mitigating And Aggravating Factors Violated Mr. Gomez’s Constitutional Rights. 1. TheInstructions Used Restrictive Adjectives in the List of Potential Mitigating Factors. Theinclusion in the list of potential mitigating factors of such adjectives as “extreme” and “substantial” (see CALJIC No. 8.85(d) & (g); 13CT 3444-3445; 31RT 4606-4607; Pen. Code, § 190.3, factors (d) & (g)), acted asbarriers to the consideration of mitigation in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Mills v. Maryland, supra, 486 USS. at p. 384; Lockett v. Ohio, supra, 438 US.at p. 604.) Gomezis aware that the Court has rejected this argument (People v. Avila (2006) 38 Cal.4th 491, 614), but urges reconsideration. 2. The Instructions Failed to Delete Inapplicable Sentencing Factors. Someofthe sentencing factors set forth in CALJIC No. 8.85 were inapplicable to Gomez’s case. (CALJIC No. 8.85(e) & (i).) The trial court failed to omit those factors from the jury instructions (13CT 3444-3445; 31RT 4606-4607) likely confusing the jury and preventing the jurors from makinganyreliable determination of the appropriate penalty, in violation of defendant’s constitutional rights. Gomezasks the Court to reconsider its decision in People v. Cook, supra, 39 Cal.4th at p. 618, and hold that the trial court must delete any 494 inapplicable sentencing factors from the jury’s instructions. 3. The Instructions Failed to Inform the Jury Not to Consider the Deterrent Effect or the Cost of the Death Penalty. The instructions failed to inform the jury not to consider the deterrent or non-deterrent effect of the death penalty or the monetary cost to the state of executing a defendant or maintaining his in prison forlife without the possibility of parole. Such factors are wholly irrelevant to a defendant’s deathworthiness and risk an arbitrary, capricious and unreliable capital-sentencing decision in violation of the Eighth and Fourteenth Amendments. This Court has held that a trial court does not err in refusing to give such an instruction where “‘neither party raise[s] the issue of either the cost or the deterrent effect of the death penalty . . .” [Citation.].” (People v. Zamudio, supra, 43 Cal.4th at p. 371.) Gomez asks the Court to reconsiderits prior decisions. F. The Prohibition Against Inter-Case Proportionality Review Guarantees Arbitrary And Disproportionate Impositions Of The Death Penalty. The California capital sentencing scheme doesnot require that either the trial court or this Court undertake a comparison between this and other similar cases regarding the relative proportionality of the sentence imposed, i.e., inter-case proportionality review. (See People v. Solomon, supra, 49 495 Cal.4th at p. 844.) The failure to conduct inter-case proportionality review violates the Fifth, Sixth, Eighth, and Fourteenth Amendmentprohibitions against proceedings conducted in a constitutionally arbitrary, unreviewable manneror that violate equal protection or due process. For this reason, Gomez urges the Court to reconsiderits failure to require inter-case proportionality review in capital cases. G. California’s Capital-Sentencing Scheme Violates The Equal Protection Clause. The California death penalty scheme provides significantly fewer procedural protections for persons facing a death sentence than are afforded persons charged with non-capital crimes in violation of the Equal Protection Clause. To the extent that there may be differences between capital defendants and non-capital felony defendants, those differences justify more, not fewer, procedural protections for capital defendants. In a non-capital case, any true finding on an enhancementallegation must be unanimousand beyond a reasonable doubt, and the sentencer must articulate reasonsjustifying the defendant’s sentence.'® (People v. Sengpadychith (2001) 26 Cal.4th 316, 325-326; Cal. Rules of Court, rule ‘° More,at the time of Gomez’strial, aggravating and mitigating factors had to be found by the sentencer by a preponderance of the evidence. (See generally Cunninghamv. California, supra, 549 U.S.at pp. 275-281 [describing noncapital sentencing schemein existence until Cunningham decision].) 496 4.420, (b) & (e).) In a capital case, there is no burden of proofat all, and the jurors need not agree on what aggravating circumstances apply nor provide any written findings to justify the defendant’s sentence. Gomez acknowledgesthat the Court has rejected these equal protection arguments (People v. Manriquez (2005) 37 Cal.4th 547, 590; People v. Solomon, supra, 49 Cal.4th at p. 844), but he asks the Court to reconsiderits ruling. H. California’s Use Of The Death Penalty As A Regular Form Of Punishment Conflicts With Evolving Standards of Decency and Falls Short Of International Norms. This Court has rejected the claim that the use of the death penalty at all, or, alternatively, that the regular use of the death penalty violates international law, the Eighth and Fourteenth Amendments, or “evolving standards of decency” (Trop v. Dulles (1958) 356 U.S. 86, 101). (Peoplev. Solomon, supra, 49 Cal.4th at p. 844; People v. Cook, supra, 39 Cal.4th at pp. 618-620.) In light of evolving standards of decency,the international community’s overwhelmingrejection of the death penalty as a regular form of punishment, and the United States Supreme Court’s decision citing international law to support its decision prohibiting the imposition of capital punishmentagainst defendants who committed their crimes as juveniles (Roper v. Simmons, supra, 543 U.S. at pp. 555, 560-579), Gomez urges the Court to reconsiderits previous decisions. 497 XXV. THE CUMULATIVE EFFECT OF THE ERRORSAT THE CRIMINAL TRIAL UNDERMINES THE RELIABILITY OF THE CRIMINAL JUDGMENT, REQUIRING REVERSAL The errors set forth above in Arguments I through XXTV— individually, cumulatively, and in any combination — undercut confidence in fairness of the trial and the reliability of the jury’s first degree murder verdicts, findings of special circumstances and sentence enhancements, and determination that death is the appropriate sentence for Gomez. The errors here — individually, cumulatively, and in any combination — deprived Gomezofhis right to due process of law and warrant reversal ofthe judgment. The due process clause entitles a criminal defendant to a fairtrial. (See Estes v. Texas (1965) 381 U.S. 532, 543; U.S. Const. 14th. Amend.; Cal. Const., art. I, §§ 7, 15, 16.) The cumulative effect of trial errors can so prejudice a case that reversal is required. (People v. Holt (1984) 37 Cal.3d 436, 458-459, questioned on other grounds in People v. Triplett (1993) 16 Cal.App.4th 624, 627-628, and superseded by statute on other grounds as stated in People v. Muldrow (1988) 202 Cal.App.3d 636, 644; Peoplev. Hill, supra, 17 Cal.4th at pp. 844-848; see People v. Cardenas, supra, 31 Cal.3d at p. 907; Parle v. Runnels (9th Cir. 2007) 505 F.3d 922, 927-928: 498 Chambersv. Mississippi (1973) 410 U.S. 284, 302-303; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643.) In People v. Holt, supra, 37 Cal.3d at p. 459,this Court reversed a conviction because of the cumulative impact of erroneously admitted evidence and improper impeachment. In this case, similarly, the cumulative effect of all the errors was not harmless beyond a reasonable doubt. (See also People v. Williams (1971) 22 Cal.App.3d 34, 58-59 [applying harmless beyonda reasonable doubt standard to cumulative errors including federal constitutional violations]; Lincoln v. Sunn, supra, 807 F.2d at p. 814,fn. 6; Cooper v. Sowders (6th Cir. 1988) 837 F.2d 284, 285-288; see In re Rodriguez (1981) 119 Cal.App.3d 457, 470 [applying harmless beyond a reasonable doubt standard to cumulative federal constitutional errors].) The prosecution cannot show that the verdicts in this trial were surely unattributable to these errors. (Sullivan v. Louisiana, supra, 508 U.S. at p. 279; Chapmanv. California, supra, 386 U.S. at p. 24.) In any event, the errors here were not harmless under any standard. Withoutthe cumulative effect of these errors, there is a reasonable probability that at least one juror would have harbored a reasonable doubt as to whether the prosecution had proved, beyonda reasonable doubt, the cases against Gomez,and the result would have been different. (See People v. Watson, 499 supra, 46 Cal.2d at p. 836; see also People v. Bowers, supra, 87 Cal.App.4th at p. 736 [mistrial is more favorable result than conviction]; People v. Soojian, supra, 190 Cal.App.4th at pp. 520-524.) Per se reversalof all the verdicts is required separately because of the structural errors that occurred, including thetrial court’s error in unequivocally ruling out the possibility of self-representation. (Argument IV; see also Arguments X, XII, XIII.) Insufficiency of the evidence requires reversal of the convictions. (ArgumentsI, II, and II.) But even if the Faretta error does not require automatic reversal, and even if the court should find the evidence on the Luna and Patel counts sufficient, and evidencesufficient to support the first degree murder verdicts in the Dunton and Acosta cases, both the convictions and death sentences in this case must be reviewedin light of cumulative error. (See People v. Hayes, supra, 52 Cal.3d at p. 644.) The cumulative prejudice with regard to Gomez’s convictionsin the LunaandPatel cases —— in which the evidenceofhis guilt was particularly weak,if not insufficient — is pronounced. The jury considering whether Gomez was guilty beyond a reasonable doubt in the Luna and Patel cases had beforeit, due to the court’s erroneous ruling on Gomez’s severance motion, not only the evidence in the case at issue, but evidence in the 500 Dunton and Acosta double homicide, the Escareno case, and, in the case of Luna, the evidence in the Patel case (and vice versa). (See Argument V; see also Argument VI.) Also before the jurors as they considered guilt in these exceptionally weak cases was highly prejudicial gang expert testimony about the Mexican Mafia — which lacked any connectionat all to the Patel and Lunacases. (See Argument VIII.) And, jurors considering these cases were presented with irrelevant and highly prejudicial testimony, from jail guard, regarding Gomez’s refusal to come to court one morning — and were instructed that they could consider this evidence as showing a consciousness of guilt. (See Argument VIL.) Yet more erroneous and prejudicial instructions compromised the jury’s fair consideration of Gomez’s guilt or innocencein these weak cases. First, before trial began, the court sternly directed jurors to take notes duringthetrial, telling jurors it would be “very discouraged”to see jurors “looking at the witnesses” and not taking notes (8RT 1300) — seriously compromisingthejurors’ ability to assess the demeanorandcredibility of the prosecution’s highly suspect witnesses. (See Argument X.) The court further primed the jury to view these suspect witnessesas less culpable, and Gomez as more culpable, by explaining to jurors, in voir dire, through a hypothetical, that the prosecution, lacking sufficient evidence to convict the 501 “sreater culprit,” may offer leniency to lesser culprits in exchange fortheir testimony. (See Argument XI.) Finally, while these errors prevented the jurors’ unbiased and careful evaluation of the prosecution’s witnesses, the prosecutor’s argument that the defense had produced no evidencethat Gomez read certain newspaperarticles — error under Griffin v. California, supra, 380 U.S. 609 — erroneously and prejudicially drew attention to the fact that Gomez hadnot taken the stand to dispute the prosecution’s evidence on anyofthe charges and served to undermine a crucial piece of evidence presented by the defense. (See Argument XVII.) Moreover,all these errors were exacerbated by defects in the court’s instructions. (Argument XII, XII, XIV, XV.) The jury’s fair adjudication of the Dunton and Acosta double homicide wasprejudiced, as well, by all the errors discussed above, as well as by the court’s erroneous admission, in violation of the Sixth Amendment, of a note written by Robert Acosta shortly before his death. (See Argument IX.) This “testimony from the grave,” as the prosecutorput it, provided the most damaging evidencein the entire case that Gomez’s co-defendant, Arthur Grajeda, a Mexican Mafia associate — and thus the Mexican Mafia itself— was involvedin the crime. Additional errors at the penalty phase — evenif individually not 502 found to be prejudicial — compoundedthe prejudicial error at the guilt phase. These penalty phase errors blunted lingering doubts about Gomez’s guilt, particularly in the Luna and Patel cases, where the evidence, viewed dispassionately and separately in each case, and withoutreference to the inflammatory gang testimony, and the testimony, from a jail guard, about Gomez’srefusal to come to court, did not warrant conviction, much less a death sentence. The court, which should have granted Gomez’s motion to dismiss the Escarenocase for insufficiency of the evidence, instead denied it, and then allowed jurors who believed Gomez guilty in that case to considerit at the penalty phase. (See Argument XVIII.) More,it failed to deliver the crucial accomplice corroboration instruction in the penalty phase (and affirmatively told jurors that guilt phase instructions no longer applied), thus allowing any juror who believed Witness #1’s testimony to consider the Escareno murderat the penalty phase, regardless ofwhether the corroboration requirement had been met. (See Argument XIX.) The Escareno case, which should have been removed from the jury’s consideration —- orat least subject to the accomplice corroboration requirement — instead constituted the single most aggravating factor before jurors at the penalty phase: the murder of an additional person. 503 Additional errors compromised the jurors’ appropriate consideration of penalty: the court allowed the prosecutorto elicit the ethnic background of twojail guards who told jurors Gomez had attacked him;the prosecutor then made the unseemly and unconstitutional argument, in support of a death sentence, that Gomez had even attacked Mexican-Americans. (See Argument XX.) And while jurors were thus encouraged to considerthis constitutionally inappropriate factor, the court, on the heels of defense counsel’s summation, which emphasized the moral decision facing the jurors, forbade jurors from “refer[ring] to Biblical references” — unconstitutionally depriving jurors of a potentially helpful source of moral reasoning, and depriving Gomezofa verdict reflecting the “conscience of the community.” (See Argument XXI.) These guilt and penalty phase errors, together, precluded the possibility that the jury reached appropriate verdicts in accordance with the state death penalty statute or the federal constitutional requirements of a fundamentally fair, reliable, non-arbitrary and individualized sentencing determination. Reversal of the death judgment is mandated here becauseit cannot be shownthat these errors, individually, or collectively, did not affect the penalty verdict. (See Hitchcock v. Dugger (1987) 481 U.S. 393, 399; Skipper v. South Carolina (1986) 476 U.S. 1, 8; Caldwellv. 504 Mississippi, supra, 472 U.S. at p. 341; Arizona v. Fulminante, supra, 499 U.S.at pp. 301- 302; see People v. Hayes, supra, 52 Cal.3d at p. 644 [court considers prejudice ofguilt phaseinstructionalerror in assessing penalty phase].) Accordingly, the combined impact of the variouserrors in this case requires reversal of Gomez’s convictions, true findings of the special circumstances and sentencing enhancements, and death sentences. 505 CONCLUSION Forthe reasons set forth above, Mr. Gomez respectfully requests that this Court reverse the judgment. Dated: March 9, 2012 Somer bspo Lynne S. Coffin C4 Laura S. Kelly 2 506 WORD COUNT CERTIFICATION 1, Lynne S. Coffin, counsel for Ruben Perez Go mez, certify pursuant to the California Rules of Court that the word count f or this documentis 117,213 words, excluding the cover, the tables, and this certificat e. This document was prepared in Corel WordPerfect, and this is the word count generated by the program for this document. Executed at Mill Valley, California, on March9 , 2012. aS. Coffin é Attorney for Ruben Perez Gomez 507 DECLARATION OF SERVICE Re: People v. Ruben Perez Gomez, $087773 On March 14, 2012, I served the within Appellant’s Opening Brief on each ofthe following, by placing true copies thereof in envelopes addressedrespectively as follows, and depositing them in the United States Mailat Irvine, California: David Voet Mr. Ruben Perez Gomez #G99658 Deputy Attorney General San Quentin State Prison 300 South Spring Street San Quentin, CA 94974 Fifth Floor, North Tower Los Angeles, CA 90013 Valerie Hriciga Staff Attorney Clerk California Appellate Project-SF Los Angeles County Superior Court 101 Second Street, Suite 600 for delivery to Hon. William Pounders San Francisco, CA 94105 210 W. TempleSt. Los Angeles, CA 90012 I declare under penalty of perjury that the foregoing is true and correct. Executed on March 14, 2012,at Irvine, California. LauraS.Kelly
