PEOPLE v. MAI (HUNG T.)Appellant’s Opening BriefCal.March 30, 2010SUPREME COURT COPY COPY IN THE SUPREME COURT FOR THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, No. $089478 Plaintiff and Respondent, (Orange County Sup.Ct. No. 96NF1961) Vv. HUNG THANH MAL . SUPRE Py Ourp Defendant and Appellant. My“Ap meg Tk ge me APPELLANT’S OPENING BRIEF oe Chien oy Appeal from the Judgment ofthe Superior Court of the State of California for the County of Orange HONORABLE RICHARD WEATHERSPOON MICHAEL J. HERSEK. State Public Defender C. DELAINE RENARD State Bar No. 1699893 Deputy State Public Defender 221 Main Street, 10th Floor San Francisco, California 94105 Telephone: (415) 904-5600 Renard@ospd.ca.gov Attorneys for Appellant OAH PENALTY TABLE OF CONTENTS Page STATEMENT OF APPEALABILITY ....... 0.0 c cece etter ete ene 1 STATEMENT OF THE CASE ....... 2 cece ce eee nee e teen n eet e nn ees l STATEMENTOF FACTS 2... cece cctet ent ten ere e nee n ees 4 The Guilt Phase 2...cccte eee enne tenn nen eee 4 The Penalty Phase ...... 2... 0c cee ccc tenetttn eee tenets 11 A. Circumstances of the Crime .... 0.0... ccc ect eeete ee e eens 11 B. Other Evidence in Aggravation . 2.0... 0... cece ee16 ARGUMENT I, THE JUDGMENT MUST BE REVERSED BECAUSEMR. MAI DID NOT MAKE A KNOWING, VOLUNTARY, AND INTELLIGENT WAIVER OFHIS RIGHT TO THE ASSISTANCE OF CONFLICT-FREE COUNSEL AND WAS ULTIMATELY DENIED - HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF CONFLICT-FREE COUNSELIN VIOLATION OF THE SIXTH AMENDMENTTO THE UNITED STATE CONSTITUTION AND ARTICLE 1 SECTION 15 OF THE CALIFORNIA CONSTITUTION ...... ccc ccc eee tent eee nnn eee e ete teens 19 A. Introduction 2.0.0... cee eee bee eee eee eee ene teens 19 B. The General Framework for Assessing Conflicts of Interest Under The Sixth Amendmentto the United States Constitution and Article I, Section 15 of the California Constitution ........ 0. ccc ee ete ete eteenees 25 C. The Actions, Admission and Allegations Against Defense Counsel, By Daniel Watkins — Mr. Mai’s Indicted Co-Conspirator and Defense Counsel’s Agent and Investigator — Created the Potential That Severe Conflicts of Interest Could Adversely Affect Counsel’s Representation of Mr. Mai ................055 27 1. A Plausible Allegation that Defense Counsel Was Involved in Criminal Activity or Other Wrongdoing Related to His Client’s Crimes Creates a Unique and Severe Potential Conflict of Interest ................., 27 TABLE OF CONTENTS Page Daniel Watkins’s Conduct, Admission and Plausible Allegations Against Defense Counsel Regarding Their Roles In the Conspiracy, And His Attorney’s Demand That Their Roles Be Investigated by the Same Agency Prosecuting Mr. Mai, Created the Potential That Counsel’s Representation of Mr. Mai Would be Adversely Affected by their Conflicting Personal Interests 2...tteeee nett eae 31 The Record Fails to Demonstrate that Mr. Mai Knowingly and Intelligently Waived His Right to Representation by Counsel Unencumberedbytheir Potentially Conflicting Personal Interests in their Liberty, Livelihood, and Reputations that Watkins’s Conduct and Allegations Created .............. 40 1. The Governing Legal Principles ...... 0.0... cece cee ee eee 40 2. The Hearing and Colloquy ....... 0.0... ccc cece eee 43 3. The Record Fails to Demonstrate that Mr. Mai was Advised of the Most Virulent Potential Conflicts of Interest Created by Watkins’s Conduct and Allegations or Warned of the Dangers of Being Represented by Counsel Laboring Under Such Conflicts and, Hence, Fails to Demonstrate that Mr. Mai Made A Knowing andIntelligent Waiver of his Right to be Represented by Counsel Unencumbered by Such Conflicts .......... 50 The Potential Conflict of Interest Ripened into an Actual One, Which Adversely Affected Defense Counsel’s PerformanceIn the Pre-Trial and Plea Proceedings ........ 00sec cece eee e eee eee e ensbce enn n eee eeene 63 1. A Potential Conflict Becomes An “Actual Conflict” within the Meaning of the State and Federal Constitutions Whenit Influences, and thus Adversely Affects, Counsel’s Performance ........ 0... cece eee een eee 63 The Conflict Influenced, and Thus Adversely Affected, Defense Counsel’s Promise to the Federal Government — Made over the Objection of Mr. Mai’s Unconflicted Federal Counsel — That, in Addition to Pleading Guilty to All of the Federal Charges and Submitting to Federal Confinement, Mr. Mai Would Plead Guilty to the State Capital Murder Charge .... 0... cece cece cece teens 69 il 6. TABLE OF CONTENTS Page The Conflict Influenced, and Thus Adversely Affected, Defense Counsels’ Decision to Consent to Mr. Mai’s Unconditional Plea to the State Murder Charge and Special Circumstance Allegation Without Seeking a Return Benefit to their Client .... 0.0... cece cece eee eens 73 The Conflict Influenced Defense Counsel’s Decision to Consent to the Unconditional Plea to Capital Murder Without The Promise or Expectation that it Would Avoid a Death Sentence ..........--...-- 78 The Conflict Influenced Counsel’s Decision to Consent to the Unconditional Slow Plea to the Sole Special Circumstance Allegation Without Arguing a Compelling Reasonable Doubt Defense .......... 85 Conclusion ...... 0 ccc eee ee eee eee tent ete nt nes 91 The Conflict of Interest Influenced, and Thus Adversely Affected, Defense Counsel’s PerformanceIn Failing to Ensure that Mr. Mai was NotTried, and Did NotEffectively Stipulate to the Death Penalty, While Incompetent .......... 92 1. State Law and the Due Process Clause Prohibit Trying or Sentencing an Incompetent Defendant ....... 66... seer e entree ees 92 2. Defense Counsel’s Repeatedly Expressed Belief, And Supporting Evidence, that Mr. Mai’s Mental State Had So Deteriorated in Solitary Federal Confinement that He Was No Longer Ableto Rationally Participate in His Penalty Phase Defense .......... 6... e seer renee 93 3. Defense Counsel’s Insistence that No Competency Proceedings be Initiated .6.eeene eee ene e nee e eens 99 4. The Conflict of Interest Influenced, and thus Adversely Affected, Counsel’s Failure to Movefor the Initiation of Competency ProceedingS 0.0... cece teeter teen ees 99 The Conflict of Interest Influenced, And Thus Adversely Affected, Counsel’s Penalty Phase Performance ........- 6 se ee eee tenet n eee eens 103 1. Counsel Had Compelling Personal Interests that Would be Served By Acquiescing In Mr. Mai’s Purported Death Wish and Foregoing An Adversarial Penalty Phase Trial... 2.0.6... eee eee eee eee 104 ili TABLE OF CONTENTS Page 2. There Were Several Plausible Alternatives to Defense Counsel’s Response And Counsel to Mr. Mai With Regard to his Expressed Desire to Forgo a Penalty Phase Defense and Seek a Death Verdict ................. 111 a. Defense Counsel Did Not Take Plausible Steps to Ensure that Mr. Mai’s Decision was a Competent and Rational One ......... 112 b. Messrs. Peters and O’Connell Did Not Take Plausible Steps to Ensure that Mr. Mai’s Decision was a Fully Informed One ... 114 c. The Record Reveals Circumstantial Evidence that Defense Counsel Did Not Pursue the Plausible Alternative of Attempting to Persuade Mr. Mai to Change His Mind and Fight For his Life, but Rather Overstated the Hopelessness of His Case and Even Encouraged His Decision ......... 0.0.0.0 cee eee eee 118 3. There Were Plausible Alternatives to Defense Counsel’s Own Decision to Forgo Any Penalty Phase Defense and Effectively Stipulate to the Death Penalty... 0... ceceee tee ene enter n eben 127 a. Defense Counsel Discarded the Plausible Alternative of Presenting Available Mitigating Evidence .......... 00.000. c eee 129 b. Defense Counsel Discarded the Plausible Alternative of Challenging the Prosecution’s Aggravating Evidence........ 133 C. Defense Counsel Discarded the Plausible Alternatives of Objecting to Mr. Mai’s Request to Testify that Death Was the Appropriate Penalty in this Case and Pleading for His Life in Closing Argument 2.0...ceceen teens 135 4. Conclusion ....0.eeeee eee 140 H. The Judgment Must Be Reversed ..... 0.0... ccc cece eee 142 1. Mickens v. Taylor and this Court’s Interpretation and Application of the Federal Constitutional Standard in People v. Rundle ......... 143 2. People v. Doolin And Its Adoption, Interpretation, and Application of the Federal Constitutional Standard ................. 0. ee eee 148 iv IL. I, TABLE OF CONTENTS Page Beets v. Scott’s Bright-Line Rule Limiting the Sullivan Prophylaxisto Actual Conflicts Arising from Multiple Representation is Flawed and Inconsistent with United States Supreme Court Jurisprudence on the Subject and Indeed with the Very Purpose the Prophylaxis is Intended to Serve .. 0... cece ee tenet eens 153 The Possibility of Prejudice and the Corresponding Difficulty in Demonstrating Such Prejudice Are Sufficiently Great Compared to Other More Customary Assessments of the Detrimental Effects of Deficient Performance by Defense Counsel, That the Sullivan Limited Presumption Must Be Applied in Order to Safeguard Mr. Mai’s Fundamental Right to the Effective Assistance of Counsel under the Sixth Amendmentand Article I, section 15 of the California Constitution . 0... etete teen enna 162 Alternatively, Should this Court Adopt Beets v. Scott's Interpretation of the Federal Constitutional Standard, it Should Do Soin its Entirety and Hold That the Sullivan Limited Presumption Applies to Actual Conflicts Arising from Multiple Concurrent and Serial Representation andits “Functional Equivalent” And Therefore Applies Here 2.0...ceenenen 165 Conclusion .... 0... ccc ce ee eee ener eee ee een e nee 166 THE TRIAL COURT’S TRUE FINDING ON THE SOLE SPECIAL CIRCUMSTANCE UNDER PENAL CODESECTION 190.2, SUBDIVISION(a)(7), MUSTBE SET ASIDE, AND THE DEATH JUDGMENT REVERSED, BECAUSE IT WAS UNSUPPORTED BY SUFFICIENT EVIDENCEIN VIOLATION OF STATE LAW ANDTHE EIGHTH AND FOURTEENTH AMENDMENTS.... 168 A, B. Introduction . 2.0... ccc cee cee eee eee eee eee nee eee eens 168 In Order To Prove the Section 190.2, Subdivision (a)(7), Special Circumstance Allegation in this Case, State Law And The DueProcess Clause Required the Prosecution to Prove Beyond a Reasonable Doubt that Officer Burt was Lawfully Engaged in the Performanceofhis Duties When He was Killed 2.0.0... ccceenent nent eens 169 III. IV. TABLE OF CONTENTS Page C. Because the Evidence WasInsufficient to Prove That Officer Burt Was Lawfully Engaged in the Performance of His Duties When He WasKilled, the Trial Court’s True Finding on the Section 190.2, Subdivision (A)(7) Special Circumstance Allegation Violated State Law and the Eighth and Fourteenth Amendments, Requiring That it Be Set Aside and the Death Judgment Reversed 1.0... .eeeeeeeee ee 172 DEFENSE COUNSEL’S CONSENT TO MR. MAIS SLOW PLEA TO THE SOLE SPECIAL CIRCUMSTANCE ALLEGATION AND THEIR FAILURE TO ARGUE OR PRESENT EVIDENCE IN SUPPORT OF A COMPELLING REASONABLE DOUBT DEFENSETO IT VIOLATED MR.MAI’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL AND DEMANDSREVERSAL ................. 179 A. Introduction 2.0...eeeeect eee eee tae eee 179 B. The Governing Legal Principles 2.0... 0... ccceee eee 181 C. Even if Defense Counsel Reasonably Decided to Stipulate to Submitting the Issue of Mr. Mai’s Guilt on the Transcript of the Preliminary Hearing, Their Consent to the Slow Plea, Without Arguing the Reasonable Doubt Regarding the Truth ofthe Sole Special Circumstance Allegation, Nevertheless Deprived Mr. Mai of His State and Federal Constitutional Rights to the Effective Assistance of Counsel and Demands That the Special Circumstance be Set Aside and the Death Judgment Reversed 0.0... cccccence eee teen eee eens 183 D. Alternatively, Defense Counsel’s Failure to Present Evidence to Support a Reasonable Doubt Defense to the Sole Special Circumstance Allegation Also Violated Mr. Mai’s State and Federal Constitutional Rights to the Effective Assistance of Counsel 2.0... 00.00. cece cece eee eee e nee 192 THE DEATH JUDGMENT MUST BE REVERSED BECAUSE THE TRIAL COURT VIOLATED MR.MAI’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A RELIABLE DEATH VERDICT BY FAILING TO SUSPEND THE CRIMINAL PROCEEDINGS AND INITIATE COMPETENCY PROCEEDINGS 22.0...eeenete nnn nes 200 A. Introduction ......... cc cece eee eee eee eee eee nent e ees 200 B. The Evidence of Mr. Mai’s Decompensating Mental State and Inability to Participate in his Defense in a Rational Manner ...... e200 vi D. TABLE OF CONTENTS Page The Trial Court’s Failure to Suspend Criminal Proceedings and Initiate Competency Proceedings in the Face of Substantial Evidence That Mr. Mai’s Mental State Had Deteriorated in Solitary Confinement to the Point That He Was Unable to Rationally Assist In the Preparation of his Defense Violated State Law and Mr. Mai’s Federal Constitutional Right to Due Process ............-.. 217 1. Due Process Imposes An Absolute Obligation On Trial Courts to Hold a Competency Hearing Whenever Substantial Evidence Raises a Reasonable Or Bona Fide Doubt as to the Defendant’s Competency to Stand Trial... eee eee teen ene 218 The Sufficiency of Evidence to Raise a Reasonable or Bona Fide Doubt Regarding The Defendant’s Competency and Demand The Initiation of Competency Proceedings ......... scree reece rete teens 219 The Evidence Raised a Reasonable Doubt Regarding Mr. Mai’s Competency to Stand Trial .... 16... cece eee eee eee ees 224 Neither Defense Counsels’ Statements That, Although They Believed That Mr. Mai Was Unable to Rationally Participate in His Defense, They Did Not Believe That He Was Incompetent, Nor the Trial Court’s Own Observations of Mr. Mai’s Demeanor Relieved the Trial Court of its Independent Duty to Declare a Doubt Regarding Mr. Mai’s Competency to Stand Trial and Initiate Competency Proceedings .........- cece eee eee ee eee eens 236 The Court’s Failure to Hold a Competency Hearing Requires Reversal ...... 241 THE DEATH JUDGMENT MUSTBE REVERSED BECAUSE THE TRIAL COURT VIOLATED STATE LAW AND THE EIGHTH AND FOURTEENTH AMENDMENTSBY PERMITTING MR. MAI TO PRESENT AN IRRELEVANT AND INFLAMMATORYSTATEMENTTO THE JURORS THAT DEATH WAS THE APPROPRIATE PENALTYIN THIS CASE... 0... eeeees 249 A. Introduction 1... 0... eceeeee ete tee eee 249 B. Mr. Mai’s Testimony That Death Was The Appropriate Penalty In This Case WasIrrelevant and Inadmissible Under State Law and The Eighth and Fourteenth Amendments ........... 0 eee e eet een nee nets 251 vil VI. Vil. TABLE OF CONTENTS Page 1. The Right to Testify Is Not Absolute and Extends Only to Relevant and Admissible Material... 0.0.0.0... ccc ce ence eens 251 2. Mr. Mai’s Opinion That Death Was the Appropriate Punishment Was Irrelevant and Inadmissible at the Penalty Phase of this Capital Trial, and Offended the Eighth Amendment and Fourteenth Amendments . . 252 C. The Trial Court Had an Independent Obligation to Exclude Mr. Mai’s Testimony that Death Was the Appropriate Penalty, Which was Not Relieved by Defense Counsel’s Failure to Object ..... 0.0... cece ee ee eee 258 D. This Court’s Decisions in People v. Guzman and its Progeny Do Not Compel a Contrary Result 2.2...cence tne teen eee enes 261 E. The Death Judgment Must be Reversed ...... 0.0... 0c c cece ene ees 265 THE SEATING OF A BIASED JUROR VIOLATED MR.MAI’S STATE AND FEDERAL CONSTITUTIONALRIGHTSTO A FAIR AND RELIABLE PENALTY TRIAL BY AN IMPARTIAL JURY AND DEMANDSREVERSALOF THE DEATH JUDGMENT.... 0...teen ene n eens 272 A. Introduction 6.0...cece nent e ene nee n been etnies 272 B. The Seating of a Juror Actually Biased in Favor of Execution Violates the Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, Article I, Section 16 of the California Constitution, and Disentitles the State from Executing any Ensuing Death Judgment ............. 0.0.0 cece eens 274 C. Juror Number 12 was Actually Biased in Favor of Executing Mr. Mai ...... 281 D. Because Juror Number 12 Was Actually Biased, the Death Judgment Cannot be Executed Notwithstanding Defense Counsel’s Failure to Move to Exclude her For Cause 2.0... . cccctteen eee eens 285 THE TRIAL COURT’S DENIAL OF MR. MAI’S WHEELER/BATSON MOTION VIOLATED STATE LAW AND THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND DEMANDSREVERSAL OF THE DEATH JUDGMENT..... 0.0...ccteen tent e eens 295 A. Introduction .. 0...cccee eee eee eee n eee en beeeenes 295 Vili Vill. TABLE OF CONTENTS Page The Controlling Law 2.0.0... ccc cect eee eee nees 297 The Record Affirmatively Demonstrates that the Trial Court Terminated the Constitutionally-Mandated Wheeler/Batson Analysis at Step Two ofthe Inquiry AndFailed Entirely to EngageIn the Critical Third Step, and Thereby Violated The Sixth And Fourteenth Amendments and Article I, section 16 when it Denied the Motion 2.0... ccceee ee en teen teen een teens 303 1. The Trial Court Correctly Found That a Prima Facie Case of Discrimination Had Been Shown under Step One..............055 303 2. The Prosecutor’s Stated Reasonsfor the Challenges under Step Two and the Trial Court’s Denial of the Motion ............. 50s e eee 305 3. The Trial Court’s Statements in Denying the Motion Affirmatively Establish That it Terminated the Analysis at Step Two and Failed to Engage in Step Three ........ 0. cee cece ce treet ees 307 4, Other Evidence in the Record, and the Lack Thereof, Bolsters the Affirmative Evidence That the Trial Court Failed Entirely to Engage in the Critical Third Step of the Analysis ............ 000s ee eae 310 The Death Judgment Must Be Reversed ......... 00. e eee eee ee eee eee 321 1. Under This Court’s Precedent Consistently Holding That Wheeler Error is Prejudicial Per Se, the Death Judgment Must Be Reversed ........ 321 2. Because the Error Cannot Realistically be Remedied By a Remand Underthe Circumstancesofthis Case, the Death Judgment Must be Reversed; Alternatively, the Court Should Remand the Caseto the Trial Court with Directions ........ 0... cece eee eee eee 322 THE DEATH ELIGIBILITY FINDING AND DEATH VERDICTIN THIS CASE ARE UNRELIABLEIN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION AND ARTICLEI AND SECTION 17 OF THE CALIFORNIA CONSTITUTION AND MUSTBE SET PSS|D)5332 Constitutional Bases for Society’s IndependentInterest in the Fairness and ix IX. TABLE OFCONTENTS Accuracy of Criminal Proceedings and the Reliability of Death Judgments B. California’s Death Penalty Scheme Reflects Society’s Paramount, Independent Interest in the Fairness of its Criminal Proceedings and the Reliability of Death Judgments 2.0...eceen teen eee n tenn ee eens 336 C. The Death Judgment Must be Set Aside Because the Penalty Phase Trial Was an Empty Charade That Did Not Produce A Reliable Death Verdict ........ 347 CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT MR.MAI’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION . 0...cocete e teens 353 A. Penal Code Section 190.2 Is Impermissibly Broad ...............000005. 353 B. The Broad Application Of Section 190.3, Factor (a), Violated Mr. Mai’s Constitutional Rights 2.0... 0...cccence eens 354 C. The Death Penalty Statute And Accompanying Jury Instructions Fail To Set Forth The Appropriate Burden Of Proof. ..... 2.0... cee eee eee 355 1. Mr. Mai’s Death Sentence is Unconstitutional Becauseit is Not Premised on Findings Made Beyond a Reasonable Doubt .......... 355 2. Some Burden of Proof is Required, or the Jury Should Have Been Instructed That There Was No Burden of Proof .................. 357 3. Mr. Mai’s Death Verdict was Not Premised on UnanimousJury FindingS . 0.0.0...cecetenet e nen nes 359 4. The Instructions Caused the Penalty Determination to Turn on an Impermissibly Vague and Ambiguous Standard .................. 360 5. The Instructions Failed to Inform the Jury that the Central Determination is Whether Death is the Appropriate Punishment ................. 361 6. The Penalty Jury Should be Instructed on the Presumption of Life ... . 361 D. Failing to Require That The Jury Make Written Findings Violates Mr. Mai’s Right To Meaningful Appellate Review ....... 0.0... ese c eee ees 363 Xx TABLE OF CONTENTS Page E. The Instructions To The Jury On Mitigating And Aggravating Factors Violated Mr. Mai’s Constitutional Rights 2.0... 0... ccc eee eee eae 363 F, The Prohibition Against Inter-Case Proportionality Review Guarantees Arbitrary And Disproportionate Impositions Of The Death Penalty ........ 363 G. California’s Capital-Sentencing Scheme Violates The Equal Protection Clause eee eee ene ene ene nen ees 364 H. California’s Use Of The Death Penalty As A Regular Form Of Punishment Falls Short Of International Norms ....... 2.0.0... cece cece eee eee 365 CONCLUSION 0.0.00.eenetn tet e ene ete eens 366 CERTIFICATION OF COUNSEL ...... 0... cececeeene nents 367 xi TABLE OF AUTHORITIES Pages FEDERAL CASES Adamsv. Texas (1980) 448 U.S. 38,50 .cnetn tne etn eet n ens 277 Agan v. Dugger (11th Cir. 1987) 835 F.2d. 1337 oo.nnnnnn neee 223, 231, 232 Alberni v. McDaniel (9th Cir. 2006) 458 F.3d 860 0...ceceeee nee eens 64, 147 Alcaraz v. Block (9th Cir. 1984) 746 F.2d593eeee nen eet e eens 267 Ali v. Hickman (9th Cir. 2009) 584 F.3d 1174 2.0cceensLees 301, 315, 317 Apprendi v. New Jersey (2000) 530 U.S. 466 2...eeeee etn eee eben ene es 356 Arizona v. Fulminante (1991) 499 U.S. 279 Loceceteen teen ene n eee e beeen 288, 294 Arkadelphia Milling Co. v. St. Louis Southwestern Ry. Co (1919) 249 U.S. 1342cene n teen t ete n ene nn eens 258 Armienti v. United States (2d Cir. 2000) 234 F.3d 820 2...cccete nent n net e enn 30, 38 Baca v. Moreno (2006) 537 U.S. 1207 oceen e etn e eee e etn n etn eee 194 Ballew v. Georgia (1978) 435 U.S. 223 Loeenent eet eee teen ene 359 Batson v. Kentucky (1986) 476 US. 790.eeeeee teen tenes passim Battenfield v. Gibson (10th Cir. 2001) 236 F.3d 1215 2.cnetnets 115, 116 xii TABLE OF AUTHORITIES Pages Baumany. United States (9th Cir. 1997) 557 F.2d 650... eeeeetteen renee nee 210 Baze v. Rees (2008) 553 U.S. 35, 128 S.Ct. 1520 2...eeeenentne 314 Beck v. Alabama (1980) 447 U.S.625 2...eeteeter e eet es passim Beets v. Scott (5th Cir. 1995) 65 F.3d 1258 0.0... ceceettee ene es passim Bell v. Cone (2002) 535 U.S. 685 occeeentetna 135, 163 Belmontes v. Woodford (9th Cir. 2003) 350 F.3d 861 0...eetteen tenes 125, 270 Blakely v. Washington (2004) 542 U.S. 296 1... cece ceceteeter ener nent n ees 356 Blanco v. Singletary (11th Cir. 1991) 943 F.2d 1477...cecetenn es 114, 116 Blystone v. Pennsylvania (1990) 494 U.S. 299 occtenetentered 361 Bollenbach v. United States (1946) 302 U.S. 607 2...cccetntne r nne tenes 270 Booth v. Maryland (1987) 482 U.S. 496 oonettes 138, 252, 255, 256 Bordenkircher v. Hayes (1978) 434 U.S. 357oetree treet renee es 71 Boyd v. Newland (9th Cir. 2006) 467 F.3d 1139 0... ceceeteenters 298 Boyde v. California (1990) 494 ULS.370 oo icccccneeeetetreer nt ene es 267 Xiil TABLE OF AUTHORITIES Pages Brady v. Maryland (1963) 373 U.S.83cece cece tee e bb bb bbb bbb bp. 199 Brecheen v. Reynolds (10th Cir. 1994) 41 F.3d 1343cccccc cece eevee cece eee, 128 Brendlin v. California (2007) SSL US. 249cececc e ene n bbb bbb beep 171 Brennan v. Blankenship (W.D. Va. 1979) 472 F.Supp. 149 occcece ccc cece cee ee cece ee cs 113 Brown v. Sanders (2006) 546 U.S.212cccnce ene b tence eee en eee. 255, 265, 271 Brown vy. Walter (2nd Cir. 1933) 62 F.2d 798 2... cece ccc eb e eb ce bese eee ccc, 258 Burger v. Kemp (1987) 483 U.S.776 oooccceen n bebe bbb bb bb bbe eee, 155 Burt v. Uchtman (7th Cir. 2005) 422 F.3d 557 occcece cet c bec e bebe cece eece. passim Caldwell v. Mississippi (1985) 472 U.S. 320 2.lcence ee eben ebb bebe cee c eo, 243, 274 Campbell v. Kincheloe (9th Cir. 1987) 829 F.3d 1453ccc cece ence cece eee e eee c eee 139 Carnley v. Cochran (1962) 369 U.S. 506 occcece cee ee teen bbb e bn be bb eee ccc, 43 Caro v. Woodford (9th Cir. 2002) 280 F.3d 1247 2.ccc cece nce e cc eeee cee ece, 116, 126 Carter v. Kentucky (1981) 450 U.S.288cece cee cence bbb beb bee bebe. 356 Chambersv. Mississippi (1973) 410 U.S. 284 occec c cece t ebb b been be eb rece, 251, 252 xiv TABLE OF AUTHORITIES Pages Chapmanv. California (1967) 386 U.S. 18 2.eeetteens 247, 265, 266 Chavez v. United States (9th Cir. 1981) 656 F.2d 512 2.eeeeee 222, 223, 230, 232 Clisby v. Jones (11th Cir. 1992) 960 F.2d 925ceeteenee es 260 Coleman v. Mitchell (6th Cir. 2001) 268 F.3d 419 2.eeeeen eens 115 Comerv. Schriro (9th Cir. 2006) 480 F.3d 960 1...eeetenet ene tent ennees 226 Comer y. Stewart (9th Cir. 2000) 215 F.3d 910 2...ceeeens passim Comer v. Stewart (D. Ariz. 2002) 230 F.Supp.2d 1016 2...eects226 Correll v. Ryan (9th Cir. 2006) 465 F.3d 1006 6.eeenett es 116 Cunningham y., California (2007) 549 U.S. 270 2...eenent te ene es 356 Cuyler v. Sullivan (1980) 446 U.S. 335oeeeennn eee as passim Darden v. Wainwright (1986) 477 U.S. 168eeeteen tenet enn nes 139 Davis v. Sec'yfor the Dep’t ofCorr. (11th Cir. 2003) 341 F.3d 1310 2...ceeeeee ees 322 Deck v. Missouri (2005) 544 U.S. 622 Lceteteen eee eee es 333 Delaware v. Prouse (1979) 440 US. 6482.eneeee e rene een nee es passim XV TABLE OF AUTHORITIES Pages Delo v. Lashley (1983) 507 U.S. 272. 2.tbteen eet nent n eens 362 Dennis v. United States (1950) 339 U.S. 162 Loceenent een eee 288 Dolphy v. Mantello (2nd Cir. 2009) 552 F.3d 236 2...cccence tenes 309, 316, 323, 331 Douglas v. Woodford (9th Cir. 2003) 316 F.3d 1079 2...ccctenet een eben een nees passim Drope v. Missouri (1975) 420 U.S. 162 .eeeete e ene e eens passim Duckett v. Godinez (9th Cir. 1995) 67 F.3d 734 20...teeneen teen e ees 98, 233 Dusky v. United States (1960) 362 U.S. 402 20.cete ete ete eens passim Duvall v. Reynolds (10th Cir. 1998) 139 F.3d 768 20...eeeent nen e eens 128 Eddings v. Oklahoma (1982) 455 U.S. 104 0.cecetne ete e net e teens 131 Ellis v. United States (ist Cir. 2002) 313 F.3d 636 2.0...ceteen ence teens 63, 147 Estelle v. McGuire (1991) 502 U.S. 622.eeen eee ete ee teen eee n tenes 270 Estelle v. Williams (1976) 425 U.S. 501ceteen een e eben ent e ene 361 Faretta v. California (1975) 422 U.S. 8062.eeenee een tne eae 339, 340 Fernandez v. Roe (9th Cir. 2002) 286 F.3d 1073 2...cneteee e teen eee 331 XVi TABLE OF AUTHORITIES Pages Florida v. J.L. (2000) 529 U.S. 266 2...eeeeet teen ene 87, 171, 175, 193 Florida v. Royer . (1983) 460 U.S. 491ocetettn eens 87, 171, 193 Ford v. Norris (8th Cir. 1995) 67 F.3d 162.0... c eee ee eeeeeeerent ees 322 Ford v. Wainwright (1986) 477 U.S. 3990.etreereer tents 333 Franklin v. Anderson (6th Cir. 2006) 434 F.3d 412 00... eeeeeeeee ees 275, 287-290 Frazer v. United States (9th Cir. 1994) 18 F.3d 778.2... ceceeeenet enter ee es 122 Freund v. Butterworth (11th Cir, 1999) 165 F.3d 839 «0... cece eee teen ee tenet eres 66 Furman v. Georgia (1972) 408 U.S. 238 0...cccenernent tne 314, 353 Garcia v. Bunnell (9th Cir. 1994) 33 F.3d 1193 0... cece ecteee e een nee 41 Gardner v. Florida (1977) 430 U.S. 349oennre etree ents., . 333 Glasser v. United States (1942) 315 U.S. 60...ccctneene renee tees passim Godinez v. Moran (1993) 509 U.S. 389 occcteeeener terre ene 93 Gomez v. United States (1989) 490 ULS. 85820.ttnern nnn e 281, 288 GovernmentofVirgin Islands v. Zepp (3rd Cir. 1984) 748 F.2d125 0.0... eee eeeeetnee nets 28, 31 XVil TABLE OF AUTHORITIES Pages Green v. LaMarque (9th Cir. 2008) 532 F.3d 1028 2...ceeee nen e eens 316, 328 Gregg v. Georgia (1976) 428 U.S. 1530neee nee e tenes 254, 314, 363 Hamblin v. Mitchell (6th Cir. 2003) 354 F.3d 482 2...cette ee ene n eens 115, 116 Hardwick v. Crosby (11th Cir. 2003) 320 F.3d 11272.teeeee nee 111, 116 Harmelin v. Michigan (1991) 501 U.S. 95700ceeeect e nent teenies 359 Harris ex rel. Ramseyer v. Blodgett (W.D. Wash. 1994) 853 F.Supp. 1239 0.0...ccceeeee 118 Harris v. Kuhlmann (2nd Cir. 2003) 346 F.3d 330.2...ttteee e eens 299, 305 Hernandez v. New York (1991) 500 U.S. 352ceceent n tee teens 299, 307, 323-325 Hicks v. Oklahoma (1980) 447 U.S. 343 0cecetent enn e teenie ens 357 Hitchcock v. Dugger (1987) 481 U.S. 393centt tee eee nected 268 Holloway v. Arkansas (1978) 435 U.S.475ooeeeeee ete e eee e eed passim Houk v. Franklin (2007) 549 U.S. 1156.0ceee nent nen tenes 275, 290 Hughes v. United States (6th Cir. 2001) 258 F.3d453ceceetn eee nee n eee passim Illinois v. Allen (1970) 397 US. 337, 344 0.ceeee eee nee ene tenes 98, 139, 233 XVili TABLE OF AUTHORITIES Pages Illinois v. Rodriguez (1990) 497 U.S.177 occence tee tenes 87, 171, 175, 193 In re Medley (1890) 134 U.S. 160 20.eeeteet een ene 226 Indiana v. Edwards (2008) —-_—sU.S.__, 128 S.Ct. 2379ceceete ne nes passim Irvin vy. Dowd (1961) 366 U.S. 717 onete nent teeter eee nena 275 Jackson v. Calderon (9th Cir. 2000) 211 F.3d 1148 oo.eeeeens 131 Jackson v. Herring (11th Cir. 1995) 42 F.3d 1350 2...ccceee tenes 125 Jackson v. Virginia (1979) 443 U.S. 307 20.ceeee tenet rt etre etter as 173, 178 James v. Singletary (11th Cir. 1992) 957 F.2d 1562 0...ccccece eee nee 247 Johnson vy. Armontrout (8th Cir. 1992) 961 F.2d 748 ecteet teenies passim Johnson y. California (2005) 542 U.S. 162oone ence e nnn es 298 Johnson v. Mississippi (1988) 486 U.S.578eeettee nents passim Johnson v. United States (1997) 520 U.S. 461 ooeenees 293 Johnson v. Zerbst (1938) 304 U.S. 45820kenet e teenies 26, 43, 51, 56 XIX TABLE OF AUTHORITIES Pages Jones v. Barnes (1983) 463 U.S.745tnte net e nee e ees 127, 128 Jones v. El Berge (W.D. Wis. 2001) 164 F.Supp.2d 1096 2...cecetet ee 226 Jordan vy. Lefevre (2nd Cir. 2000) 206 F.3d 196 .... .cccccccce eet e ene eens 309, 311 Kesser v. Cambra (9th Cir. 2006) 465 F.3d 351 1...teen eet e eens 301, 316, 322 Kimmelman v. Morrison (1986) 477 U.S. 365 eeee en tent eet e eens 100, 189 Lewis v. Lewis (9th Cir. 2003) 321 F.3d 824 2...cectteenies passim Lewis v. Mayle (9th Cir. 2004) 391 F.3d 989 J...eeeeshaa 43, 61, 65, 67 Lockett v. Ohio (1978) 438 U.S. 586 2.neeene eee ees 274, 333 Lockhart v. McCree (1986) 476 U.S. 162cenee ee tenet eee 277 Lockhart v. Terhune (9th Cir. 2001) 250 F.3d1223 2...cceee tee ee ene 66, 165 Lopez v. Scully (2nd Cir. 1995) 58 F.3d 38.2...eeeetn eens 77 Madrid v. Gomez (N.D. Cal. 1995) 889 F.Supp. 1146 2...eeeees 98, 216, 226 Makv. Blodgett (9th Cir. 1992) 970 F.2d 614 2.ceceeee eens 125, 131 XX TABLE OF AUTHORITIES Pages Mannhalt v. Reed (9th Cir. 1988) 847 F.2d576 0...ees+s. passim Martinez v. Court ofAppeal ofCalifornia, Fourth Appellate Dist. (2000) 528 U.S. 152 2...cee tnee ees 334 Massaro v. United States (2003) 538 U.S. 500...nenteens 182, 260 Massie v. Sumner (9th Cir. 1980) 624 F.2d 72 2.eeeete ees 340 Matthew v. Evatt (4th Cir. 1997) 105 F.3d 907 0.0...ees115 Maynard vy. Cartwright (1988) 486 U.S. 356 0...cccceeetne nee eee 355, 360 McCain v. Prunty (9th Cir. 2000) 217 F.3d 1209 2...eeteens 309 McCurdy v. Montgomery County, Ohio (6th Cir. 2001) 240 F.3d 512 00...eeeeens 324 McGregory. Gibson (10th Cir. 2001) 248 F.3d 946 0.0...icespassim McKoyv. North Carolina (1990) 494 U.S. 433eneeens 359 McManny. Richardson (1970) 397 U.S.759eeener25 Medinav. California (1992) 505 U.S.437 0...centnn te tns 221, 229, 230, 247 Mickensv. Taylor (2002) 535 U.S. 162 1...eeeeetenet nnn n eee passim Xxi TABLE OF AUTHORITIES Pages Mayfield v. Woodford (9th Cir. 2001) 270 F.3d 915 2...ceceene e eee n ans 124 Middleton v. Dugger (11th Cir. 1988) 849 F.2d 491 00.eneeen nee 116, 126 Miles v. Stainer (9th Cir. 1997) 108 F.3d 1109 2...ccccece eee eee nes 219, 221 Miller ex. rel. Jones v. Stewart (9th Cir. 2000) 231 F.3d 1248 20...ccceee ttn eee ene ees 225 Miller v. Webb (6th Cir. 2004) 385 F.3d 666 2.0...eenent n teen ene e ene passim Miller-El v. Cockrell (2003) 537 U.S. 322 Loeeet nent n ene 299, 301, 315, 325 Miller-El v. Dretke (2005) 545 U.S. 231 Loceeee ee enn en ene n beeen passim Mongev. California (1998) 524 U.S. 721 ceenten nent nent beeen ened 243, 359 Moore v. United States (9th Cir. 1972) 464 F.2d 663 0.cett tet e ene n nen ees 219-221 Moran v. Godinez (9th Cir. 1994) 57 F.3d 690 oeeee c eee eee teen enna ns 235 Moran v. Godinez (9th Cir. 1994) 40 F.3d 1567 2...ecence ene n eet ete e eens 224 Moreno v. Baca (9th Cir. 2005) 431 F.3d 633, 638-639 20...cececnet nent e eens 194 Morgany. Illinois (1992) 504 US. 719, 720.eeeene teen ee tee eee ene passim XXli TABLE OF AUTHORITIES Pages Myers v. YIst (9th Cir. 1990) 897 F.2d 417,421)oneee eter ee 360 New York v. Hill (2000) 528 U.S.110, 114-11522eeeeens 127 Nix v. Whiteside (1986) 475 U.S. 157eeeeee 180, 181, 199 Odle v. Woodford (9th Cir. 2001) 238 F.3d 1084 6...tetteenies passim Oregon v. Guzek (2006) 546 U.S. 5170.nenenn eens 333 Osborny. Shillinger (10th Cir. 1988) 861 F.2d 612 0...eetete ete eens 122 Pate v. Robinson (1966) 383 U.S.375 20. ccc cnnnene eee ees passim Patton v. United States (1930) 281 U.S.2762.eenee teen es 286 Patton v. Yount (1984) 467 U.S. 10252...enneens 275 Paulino v. Harrison (9th Cir. 2008) 542 F.3d 692 2...ccceeens 330 Paynev. Tennessee (1991) 501 U.S. 80.eeeenn ete e nes 252, 253, 256 Porter v. McCollum (2009) -_—sU.SS.130 S.Ct447eeeeee ees 116 Powell v. Alabama (1932) 287 U.S.45 Lonnnes 25, 180 Powell v. United States (9th Cir. 1965) 347 F.2d 156 oocccceee270 TABLE OF AUTHORITIES Pages Profitt v. Wainwright (11th Cir. 1882) 685 F.2d 1227 ooeeeeee eens 181 Purkett v. Elem (1995) 514 US. 765 eeetenn eee passim Ramseur v. Beyer (3rd Cir. 1992) 983 F.2d 1215 Locecenets 322 Reed v. Quarterman (Sth Cir. 2009) 555 F.3d 364 ooteenteens 315, 319, 320 Rees v. Peyton (1966) 384 U.S.312 Locnenene n tenes 112 Reina v. United States (1960) 364 U.S. 507 ooeeeeen ee nee 106 Reyes-Vejarano v. United States (Ist Cir. 2002) 276 F.3d 94 2.eeeee ene tenets 66 Riley v. Taylor (3d Cir. 2001) 277 F.3d 261 2...eeeeee eens 309, 310, 330 Ring v. Arizona (2002) 536 U.S. 5840.ennnett enn passim Robison v. Maynard (10th Cir. 1991) 943 F.2d 1216 2...eeeee eee ns 254 Rock v. Arkansas (1987) 483 U.S. 44 2.ceetenets 137, 251, 252, 256 Rompilla v. Beard (2005) 545 U.S. 37400eeenee teens 115, 181 Roper v. Simmons (2005) 543 U.S. 551...eneeen eee eens 365 Rosa v. Peters (7th Cir. 1994) 36 F.3d 625 0...eenee nent nee nes 322 XX1V TABLE OF AUTHORITIES Pages Rubin v. Gee (4th Cir. 2002) 292 F.3d 396 2...ceetenes 27, 147 Rugiero v. United States (E.D. Mich. 2004) 330 F.Supp.2d 900... 0...eeeeens 28, 157,158 Sanders v. Ratelle (9th Cir. 1994) 21 F.3d 1446 200.etneee nee 65, 66 Sell v. United States (2003) 539 US. 166.0... nnnete een es 333, 334 Selsor v. Kaiser (10th Cir. 1996) 81 F.3d 1492 2...enna41,50 Silva v. Woodford (9th Cir. 2002) 279 F.3d 825 0...teeteenies 115, 118, 128 Silverstein v. Henderson (2nd Cir. 1983) 706 F.2d361...eeeeens 244 Simmonsv. Luebbers (8th Cir. 2002) 299 F.3d 929 2... cccceceeens 116, 126 Skipper v. South Carolina (1986) 476 U.S.Loeenne ene nent e es 212 Smith v. Mullin (10th Cir. 2004) 379 F.3d 919 Lo... ceceeeeeens 126, 182 Snyder v. Louisiana (2008) 472 U.S._ _, 128 S.Ct. 1203 2...cenee passim Spaziano v. Florida (1984) 486 U.S. 447ooeeeenn en ene tenn ees 243 Stankewitz v. Woodford (9th Cir. 2004) 365 F.3d 706 2...eneeee es 118, 135 Stenson v. Lambert (9th Cir, 2007) 504 F.3d 873 0...ceceeeeeenee 158 XXV TABLE OF AUTHORITIES Pages Tillery v. Eyman (9th Cir. 1974) 492 F.2d 1052 2...ccct teen enn nen es 220 Strickland v. Washington (1984) 466 U.S. 668 2...ceeeee tenes passim Summerlin v. Schriro (9th Cir. 2005) 427 F.3d 623...eeteens 112, 115, 118, 347 Tankleffv. Senkowski (2nd Cir. 1998) 135 F.3d 235 ooneeeee ees 322 Taylorv. Illinois (1988) 484 U.S. 400 2...ceeeee ne een ene 127, 291, 292 Taylor v. United States (6th Cir. 1993) 985 F.2d 844 occenter eben beeen 28 Thompkins v. Cohen (7th Cir. 1992) 965 F.2d330 2...ccte ete tenet nee n eae 30, 38 Thompson vy. Altheimer & Gray (7th Cir. 2001) 248 F.3d 621 oo.ceeeens 276, 278, 279, 284 Thompson v. Wainwright (11th Cir. 1986) 787 F.2d 1447 octettenets 113 Torres v. Prunty (9th Cir. 2000) 223 F.3d 1103 2...ceceeens passim Tran v. Borg (9th Cir. 1990) 917 F.2d 566 2...eeeeeeens 131 Trop v. Dulles (1958) 356 US. 86, 101 0.6eeenee e een e nee 365 Tueros v. Greiner (2nd Cir. 2003) 343 F.3d 58 2...ceceete nena 147, 165 Tuggle v. Netherland (1995) 516 U.S.10 Looeeeeee eee ene e tne eens 266 XXVvi TABLE OF AUTHORITIES Pages Tuilaepa v. California (1994) 512 U.S. 967 Loiceenee tent t tte nes 355 Turrentine v. Mullen (2004) 390 F.3d 1181 0.0cetteentre nen 163 United State v. Alanis (9th Cir. 2003) 335 F.3d 965 .... eee eeeeetees 300, 308, 309, 328 United States ex rel. Lewis v. Lane (7th Cir. 1987) 822 F.2d 703 6... eee eeecetteeen ene 247 United States v. Alcantar (9th Cir. 1990) 897 F.2d 436... cee eee eee eeeteeta 311, 329, 330 United States v. Allen (9th Cir. 1987) 831 F.2d 1487 0... eee cee tet ee teens 25, 43, 61, 166 United States v. Arrington (2nd Cir. 1989) 867 F.2d122 6... ceceentene nes 42 United States v. Baker (9th Cir. 2001) 256 F.3d 855 6. ceerenee tenn teen nes 30, 38 United States v. Boigegrain (10th Cir. 1998) 155 F.3d 1181... eee eeeettenes 100, 113 United States v. Bowie (10th Cir, 1990) 892 F.2d 1494...eeetetnes 66 United States v. Broussard (5th Cir. 1993) 987 F.2d 215 occeeeeee tenes 322 United States v. Brown (11th Cir. 2006) 441 F.3d 1330 1.0... cece ee eee tenet tee teens 253, 254 United States v. Cancilla (2nd Cir. 1984) 725 F.2d 867 2... cee eeeeen eet es 28, 30, 76, 159 United States v. Carter (7th Cir. 2005) 410 F3d 942 0. cecenetttenn251 XXVil TABLE OF AUTHORITIES Pages United States v. Christakis (9th Cir. 2001) 238 F.3d 1164 Loccette ene eee nes 66, 77 United States v. Collins (10th Cir. 2005) 430 F.3d 1260 2...ccctte e nent eens 244 United States v. Cook (10th Cir. 1995) 45 F.3d 388 2.eeeee een nen e beeen 27 United States v. Cronic (1984) 466 U.S.648ceett e teen ete e een enes passim United States v. Day (8th Cir. 1991) 949 F.2d 973, 982 & fn.9centee ene ees 242 United States v. DeFalco (3d Cir. 1979) 644 F.2d 132 2...eeeteen cnet een eens 65 United States v. Eubanks (9th Cir. 1979) 591 F.2d 513 oeeeeteen ens 286 United States v. ex rel. Darcy v. Handy (3d Cir. 1953) 203 F.2d 407 0...teeneben ete e eens 260 United States v. Fahey (1st Cir. 1985) 769 F.2d 829 2...eeen e ene 66, 67 United States v. Frazier (1948) 335 U.S. 497 Loeeee enn ene ete eee tenes 288 United States v. Fulton (2nd Cir. 1993) 5 F.3d 605 2...ceeee e nent tenes passim United States v. Gallagher (9th Cir. 1996) 99 F.3d 329 oetee tetneeees 251, 252, 255, 256 United States v. Gambino (3rd Cir. 1988) 864 F.2d 1064) 2...ceeett ee tenes 66, 67 XXViti TABLE OF AUTHORITIES Pages United States v. Gonzalez (9th Cir. 2000) 214 F.3d 1109 2.eeeee eens 286, 290 United States v. Gonzalez-Chavez (8th Cir. 1997) 122 F.3d 15 Lentennents 251 United States v. Greig (Sth Cir, 1992) 967 F.2d 1018 oteteens 28, 30 United States v. Hobson (11th Cir. 1982) 672 F.2d 825 Loeeeeene ee 42, 106 United States v. Infante (Sth Cir. 2005) 404 F.3d376 0.ccnett tenes 151 United States v. John (7th Cir. 1984) 728 F.2d 953 oeeeeet nnn eens 233 United States v. Jones (2nd Cir. 1990) 900 F.2d 512.cecenents41,52 United States v. Kimbrell (6th Cir. 2008) 532 F.3d 461 6...ceene 323, 326, 328 United States v. Levy (2nd Cir. 1994) 25 F.3d 146 0.0...ccceeeeens passim United States v. Livinston (D. Del. 2006) 425 F.Supp.2d 554 26...cettetenn eens 107 United States v. Loyola-Dominguez (9th Cir. 1997) 125 F.3d 1315 oeeeeees 224, 235 United States v. Malpiedi (2nd Cir. 1995) 62 F.3d 465 2.ceetenee68, 109 United States v. Martinez-Salazar (2000) 528 U.S. 304 2...eeeteen eee ees 286, 291 United States v. McFerron (6th Cir. 1998) 164 F.3d 952 2.etreeeeees 322 TABLE OF AUTHORITIES Pages United States v. McGill (1st Cir. 1992) 11 F.3d 223 2...ccc ee eee een eneneanees 127, 128 United States v. McLain (Lith Cir. 1987) 823 F.2d 1457 oo.ccccece eee e nent een nenes 30 United States v. Merlino (3rd Cir. 2003) 349 F.3d 144 ooeeee een e ee anaes 27, 28, 31 United States v. Miskinis (9th Cir. 1992) 966 F.2d 1263)...ccc cece ncn n ene eben ene nnas 46 United States v. Moreno (9th Cir. 1996) 102 F.3d994 2...cececece nent n ene ennnnae 251 United States v. Mota-Santana (1st Cir. 2004) 391 F.3d 42 0.00.cccce eee eee beeen ee eens 147 United States v. Nelson ( 2nd Cir. 2002) 277 F.3d 164 2.0...cccee eee ee eee eae nens 275, 287 United States v. Novaton (11th Cir. 2001) 271 F.3d 968 oo...ccccee eee n enna etennenes 67 United States v. Perez (2nd Cir. 2003) 325 F.3d 115 oo.eeeee eee eee eee eens 159 United States v. Pierce (Sth Cir. 1992) 959 F.2d 1297 oocccece ence eee eee ne ene 138 United States v. Register (11th Cir. 1999) 182 F.3d 820 2...ceceence een eens nn ees 28 United States v. Rodrigues (9th Cir. 2003) 347 F.3d 818 .occcence eee e eee eben neas 67 United States v. Salinas (Sth Cir. 1980) 618 F.2d 1092 2...ccccence eee een eens 42 United States v. Sandoval (E.D.N.Y. 2005) 365 F.Supp.2d 319 .2ceenee e eens 223, 232 XXX TABLE OF AUTHORITIES Pages United States v. Shwayder (9th Cir. 2002) 312 F.3d 1109 oeeee65-67 United States v. Sithongtham (8th Cir. 1999) 192 F.3d 1119 ooocence276, 278, 279 United States v. Swanson (9th Cir. 1991) 943 F.2d 1070 2.eeeeee teens 122 United States v. Timmins (9th Cir. 2002) 301 F.3d974 Lilieneens237 United States v. Torres (2nd Cir. 1997) 128 F.3d38 1...eee ee tte neers 275, 288 United States v. v. Serino (1st Cir. 1998) 163 F.3d 91 Joieeeenena 322 United States v. Villalpando (8th Cir. 2001) 259 F.3d 934 Loenet tenes 182 United States v. Vue (D. Neb. 1994) 865 F.Supp. 1353 2.6... ceceeeeeee nett es 131 United States v. Wells (9th Cir. 2005) 394 F.3d 725 oc e ee65, 66 United States v. Williams (2nd Cir. 2004) 372 F.3d 96 1.0...ccteenene es 29, 76, 77 United States v. Williams (Sth Cir. 1988) 819 F.2d605ete239 United States v. Williams (10th Cir. 1997) LIZ F.3d 1155 oo.eeeeee nee 222, 230 United States v. Wood (1936) 299 U.S.123 Loeeeneneas 275 United States v. Young (1985) 470 U.S.1eteete258, 293 XXxXi TABLE OF AUTHORITIES Pages Uttecht v. Brown (2007) 551 U.S. 1, 127 S.Ct. 2218 occcent nee nes 284, 293 Vasquezv. Hillery (1986) 474 U.S. 254 Locenceeet eee e teen ens 353 Virgil v. Dretke (Sth Cir. 2006) 446 F.3d 598 ooonent e bene eens 287, 288 Wainwright v. Witt (1985) 469 U.S. 412, 423, 105 S.Ct. 844, 83 LEd.2d 841 .... 0... eee eee passim Watts v. Singletary (11th Cir. 1996) 87 F.3d 1282 2.teenetn e etn eens 247 Weekly v. Jones (8th Cir. 1996) 76 F.3d 1459 Loccencnet nee e een eens 115 Weisberg v. State (8th Cir. 1994) 29 F.3d 1271eeeene e eet n eens 242 Welch v. Sirmons (10th Cir. 2006) 451 F.3d 675, 7 2.0cneteee ete e nes 253 Wheat v. United States (1988) 486 U.S. 153 2.eeeeee e eben enn een eens 41, 334 White v. Mitchell (6th Cir. 2005) 431 F.3d 517,540 2...cccee tenet eens 276, 278 Whren v. United States (1996) 517 US. 806 2.eeete ett nent teenies passim Wiggins v. Smith (2003) 539 U.S. 510.occete ence ene ene nent teens passim Wilkins v. Bowersox (8th Cir. 1998) 145 F.3d 1006 2...eeenee nee 348 XXXii TABLE OF AUTHORITIES Pages Williams v. Rhoades (9th Cir. 2004) 354 F.3d 1101 12.eeeeens 300, 308 Williams v. Taylor (2000) 529 U.S. 363eceteeee nent eens 131 Williams v. Taylor (2000) 529 U.S. 362 2.tteenee 115, 124, 181 Winfield v. Roper (8th Cir. 2006) 460 F.3d 1026 2...eecte eet eee e es 66 Winkler v. Keane (2d Cir. 1993) 7 F.3d 304 2...eceettenes 66, 67, 77 Wolfe v. Brigano (6th Cir. 2000) 232 F.3d 499 0.ceeteeees 276, 290 Woodv. Georgia (1981) 450 US. 261 oeeneeeeees passim Woodson v. North Carolina (1976) 428 U.S. 280 eteers 359, 361 Young v. Zant (11th Cir. 1982) 677 F.2d 792 11.ceeee tert enters 188 Zant v. Stephens (1983) 462 U.S. 862 2.eeerenee ener eee passim STATE CASES Acosta v. State (Tex.Crim.App. 2007) 233 S.W.3d 349 2.0...ccceet eens 147 Al-Amin v. State (Ga. 2004) 597 S.E.2d 332.0...ceeene ttt e teen ee 123 Bunnell y. Superior Court (1975) 13 Cal.3d 592 Loieeenet eens passim XXXili TABLE OF AUTHORITIES Pages Burkle v. Burkle (2006) 141 Cal.App.4th 1029...ceenee tenet n ene 117 Commonwealth v. McKenna ( Pa. 1978) 383 A.2d 174 ooocence e nent nee ennnes 190, 260 Cowanv. Superior Court (1996) 14 Cal.4th 367 2.cece n teen nen enes 190, 335, 338 Crane v. State Bar (1981) 30 Cal.3d 117 oocceen eben eee e eben enn nas 33 Gadda v. State Bar (1990) 50 Cal.3d 344 oooeeeen ee nen ene n teen eee ee nnes 33 Gould v. Maryland Sound Industries (1995) 31 Cal.App.4th 1137 2...ceceecb t nen ee ae 195 Hu v. Fang (2002) 104 Cal.App.4th 61 2...eteeee eee e tees 34 In re Alvernez (1992) 2 Cal.4th 924 2.eeete n teen eens 346 In re Barnett (2000) 31 Cal.4th 466 2...ceeett e tenes 127 In re Carpenter (1995) 9 Cal.4th 634 2...cente nee nett nett’ 281, 288 In re Courtney S. (1982) 130 Cal.App.3d 567 2...eectee ent eee ees 106 In re Davis (1973) 8 Cal.3d 798 oooeeetnt n teen etna 219 In re Dupont’s Estate (1943) 60 Cal.App.2d 276 20... cececette tence nee teens 259 In re Gay (1998) 19 Cal.4th 771 2.eeeeee een eae 30 XXXIV TABLE OF AUTHORITIES Pages In re Hitchings (1993) 6 Cal4th97eeetenet tne e etree 286 Inre Jones (1996) 13 Cal.4th 552 0.enete teen teens 181 In re Lucas (2004) 33 Cal.4th 682 2...eeeeeenent eens 124, 131 In re ManuelG. (1997) 16 Cal.4th 805 occeee nett rene eeee 86, 90, 170 Maxwell v. Superior Court (1982) 30 Cal.3d 606 20...ceeene nent n ee eee ene nees 25 Ng v. Superior Court (1997) 52 Cal.App.4th 1010 2...eeeeen tenes 45 People v. Alcala (1992) 4 Cal.4th 742 oceetetn eens 138, 251, 264 People v. Alfaro (2007) 41 Cal.4th 1277 2.eeeeen ene tne ennnes passim People v. Allen (1979) 23 Cal.3d 286 00... .eceeeee tenet eters 321, 330 People v. Anderson (2001) 25 Cal.4th 543 2...eeeerent enna 356, 357 People v. Arias (1996) 13 Cal.4th 92 oo.cece nee nett nents 358, 361, 362 People v. Ary (2004) 118 Cal.App.4th 1016 2...cneteee eens passim People v. Avila (2006) 38 Cal.4th 491,566 2...ceetenet tnt e eee 264, 276 People v. Ayala (2000) 24 Cal.4th 243 2...eccee nee e nen e nee e nena 311, 329 XXXV TABLE OF AUTHORITIES Pages People v. Bacigalupo (1993) 6 Cal.4th 457 oocetenner tenet ete e ene ns 361 People v. Barnes (1997) 57 Cal.App.4th 552 .eecteee e een e nes 269 People v. Beeman (1984) 35 Cal.3d 547 ocnee e nent net eee n eens 39 People v. Bell (2007) 40 Cal.4th 582 0eeteen ene teen eet e eens 298 People v. Bennett (2009) 45 Cal.4th 577occene nee ent eee nee nes 269 People v. Blair (2005) 36 Cal.4th 686 0.0.cccteen eee n eens 355, 357 People v. Bloom (1989) 48 Cal.3d 1194 Locenteee eee eee eee 342, 343 People v. Bolin (1998) 18 Cal.4th 297 ooeeerenee teen eens 292 People v. Bonilla (2007) 41 Cal.4th 313 2...eeeteen tenn eee eens 298 People v. Bonin (1989) 47 Cal.3d 808 2...ceeeen tne e eens passim People v. Boyd (1985) 38 Cal.3d 762 0.ectnee ne t tent eee nee ees 261 People v. Boyette (2002) 29 Cal.4th 318 0...cencetee e eee eee 278, 280, 282 People v. Bradford (1997) 15 Cal.4th 1229 oo.eteteen ten tee nee e eee 342 People v. Breaux (1991) 1 Cal.4th 281 0.cecene eee eee e eee 360 XXXVi TABLE OF AUTHORITIES Pages People v. Breverman (1998) 19 Cal.4th 142 0eennett t nen nees 335 People v. Brown (1988) 45 Cal.3d 1247 ooeeeteen etn nee es 270 People v. Brown (2004) 33 Cal.4th 382 0centeen een tenes 355 People v. Burgener (1986) 41 Cal.3d 505 26.netttenet tenn ees 34] People v. Carlussi (1979) 23 Cal.3d 249 ooeeenen e nent nn net nee es 259, 269 People v. Carrassi (2008) 44 Cal.4th 1263 2...eceee eee e eee t ene nee es 330 People v. Castain (1981) 122 Cal.App.3d 138 2...teeneres 86, 172, 177 People v. Castillo (1997) 16 Cal.4th 1009oeeeet ner tenes 268 People v. Castro (2000) 78 Cal.App.4th 1415 2...cnte nee 219, 239, 245 People v. Chadd (1981) 28 Cal.3d 739 2.ccteen eee e etnies passim People v. Champion (1995) 9 Cal.4th 879. 0.ceeeee teen eee e eens 293 People v. Chee Kee (Cal. 1882) 10 P.C.L.J. 142 .eneenn nnes 195 People v. Claire (1992) 2 Cal.4th 629 0...ceeeet eet eee tee 270 XXXVii TABLE OF AUTHORITIES Pages People v. Clark (1990) 50 Cal.3d 617 20.cececent ene e tenn eens 264 People v. Coddington (2000) 23 Cal.4th 529 ooeenent bene een teens 267 People v. Coffman (2004) 34 Cal4thboo.eeenent eee b nen e nee 243 People v. Collins (2001) 26 Cal-4th 297 ooccceee nee etn ee been n nes 286 People v. Cook (2006) 39 Cal.4th 566 2...ccccnet teen een end 363, 365 People v. Cook (2007) 40 Cal.4th 1334 oo.eeeete e eee n need 127 People v. Cox (2003) 30 Cal.4th 913 ooeeee nnn e ene e nen enns 66 People v. Cox (2008) 168 Cal.App.4th 702 2...cece ete etn eens 89, 176 People v. Crittenden (1994) 9 Cal.4th 830eeee eben tebe nes 277 People v. Cunningham (2001) 25 Cal.4th 926 0...ceet eet e enn enn enna 289 People v. Curtis (1969) 70 Cal.2d 347 2...cecennn e ete beeen ened passim People v. Danielson (1992) 3 Cal.4th 691...eeeeee e nee eee 138, 220, 255 People v. Deere (1985) 41 Cal.3d 353 ooccce eee e nent eee ee ened passim People v. Dewberry (1959) 51 Cal.2d548ceete cnet een tence ene 268 TABLE OF AUTHORITIES Pages People v. Donaldson (2001) 93 Cal.App.4th 916 20...eeeene een nee 182 People v. Doolin (2009) 45 Cal.4th 390 2...eeneeees passim People v. Earp (1999) 20 Cal.4th 826 2.0...enenee 275 People v. Easley (1988) 46 Cal.3d 712 oo.eeenee nes passim People v. Edelbacher (1989) 47 Cal.3d 983 ootenneee ena 270, 353 Peoplev. Ellers (1980) 108 Cal.App.3d 943 0. ceceterete ene n nena 183 People v. Ervin (2000) 22 Cal.4th 48oenenteens 254 People v. Estrada (1998) 63 Cal.App.4th 1090 2...centet eee ees 293 People v. Fairbank (1997) 16 Cal.4th 1223 2...ennne ene 356 People v. Farley (1979) 90 Cal.App.3d 851 00.neee ens 183 People v. Fauber (1992) 2 Cal.4th 792 2...eeeeeeaes 33, 37, 363 People v. Ferris (Cal. App.4th Dist., Nov. 14, 2002, No. E030349) 2002 WL 31520553 ..........--.4055 123 People v. Fierro (1991) 1 Cal.4th 173 0...eeenee nee enna 364 People v. Friend (2009) 47 Cal.4th boo...entnee ees 151-153, 164 XXX1X TABLE OF AUTHORITIES Pages People v. Fuentes (1991) 54 Cal.3d 707 oocccene teen nett nen bene passim People v. Garcia (2000) 77 Cal.App.4th 1269 2...cecetenn eens 323, 329 People v. Garrison 1989) 47 Cal.3d 746 oceeee nnn eet n teeta 33(1989) People v. Ghent (1987) 43 Cal.3d 739 oolcentnent teen eens 277, 365 People v. Gonzalez (2005) 34 Cal.4th L112.cncene ene t ene en nn eaes 123 People v. Grant (1988) 45 Cal.3d 829 oocentteen nee es 261, 263, 266, 351 People v. Green (1956) 47 Cal.2d 209oeene e nent teen eee eaes 276 People v. Griffin (2004) 33 Cal.4th 536 2...eeenee tne t ene e ene nes 357 People v. Guizar (1986) 180 Cal.App.3d 487 occnee ene ene aes 183 People v. Guzman (1988) 45 Cal.3d 915 occnent eee tenet n eens passim People v. Hale (1988) 44 Cal.3d 531 2cettecnet n et eee ene nns 219, 243 People v. Hall (1983) 35 Cal.3d 161 ooeene enn enn e nee nns passim People v. Halvorsen (2007) 42 Cal.4th 3792cete ne en ene e nn enn 218 People v. Hamilton (1989) 48 Cal.3d 1142 20ccceet eens 127, 347, 352 xl TABLE OF AUTHORITIES Pages People v. Hardy (1992) 2 Cal.4th 86 2.0... cece tere ener nen tenn nnn 27, 142 People v. Harness (1942) 51 Cal.App.2d 1330 2... ccc cece cece terete tenet enters 196 People v. Harris (2008) 43 Cal.4th 1269 2.0...ccc280 People v. Hawthorne (1992) 4 Cal.4th 43oeeee nett tenet e ene teen nee 356 People v. Heard (2003) 31 Cal.4th 946 20...eect tte teen tenes 277 People v. Hernandez (2003) 30 Cal.4th 835 0...ce eee eet ttre etne nena 260 People v. Hernandez (2008) 45 Cal.4th 295 2.ccceeeeee nett n nnn es passim People v. Hernandez (II]. 2008) 238 T.2d 1340enters147 People v. Hill (1998) 17 Cal.4th 800 2...etteen ees 98, 124, 132, 233 People v. Hillhouse (2002) 27 Cal.4th 469 oinentnents 292 People v. Howard (1992) 1 Cal.4th 11320netteee eens 230 People v. Salas (1976) 58 Cal.App.3d 460 0...eeeeeet eee enn eens 268 People v. Humphrey (1975) 45 Cal.App.3d 32 oo...teteen teens 239 People v. Jackson (1986) 187 Cal.App.3d 499 oone nner ees 183 xli TABLE OF AUTHORITIES Pages People v. Jackson (1992) 10 Cal.App.4th 13 2.ecetn tnt e eee een ee 310 People v. Jackson (1993) 13 Cal.4th 1164 22.eeetence ene e nee 304 People v. Jiminez (1992) 11 Cal.App.4th 161) 2.eens289 People v. Johnson (1993) 114 Cal.App.4th 778 2...teeeben eee nee 123 People v. Johnson (2006) 38 Cal.4th 1096 2...ceeteenies 321, 323, 329, 331 People v. Jones (1991) 53 Cal.3d 1115 2...eteete tebe e eee eeee 219 People v. Kaplan (2007) 149 Cal.App.4th 372 0...eeenee nee 227, 246 People v. Kennedy (2005) 36 Cal.4th 595oceeenee ene 355 People v. Kipp (1998) 18 Cal.4th 349 2.0cceee cence eens 292 People v. Klvana (1993) 11 Cal.App.4th 1679 2...ceence een cence nee 138 People v. Kobrin (1995) 11 Cal.4th 416 2.cccetn en tne tne e ees 289 People v. Koontz (2002) 27 Cal.4th 1041 2...ceened en teen eens 218 People v. Lancaster (2007) 41 Cal.4th 50 2...eeeeeecece eee enn n teen ene aes passim People v. Lang (1989) 49 Cal.3d 991 occete ene been eee nea 128, 342 xii TABLE OF AUTHORITIES Pages People y. Laudermilk (1967) 67 Cal.2d 272 ooceenn ener n tes 221 People v. Ledesma (1987) 43 Cal.3d 171 oieeeeeens 63, 180 People v. Lenart (2004) 32 Cal.4th 1107 2...eennna es 358 People v. Lenix (2008) 44 Cal.4th 602 2...eettenes 296-298, 325 People v. Lewis (2001) 26 Cal.4th 334 1...eeeeeee eee 267, 288 People v. Lewis (2008) 43 Cal.4th 415 2...nennee 299 People v. Lopez (1999) 71 Cal.App.4th 1550 2...eneeet eet eees 106 People v. Lucero (2000) 23 Cal.4th 692 2.0...eent eens 252, 255 People v. Majors (1998) 18 Cal.4th 385 0.0...eeetenes 139 People v. Manriquez (2005) 37 Cal.4th 547 2.0...ceeeens 364 People v. Marks (1988) 45 Cal.3d 1335, 1340 2...eceeeeens 219, 243 People v. Marshall (1999) 15 Cal.4th 1] oo.eeenner tenner eens 173 People v. Martin (1973) 9 Cal.3d 687 2...eeetee teenies 86, 170, 188, 191 People v. Massie (1985) 40 Cal.3d 620 10...cnettnt eens passim xiii TABLE OF AUTHORITIES Pages People v. Massie (Massie II) (1998) 19 Cal.4th 550 oo.eeeet eb tte nee eee 338 People v. Mattson (1990) 50 Cal.3d 826 2...ceeeee tenn eect eee e ne ee 289 People v. Mayfield (1993) 5 Cal.4th 142 2.ceeeee eee eee 27 People v. Mayfield (1997) 14 Cal.4th 668 2...ccceee teen n eee eee passim People v. McDermott (2002) 28 Cal.4th 946 20.eeenent ene e ees 41 People v. McKenzie (1983) 34 Cal.3d 616 2...ceceeee ete e ene n eee 259, 260 People v. McPeters (1992) 2 Cal.4th 1148ceeeeeee nee 128, 135 People v. McRae (1947) 31 Cal.2d 184 oooeeenent eens 32, 37 People v. Medina (1995) 11 Cal.4th 694 2.eeeee nen tents 360 People v. Miera (Colo. App. 2008) 183 P.3d 672 2...ceeene tenes 147 People v. Mincey (1992) 2 Cal4th 408 20.eenene e teen nes 277 People v. Miranda (2000) 23 Cal.4th 340 2...ceeeen eee teen teens 32 People v. Montiel (1993) 5 Cal.4th 877 ooeeeeeene es 297, 298 People v. Moreno (1987) 188 Cal.App.3d 1179oeeen teen eens 182 TABLE OF AUTHORITIES Pages People v. Morse (1964) 60 Cal.2d 631 6...ttreeee eens 277 People v. Mroczko (1983) 35 Cal.3d 86 0...ceeeenen nent nents passim People v. Nakahara (2003) 30 Cal.4th 705.0...ceceteen eee ees 264 People v. Nation (1980) 26 Cal.3d 169 2...eeeenn ee een teens 180, 182, 191 People v. Noble (1981) 126 Cal.App.3d 1011 0... eeececeeeennn 123 People v. Pennington (1967) 66 Cal.2d 508 6...eeeeee en ees passim People v. Perez (1962) 58 Cal.2d 229, 24 2...ceetenes 269 People v. Pope (1979) 23 Cal.3d 412 2.ces25, 182, 183, 191 People v. Powell (1967) 67 Cal.2d 32 oo c ennnnnen 269 People v. Prieto (2003) 30 Cal.4th 226 2.0... ceceeeeteens 278, 282, 357, 359 People v. Quartermain (1997) 16 Cal.4th 600 2.0...cccceeeeeeens 269 People v. Ramos (2004) 34 Cal.4th 494 oo.eeennn eet eens 235 People v. Reynoso (2003) 31 Cal.4th 903 2...ntnen ee need 295 People v. Richardson (2006) 43 Cal.4th 959 2...ennete ne nee eens 335 xlv TABLE OF AUTHORITIES Pages People v. Roberts (1967) 256 Cal.App.2d 488 occtte teen een enees 86, 172, 178 People v. Robinson (2007) 151 CalApp.4th 606 2.0...ceceeee e net e nen nes 244 People v. Robles (1970) 2 Cal.3d 205 okcenceete n enn e eee 251 People v. Roder (1983) 33 Cal.3d 491 oote en ene t nen eneae 270 People v. Roldan (2005) 35 Cal.4th 646 2...0.teeneee tenes passim People v. Rowland (1982) 134 Cab.App.3d 1... ceeeeeteen bene t nee bene ees 173 People v. Rundle (2008) 43 Cal.4th 76 2...ccceee een e eee ene passim People v. Sanders (1991) 51 Cal.3d471.eeeee ene teen eee passim People v. Sanders (2003) 31 Cal.4th 318 . 0...ceeeee ene e nena passim People v. Santana (2000) 80 Cal.App.4th 1994, 2.cencetenet net eae 259 People v. Sapp (2003) 31 Cal.4th 240, 311 0...cceee e nnn nes 263, 266 People v. Schmeck (2005) 37 Cal.4th 24 occeen ete e net e eee n etn eae 353 People v. Sedeno (1974) 10 Cal.3d 703, 715; 0...eeeetee ene nee 356 People v. Sengpadychith (2001) 26 Cal.4th 316 2...eeneee enn en eee nen ane 364 xlvi TABLE OF AUTHORITIES Pages People v. Shelley (1984) 156 Cal.App.3d 521 oceee tent eee t teens 259, 260 People v. Silva (2001) 25 Cal.4th 346 2.reneeteen n ene eee passim People v. Silva (2001) 25 Cal.4th 345 2...eeteee tne eee ene etn t ens 302 People v. Simmons (1996) 42 Cal.App.4th 1100 2...ceeeee tenn ete nnes 86, 170 People v. Smith (2005) 30 Cal.4th 581 21.eeetenet eens 138, 253-255 People v. Smith (2005) 37 Cal.4th 733 2...eeteen e tenes 179 People v. Snow (1987) 44 Cal.3d 216 2. .ieetntees 321, 330 People v. Snow (2003) 30 Cal.4th 43 2...entreeeee nes 365 People v. Souza (1994) 9 Cal.4th 224 2.eeeeee ete n net ene 87, 171 People v. Stankewitz (1982) 32 Cal.3d 80 2... ceccceee eee nee net eens 220, 224, 243 People v. Stanley (1995) 10 Cal.4th 764 2...ceee etn e nett eens passim People y. Stanworth (1969) 71 Cal.2d 820 1...ceeee een ee tent e ene passim People v. Staten (2000) 24 Cal.4th 434 20.eennee e tenet nen es 292 People v. Stewart (2004) 33 Cal.4th 425 oo.eeetenet n renee eee tenes 280 xlvii TABLE OF AUTHORITIES Pages People v. Stouter (1904) 142 Cal. 146 2ccetener teen eee e ene 270 People v. Stratton (1988) 205 CalApp.3d 87 oeceee een eee e ees 182 People v. Sturm (2006) 37 Cal.4th 1218, 1244 ooeeeeee e nee 124, 259 People v. Sundlee (1977) 70 Cal.App.3d 477 oo.ecceeeet tee ete nne 183 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 o cnetnent e nee e nen 267 People v. Superior Court (Marks) (1991) 1 Cal.4th 56 2.ceecent tet e need 218, 242 People v. Tapia (1994) 25 Cal.App.4th 984 2...cecenee e eens 310, 323, 329 People v. Taylor (1990) 52 Cal.3d 719 oocence ent e eee teen nnn enes 359 People v. Teron (1979) 23 Cal.3d 103 2.teene nent e nent n ene nee 337 People v. Tewksbury (1976) 15 Cal.3d 9530 Loceee nett net e etn t nena 33 People v. Thomas (1992) 2 Cal.4th 489 2...teeee tence nee nes 173, 178 People v. Torres (1995) 33 CabApp.4th 37 2...eetn ene e nen e ee 182 People v. Turner (1986) 42 Cal.3d 711 ooeccetete 300, 310, 311, 321 People v. Vann (1974) 12 Cal.3d220 0.eeeeee e eens 268 xlviil TABLE OF AUTHORITIES Pages People v. Watson (1899) 125 Cal. 342 eenteen eee nnn ens 268 People v. Weaver (2001) 26 Cal.4th 876 1.0...cecetenet ene e eens 280, 285, 288 People v. Webb (1993) 6 Cal.4th 494 210ceceeee nee 261, 262, 264, 266 People v. Welch (1999) 20 Cal.4th 701...ecnee eee t enn eens passim People v. Wheeler (1978) 22 Cal.3d 258 okcceee ete nen eee ee passim People v. White (1980) 101 Cal.App.3d 161 2...ceceeen eee 86, 172, 178 People v. Williams (1970) 2 Cal.3d 894 Looeceee eee ene nee nena 128 People v. Williams (1988) 48 Cal.3d 1127 2.eeeeter ees 343, 351 People v. Williams (1988) 44 Cal.3d 883 oo.cente ne tenet enn 358 People v. Williams (2000) 78 Cal.App.4th 1118 2...crttenet n eens 323, 329 People v. Wright (1987) 43 Cal.3d 487 oo.eeetent ene tnees 73, 168, 169, 183 People v. Vasquez (Cal.App. Ist Dist., Jan. 31, 2006, No. A102559) 2006 WL 226759 ........ cece eee eee 123 People v. Yeoman (2003) 31 Cal.4th 93 0...ceeeee tenet tenet e nn eee 293 People v. Young (2005) 34 Cal.4th 1149 2.0cceet eee tnt ete ne passim xlix TABLE OF AUTHORITIES Pages People v. Zimmerman (1980) 102 CalApp.3d 647 0...cnetent enn eens 183 People v. Woodard (1976) 23 Cal.3d 329 00.nentt eet een teens 269 State v. Cottle (N.J. 2008) 946 A.2d 550 2...teen eee tne teen ener eees 158 State v. Holland ( Utah 1994) 876 P.2d 357oceee e nent beeen eens 122 State v. Morton (N.J. 1998) 715 A.2d 228 oocetten eee netbeans 139 State v. Payne (Idaho 2008) 199 P.3d 123 2...cnte teen eens 253 Stokes v. California Horse Racing Bd. (2002) 98 Cal.App.4th 477 20...eeecence tee e ete n teens 34 Townsend vy. Superior Court (1975) 15 Cal.3d 774 oocenttne nen n eee e eens 128 Vaughn v. State Bar (1972) 6 Cal.3d 847 occcnet nent ene n een en en neee 33 Williams v. Superior Court (1996) 46 Cal.App.4th 320 2...eeeenn eben nent nees 55 FEDERAL CONSTITUTION AND STATUTES U.S. Const. Amend. 173, 178, 274, 332 VEceceeee eens 192, 274, 292, 297 0780 passim D6 passim 18 USC §§ 1958 Leentence eens 19, 108 0A(0)19 ] TABLE OF AUTHORITIES Pages FEDERAL RULES Fed. Rules of Crim. Proc. Rule 23 0...eeeen ten naes 286 FEDERAL REGULATIONS Code of Federal Regulations § 501.3 2.0... . cece ceeeee teens 93, 200 STATE CONSTITUTION AND STATUTES Ca. Const. art. I §§ |173, 178 173, 178 12ccee ee ene teen enn eee 173, 178 Ldccceee ete een een nen passim 16 Lic ccc een tenet net ete tees passim 173, 178, 332 Bus. & Profes.Code § 6068 ooeeeeee een een een n nes 55 Code of Civ Proc §§ 225 subd. (B)(1)(C). 2... eeect ete ees 275, 289 0A) 289 Evid. Code §§ 452 Loccece eee ee nent teens passim a 196 105 0 357 1040 occcee teen t eet eens 9 1230 . icc c ccc ect ete teen eee nent eee eens 32 Pen. Code §§ 2 1S] 254, 354 190.2 cccetetenet ete eee passim li TABLE OF AUTHORITIES Pages 190.4eeeeet nent ete e eas 2 oo2 T2,117 10)passim 1044Lonebtn e teen eas 259 1054.2cetteeee eens 36, 37 1239 Lolcette ete e tenes 1, 337 1367oi tence ent e ene passim 1368 2... cece eee Lecce eee eee eens 24, 93 Veh. Code, §§ 2. 89 OO89 38335 Lentetnt eee e eens 89 Cal Rules of Court, Rule oO (0)364 AAD (C)ccctenet e nee bene nes 364 BALLSccctte e eens 123, 132 Cal Rules of Prof. Conduct, Rule 3-310, subd.(e)(1). 0...ceceeee 155 S-200(B) 2...teennee 55 5-210 octeteee e eens 29 JURY INSTRUCTIONS CALJIC Nos. BBcetenet ene 278, 356, 360, 361 8.85cencetenes 354, 356, 363 8.85 AL eee eee nent eens 358 at So](<)363 356 LTAL Coiecece ence eee eee 103, 104 li TABLE OF AUTHORITIES Pages OTHER RULES ABA Model Rules of Prof. Conduct, Rule 1.8 subd.(f) and Comment ................... 155 ABA Model Rules of Prof. Respon., Rule 1.7 and Comment .................05- 40, 81, 155 1.7, subd.(a)(2) and Comment ................. 28 DDS 113 TEXTS AND OTHER AUTHORITIES 4 Witkin, Cal. Crim. Law 3d (2000), Ch. XI, Juris. & Venue, §51 ...............0.. 39 ABA Comm.On Ethics and Prof’] Responsibility, Formal Op. 95-396............... 33 ABAGuidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. 2003) 31 Hofstra L.Rev. 913, 1044-1045 ............ 0c ee eee 82, 186 ABA Model CodeofProf. Resp. Canon 5 and Ethical Consideration 5-2 ............ 40 ABAStandards for Criminal Justice: Prosecution and Defense Function (3d ed. 1993) Looe ceceeeneee ene en eee e ens passim C. Chandler, Voluntary Executions (1998) 50 Stan. L. Rev. 1897, 1913occee eee ene ween eens 166 C. Harrington, A Community Divided: Defense Attorneys and the Ethics of Death Row Volunteering (2000) 25 Law & Soc. Inquiry 849 . 0... 0. eee cece eee eens 166 D. Fathi, The Common Law of Supermax Litigation (Spring 2004) 24 Pace Law Review 675 «0.0... ccccenttne 226 D. Dolinko, “Three Mistakes of Retributivism” (1992) 39 UCLA Law Review 1623 2.1... ccccette een nn nes 314 R. Garnett, Sectarian Reflections on Lawyers’ Ethics and Death Row Volunteers (2002) 77 Notre Dame L. Rev. 795, 801 01...ccce ete etna 111 iii TABLE OF AUTHORITIES Pages S. Grassian, Psychopathological Effects of Solitary Confinement (1983) 140 Am. J. Psychiatry 1450 20...eete eee 226 C. Hainey & M. Lynch, Regulating Prisons of the Future: A Psychological Analysis of Supermax and Solitary Confinement (1997) 23 N.Y.U. Rev. OfLaw & Soc. Change 447 0.0... ccc ccc cece 226 I. Kant Metaphysical Elements of Justice (1797)Loeenn nee e denne edn tee ene e aes 314 T. Kruper, Prison Madness: Mental Health Crisis Behind Bars and What We Must Do About It (1999) nnn ee nen e te eee nen e ey 226 Presumption of Life: A Starting Point for Due Process Analysis of Capital Sentencing (1984) 94 Yale LJ. 351; 22 teen tent nen ens 362 W. White, Defendants Who Elect Execution (1986-1987) 48 U. Pitt. L. Rev. 853, 854-855 0.cccee eee eens 111 liv IN THE SUPREME COURT FOR THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, No. S089478 Plaintiff and Respondent, Vv. (Orange County Sup.Ct. HUNG THANH MAI, No. 96NF 1961) Defendant and Appellant. APPELLANT’S OPENING BRIEF STATEMENT OF APPEALABILITY This appeal is from a final judgmentof death followinga trial and is authorized by Penal Codesection 1239, subdivision (b).' STATEMENT OF THE CASE On April 14, 1997, the Orange County District Attorney filed an information against appellant, Hung Thanh Mai, charging him with a July ' All statutory references are to the Penal Code unless otherwise noted. 13, 1996 violation of Penal Code section 187, subdivision (a) (murder of Don Joseph Burt). (1 CT 16.)* The information addeda single special circumstance allegation under Penal Code section 190.2, subdivision(a) (7) (murder ofpeace officer in lawful performance of his or her duties). (1 CT 16.) On August 28, 1997, Mr. Mai pleaded not guilty and denied the special circumstance allegation. (1 CT 87.) OnJuly 23, 1999, Mr. Mai waivedhis right to jury trial on the first degree murder charge and special circumstance allegation andthe parties stipulated to a court trial based upon the evidence presented at the preliminary hearing, without presenting any additional evidence or argument — a so-called “slow plea.” (2 CT 491.) On July 30, 1999,thetrial court found Mr. Maiguilty of first degree murder and foundtrue the special circumstance allegation. (2 CT 503.) On April 3, 2000, the penalty trial commenced with jury selection. (2 CT 654.) On April 19, 2000, the jury returned a death verdict. (3 CT 853, 867-868.) On June 23, 2000,the trial court denied the automatic motion to modify the death verdict pursuant to Penal Code section 190.4. (4 CT 2 “CT”refers to the Clerk’s Transcript, preceded by volume number. “SCT”refers to the supplemental Clerk’s Transcript, preceded by the date the supplementwasfiled (e.g., 3/16/07 SCT). “Muni CT”refers to the separately bound and paginated municipal court Clerk’s Transcript. “987.9 CT”, “987.3 CT” and “987.2 CT”refers to the Clerk’s Transcripts of materials filed pursuant to Penal Code sections 987.9. 987.3, and 987.2. “RT”refers to the superior court Reporter’s Transcript as originally filed, preceded by the volume number. “ART”refers to the Augmented Reporter’s Transcript. “Muni RT”refers to the separately bound and paginated volumes of municipal court Reporter’s Transcripts, preceded by the volume number. 1127.) On the samedate, the court imposed the judgment of death and ordered that Mr. Mai be confined in the federal Bureau of Prisons until the death judgment is executed. (4 CT 1119-1123, 1127.) This appeal is automatic. (Pen. Code, § 1239, subd.(b).) / // STATEMENT OF FACTS The Guilt Phase’ On July 13, 1996, at around 8:30 p.m., Bernice Sarthou was purchasing food at a drive-through restaurant in Fullerton when she observed California HighwayPatrol (“C.H.P.”) Officer Don Burt, in his marked patrolcar, effect a traffic stop of a white BMW. (1 Muni RT 151- 153.)* Although she was somedistance from the BMW andstill wearing her sunglasses becauseit wasstill daylight and the sun had notyetset, Sarthou testified that she couldtell that the driver was a young Vietnamese male. (1 Muni RT 152-154, 190-191.) Ms. Sarthou lost sight of the cars for several minutes as she drove through the drive-though and waited for her food. (1 Muni RT 156, 175.) Whenshe saw them again, the driver of the BMW wasoutside ofthe car, struggling with Officer Burt. (1 Muni RT 157-160, 180-183, 205-206.) During the struggle, shots were fired. (Muni RT 161, 206.) When Officer Burt fell, the driver shot him in the head, after which he drove awayin Burt’s patrol car. (1 Muni RT 162.) Officer Burt died of multiple gunshot wounds. (1 Muni RT 88-92.) The investigating officer, Doug Kennedy interviewed some 3 Because Mr. Mai waivedjury trial and entered a “slow plea” by submitting the issue of his guilt on the murder charge and special circumstance to the court based on the evidence presented at the preliminary hearing, the Statement of Facts regarding the guilt phase is based on the transcript of the preliminary hearing. (1 RT 180, 199-200.) “ Ms. Sarthou’s first name wasspelled “Berneice” by the preliminary hearing court reporter and as “Bernice” by the penalty phase court reporter. For ease of reference, Mr. Mai shall refer to her as “Bernice.” percipient witnesses after the shooting. (1 Muni RT 97-103.) Approximately 40 people had witnessed the shooting, many ofwhom provided conflicting descriptions of the suspect. (1 Muni RT 98-103.) Several witnesses at the scene identified a man named Yong Ho Choi, a Korean male, as the shooter. (1 Muni RT 119-120.) Mr. Choi was arrested shortly thereafter. (1 Muni RT 119-120.) According to Detective Kennedy, Officer Burt had contacted dispatch during the traffic stop and requested a driver’s license check for a person by the name of Phu Dug Nguyen,including his date of birth and license number, whichis typically requested to determineif a license has been suspended. (1 Muni RT 93-94, 134.) Burt’s citation book was recovered at the scene; the most recent citation was issued to Phu Duc Nguyen for driving with a suspended license. (1 Muni RT 93-94.) A wallet was found in the BMW containing several pieces of identification, one of which wasin appellant’s name and bore his photograph. (1 Muni RT 69.) A bloody shoe print was found on Officer Burt’s citation book. (1 Muni RT 69-70.) Officer Burt’s patrol car was later found by the police abandonedat a car dealership on West Lincoln Boulevard in Fullerton. (1 Muni RT 73-74.) A security officer at a nearby business informed the police that he had seen an Asian male run from the dealership and jump overa car that evening, but was unable to identify the man. (1 Muni RT 76-79.) The police recovered a shoe print from the bumperof the car. (1 Muni RT 79-80.) Within days of the shooting and arrest of Mr. Choi, federal informant Chang “Alex” Nguyen notified his federal law enforcement contacts, through his attorney, that Mr. Mai had confessed the shooting to him and was hiding at Mr. Nguyen’s apartment in Houston, Texas. (2 Muni RT 434-435, 454-456, 459-464.) At the time of the shooting, Mr. Nguyen was facing criminal charges for aggravated robbery, “organized crime,” and residential burglary. (2 Muni RT 267, 308-309, 315-316.) Indeed, Mr. Nguyen had been actively involved in a wide variety of criminal enterprises for several years. (2 Muni RT 288-292, 304-305, 357-358, 386; 3 Muni RT 502-503-506, 520.) According to Mr. Nguyen, in July 1996, he and Mr. Mai had been in business together for about six months. (2 Muni RT 270, 282, 288; 3 Muni RT 541-542.) Mr. Nguyen purchased large quantities of forged payroll checks and other instruments from Mr. Mai, making anywhere from $10,000 to $30,000 a week. (2 Muni RT 288-293.) After his arrest on other charges, and around the second week of July 1996, Mr. Nguyen and his lawyer contacted the FBI and offered them information regarding Mr. Mai’s criminal enterprise. (2 Muni RT 294-295, 308, 340-342, 414-415.) Mr. Nguyen wasactively looking for immunity from prosecution for his own crimes and knew that he would haveto offer something of value in order to do so. (2 Muni RT 415-417.) Also according to Mr. Nguyen, on July 13 — only a few daysafter he had offered up Mr. Mai to the FBJ — Mr. Mai telephoned him in Houston and confessed that he “just took down a California Highway Patrolman.” (2 Muni RT 265-266, 272, 340-343.) Mr. Nguyen offered to fly Mr. Mai to Houston and hide him at his home and eventually booked him a flight to Dallas. (2 Muni RT 272, 276, 393-397, 418-419.) Immediately thereafter, Mr. Nguyen attempted to contact his lawyer. (2 Muni RT 277-278, 417- 418.) Mr. Nguyen picked Mr. Mai up at the Dallas airport; on the drive back to Houston, Mr. Mai described the details of the shooting. According to Mr. Nguyen, Mr. Mai told him that he had been pulled over by a C.H.P. officer. (2 Muni RT 278.) Believing that he had an outstandingarrest warrant, Mr. Mai identified himself by someoneelse’s name and provided the officer that person’s information. (2 Muni RT 278.) The officer ran a license check, which showedthat the license had been suspended. (2 Muni RT 278.) The officer told Mr. Mai that he would have to tow the car after doing an inventory search and directed him to wait on the curb. (2 Muni RT 278-279.) Mr. Mai told the officer to just give him a ticket andtell him whereto collect the car, but the officer told him that he had to wait until the inventory search was concluded. (2 Muni RT 280-281.) Mr. Mai had some “stuff” in the car, which Nguyen understood to mean forged traveler’s checks. (2 Muni RT 282-283.) Mr. Mai told Nguyen that the officer searched the trunk, found a bag, openedit, and told Mr. Mai he was underarrest. (2 Muni RT 281, 283.) Mr. Mai panicked becausehe believed that he had twoprior “strikes” and, if arrested, this would be his third “strike” and he would be imprisoned for life. (2 Muni RT 284.) He pulled his own gun andfired at the officer three times; when the officer fell, he shot him four more times. (2 Muni RT 282- 283, 438.) Unable to find his own keys, he grabbedthe officer’s gun and keys andfled in the patrol car. (2 Muni RT 284.) Heleft the car somewhere and gave a “Mexican guy” $100 to drive him to a friend’s house. (2 Muni RT 285.) According to Mr. Nguyen, while in Houston, Mr. Mai made a phone call to someoneand askedifthey took care of “that packageI left for you.” (2 Muni RT 286.) After a pause, Mr. Maisaid, “well, you better because it’s very important.” (2 Muni RT 286.) Mr. Nguyen asked him what the call was about. Mr. Mai responded that he had something important he neededa friend to get rid of. (2 Muni RT 286.) Later that day, Mr. Mai told Mr. Nguyen that he needed new shoes becausehe had bloodall over the ones he was wearing. Mr. Nguyen could see a dark spot on one ofMr. Mai’s shoes. (2 Muni RT 286.) Mr. Nguyen attempted to contact his lawyer several timesafter collecting Mr. Mai from the airport. (2 Muni RT 431-432.) When he finally reached his attorney, twoto three dayslater, they immediately contacted the FBI and met with an agent. (2 Muni RT 432-434.) Mr. Nguyen informed the agent ofMr. Mai’s confession and location. (2 Muni RT 434-435, 454-456, 459-464.) Mr. Maiwasarrested by local law enforcementofficers and FBI agents in Mr. Nguyen’s apartment. (1 Muni RT 80-81; 2 Muni RT 314; 3 Muni RT 532-536.) Mr. Nguyen later identified some shoesin his apartment — a very common, K-Mart brand — as belonging to Mr. Mai. (1 Muni RT 141; 2 Muni RT 430-431.) Oneof the arresting officers told Detective Kennedy that those shoes appeared to have dried blood on them and were seized. (1 Muni RT 83-84.)° Apparently unaware that Mr. Nguyen had turned him in, Mr. Mai telephoned him several times from jail. (2 Muni RT 464, 471-472.) The FBIdirected Mr. Nguyen to record those calls for the specific purpose of recording a threat to Mr. Nguyen’s life. (2 Muni RT 465-480.) Mr. Nguyen did as instructed and turned the tapes over to the FBI. However, those recorded calls simply consisted of “chitchat”; not threats. (2 Muni RT > The state presented no evidenceat the preliminary hearing to prove that the substance on the shoes was blood. 8 474, 480.)° Shortly after Mr. Mai’s arrest, Mr. Nguyen’s pending criminal charges were dismissed and he began working as a paid FBI informant, providing information about a number of ongoing criminalenterprises, while confessing his involvementinstill other crimes. (2 Muni RT 301, 304-309, 315-316, 322-325, 330, 338-339, 344, 350-355, 359-360, 363- 366, 483-484.) Mr. Nguyen receivedhis first cash paymentfor his informant services a month after Mr. Mai’s arrest. (2 Muni RT 355-356, 363-365.) Mr. Nguyen was never arrested or prosecuted for any of his own crimes. (2 Muni RT 295, 297-299, 301, 305, 520-521.) To the contrary, he wasin the federal witness protection program at the time of his March 1997 preliminary hearing testimony against Mr. Mai. (2 Muni RT 268, 324, 330.) Despite his witness protection status, the fact that his pending, serious criminal charges were dismissed after turning Mr. Mai in, and the fact the he was never arrested for the many crimes to which he had confessed, Mr. Nguyen repeatedly denied that he had made any “deals” with federal authorities. (2 Muni RT 298-301, 307, 315-323, 330.)’ Detective Kennedy interviewed Phu Duc Nguyen(the name by © As will be discussed in detail in ArgumentI, post, the FBI eventually got what it wanted by sending an undercover officer into the Orange County jail to approach Mr. Mai, which resulted in federal charges of conspiring to kill their informant, Mr. Nguyen. 7 When Mr. O’Connell, who represented Mr. Mai at the preliminary hearing, attempted to cross-examine Alex Nguyen more fully regarding his denial that he had any deals with federal authorities by questioning him about the other cases in which he had acted as an informant, the court sustained the prosecutor’s assertion of privilege under Evidence Code section 1040. (2 Muni RT 322-328, 330-331, 360-362, 366-370, 373-378, 388-391.) whichthe driver of the BMW hadidentified himself to Officer Burt) and his brother, Phong, several hours after the shooting. (1 Muni RT 110-112, 114, 140.) According to Alex Nguyen, Phong Nguyen was Mr. Mai’s crime boss. (2 Muni RT 425; 3 Muni RT 530.) According to both Phu and Phong Nguyenandtheir girlfriends, the brothers were together, at home, with their girlfriends, at the time of Officer Burt’s shooting. (1 Muni RT 116, 131-132, 137-139.) Theiralibis. however, were not corroborated by any other evidence. (1 Muni RT 137- 139.) Detective Kennedy submitted the shoes seized from Alex Nguyen’s Houston apartmentto the crime lab for blood analysis and comparison to the shoe prints recovered from the shooting scene and the location where the patrol car had been abandoned. (1 Muni RT 84-85.) According to Detective Kennedy, analysts compared the shoes and prints and concluded that the print recovered from the location where the patrol car had been abandoned wasa positive match to the shoes and that the print recovered from the crime scene was consistent with those shoes. (1 Muni RT 86-88.) Mr. Mai’s arrest and return to Orange County was widely publicized in the local media and his photograph wasprinted and broadcast by several media agencies. (1 Muni RT 201-205; 3 Muni RT 538, 554;seealso, e.g., 1 Muni RT 3-4; Muni CT 6-16, 25-29, 31-35, 40.) According to Detective Kennedy, someofthe witnesses whohad earlier identified Mr. Choi as the shooterlater identified a photograph of Mr. Maias the shooter from a photographic lineup. (1 Muni RT 122.) Ms. Sarthoutold officers at the scene that she did not see the shooter and could not identify him. (1 Muni RT 169-170, 245, 248-249.) Nevertheless, two to three weeksafter the shooting and after seeing the 10 media coverage ofhis arrest, Ms. Sarthou identified Mr. Mai as the shooter from a photograph. (1 Muni RT 201-205, 236.)° Mr. Mai’s girlfriend, Victoria Pham,testified that she “assisted” Mr. Mai in leasing a white BMW and saw him driving it on the evening of July 13, 1996. (3 Muni RT 572.)? Mr. Maicalled her the following day, told her that something had happenedto the car, and that she could have it. (3 Muni RT 572-573.) Mr. Mailived on West Lincoln Boulevard. West Lincoln wasthe samestreet on which the patrol car had been abandoned. (1 Muni RT 76- 78.) The Penalty Phase A. Circumstances of the Crime Between 8:00 and 8:20 p.m. on July 13, 1996, Reserve Fullerton Police Officer Michael Lyman wasdriving throughthe intersection of Nutwood andPlacentia in his patrol car and noticed a C.H.P. car, with its lights flashing, parked behind a white BMW. (6 RT 1156-1157.) The C.H.P. officer was standing outside, speaking to the driver of the BMW and writing a ticket. (6 RT 1157-1158.) The C.H.P. officer signaled a “Code 4” to Lyman, meaning that everything wasall right and no assistance was needed. (6 RT 1158-1159.) Around the same time, Benjamin Baldauf was in a parking lot on 8Ms.Sarthou further testified that when she saw Mr. Choi’s photograph in the newspaper, which identified him as the shooting suspect, she was “absolutely” sure he was the wrong man, although she never contacted authorities to tell them. (1 Muni RT 194-201, 249-253.) ” Ms. Pham wasnotaskedto identify the white BMWat the scene of the shooting as the car leased by Mr. Mai. 11 Nutwood Avenuein Fullerton, preparing to register at a nearby hotel. (6 RT 1099-1101.) Bernice Sarthou wasin her car in the drive-through lane of a fast food restaurant. (6 RT 1189.) They also noticed the patrol car and white BMW. (6 RT 1100-1102, 1191.) At about 8:30 p.m., Officer Burt contacted his dispatcher for a check of the BMW’slicense plate and the status and validity of a driver’s license in the name of Phu Duc Nguyen. (6 RT 1177-1180; see also 4 CT 1129- 1133 [People’s Exhibit 36].) Officer Burt issued the driver, identified as Phu Duc Nguyen,a citation for driving with a suspended license. (6 RT 1134; 3/16/07 3 SCT 421 [People’s Exhibit 20].) The parties stipulated that there was an active warrant for Mr. Mai’s arrest at the time of the shooting, which would have been discovered in a standard warrant or record check under his name. (6 RT 1183.) After checking into his hotel room, Mr. Baldaufleft the hotel and noticed that the C.H.P cruiser and the BMW werestill outside, and the CHP officer was searching the trunk of the BMW. (6 RT 1103-1104.) The driver of the BMW, whom Baldaufidentified as Mr. Mai, seemed scared and “his eyes were just darting all over the place wildly.” (6 RT 1107, 1114.) A few momentslater, the officer approached the driver’s door and “the driver came out shooting.” (6 RT 1109.) The driver and the officer were “spinning” together before both menfell to the ground. (6 RT 1110- 1111.) The driver took something from the officer, bent over and fired a gun onceat the officer’s head. (6 RT 1112-1113.) Mr. Baldauf ran to a nearby phone and called 911. (6 RT 1113.) After Bernice Sarthouh picked up her food at the drive-through window, she stoppedin the parking lot to eat, at which point she also regained sight of the cruiser and BMW. (6 RT 1191.) The driver, whom 12 she identified as Mr. Mai, and the officer were both outside of their vehicles and the two menwerestruggling. (6 RT 1191-1192.) She heard four shots and saw theofficer fall, at which point the driver shot the officer once in the head, then ran to the cruiser and drove away. (6 RT 1192-1195.) About 15 to 20 minutesafter seeing Officer Burt writing the BMW driver a ticket, Officer Lyman heard a dispatch that an officer was downat that location. (6 RT 1159.) When hereturnedto the intersection, the BMW wasstill there, but the cruiser was gone, and Officer Burt waslying, shot, on the ground. (6 RT 1160.) At about 8:15 p.m., Robert Excell wasin his car at the intersection of Nutwood and Placentia when he heard the shots. (6 RT 1147-1148.) Shortly thereafter, a C.H.P car with its lights on pulled up next to him and stoppedat a light. (6 RT 1149-1151.) Mr. Excell identified Mr. Mai as the driver. (6 RT 1151.) Both cars entered Highway 57, but Mr. Excell lost sight of the C.H.P. car near the Lincoln exit. (6 RT 1153-1154.) Officer Lyman made a “90 percent”positive identification of another man, Yong Ho Choi, as the driver of the white BMW during an in-field show up on the night of the shooting. (6 RT 1163-1166.) However, two and a half weekslater, and after Mr. Mai’s arrest was widely reported in the media, he made a “100 percent” positive identification of Mr. Maias the driver from a photographic lineup. (6 RT 1167-1169.) Police collected evidence from the scene of the shooting, including about seven nine millimeter shell casings, Officer Burt’s citation book with a bloody shoeprint on it, and a vehicle property form. (6 RT 1121-1125.) Inside of the BMW,they collected several other pieces of evidence, including a paperbagfilled with traveler’s checks, a printer, cartridges, a soda can, a wallet containing identification in Mr. Mai’s name, and 13 miscellaneous pieces of paper. (6 RT 1125-1127.) One fingerprintlifted from the traveler’s checks and twolifted from one ofthe pieces ofpaper wereidentified as Mr. Mai’s. (7 RT 1228-1230, 1234-1238.)"° Onthe night of the shooting, Officer Burt’s cruiser was discovered at an automobile dealership on Lincoln Boulevard in Anaheim,next to a Royal Furniture store. (6 RT 1184-1185.) At the time of the shooting, Mr. Mai resided at an apartment complex on Lincoln Boulevard. (6 RT 1185.) Theparties stipulated that, if called as a witness, Mung Thanh Huynh would testify that on July 13, 1996, he was working as a security guard outside of the Royal Furniture Store. (6 RT 1183.) At about 10:00 p.m., he saw an Asian male, about 20 to 30 years old, climb up and run overthe front of his Toyota pickup truck. (6 RT 1183-1184.) Officers checked the area near the truck and discovereda partial shoe print on the bumper of a Honda parked directly in front of it. (6 RT 1187-1188; 7 RT 1211-1213.) On July 17, 1996, Mr. Mai wasarrested in Houston, Texas. (7 RT 1286.) According to one ofthe arresting officers, Mr. Mai identified a pair of shoes as his at the time ofhis arrest. (6 RT 1127-1129.) Police discovered blood on one ofthe shoes, which “matched” Officer Burt’s DNAprofile. (7 RT 1250-1255, 1261-1262.)'' The shoes were also '0 Prints recovered from a Sprite can were also identified as Mr. Mai’s. (RT 1225.) However, the prosecution did not present evidence to connect that particular can or the prints onit to this shooting, such as testimony identifying that can as having been seized in connection with this case or testimony from a crime scene technician that he or she lifted fingerprints from that can. According to one calculation, that profile occurs in onein thirty million Caucasians; according to another,it occurs in onein sixbillion. (RT 1255, 1263.) 14 compared to the shoe prints recovered from Officer Burt’s citation book and from the Honda parkedin front of the Royal Furniture store. (7 RT 1215- 1216, 1223-1224.) Analysts were unable to positively match the print from the citation book to those shoes, but were able to match theprint left on the Hondato those shoes. (7 RT 1215-1216, 1223-1224.) A secret service agent with the U.S. Treasury examined checks, papers, andprint cartridges recovered from the BMW. (7 RT 1271, 1274.) He concludedthat the bag of traveler’s checks were counterfeit and worth about $10,0000. (7 RT 1281-1282.) All of the evidence otherwise bore indicia of a mass production, nation-wide counterfeit check operation. (7 RT 1274-1284.) Officer Burt died of multiple gunshot wounds. (7 RT 1301.) He was shot seven times, causing eleven gunshot wounds. (7 RT 1293-1294.) Officer Burt’s family testified to the impact of his death on their lives. His wife, Christine Burt, testified that they had been married for three years, and that she was seven months pregnantat the time of his death. (7 RT 1350-1351.) When he died, he was 25 years old and had been on active duty for 14 months. (7 RT 1356.) His death was emotionally and financially devastating to her. (7 RT 1356.) She went into a “deep depression” and was diagnosed with post traumatic stress disorder, for which she wasstill being treated at the time of trial. (7 RT 1357.) Her husband’s death also deeply affected her parents and brother, all ofwhom were close to him. (7 RT 1357-1358.) Officer Burt’s father, Don Burt, was an active-duty C.H.P. officer at the time of his son’s death. (7 RT 1363-1364.) Mr. Burt and his wife testified that their son wasa loving,athletic, intelligent young man whom they loved deeply and whose death had profoundly impacted them and the 15 rest of their family. (7 RT 1359-1361, 1365-1370.) After his son’s death, Mr. Burt had to retire from the C.H.P after 30 years due to depression, which required treatment with counseling and medication. (7 RT 1368.) B. Other Evidence in Aggravation On July 13, 1996, at about 7:30 a.m., Aryan Neghat was driving on Highway 91 when a white BMW cameup behind him “very fast” in the fast lane. (7 RT 1341.) Mr. Neghat changed lanes, but there was anothercarin front of the BMW that would not get out of the way. (7 RT 1343-1344.) The BMWgotso closeto the other car that they touched bumpers. (7 RT 1344.) The driver of the BMW pointed a gun outofthe driver’s side window,at which point the car in front of him changed lanes. (7 RT 1345.) Later that night, Mr. Neghat was watching the news and saw a white BMWthat looked similar to the one he had seen that morning. (7 RT 1346.) Later that month, he identified a photograph of Mr. Mai as the driver of the white BMW. (7 RT 1347.) Although he was 100 percent sure of his identification at the time, he was no longercertain ofhis identification at trial. (7 RT 1344, 1347.) On the night of September 11, 1995, Mark Baker — a neighbor of Mr. Mai’s and Mr. Mai’s girlfriend, Victoria Pham — was awakenedby the sounds of Mr. Mai and Ms. Pham arguing outside oftheir apartment. (7RT 1315-1317.) Mr. Baker opened his apartment door and saw Mr. Mai pushing Ms. Pham againstthe outside railing and the two of them struggling. (7 RT 1318.) Heyelled at them to “knock it off,” at which point Mr. Mai hit Ms. Pham on the back. (7 RT 1319.) Mr. Mai ran into his apartment, prompting Mr. Bakerto call him a “wuss.” (7 RT 1320.) Mr. Mai came back with a “machine gun,” loaded it, and pointed it at Mr. Baker. (7 RT 1320-1321.) When Mr. Baker turned and started walking 16 back to his apartment, Mr. Maisaid, ““What was that you called me,I think you called me a motherfucker. Let me hear yousay it again.” (7 RT 1321.) Mr. Bakerasked him if the gun was real and Mr. Maireplied, “you wantto find out.” (7 RT 1322.) At that point, the apartment manager cameout, told them all to go back inside, and called the police. (7 RT 1322.) Although Mr. Baker spoketo police that night, Mr. Mai apparently was never convicted of any felony associated with the incident. (7 RT 1322.) On June 17, 1996, Robert Bachand was working as a salesman at a Honda dealership in Anaheim. (7 RT 1323-1324.) At about 7:30 that night, two Asian men camein and askedto test drive one of the cars. (7 RT 1324- 1325.) The three men drove a car off the lot, with Mr. Bachandin the backseat, and onto the freeway. (7 RT 1325-1236.) The passenger pulled a nine millimeter handgun out, pointed it at Mr. Bachand, told him that they were “Vietnamese Mafia,” and demandedhis wallet. (7 RT 1328, 1330- 1331.) The men told him that they were going to take the car and wanted to know if it had “LOJACK,”which could be tracked by the police. (7 RT 1328.) When Mr. Bachandtold them he did not know,they called someone on a cell phone andputit to his ear. (7 RT 1329.) A male voice told Mr. Bachand not to “fuck” with his “guys or they will kill you.” (7 RT 1329.) The man on the phone demandedthe personal identification number for Mr. Bachand’s ATM card and he gaveit to him. (7 RT 1329.) They stopped the car in a residential area, where several other young Asian men met them. (7 RT 1330-1331, 1336.) The passenger got out of the car and another young Asian male, also armed, got in and they drove away. (7 RT 1336.) Eventually, the men dropped Mr. Bachandoff on the freeway. (7 RT 1337.) Theparties stipulated that, later that night, a C.H.P. officer observed 17 the stolen Honda driving 80 miles per hour on the freeway. (7 RT 1373.)Whenhe attempted to effect a traffic Stop, the vehicle gave chase beforecrashing. (7 RT 1373.) The two Occupants, Asian males, were arrestedwhenthey attemptedto flee on foot. (7 RT 1373.) One of the menpossessed a magazine containing 10 .89 millimeter rounds. (7 RT 1373.)A taser gun, as well as a loaded nine millimeter semiautomatic pistol, werealso foundin the area of the crashsite. (7 RT 1373.) 1341.) The prosecution presented documentary evidence that Mr. Mai hadsuffered four prior felony convictions for: (1) escape while misdemeanorcharges were pending (Pen. Code, § 4532) in 1992; (2) possession of anassault weapon (Pen. Code, § 120880) in 1992; (3) assault (Pen. Code, §245) in 1993: and (4) burglary (Pen. Code, § 459) in 1993. (People’sExhibits 50-53: 7 RT 1237; 8RT 1417.) Mr. Maideclinedto present any penalty phase defense, including anymeaningful challengeto the state’s aggravating evidence, mitigatingevidence, or closing argument. (8 RT 1409-1410.) Instead, he took thestand andtestified thatthe Jurors should return a death verdict. (8 RT 1409-1410.) // // ‘ 18 ARGUMENT I THE JUDGMENT MUST BE REVERSED BECAUSEMR. MAI DID NOT MAKE A KNOWING, VOLUNTARY, AND INTELLIGENT WAIVEROF HIS RIGHT TO THE ASSISTANCE OF CONFLICT- FREE COUNSEL AND WAS ULTIMATELY DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF CONFLICT-FREE COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATE CONSTITUTION AND ARTICLE 1 SECTION 15 OF THE CALIFORNIA CONSTITUTION A. Introduction On July 27, 1998, while awaitingtrial in this case, Mr. Mai was arrested, and ultimately indicted, for: (1) conspiracy to commit murderfor hire in violation of 18 USC § 1958; (2) use of interstate commercefacility with intent to commit murderfor hire in violation of 18 USC § 1958; and (3) aiding and abetting the possession of a machine gunin violation of 18 USC § 922(0), subd. (2), in United States v. Mai, United States District Court for the Central District of California, No. 98-82-1. (2 CT 381, 476- 477, 488-490, 498; 1 RT 99.)"? On the same date, California transferred temporary custody of Mr. Maito the federal government pursuantto a petition for writ of habeas corpus ad prosequendum. (8/29/07 SCT 164- 170; 8/29/07 ART5.) The federal charges arose from an alleged conspiracy to have an undercover officer — who approached Mr. Mai while in the Orange County '? While the federal charges were describedin the record, the record does not include a copy of the actual indictment. A motion forjudicial notice of the indictment accompaniesthis brief. (Evid. Code §§ 452, subd. (d) [records of any court of record of the United States are proper subjects ofjudicial notice] and 459, subd. (a) [reviewing court may take judicial notice of any matter specified in section 452].) 19 jail — murder Alex Nguyen, the informant-witness whotestified against Mr. Maiat the preliminary hearing in this case. (2 CT 386-388, 394-399, 498; 1 RT 63, 99, 155-156.) The federal governmentalso indicted three co- defendants as co-conspirators: (1) Victoria (“Vickie”) Pham, Mr. Mai’s girlfriend; (2) Huy Ngoc Ha; and (3) Daniel Watkins, defense counsel Dennis O’Connell and George Peters’s investigator, appointed to assist them with Mr. Mai’s defense in this case. (2 CT 391, 497-499; 1 RT 63.)!° Documents presentedto the trial court in August 1998 demonstrated that it was in Daniel Watkins’s role as Mr. Peters and Mr. O’Connell’s investigator in Mr. Mai’s state capital murdertrial that Mr. Watkins allegedly participated in the conspiracyto kill state prosecution witness Alex Nguyen. (1 RT 83; 1 CT 128, 137, 140-143, 145-147, 148, 150- 151.)'* In addition, according to a memodated July 13, 1998, which Mr. Watkins’s federal defense counsel, James Waltz, wrote to the Assistant United States Attorney (““AUSA”) assigned to the federal prosecution, Marc Greenberg, and which was submitted to both the state trial court and the federal court (1 RT 183; 1 CT 155-156): '3 Mr. Peters was Mr. Mai’s appointed leadtrial counsel. Mr. O’Connell was Mr. Mai’s sole retained counselat the preliminary hearing. _ Mr. Watkins worked for Mr. O’Connell and was part of Mr. Mai’s defense team during the pre-trial proceedings. (1 RT 98-99; 2 CT 498.) According to Mr. Peters, he arranged to have both Mr. O’Connell and Mr. Watkins appointed to assist him, as second counsel and investigator, in representing Mr. Maiat trial given their knowledge of the case and Mr. Mai’s requests that they continue to represent him. (1 RT 98-99; 2 CT 498.) '4 The bills Mr. Watkins submitted, which were signed by defense counsel, further demonstrated that Watkins was acting as their investigator and at their direction when he engaged in manyofthe alleged overt acts in furtherance of the charged conspiracy. (987.9 CT 54-83.) 20 I intend to present a full court press and challenge the accuracy [of the charges] by calling Rob, George Peters, and Dennis O’Connel [sic] in a challenge under FCRP4. For your info, Defendant [Watkins] was the investigator for George Peters whois representing Maiin State court. At Peters’s behalf, Defendant interacted with Mai. Mai told Defendant about Mai’s plan to kill Alex in Texas, and Defendant reported all that to George Peters, Dennis and Rob Harley, and took their directions. As a side to Marc Greenberg, George Peters and O’Connel[sic] should be disqualified from further representing Maiin state court, as their testimony in Federal Court will be adverse to Mai (in federal court) as they will exculpate Defendant from any wrongdoing. If not disqualified, the state will otherwise easily convict Mai in both cases and give the defense a great appellate issue which now can beso easily avoided. Peters and O’Connell are a comerstone of Defendant[sic] defense. Meanwhile, Defendant denies any andall allegations in the complaint concerning any wrong doing andall his activities were blessed by Peters, Harley, and O’Connell. Just ask them. Defendant did nothing to aid Mai’s plan which was well known amonghis defense team. Yes, that is true. Thus, I am asking you to interview Peters, O’Connell and Harley ASAP. Peters at 835-0540 and O’Connel[sic] at 635-5631; pager 691-8876. (1 CT 156,italics added.)'° Thus, according to his own counsel, while Mr. Watkins knew of Mr. Mai’splan to kill Nguyen, both Messers. Peters and O’Connell also knew of the plan and “all [Watkins’s] activities” were “direct[ed]” and “blessed '® The appellate record does not indicate what role Jesse Flores or Rob Harley played in either case. While these documents were submitted to the trial court and considered at a conflict hearing (1 RT 75-88), the trial court summarily granted the prosecutor’s request, “could J ask the court to seal those, I have not been privy to those documents, and I do not intend to.” (1 RT 84.) 21 by” them. In other words, according to the admission of defense counsel’s investigator and Mr. Mai’s indicted co-conspirator, defense counsel were unindicted co-conspirators.’ Aswill be demonstrated in Part C, post, Daniel Watkins’s conduct, admission and allegations against Messrs. Peters and O’Connell, and his attorney’s demand for an investigation into their roles in the crimesrelated to Mr. Mai’s crimes, created potential conflicts of interest of the most serious kind. As will be demonstrated in Part D, post, the trial court, Mr. Mai’s defense counsel, and “independent” counsel chosen by Mr. Mai’s defense counsel, characterized the only potential conflict of interest arising from the above-described facts as the possibility that Messrs. Peters and O’Connell might be called as witnesses in Messrs. Mai and Watkins’s federaltrial and their testimony mightcall for privileged material. (1 RT. 66-69, 74-78.) However,all of the attorneys concluded that there was only the “appearance of a conflict, or the potential of a conflict”; in fact, there was no, and would be no, conflict of interest and certainly no possibility that any conflict would affect defense counsel’s representation in this case. (1 RT 75-79, 80-82.) This is what they advised the trial court, and thisis what they advised Mr. Mai. (1 RT 75-80, 83.) Thetrial court made no inquiry into, nor did anyone advise Mr. Mai on the record of, defense counsel’s potentially conflicting interests in their 16 Nearly a year later, in June 1999, Watkins entered a guilty plea to the lesser charge of accessory after the fact to murder for hire pursuant to a plea bargain. A motion for judicial notice of the records of the United States District Court for the Central District of California reflecting these facts accompaniesthis brief. (Evid. Code §§ 452, subds.(c) [official acts ofjudicial departments of United States are proper subjects ofjudicial notice] and (d) [records of any court of record of the United States], 459.) 22 own liberty, livelihood, and reputation that Watkins’s conduct, admission and allegations against defense counsel created. To the contrary, defense counsel misrepresented the depth and the breadth of the potential conflicts they faced. Thus, as will be demonstrated in Part D, post, both thetrial court and Messrs. Peters and O’Connell violated their constitutionally mandated obligations to Mr. Maito fully apprise him of the conflicts of interest and their potential impact on counsel’s representation. In so doing, they failed to obtain a knowingandintelligent waiver of Mr. Mai’s rightto the effective assistance of conflict-free counsel. Aswill be demonstrated in Parts E through G,post, the potential conflict ripened into an actual one becauseit adversely affected defense counsel’s performanceat every stage of these capital proceedings. Lead defense counsel, Mr. Peters, brokered a promise to the federal government — over the objection of Mr. Mai’s appointed, unconflicted federal counsel — in which Mr. Maiagreed notonly to plead guilty to all of the federal charges, for which he would receive the maximum sentence, and be housed in federal custody under solitary confinement conditions that can only be described as draconian, but also agreed to plead guilty to the state capital murder charge, all in exchange for AUSA Greenberg’s promiseto recommend a sentence reduction for Mr. Mai’s girlfriend and indicted co- conspirator, Victoria Pham — a recommendation that wasultimately rejected. (Part E-2, post.) Defense counsel made no attempt to bargain for any personal benefit to Mr. Maiin his state capital murder proceedings and consented to the plea without any promise or expectation that it would avoid a death verdict. (Parts E-3 and E-4, post.) Finally, defense counsel consented to Mr. Mai’s unconditional slow plea to capital murder without arguing against the sufficiency of the evidence to prove the sole special 23 circumstance allegation, despite the dearth of evidence to prove — indeed, despite the existence of affirmative evidence to disprove — oneofits essential elements. (Part E-5, post.) Furthermore, throughout the proceedings, Messrs. Peters and O’Connell repeatedly represented that Mr. Mai’s mental state had deteriorated under the draconian federal confinement conditionsto the point that he was no longerable rationally to assist in his defense or makerational life and death decisions. Yet they also insisted that competency proceedings under Penal Code section 1368 were unnecessary. (Part F, post.) Despite their grave and reasonable doubts that Mr. Mai was capable of making rational life and death decisions, when Mr. Mai expressed a desire to effectively stipulate to a death sentence, Messrs. Peters and O’Connell failed to take steps to ensure that his decision was competent (Part G-2-a, post) or fully informed (Part G-2-b, post); instead, circumstantial record evidence demonstrates that they overstated the hopelessness of his case and even encouraged his decision (Part G-2-c, post). Indeed, defense counsel acceded in Mr. Mai’s purported death wish and effectively stipulated to a death sentence by declining to present available, compelling mitigating evidence (Part G-3-a, post); declining to challenge the prosecution’s aggravating evidence (Part G-3-b, post); affirmatively presenting Mr. Mai’s statement to the penalty phase jurors that death wasthe appropriate penalty and declining to present any closing argument (Part G-3-c, post) Aswill further be demonstrated in Part G, post, the record demonstrates that the conflict of interest influenced defense counsel’s “strategy” of effectively stipulating to a death sentence and, hence, 24 establishes that the conflict adversely affected their performance from beginning to end. Finally, as demonstrated in Part H, post, having established that defense counsel labored under an actual conflict of interest that adversely affected their performance throughoutthe proceedings,this Court must presume prejudice and hold that Mr. Mai was deprivedof his right to the effective assistance of conflict-free counsel as guaranteed by the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution. The judgment must be reversed. B. The General Frameworkfor Assessing Conflicts of Interest Under The Sixth Amendmentto the United States Constitution and Article I, Section 15 of the California Constitution Underthe Sixth and Fourteenth Amendmentsto the United States Constitution (Holloway v. Arkansas (1978) 435 U.S. 475, 481-487; Powell v. Alabama (1932) 287 U.S. 45, 68-71), as well as article I, section 15 of the California Constitution (People v. Bonin (1989) 47 Cal.3d 808, 833-834), a defendant in a criminal case hasa right to the assistance of counsel. The state and federal constitutional guarantees to assistance of counsel comprise tworelated rights: the right to counsel of reasonable competence (McMann v. Richardson (1970) 397 U.S. 759, 770-771; People v. Pope (1979) 23 Cal.3d 412, 424-425), and the right to counsel’s undivided loyalty (Woodv. Georgia (1981) 450 U.S. 261, 271-272; Maxwell v. Superior Court (1982) 30 Cal.3d 606, 612; Mannhalt v. Reed (9th Cir. 1988) 847 F.2d 576, 579- 580; United States v. Allen (9th Cir. 1987) 831 F.2d 1487, 1494-1495). The state and federal constitutional guarantees to counsel’s undivided loyalty to his client have “a correlative right to representationthat is free from conflicts of interest.” (Wood v. Georgia, supra, 450 U.S. 261, 271-272; accord Cuyler v. Sullivan (1980) 446 U.S. 335, 345-350; Mickens v. Taylor 25 rights. (Cuyler y, Sullivan, 446 US.at Pp. 348-49. accord, e.g., Stricklandv. Washington, Supra, 466 U.S.at P. 692; Wood y. Georgia, supra, 450 U.S.at pp. 271-272. Wheat v. United States (1988) 486 Us. 153, 160; People y. 26 Rundle (2008) 43 Cal.4th 76, 169-173, and authorities cited therein.) C. The Actions, Admission and Allegations Against Defense Counsel, By Daniel Watkins — Mr. Mai’s Indicted Co- Conspirator and Defense Counsel’s Agent and Investigator — Created the Potential That Severe Conflicts of Interest Could Adversely Affect Counsel’s Representation of Mr. Mai 1. A Plausible Allegation that Defense Counsel Was Involved in Criminal Activity or Other Wrongdoing Related to His Client’s Crimes Creates a Unique and Severe Potential Conflict of Interest Asthis Court has explained, while “most conflicts of interest seen in criminallitigation arise out of a lawyer’s dual representation of co- defendants,the [federal and state] constitutional principle is not narrowly confined to instancesofthat type.’” (People v. Hardy (1992) 2 Cal.4th 86, 135-136, and authorities cited therein.) Under both state and federal constitutional standards,“conflicts of interest may arise in various factual settings. Broadly, they ‘embrace all situations in which an attorney’s loyalty to, or efforts on behalf of, a client are threatened by his [or her] responsibilities to anotherclient or a third person or by his [or her] own 399interests.”” (People v. Hardy, supra, 2 Cal.4th at p. 135, italics in original, and authorities cited therein.) In other words, a conflict may exist “whenever counselis so situated that the caliber of his services may be substantially diluted’” (ibid) and thus “[a] claim that counsel’s loyalty was divided by virtue of his own conflicting interests is a claim of such a conflict.” (People v. Mayfield (1993) 5 Cal.4th 142, 206; accord, €.£., People v. Rundle (2008) 43 Cal.4th 76, 171, and authorities cited therein; Rubin v. Gee (4th Cir. 2002) 292 F.3d 396, 402-403; United States v. Cook (10th Cir. 1995) 45 F.3d 388, 393; United States v. Merlino (3rd Cir. 2003) 349 F.3d 144, 151-152; United States v. Levy (2nd Cir. 1994) 25 F.3d 146, 27 153, fn. 5; Mannhalt v. Reed (9th Cir. 1988) 847 F.2d 576, 579-580; American Bar Association [hereafter “ABA”] Model Rules of Prof. Resp., Rule 1.7, subd. (a)(2) and Comment.) It is well settled in this regard that (at least) a potential conflict of interest exists when a “plausible” allegation has been made — whether by the prosecution ora third party — that an attorney has engagedin criminal activity or other wrongdoing related to the crimes for whichhisclientis charged. (United States v. Fulton (2nd Cir. 1993) 5 F.3d 605, 610, 613 [co- defendant and government witness’s allegation that defendant’s counsel “engaged in criminal conductrelated to the charges for which the defendant is on trial” amounted to severe conflict of interest]; accord, United Statesv. Merlino, supra, 349 F.3d at pp. 151-152 [“suggestion of (attorney’s) potential criminalliability” related to client’s crimes created potential conflict sufficient to permit disqualification of counsel overclient’s objections and constitutional right to counsel of choice]; United States v. Cancilla (2nd Cir. 1984) 725 F.2d 867, 870-871; United States v. Register (11th Cir. 1999) 182 F.3d 820, 823-834; Taylor v. United States (6th Cir. 1993) 985 F.2d 844, 846; United States v. Greig (Sth Cir. 1992) 967 F.2d 1018, 1022; Mannhalt v. Reed, supra, 847 F.2d at pp. 580-581; Government of Virgin Islands v. Zepp (3rd Cir. 1984) 748 F.2d 125, 136; Rugierov. United States (E.D. Mich. 2004) 330 F.Supp.2d 900, 903-906.) It is not necessary that the allegation be proventrueat the timeit is madein orderto create the potential for fatally conflicting interests. (See, e.g., United States v. Merlino, supra, 349 F.3d at pp. 151-152; United States v. Fulton, supra, 5 F.3d at p. 613; United States v. Greig, supra, 967 F.2d at pp. 1020-1023; Governmentof Virgin Islands v. Zepp, supra, 748 F.2d at pp. 129-130, 136.) The potential for conflicted loyalties not only exists, but 28 is particularly acute, because “counsel’s fear of, and desire to avoid, criminal charges, or even the reputational damage from an unfounded, but ostensibly plausible accusation, [may] affect virtually every aspect ofhis or her representation of the defendant.” (United States v. Fulton, supra, 5 F.3d at p. 613.) For instance, during the pre-trial stage, defense counsel may avoid negotiating a plea bargain whereby his client would cooperate with the authorities, because it could risk implicating counsel in the crime; indeed, prosecutors “could not possibly approach [a defendant] with a deal to give information about” an attorney’s wrongdoing whenthe defendantis represented by that attorney. (Mannhalt v. Reed, supra, 847 F.2d at p. 582; accord, e.g., United States v. Williams (2nd Cir. 2004) 372 F.3d 96, 106; United States v. Fulton, supra, 5 F.3d at p. 613.) At trial, defense counsel may fear that “a spirited defense could uncover convincing evidence of the attorney’s guilt or provoke the governmentinto action against the attorney.” (United States v. Fulton, supra, 5 F.3d at p. 610; accord, e.g., United States v. Levy, supra, 25 F.3d at p. 156 [counsel may seek to “curry favor” with the governmentby failing to pursue a vigorous defense]; Mannhalt v. Reed, supra, 847 F.2d at p. 581.) Similarly, given his possible independent personal knowledge offacts relating to the crimes, defense counsel may avoid strategies that could result in being called as a witness. (See, e.g., United States v. Levy, supra, 25 F.3d at pp. 156-158; see also Ca. Rules of Prof. Conduct, Rule 5-210 [attorney must withdraw if called as a witness in client’s trial].) Furthermore, as this and many other courts have recognized, when plausible allegations that counsel was involved in crimesor other wrongdoing related to his client’s crimes are made to the same entity 29 prosecuting the client, and counsel may thereby becomethetarget of investigation by the same entity prosecuting his client, the potential for fatally divided loyalties becomes even greater. (/n re Gay (1998) 19 Cal.4th 771, 828; Armienti v. United States (2d Cir. 2000) 234 F.3d 820, 824-825; United States v. Levy, supra, 25 F.3d at p. 156; United States v. Greig (Sth Cir. 1992) 967 F.2d 1018, 1020-1022; Thompkins v. Cohen (7th Cir. 1992) 965 F.2d 330, 332; United States v. McLain (11th Cir. 1987) 823 F.2d 1457, 1463-1464 United States v. Cancilla (2nd Cir. 1984) 725 F.2d 867, 868- 871.) As one court has explained, such allegations “may induce the lawyer to pull his punches in defendinghis client lest the prosecutor’s office be angered by an acquittal and retaliate against the lawyer.” (Thompkins v. Cohen, supra, 965 F.2d at p. 332.) Put another way, when counsel may be subject to investigation by the sameoffice that is prosecuting his client, he or she “may, consciously or otherwise, seek the goodwill of the office for his [or her] own benefit,” which “may not alwaysbein the best interest of his client.” (Armienti v. United States, supra, at p. 825; accord United States v. Levy, supra, 25 F.3d at p. 156.)"” Finally, even if the plausible allegations do not suggest potential criminalliability, “many courts have found an actual conflict of interest when a defendant’s lawyer faces possible criminal charges or significant disciplinary consequences as a result of questionable behaviorrelated to his '7 Compare United States v. Baker (9th Cir. 2001) 256 F.3d 855, 860-861 (finding no conflict where attorney was investigated and prosecuted by different jurisdiction than that prosecuting client, there was no indication either jurisdiction was even aware of the proceedings in the other, there was no “connection between any ofthe parties involved in the two matters,” and thus attorney was not in “position of choosing whether to help himself or his client’). 30 representation of defendant.” (United States v. Levy, supra, 25 F.3d at p. 156, and authorities cited therein; accord, e.g., United States v. Merlino (3rd Cir. 2003) 349 F.3d 144, 151 [“an attorney who faces criminal or disciplinary chargesas a result of his or her actions in a case will not be able to pursue the client’s interests free from concern for his or her own”; GovernmentofVirgin Islands v. Zepp, supra, 748 F.2d at p. 136.) 2. Daniel Watkins’s Conduct, Admission and Plausible Allegations Against Defense Counsel Regarding Their Roles In the Conspiracy, And His Attorney’s Demand That Their Roles Be Investigated by the Same Agency Prosecuting Mr. Mai, Created the Potential That Counsel’s Representation of Mr. Mai Would be Adversely Affected by their Conflicting Personal Interests As previously discussed, Daniel Watkins was defense counsel’s investigator in Mr. Mai’s state capital murdertrial. (1 CT 79; 1 RT 50, 63, 111-115.) He wasindicted as a co-conspirator in the federal case based upon actions he undertook in his role as defense counsel’s investigator in this case. (2 CT 391, 396-400, 397, 486-490;'* 1 CT 128, 134-135, 137- 142, 145-147, 150-151; 987.9 CT 54-83.) Watkins admitted that he knew of Mr. Mai’s plan to kill Nguyen, and that both Messers. Peters and O’Connell also knew ofthe plan and “directed” and “bless[ed]”“all [Watkins’s] activities.” (1 CT 156.) If Watkins’s allegations were true, Messrs. Peters and O’Connell were unindicted co-conspirators in the plot to kill Nguyen. However, pursuant to the authorities discussed in Part C-1, ante, even if the allegations ultimately proved to be untrue (which is in no way demonstrated '8 Watkins is referred to as “codefendant #4”in the factual basis accompanying the federal plea agreement. (See 2 CT 394.) 31 by the record), at the time they were made and throughout Mr. Mai’s state capital murdertrial, they were sufficiently “plausible” to create the potential that counsel’s representation of Mr. Mai would be adversely affected by their conflicting personal interests in their liberty, livelihood, and reputation. (United States v. Fulton, supra, 5 F.3d at p. 613.) Watkins’s allegations against defense counsel were madein the context of his own admission. Although Watkins’s counsel curiously described his client’s statement as laying the groundwork for a “defense,” it was, in fact, an admission. (1 CT 155-156.) Evenif his “activities” were “direct[ed]” by counsel with knowledgeofthe plot to kill Nguyen,as Watkins alleged, that did not excuse,justify, or even mitigate his conduct. Because a reasonable person ordinarily would not admit to criminal conduct unless it were true (see, e.g., Evid. Code § 1230), Watkins’s statement implicating both himself and defense counsel as co-conspirators wasat least “plausible.” Certainly, the federal government’s evidence and Watkins’s admission and allegations constituted evidence that Watkins and defense counsel were accomplicesin the plot to kill or influence Nguyen. The uncorroborated testimony of an accomplice is sufficient to establish probable cause to hold a defendant to answerto criminal charges. (People v. McRae (1947) 31 Cal.2d 184, 187.) Indeed, even the out-of-court statement of an accomplice maybe sufficient to establish probable cause to believe that the defendant committed the crime. (People v. Miranda (2000) 23 Cal.4th 340, 349-350.) The testimony of an accomplice alone may even be sufficient to prove guilt beyond a reasonable doubt, so long as there is some corroboration for that testimony. (Pen. Code, § 1111). Importantly, the corroborating evidence need not corroborate every element of the crime 32 charged;it is sufficientif it “tends to connect the defendant with the crime in such a wayasto satisfy the jury that the accompliceis telling the truth.” (People v. Fauber (1992) 2 Cal.4th 792, 834-835.) The corroborating evidence “‘may beslight and entitled to little consideration when standing alone’ [citation]” (People v. Tewksbury (1976) 15 Cal.3d 953, 969) and may consist of circumstantial evidence (People v. Garrison (1989) 47 Cal.3d 746, 773). To be clear, it is not necessary for Mr. Maito provethe truth of Watkins’s allegations and thus does not cite the foregoing principles in an attempt to do so. Rather, he relies on the foregoing principles as analogous authority to demonstrate that if the uncorroborated statementor testimony of an accomplice is sufficient to prove probable cause to believe that a defendant committed a crime, and if accomplice testimony corroborated by slight evidence tending to connect the defendantto the crimesis sufficient to prove a defendant’s guilt beyond a reasonable doubt, afortiori Watkins’s allegations against defense counsel were “plausible” enoughto create the severe potential that counsel’s conflicting personal interests in protecting their liberty, livelihood, and reputation could adversely affect their representation of Mr. Mai. Generally, an attorney is ethically responsible for the conduct of his non-lawyer employees and agents, such as investigators. (ABA Comm. On Ethics and Prof] Responsibility, Formal Op. 95-396; Gadda v. State Bar (1990) 50 Cal.3d 344, 35; Crane v. State Bar (1981) 30 Cal.3d 117, 122- 123; Vaughn v. State Bar (1972) 6 Cal.3d 847, 857 [attorney has duty to closely supervise non-lawyer employees or agents andisethically responsible for their mistakes or negligence resulting from failure to aedquately supervise]; In the Matter ofJones (Review Dept. 1993) 2 Cal. 33 St. Bar Ct. Rptr. 411 [attorney held ethically responsible for misconduct and illegal activities of non-lawyer employees]; Hu v.Fang (2002) 104 Cal.App.4th 61, 64, and authorities cited therein [attorney responsible for negligence of non-lawyer employees and agents] cf. Stokes v. California Horse Racing Bd. (2002) 98 Cal.App.4th 477, 482 [even “an innocent principal or employeris liable for the torts committed by an agent or employee while acting within the scope of the agency and employment even if the agent of employee acts in excess of the authority or contrary to instructions”].) As previously mentioned, according to a federal arrest and search warrant affidavit (which was submitted to the trial court when the issue of a possible conflict arose), Mr. Watkins committed a numberof overt acts in furtherance of the conspiracy in his role as counsel’s investigator and agent. Those acts included providing to Mr. Mai — either directly or through their co-conspirators — “personal information” about Nguyen(such as his address) that had been “listed in the discovery materials provided to the attorneys defending Maion the pending murdercase,” traveling to Houston (Nguyen’s home town) and obtaining other relevant addresses and personal information regarding Nguyen’s family membersandgirlfriend, obtaining Nguyen’s date of birth and social security and driver’s license numbers, and obtaining other discovery in this case that included a photograph of Nguyen,all of which Mr. Watkins provided to Mr. Mai (directly or through their co-conspirators), and all of which wasultimately provided to the undercover agent posing as a hit man. (1 CT 138-144; see also 2 CT 396- 397 [federal change ofplea proceedings]; 2 CT 512, 532 [affidavit for wiretap, exhibit in support of prosecution’s motion to shackle Mr. Mai].) Indeed, defense counsel swore that many of these acts were “performed 34 under my direction and at my requestin a satisfactory manner.” ( 987.9 CT 67, 71-75.) According to other record evidence, Messrs. Peters and Mr. O’Connell delegated to Mr. Watkins the responsibility of personally obtaining all discovery directly from the District Attorney’s office. (1 RT 111-112; 987.9 CT 30-31, 54, 56, 58.) Indeed, Mr. Peters acknowledged that he “never saw”the discovery himself until long after Mr. Watkins’s arrest. (1 RT 111-112.) Messrs. Peters and O’Connell directed Mr. Watkins to provide discovery and other “legal materials” to Mr. Mai, which wasin unredacted form. ( 987.9 CT 54-63, 67-75.)'? Again, according to the federal search and arrest warrant affidavit, that unredacted discovery contained “personal information” regarding Nguyen, including his address. (1 CT 141-143.) In permitting their agent and investigator, Daniel Watkins, to provide that information to Mr. Mai, defense counsel committed a crime '? Following Mr. Watkins’s arrest and the appointment of a new investigator, Mr. Rasch, to assist Messrs. Peters and O’Connell, Mr. Peters submitted a declaration regarding the tasks he had assigned Mr. Rasch. (987.9 CT 146-152.) In a declaration, Mr. Peters explained that given “the Daniel Watkins’s [sic] precedent,” he had instructed Mr. Rasch to redact witness information from the discovery before providing it to Mr. Mai, which required a substantial amount of time. (987.9 CT 150-142.) Consistent with this representation, Mr. Raush’s itemizedbills included a substantial amount of time spent redacting the discovery. (987.9 CT 226.) In contrast, while Mr. Watkins’s itemized bills — submitted to and approved by Mr. Peters — included time spent “indexing” and “review[ing] discovery,” they bore no indication that he had spent any time redactingit. (987.9 CT 21-28, 43-63, 67-83.) From all of this evidence, the only reasonable inference is that Mr. Peters never directed Mr. Watkins to redact the discovery before providing it to Mr. Mai and never had any reason to believe that Mr. Watkins had doneso. 35 Penal Code section 1054.2 explicitly states in relevant part that “no attorney may disclose or permit to be disclosed to a defendant, members of the defendant’s family, or anyone else the address or telephone numberof a victim or witness whose nameis disclosed to the attorney pursuant to subdivision (a) of section 1054.2, unless specifically permitted to do so by the court after a hearing and a showing of good cause.”(Italics added.) While an attorney may disclose such information to employees or “persons appointed by the court to assist in the preparation of a defendant’s case,” those persons “shall be informed bythe attorney that further dissemination of the information . . . is prohibited.” Violation of section 1054.2 is a misdemeanor. Moreover, following the death verdict and in letter to the judge presiding over the section 987.9 requests in which Mr. Peters sought additional compensation, he represented that: “Within several days of the arrest of investigator Dan Watkins on the federal case his federal attorney faxed the federal prosecutor and inferred on this fax that Dennis O’Connell and I knew about Mr. Mai’s plot to kill a witness. As a result, I initially refused to be Mr. Mai’s federal counsel because ofthe possibility of a legal conflict where I might be a witness. This difficult accusation dissolved some days later when it became obvious there wasa difference in knowing that Mr. Mai hated the turncoat witness and knowing ofa specific plot to murderthis witness.” (987.3 CT 30.) Thus, Mr. Peters did not deny that he had directed the activities for which Mr. Watkins had been indicted — just as Watkins had alleged. The only allegation that Mr. Peters ever disputed on the (confidential) record wasthat he had done so with knowledge that Mr. Mai would use the information that their agent provided to him in an attempt to kill Nguyen. 36 Despite Mr. Peters’s denial of such knowledgeinthat confidentialletter, Watkins’s allegation that he had such knowledge wascertainly “plausible” given defense counsel’s violation of Penal Code section 1054.2 and knowledge that Mr. Mai wasallegedly a high-ranking memberof a powerful Vietnamese gang, that Alex Nguyen claimedto be a protected witness with a “contract” out on his life, and that Mr. Mai “hated”the “turncoat witness,” whose whereabouts and othervital information his agent had provided to Mr. Mai. (2 Muni RT 268, 320-321; 987.3 CT 30;cf. People v. McRae, supra, 31 Cal.2d at p. 187; People v. Fauber, supra, 2 Cal.4th at pp. 834-835.) Thus, Watkins’s allegations were plausible enough to suggest defense counsel’s potential criminalliability for crimes related to those of their client. At the very least, defense counsel faced potential, severe disciplinary consequences for Watkins’s criminal conduct based on their failure to supervise him more closely. Hence, Watkins’s conduct and plausible allegations were such that counsel had reason to fear that they couldlead to criminal charges at worst, or severe disciplinary consequences at best, thus creating the risk that counsel’s representation of Mr. Mai would adversely be affected thereby. (See, e.g.,United States v. Levy, supra, 25 F.3d at p. 156, and authorities cited therein [““many courts have found an actual conflict of interest when a defendant’s lawyer faces possible criminal charges or significant disciplinary consequences as a result of questionable behaviorrelated to his representation of defendant”]; Part C-1, ante, and authorities cited therein.) Certainly, the allegations constituted a sufficiently plausible basis on whichto launch an investigation into Messrs. Peters and O’Connell’s roles in the plot to kill Nguyen. Indeed, Mr. Watkins’s attorney demanded such 37 an investigation — a demand madenotonly to the same federal prosecutor’s office that was prosecuting Mr. Mai, but to the very same prosecutor, AUSA Marc Greenberg. (1 CT 155-156.) As discussed in Part C-1, ante, when plausible allegations that counsel was involved in crimes or other wrongdoingrelated to his client’s crimes are made to the sameentity prosecuting the client, there is a danger that counsel will becomethe target of a criminal investigation by that entity, which creates an incentive to curry favor with it and a disincentive to provokeits ire and, thus a serious potential that counsel’s representation will be adversely affected by the conflict of interest. (See, e.g., Armienti v. United States (2d Cir. 2000) 234 F.3d 820, 824-825; United States v. Levy, supra, 25 F.3d at p. 156; Thompkins v. Cohen (7th Cir. 1992) 965 F.2d 330, 332.) Importantly in this regard, it was not only the federal government that had the powerto investigate and potentially prosecute Messrs. Peters and O’Connell for any role they played in the conspiracy to kill Nguyen. Manyofthe activities for which Watkins was indicted took place in Orange County. (2 CT 391, 396-400, 397, 486-490; 1 CT 128, 134-135, 137-143, 145-147, 150-151; see also 987.9 CT 54-83.) And, according to Watkins, Messrs. Peters and O’Connell directed those activities with full knowledge of the plot to kill Nguyen. (1 CT 156.) Thus, Orange County had jurisdiction to investigate and prosecute Messrs. Peters and O’Connell for 2° Compare United States v. Baker (9th Cir. 2001) 256 F.3d 855, 860-861 (finding no conflict where attorney was investigated and prosecuted by different jurisdiction than that prosecuting client, there was no indication either jurisdiction was even aware of the proceedings in the other, there was no “connection between anyof the parties involved in the two matters,” and thus attorney wasnotin “position of choosing whetherto help himself or his client”). 38 aiding and abetting the plot to kill Nguyen, taking part in the conspiracy, or for any other wrongdoingrelating to the plan. (See, e.g., Pen. Code, § 27, subd.(a)(1) [persons who commit in whole, or in part, a crime within California are punishable under California law]; Pen. Code, §§ 182, subd. (a), 184 [conspiracy trial may be held in any county in which an overt act in furtherance of conspiracy is done]; 4 Witkin, Cal. Crim. Law 3d (2000), Ch. XI, Juris. & Venue, § 51, collecting cases [where crime is committed in part in one county andin part in another, either county has jurisdiction to prosecute] and § 61, collecting cases [conspiracy may be prosecuted and tried in any county in which any overt act tending to effect the conspiracy is done]; see also Pen. Code, § 31 [aiding andabetting liability]; People v. Beeman(1984) 35 Cal.3d 547, 561 [elements of aiding and abetting liability].) Certainly, there was reason to fear that the Orange County District Attorney’s Office would have had a keeninterest in the prosecution of participants in a conspiracyto kill one of its own witnessesin a capital murdertrial, thus giving counsel incentive to curry personal favor with that office. In sum, based on Watkins’s actions and serious andplausible allegations against defense counsel, Messrs. Peters and O’Connell had much to fear from the state and federal law enforcement agencies prosecuting their client. As potential criminal defendants, they had compelling self-interest in maintaining a positive relationship with the state and federal authorities prosecuting their client, and in concealing any wrongdoing on their part, with a view to arriving at a favorable outcome regarding the allegations against them. As criminal defense attorneys, they had a duty to maintain an adversarial relationship with those agencies in order to vigorously represent their client and his best interests. This is the 39 essence of conflicting interests. D. The Record Fails to Demonstratethat Mr. MaiKnowingly and Intelligently Waived His RighttoRepresentation by Counsel Unencumbered by theirPotentially Conflicting Persona} Interests in theirLiberty, Livelihood, and Reputations thatWatkins’s Conduct and Allegations Created 1, The Governing Legal Principles Accordingto the American Bar Association, an attorney shouldavoid, or moveto withdraw from, employmentif “there is a significant riskthat the lawyer’s professional judgmenton behalf of a client will beadversely affected by the lawyer’s own - + - Personal interests”and theattorney cannot reasonably concludethat he or she will be able to providecompetent anddiligent Tepresentation. (ABA Model Rules ofProf. Resp.[hereafter “ABA Model Rules”], Model Rule 1.7 and Comment; see alsoABA Model Code ofProf. Resp.[hereafter “ABA Model Code”], Canon 5 rights (Glasser y. United States, Supra, 315 U.S.at p. 72), which includes 40 an “independent duty to ensure that criminal defendants receivea trial that is fair and does not contravene the Sixth Amendment”(Wheat v. United States, supra, 486 U.S. at p. 161). Therefore, when the possibility of a conflict is “sufficiently apparent”to a trial court, there arises “a duty to inquire further.” (Wood v. Georgia, supra, 450 U.S. at p. 272; Hollowayv. Arkansas, supra, 435 U.S. at p. 485; Glasser v. United States, supra, 315 USS.at p. 76.) Thetrial court’s duty to investigate potential conflicts cannot be discharged by a perfunctory inquiry. The court’s inquiry must be both “searching” (Garcia v. Bunnell (9th Cir. 1994) 33 F.3d 1193, 1197), and “targeted”at the specific conflict at issue (Selsor v. Kaiser (10th Cir. 1996) 81 F.3d 1492, 1501; accord, e.g., People v. Easley (1988) 46 Cal.3d 712, 730-732). This duty is even greater in a capital case. As this Court has explained, in discharging this duty, the trial court must act “‘with a caution increasing in degree as the offenses dealt with increase in gravity.’” (People v. Bonin, supra, 47 Cal.3d at pp. 836-883, quoting Glasser v. United States, supra, 315 U.S. at p. 71.) Thecourt’s obligation is “not merely to inquire butalso to act in response to whatits inquiry discovers” (People v. Bonin, supra, 47 Cal.3d at p. 836) or take “appropriate action” (People v. McDermott (2002) 28 Cal.4th 946, 990; accord, e.g., Holloway v. Arkansas, supra, 435 U..S.at p. 484). Some courts have held that if the trial court conducts a full inquiry and determinesthat allegations of attorney wrongdoing are wholly frivolous or demonstrably untrue, it may appropriately determine that there is no potential conflict of interest and no further action need be taken. (See,e.g., United States v. Jones (2nd Cir. 1990) 900 F.2d 512, 518-520 [rejecting argumentthat prosecutor’s “tirade”alluding to violation ethicalrulesif 41 certain actions were taken by counsel created potential conflict because those actions were not taken, trial judge properly found that “the prosecutor’s hysterics were without foundation in fact or law,” and therefore at that tme there was no conflict of interest and counsel “was free to pursue a vigorous defense”’].) Absent such a determination following a full inquiry, there are two “appropriate actions” available to a trial court in the face of plausible allegations of attorney wrongdoingrelatedto his client’s crimes: disqualify counsel or obtain the defendant’s knowing, voluntary andintelligent waiver of his right to counsel unencumberedbythe conflict. Some courts have held that the potential for fatally divided loyalties arising from plausible allegations of attorney wrongdoingrelated to his client’s crimesis so great that the potential conflict cannot be waived by the defendant and counsel mustbe disqualified, even over the defendant’s constitutionally protected right to retained counsel of choice. (See, e.g., United States v. Fulton, supra, 5 F.3d at pp. 611-613 [given the breadth and depth of this type of conflict, we are unable to see how a meaningful waiver can be obtained”]; United States v. Arrington (2nd Cir. 1989) 867 F.2d 122, 129; United States v. Hobson (11th Cir. 1982) 672 F.2d 825, 827-829; see also United Statesv. Salinas (5th Cir. 1980) 618 F.2d 1092, 1093 [trial court was within discretion in disqualifying counsel over defendant’s objection where counsel was underinvestigation concerning events for which his client was indicted].) The majority of courts — following the general principle that the right to conflict-free counsel may be waived undercertain circumstances(see, e.g., Cuyler v. Sullivan, supra, 446 U.S. at pp. 346-347) — have held that such conflicts may be waived. As with all fundamental constitutional 42 rights, however, any such waiver must be “knowing,intelligent acts done with sufficient awareness of the relevant circumstancesandlikely consequences.” (People v. Mroczko, supra, 35 Cal.3d at p. 110; accord Glasser v. United States, supra, 315 U.S. at pp. 70-71; Johnson v. Zerbst, supra, 304 U.S. at p. 464; People v. Easley, supra, 46 Cal.3d at p. 730 [the defendant must be advised ofthe “full range of dangers” presented by the conflict]; Lewis v. Mayle (9th Cir. 2004) 391 F.3d 989, 996; United States v. Allen (9th Cir. 1987) 831 F.2d 1487, 1500, and authorities cited therein [““defendant (must) know aboutall of the risks that are likely to develop’’].) coeThe reviewing court must “‘ascertain with certainty’ that a defendant knowingly and intelligently waived that right by ‘focusing on what the defendant understood.’ [Citation.]” (Lewis v. Mayle, supra, 391 F.3d at p. 996; accord, e.g., People v. Mroczko, supra, 35Cal.3d at pp. 110-113; People v. Easley, supra, 46 Cal.3d at pp. 730-732.) Significantly, the validity of the waiver must appear on the face of the record. (See, e.g., Carnley v. Cochran (1962) 369 U.S. 506, 515-516; Glasser v. United States, supra, 315 U.S. at p. 71; Johnson v. Zerbst, supra, 304 U.S. at p. 464.) Courts “‘indulge every reasonable presumption against the waiver of unimpaired assistance of counsel.’” (People vy. Bonin, supra, 47 Cal.3d at p. 840, quoting from People v. Mroczko, supra, 35 Cal.3d at p. 110; accord, Johnson v. Zerbst, supra, 304 U.S.at p. 464.) | 2. The Hearing and Colloquy Despite the severe conflicts of interest presented by Watkins’s status as both an indicted co-conspirator and defense counsel’s investigator, his allegations against both Messrs. Peters and O’Connell, and his own attorney’s demand that Messrs. Peters and O’Connell’s roles in the conspiracy be investigated by at least one of the agencies prosecuting Mr. 43 Mai, those conflicts were never explored on the record atall. Instead, on August 7, 1998, Mr. Peters briefly described the backgroundofthe federal prosecution and “its mix” with the state case and informedthe trial court that it was possible that he and Mr. O’Connell would be called as witnesses in the federal trial by Mr. Mai’s alleged co- conspirator, Daniel Watkins, who wastheir investigator in this case. According to Mr. Peters, this “[n]Jaturally ... raises the spectre of some conflict of interest here.” (1 RT 63-67.) Nevertheless, Mr. Peters further explained that he and Mr. O’Connell had discussed the matter and “we do not see any actual conflicts at this point.” (1 RT 67.) However, according to Mr. Peters, the state prosecutor was concerned regarding the potential conflict and wanted to be “confident that later down the road some armchair quarterback doesn’t decide that there was someconflict, and undo the work that was done many years before, that is a professional thing for the prosecutor to do.” (1 RT 67.) Therefore, with the prosecutor joining the request, Mr. Peters asked the trial court to appoint a specific attorney as “independent” counselto review both the state and federal cases and advise both Mr. Mai and Mr. Mai’s counsel as to whether there was a conflict of interest. (1 RT 67-68.) The court granted their request and appointed Gary M.Pohlson,the attorney Messrs. Peters and O’Connell had requested, to “render an opinion for us.” (1 RT 68-69, 74.) *! Tnitially, defense counsel asked that an attorney named Jack Earley be appointed. (1 RT 67-68.) However, because Mr. Earley was unavailable, the court ultimately granted defense counsel’s request to (continued...) 44 On August 21, 1998, Mr. Pohlson appearedin state court with all counsel and Mr. Mai. (1 RT 74-75.) He represented to the court that he had discussed both cases with Messrs. Peters and O’Connell, the state prosecutor, and the federal prosecutor, AUSA Greenberg. (1 RT 75.) Mr. Pohlson also reviewed the search and arrest warrants and supporting affidavit in the federal case and the memorandum Mr. Watkins’s federal counsel had presented to AUSA Greenberg andthe district court, which were submitted to the trial court and madepart ofthe trial record. (1 RT 83-84; 1 CT 125-156.) Mr. Pohlson explainedthat he had hada “relatively brief’ meeting with Mr. Mai“outlining for him what my conclusions were, what the law said with regard to, at least in my opinion what the law says with regard to where the conflict situation is.” (1 RT 75-76.) In Mr. Pohlson’s opinion, there was “the appearance of a conflict, or the potential of a conflict,” based on the likelihood that Messrs. Peters and O’Connell would be called as witnesses in the federal trial. He explained that he was“pretty sure that one side or the other is going to call Mr. Peters and Mr. O’Connell” regarding the charges against their investigator, Daniel Watkins. (1 RT 76.) However, AUSA Greenberg had informed Mr. Pohlsonthat the *I(__ continued) appoint another colleague, Gary Pohlson. (1 CT 124; 1 RT 74-75.) It appears that Mr. Peters and Mr. Pohlson had previously acted as co-counsel in at least one other case. (See Ng v. Superior Court (1997) 52 Cal.App.4th 1010, 1014 [listing Gary M. Pohlson and George Peters as counsel for petitioner].) * As previously noted, these documents weresealedat the prosecutor’s request, “could I ask the court to seal those, I have not been privy to those documents, and J do not intend to.” (1 RT 84.) 45 federal government intended to request two juries in Mr. Mai and Mr. Watkins’s federal trial. (1 RT 76.) Since the federal government“is going to makesure that the Mai jury doesn’t know anything about Peters and O’Connell[,] . . . no way will they be impacted, will Mr. Mai be impacted by at least the appearance of his lawyerstestifying against him. So I don’t think that’s going to be a problem asfar as conflict goes.” (1 RT 76.) Even if the federal court refused the request for two juries, Mr. Pohlson had discussed with Messrs. Peters and O’Connell the subject matter of their potential testimony, which Mr. Pohlson opined would be “in no way harmful to Mr. Mai.” (1 RT 76-77.) Furthermore, the AUSA informed Mr. Pohlson that he did not intend to examine Messrs. Peters and O’Connell regarding any privileged matter. (1 RT 77.) “So I don’t think there is a conflict on that level.” (1 RT 77.) Mr. Pohlson did not describe the potential testimony, explaining that he did “not think it is necessary for meto go into that now,”nor did the trial court inquire into the nature of the expected testimony. (1 RT 77; compare United States v. Miskinis (9th Cir. 1992) 966 F.2d 1263, 1269 [if attorney’s potential testimony “would have been adverse to the defense that [defendant] might have offered, a conflict of interest existed”].) At bottom, Mr. Pohlson informedthetrial court and Mr. Mai that he saw only twopossible conflicts presented by the facts: (1) the possibility that Mr. Mai’s attorneys would betestifying as prosecution or defense witnesses in a case the government wasprosecuting against Mr. Mai; and (2) the possibility that their testimony would harm Mr. Mai with regard to the federal case or involve privileged matter. (1 RT 76-78.) However, Mr. Pohlson concluded — and advised Mr. Mai — that there was no, and would be no, actual conflict and certainly not one that would “affect this case” 46 becausethe federal case was “outside the parameters” of the state case. (1 RT 78-79.) In any event, Mr. Pohlson explained, “whetherthere is a conflict or not, it is waivable.” (1 RT 77.) To that end, Mr. Pohlson “brief[ly]’’ met with Mr. Mai and informed him “of almost exactly whatI just told the court, that assuming that there is a conflict, that he can waivethat if he wants....” (1 RT 75-76, 78; see also 1 RT 83.) In other words, he advised Mr. Maithat although there was the “appearance”of a conflict based on the possibility that his attorneys would be witnesses in the federal trial, in actuality there was no conflict. (1 RT 75-78.) He further advised Mr. Maithat even if there were a conflict, “in no way will that affect the representation, in no way will that render their representation by Mr. O’Connell and Mr.Peters ineffective in itself.” (1 RT 79.) Based onthis advice, according to Mr. Poholson, “Mr. Mai doesnot believe there is a conflict, he stated that to me a couple of times” (1 RT 83) and he wished to have both defense attorneys continue to represent him (1 RT 79). The court inquired of Mr. Peters, “Mr. Peters, in your mind, do you have a conflict in this matter?” (1 RT 80.) Mr. Peters replied that he did not; there was no “actual conflict[,] [a]nd I am having even a hard time imagining any potential conflict, based on what I know, which includes talking with the U.S. Attorney and talking to Mr. Evans[the state prosecutor].” (1 RT 80-81.) Mr. Peters further represented, and the state prosecutor confirmed, that the state prosecutor did not intend to introduce any criminalactivity relating to the federal charges in the state prosecution, which “reducesthe conflict to about zero.” (1 RT 80-81.) Further, “even if the attorney-client privilege was waived and J didtestify, I believe I would have nothing to say 47 that would harm Mr. Mai.” (1 RT 81.) Mr. Peters concludedthat “on every level, emotionally and intellectually, I do not believe I have a conflict... .” (1 RT 81.) The court next inquired of Mr. O°Connell whether he believed that he had a conflict in the case. (1 RT 82.) Mr. O’Connell also responded that he did not. (1 RT 82.) Thereafter, the court engaged Mr. Maiin the following colloquy: The court: The court is going to make a determination, based upon the information furnished to the court by attorney Pohlson and all counsel, that there is an appearance of a potential conflict. The court cannot determine any more than Mr. Pohlson can at this time that an actual conflict exists. It appears that one does notexist, but there is an appearance. Butit also appears, based upon what the court has been advised, that if a conflict exists it would not render the representation of defense counsel ineffective in and ofitself. Because of that appearance of conflict, or potential conflict, or conflict, Mr. Mai, the lawyers may not be able to furnish you effective representation, and you might not have a fair trial if represented by these counsel, do you understand that? The defendant: Yes. The court: We have appointed independent counsel to confer with you, and you have confirmed you spoke with Mr. Pohlson yesterday; is that correct? The defendant: Yes. The court: And he advised you of the same possibilities of harm that I am advising youofat this time; is that correct? The defendant: Yes.... The court: Should you have ineffective counsel, your chances 48 of being convicted are greater, and when you waive yourright to conflict free counsel, you are also waiving an appeal based upon that conflict; do you understand that? The defendant: Yes. The court: That means you can’t raise that issue, should you be convicted, it means later on you cannotraise this as an issue on appeal? The defendant: Yes, I understand. The court: Having been advised of your right to be represented by attorneys free of conflict, and having understood the disadvantage and dangers of being represented by attorneys with conflicts, do you specifically give up your right to be represented by attorneys who havenoconflict of interest? The defendant: Yes. The court: Have any threats or promises been made to you to obtain this waiver? The defendant: No, sir. The court: And Mr. Peters, Mr. O’Connell, you concur in defendant’s decision? Mr. Peters: Yes, your honor. Mr. O’Connell: Yes. (1 RT 85-87.) Based upon the foregoing,the trial court found that Mr. Mai had made a knowing,voluntary, and intelligent waiverofhis right to counsel unencumbered by the described conflict. (1 RT 88.) 49 3. The Record Fails to Demonstrate that Mr. Mai was Advised of the Most Virulent Potential Conflicts of Interest Created by Watkins’s Conduct and Allegations or Warnedofthe Dangers of Being Represented by Counsel Laboring Under Such Conflicts and, Hence, Fails to Demonstrate that Mr. Mai Made A Knowingand Intelligent Waiverof his Right to be Represented by Counsel Unencumbered by Such Conflicts As discussed in Part D-1, ante, when the trial court and defense counsel know or reasonably should knowofa potential conflict, the state and federal Constitutions demandthat the trial court conduct a “searching” and “targeted” inquiry into the conflict and its potential consequences (Selsor v. Kaiser, supra, 81 F.3d at p. 1501) andthat trial counsel address the potential conflict “forthrightly and honestly” (People v. Mroczko, supra, 35 Cal.3d at p. 112). (Accord Wheat v. United States, supra, 486 U.S.at p. 160; Wood v. Georgia, supra, 450 U.S. at p. 272; Holloway v. Arkansas, supra, 435 U.S. at p. 485-486; Glasser v. United States, supra, 315 U.S.at p. 76; People v. Easley, supra, 46 Cal.3d at pp. 730-732.) These duties serve twocritical functions. First, the fulfillment of these duties is necessary to. protect the defendant’s Sixth Amendmentrights by either determining that there is no potential conflict or, if there is a potential conflict, taking appropriate action through counsel’s voluntary withdrawal, the court’s disqualification of counsel, or obtaining the defendant’s waiverofhis right to counsel unencumbered by the conflict. (See, e.g., Wheat v. United States, supra, 486 U.S. at p. 161; Holloway v. Arkansas, supra, 435 U.S.at pp. 485-486; Glasser v. United States, supra, 315 U.S. at p. 71.) Second, fulfillment of these duties is vital to ensure that any purported waiveris a “knowing, 50 intelligent act[] done with sufficient awareness of the relevant circumstances and likely consequences,” which must appear from the face of the record. (People v. Mroczko, supra, 35 Cal.3d at p. 110; accord, e.g., Cuyler v. Sullivan, supra, 446 U.S. at pp. 346-347; Glasser v. United States, supra, 315 U.S. at pp. 70-71; Johnson v. Zerbst, supra, 304 U.S.at p. 464; People v. Easley, supra, 46 Cal.3d at pp. 730-732.) Here, as the record of the conflict hearing and colloquy with Mr. Mai demonstrates, the only potential conflict discussed and addressed wasthe possibility that Messrs. Peters and O’Connell might be called as witnesses in Mr. Mai and Watkins’s federal conspiracytrial. (1 RT 66-67, 75-88.) Indeed, Mr. Pohlson was quite explicit that this was the only potential conflict that he had discussed with Mr. Mai. (1 RT 75-78.) Furthermore, as to the consequencesofthat particular potential conflict, Messrs. Pohlson, Peters, and O’Connell assured the court and Mr. Mai that it was only theoretical because counsel would not, in fact, be called as witnesses in Mr. Mai’s federaltrial, which would be before a separate jury, or provide testimony that would be harmful to him. (1 RT 76-78.) And in any event, they assured the court and Mr. Mai, even any theoretical conflict could not possibly have any adverse impact on counsel’s representation of Mr. Mai in these proceedings because they were “outside the parameters” of the federal case. (1 RT 78-79.) In fact, according to defense counsel, the state prosecutor had promised notto present any of the conspiracy evidencein the state capital murdertrial, which “reducesthe conflict to about zero.” (1 RT 80-81.) Based upon this advice, according to Mr. Pohlson, Mr. Mai himself was convinced that there was no possibility of a conflict. (1 RT 75- 76, 78, 83.) It was based on this record and advice that Mr. Mai waived his right to counsel unencumberedbythe potential “appearance”of a conflict 51 based on the possibility his counsel could be called as witnessesin his federal trial. (1 RT 85-87.) But for all of the reasons discussed in Part C, ante, the possibility that defense counsel might be called as witnesses in Mr. Mai’s federal conspiracytrial was the least virulent of the conflicts presented by the indictment of their investigator for conspiring with Mr. Mai to kill the state’s witness, by Watkins’s ownactivities allegedly committed in furtherance of that conspiracy while acting as counsel’s agent and investigator, by his allegations that counsel directed those activities with knowledgeofthe plot to kill the witness, and by his attorney’s demand to the AUSAprosecuting Mr. Mai that defense counsel’s roles in the plot be investigated. No one — including Mr. Pohlson, who described in detail the advice he had given Mr. Mai — addressed or advised Mr. Maiofthe potential conflicts created by those facts or their possible impact on counsel’s representation of Mr. Maiin this case. (See Part C, ante, and authorities cited therein.) The trial court made no inquiry into the potential effect that the allegations of defense counsel’s potential criminal liability and ethical violations might have on counsel’s representation of Mr. Mai in these proceedings. (Wood v. Georgia, supra, 450 U.S. at p. 272; Hollowayv. Arkansas, supra, 435 U.S. at p. 485; Glasser v. United States, supra, 315 U.S. at p. 76.) The trial court made no inquiry into what independent personal knowledge defense counsel had regarding the conspiracy. Thetrial court never even inquired into the credibility or plausibility of Watkins’s allegations. (See, e.g., United States v. Jones, supra, 900 F.2d at pp. 518- 520.) Indeed, defense counsel did not even deny the allegations. Instead, the court simply accepted Messrs. Pohlson, Peters, and O’Connell’s 52 representations that there was only the appearance ofa possible conflict based on the theoretical possibility that counsel could be called as witnesses in Mr. Mai’s federal trial, that this theoretical possibility would not be realized and therefore there was no potential conflict, and their indefensible representation that there was no possibility at all that counsel would have any conflict of interest in their representation of Mr. Mai in these proceedings. In so doing,“the trial court was too eager to accept [counsel’s] representation that no conflict existed, or that problems posed by any conflict could be evaded.” (People v. Easley, supra, 46 Cal.3d at p. 731.) Indeed, defense counsel failed to address or acknowledge the most virulent of the potential conflicts presented by the facts of whichthetrial court was aware. Theyalso failed to bring to the court’s attention additional facts lending credibility to Watkins’s allegations against them and suggesting their own potential criminal liability and ethical violations for conduct relating to the conspiracy to kill the state’s witness. (See Part C-2, ante.) Even worse, they misled the court with regard to the depth and breadth of the conflicts presented by the facts and their potential impact on counsel’s representation of Mr. Maiin this case. On March2, 2000, roughly a year and a half after the August 21, 1998 conflict hearing in state court, Mr. Peters and state prosecutor Jacobs appeared in federal district court before Judge David O. Carter and discussed the possibility that the evidence relating to the plot to kill Nguyen would be introduced in Mr. Mai’s state capital murdertrial. According to AUSAGreenberg,“it was decided early on that it couldn’t be done. And the D.A.’s office doesn’t intend to doit.” (3/16/07 2 SCT 132.) The federal court responded with skepticism, “I don’t know how it could be” 53 that the evidence would not be admitted in the state case and specifically inquiredof state prosecutor Jacobs, “[s]o those death threats concerning Mr. Nguyen, you’re representing to me you’re not going to put this on, Mr. Jacobs?” (3/16/07 2 SCT 133.) In response, state prosecutor Jacobsclarified that Assistant District Attorney Evans, who had been assigned to prosecutethe case before Mr. Jacobs, had simply “madea promiseto the defense that he wouldnotin the case-in-chief, in the aggravating evidence, present anything having to do with the federal case,” a promise by whichthe state was bound. (3/16/07 2 SCT 133, italics added.) Mr. Peters agreed that this was the arrangement and pointedout, “I think the Court can see by [Mr. Jacob’s reference to] the case-in-chief, ifwe were to put on some penalty evidence[,] it could go into that field — especially with respect to Alex Nguyen.” (3/16/07 2 SCT 133.) Mr. Jacobs confirmed that Mr. Peters was correct: the state was free to present evidencerelating to the conspiracy as impeachmentor on rebuttal. (3/16/07 2 SCT 134.) Thus, it was misleading for defense counsel to represent to the state trial court that the state prosecutor had promised that he would not introduce any evidence relating to the conspiracy in Mr. Mai’s capital murdertrial and certainly grossly misleadingto representthatthis non- existent promise “reduce[d] the conflict to about zero.” (1 RT 80-81.) To the contrary, and as will be demonstrated in Part G-1, post, the potential for fatally divided loyalties was even moreacute given the true nature of the agreement: as Messrs. Peters and O’Connell madelife and death decisions over Mr. Mai’s fate, the threat loomedthatifthey did attempt to save his life by presenting a penalty phase defense with mitigating evidence (which, as discussed in Part G-3, post, they had the powerto do even over Mr. 54 Mai’s objections), evidence regarding the alleged plot to kill Nguyen and their own roles in it could be aired in a public forum in the county in which they practiced and before their colleagues, the judges who presided over their cases, the prosecutors who weretheir frequent adversaries, and the state and federal agencies who had the powerto investigate and indict or charge them. If, on the other hand, they acceded in Mr. Mai’s instructions to effectively stipulate to a death sentence (see Part G-1, post), the lid would remain securely on the Pandora’s Box the federal conspiracy evidence could otherwise open. At bottom, both Messrs. Peters and O’Connell violated their duties, and indeed their oaths as officers of the court, by failing to acknowledge and even misleadingthestate trial court regarding the true nature of the conflict and its potential effect on counsel’s representation of Mr. Mai. (See, e.g., People v. Mroczko, supra, 35 Cal.3d at p. 112; Holloway v. Arkansas, supra, 435 U.S. at pp. 485-486; see also Business & Professions Code section 6068 [attorney shall not mislead the judge by false statement of fact or law]; Rules of Prof. Conduct, Rule 5- 200(B) [same]; Williams v. Superior Court (1996) 46 Cal.App.4th 320, 330, and authorities cited therein.)** *3 As will be demonstrated in Parts G, post, defense counsel rejected the first alternative, which conflicted with their personalinterests, in favor of the second alternative of presenting no penalty phase defense, which served their personalinterests. ** Tt is uncertain whetherthetrial judge was actually aware of the true nature of the agreement with the state prosecutor. On April 11, 2000, during the penalty phase voirdire, the trial judge stated that he had received and reviewed certain pleadingsrelating to the federal proceedings. (5 RT 1075; 3/16/07 2 SCT 28-156.) Attached as an exhibit to one of those pleadings was the federal court transcript reflecting the true nature of the (continued...) 55 This record simply does not rebut the “presumption against the waiver of unimpaired assistance of counsel” (People v. Mroczko, supra, 35 Cal.3d at p. 110; accord, Johnson v. Zerbst, supra, 304 U.S. at p. 464) or affirmatively demonstrate that Mr. Mai knowingly and voluntarily waived his right to counsel unencumberedby counsel’s conflicting personal interests in their liberty, livelihood, and reputation created by their own conduct, that of their investigator, and their investigator’s allegations that they were equally culpable in the conspiracy to kill the state’s witness. (See, e.g., Glasser v. United States, supra, 315 U.S. at p. 71; Johnsonv. Zerbst, supra, 304 U.S.at p. 464.) This Court’s decision in People v. Mroczko, supra, 35 Cal.3d 86is particularly instructive in this regard. In that case, this Court found a conflict of interest where one attorney represented two co-defendants charged with the same murderandhis office represented two potential witnesses to, and alternative suspects in, the charged crime. (/d. at pp. 98- 99, 105.) One ofthose client/witnesses had made a sworn statement to the authorities in which he implicated the other client/witness in the charged crime and exculpated the defendant, Mroczko. (/d. at p. 100.) On three different occasions, the prosecution raised the conflicts of interest inherent in the attorney’s joint representation of the co-defendants and his office’s representation of the two witnesses and ultimately moved to *4(_..continued) agreement. (5 RT 1075; 3/16/07 2 SCT 89-156.) If the trial court reviewed the exhibits attached to those pleadings and discoveredthe true nature of the agreement, thenit failed in its duty to inquire into the potential conflict it created and its impact on counsel’s performance. (Wood v. Georgia, supra, 450 U.S. at p. 272; Holloway v. Arkansas, supra, 435 U.S.at p. 485; Glasser v. United States, supra, 315 U.S.at p. 76.) 56 disqualify counsel. (People v. Mroczko, supra, 35 Cal.3d at pp. 98-99, 101- 103.) Defense counsel repeatedly represented that although there was the appearance of a conflict, there was, in fact, no conflict. (/d. at pp. 100- 102.) Furthermore, defense counselinsisted that the defendants had been adequately advised of the potential conflicts and thus were free to waive them. (/d. at pp. 101-102.) On three occasions, both defendants informed the court that they were awareofthe potential conflicts, they believed that there would, in fact, be no conflicts at trial, and requested that they continue to be represented by the same counsel. (People v. Mroczko, supra, 35 Cal.3d at pp. 98-99.) Both defendants were asked if they were willing to waivetheir right to conflict-free counsel. (/d. at p. 100.) They were informed generally of the risks and dangers of one attorney representing co-defendants, as well his office’s representation of the two witnesses, which could prevent counsel from attacking their credibility. Both defendants stated that they were willing to accept those risks and waive “any conflicts that may have existed.” (Ud. at pp. 101-102.) The court specifically inquired of Mroczko if he had been made awareofthe “real or apparent conflict of interest.” (d. at p. 103.) Mroczko replied that he had been madeawareofit, but “I don’t believe it.” Ibid.) After Mroczko was convicted offirst degree murder, he appealed on the groundthat he had been deprived ofhis state and federal constitutional rights to conflict-free counsel and that his waiver was invalid because it was not knowingandintelligent. (People v. Mroczko, supra, 35 Cal.3d at pp. 92,97.) This Court agreed. (/d. at p. 105.) This Court concluded, among otherthings, that counsel’s representation of Mroczko suffered from his representation of his co- 57 defendant as well as the witness implicated in the charged crime because he had to choosea strategy that would vindicate all of his clients as opposed to strategies that would be potentially beneficial to Mroczko but detrimental to his other clients. (/d. at pp. 106-108.) As to Mroczo’s purported waiver, this Court held: The attempted waivers here were fatally flawed in several respects. First, the courts’ comments did not fully convey a numberof actual and severe conflicts that were apparent even pretrial. Instead, each judge who addressed the defendants concerning the conflicts did so in language implying that they were merely potential conflicts. Most importantly, however, defense counsel reinforced this language repeatedly — and erroneously — asserting that no conflict existed. The product of the court’s and counsel’s approaches was apparent in Mroczko’s responses: he was not convincedthat a conflict would arise. Mroczko’s final comment, that he was aware of the possibility of a conflict but did not “believe”it, should havealerted the trial court to the fact that he may not have understood the severity of the problem. (People v. Mroczko, supra, at pp. 110-111.) As to defense counsel, this Court emphasizedthat “[w]hen an attorney addresses the court regarding a potential or actual conflict, he is obligated to do so forthrightly and honestly.” (People v. Mroczko, supra, 35 Cal.3d at p. 112.) Yet, “in the face of serious conflicts, [defense counsel] made no attempt to inform the court. On the contrary, he took the indefensible position that no conflicts existed.” (/d. at p. 113.) Defense counsel’s “behavior strongly suggests that he was unwilling or unable to assess accurately whetherhis representation of [the co-defendants and implicated client/witness] was in the best interest of each. The very fact that he was willing to represent such clearly conflicting interests despite the legal and ethical ramifications of his position, raises questions about his 58 judgment, or at least his impartiality.’” (/bid.) On this record, the Court found that Mroczko’s waivers were not knowingandintelligent and, therefore, were ineffective. (/bid.) This Court’s decision in People v. Easley, supra, 46 Cal.3d at pp. 730-732 is in accord. There, facts were presented tothetrial court that created a potential conflict carrying the substantial danger of adversely affecting defense counsel’s representation of the defendant. While thetrial court made someinquiry into the potential conflict: the consequences addressed by the court and otherparties were of an entirely different and less virulent sort [from the true potential consequences]. In discussing the conflict, the parties focused primarily on the possibility that [defense counsel] might haveto testify... . This facet of the conflict, moreover, was presented by the court and [defense counsel] as a surmountable obstacle, and was conveyedto the defendant as posing no serious conflict. .. . [T]he trial court was too eager to accept [counsel’s] representation that no conflict existed, or that problems posed by any conflict could be evaded. (People v. Easley, supra, 46 Cal.3d at pp. 730-731.) Furthermore, the defendant’s “‘final comment, that he was awareofthe possibility of a conflict, but did not ‘believe it,’ should have alerted thetrial court to the fact that the defendant may not have understood theseverity of the 399problem.” Ud. at p. 731, fn. 18, quoting from People v. Mroczko, supra, 35 Cal.3d at p. 111.) This Court concluded, “[b]ecause the[trial] court identified only a minorportion of the potential consequencesarising from [defense counsel’s] representation ... we cannot concludethat defendant fully understood the full scope of the conflict and intelligently waivedit.” (Id. at p. 731.) Here, as in Mroczko and Easley, the trial court and Messrs. Peters, 59 O’Connell, and Pohlson’s “comments did not fully convey a numberof actual and severe conflicts that were apparent evenpretrial.” (People v. Mroczko, supra, 35 Cal.3d at p. 110; accord, People v. Easley, supra, 46 Cal.3d at pp. 730-731.) The only possible conflict which was discussed on the record and with Mr. Mai wasthe possibility that Messrs. Peters and O’Connell would be called as witnesses in the federal trial, which was far “less virulent” than the other potential conflicts presented by the facts. (People v. Easley, supra, 46 Cal.3d at p. 731; see 1 RT 66-67, 75-82.) Even with respectto this possible conflict, and just as in Mroczko and Easley, the court and Messrs. Pohlson, Peters and O’Connell described it as “merely [a] potential conflict[],” the insignificance of which was “reinforced” when Mr. Pohlson, Mr. Peters, and Mr. O’Connell “repeatedly — and erroneously — assert[ed] that no conflict existed.” (People v. Mroczko, supra, at pp. 110- 111; accord, People v. Easley, supra, 46 Cal.3d see 1 RT 66-67, 75-82; see 1 RT 66-67, 75-82.) Andjust as in Mroczko and Easley, supra, “[t}he product ofthe court’s and counsel[s’] approaches was apparent in [Mr. Mai’s] responses: he wasnot convinced that a conflict would arise.” (People v. Mroczko, supra, 35 Cal.3d at p. 111; accord, People v. Easley, supra, 46 Cal.3d atp. 731 & fn. 18; see 1 RT 80, 83.) As in Mroczko and Easley, this record fails to demonstrate that Mr. Mai made knowingandintelligent waiverofhis right to counsel unencumberedbythe conflicts raised on this appeal. (People v. Mroczco, supra, 35 Cal.3d at p. 113; People v. Easley, supra, 46 Cal.3d at pp. 730-732.)” 25 Accord, e.g., Mannhalt v. Reed, supra, 847 F.2d at p. 581 [although defendant was awarebefore trial of witness’s allegation that (continued...) 60 Underboth the state and federal Constitutions (see People v. Doolin, supra, 45 Cal.4th at p. 421), the question then becomes whetherthe potential conflict ripened into an actual one, whereby Messrs. Peters and O’Connell actively represented conflicting interests, which adversely affected their performance throughoutthetrial proceedings. (See, e.g., Mickens v. Taylor, supra, 535 U.S. at pp. 166, 175; Cuyler v. Sullivan, supra, 446 U.S.at p. 348.) In resolving this question, this Court should be mindful that Messrs. Peters and O’Connell’s efforts to mislead thetrial court and their failure even to acknowledge the extremely serious conflicts oethat arose from their investigator’s conduct and allegations “‘strongly suggests that [they were] unwilling or unable to assess accurately whether [their] representation of [Mr. Mai] wasin the client’s best interest... The very fact that [they were] willing to represent [Mr. Mai in the face of] such clearly conflicting interests despite the legal and ethical ramifications of [their] position, raises questions about[their] judgment, orat least [their] 399impartiality.’” (People v. Mroczco, supra, 35 Cal.3d at p. 113; accord °5(,. continued) counsel was involvedin crimes related to his own and counsel discussedit with him, the defendant was nevertold “that it created a potential conflict of interest and never warned . . . of the dangers of continued representation” by an attorney laboring under such a conflict and hence there was no knowingandintelligent waiver of right to counsel unencumberedbythat conflict]; United States v. Allen, supra, 831 F.2d at p. 1500 [waiver not knowingorintelligent because defendant wasnot “adequately informed of the significance of the conflict” of interest and the specific impact it could have on counsel’s representation]; Lewis v. Mayle, supra, 391 F.3d at pp. 996-997 [same]; United States v. Levy, supra, 25 F.3d at pp. 158-159, and authorities cited therein [“this Court has repeatedly concluded that even a defendant’s explicit, in-court waiver of his right to a non-conflicted lawyer wasnotvalid and effective when thetrial court failed to explain adequately the ramifications of the attorney’s conflicts’’].) 61 People vy. Easley, supra, 46 Cal.3d at p. 732 [same].) Indeed, counsel had compelling personal interests to insist on the absence of any conflict and thereby retain their positions as Mr. Mai’s counsel. First, their fee agreement provided for an initial lump sum payment up front, which they could keep only if the case was disposed of while they were counsel of record. (Pen. Code, § 987.2 CT 1-13.) Therefore, if they were removed, they would not merely havelost their future fees, but would have to return most of the lump sum fee they had already been paid. Even more importantly, and as will be demonstrated below, if they were discharged and other counsel appointed, there was a substantialrisk that evidence andallegations of their potential criminalliability and/or ethical violations would cometo light; on the other hand, maintaining their position as counsel would allow them to keep that evidence in darkness. It is reasonable to infer that counsel’s failure to disclose the depth and breadth of the conflict of interest created by Watkins’s conduct and allegations against them wasa direct productof their conflicted state of mind and “raises questions about [their] judgment, or at least [their] impartiality.” (People v. Mroczco, supra, 35 Cal.3d at p. 113.) Certainly, and as will be demonstrated below,the conflict profoundly impacted Messrs. Peters and O’Connell’s performance and colored virtually every stage of this capital proceeding, which amounted to an empty charade that inevitably led to the jury’s decision to put Mr. Maito death. 62 E. The Potential Conflict of Interest Ripened into an Actual One, Which Adversely Affected Defense Counsel’s Performance In the Pre-Trial and Plea Proceedings 1. A Potential Conflict Becomes An “Actual Conflict” within the Meaningofthe State and Federal Constitutions Whenit Influences, and thus Adversely Affects, Counsel’s Performance Typically, in order to establish a violation of his or her state and federal constitutional rights to the effective assistance of counsel, a defendant must show both that: (1) counsel’s representation fell below an objective standard of reasonable competence; and (2) but for counsel’s errors there is a “reasonable probability” that the result of the proceeding would have been different. (Strickland v. Washington, supra, 466 U.S.at pp. 693-694; accord, e.g., People v. Ledesma (1987) 43 Cal.3d 171, 217- 219.) However, there are exceptions to this general rule. (See, e.g., Strickland v. Washington, supra, at p. 692; United States v. Cronic (1984) 466 U.S. 648, 656-662.) For instance, when a defendanthas actually or constructively been denied the assistance of counselat a critical stage of the proceedings, prejudice is presumed. (Strickland v. Washington, supra, 466 U.S.at p. 692; United States v. Cronic, supra, 446 U.S. at pp. 656-662.) Such circumstances warrant a presumption of prejudice because prejudiceis “so likely that case-by-case inquiry into prejudice is not worth thecost.” (Ibid.; see also, e.g., Ellis v. United States (1st Cir. 2002) 313 F.3d 636, 643 [Sixth Amendmentright to counsel violations that fall within narrow category of cases to which presumption ofprejudice is applied are those that are “pervasive in nature, permeating the entire proceeding” while harmless 63 error analysis applies to “short-term”or “localized” violations].) Another exception applies to “actual conflicts of interest.” (Strickland v. Washington, supra, 466 U.S. at p. 692.) An actual conflict of interest is a conflict of interest that actually and “adversely affected counsel’s performance,” as opposedto a mere “theoretical division of loyalties.” (Mickens v. Taylor, supra, 535 U.S.at p. 171; accord Cuylerv. Sullivan, supra, 446 U.S.at pp. 348-349; Alberni v. McDaniel (9th Cir. 2006) 458 F.3d 860, 870 [under Mickens “an ‘actual conflict’ is defined by the effect a potential conflict had on counsel’s performance”]; People v. Rundle, supra, 43 Cal.4th at p. 169, and authorities cited therein.) As will be more fully discussed in Part H, post, once an “actual conflict” of interest is shown, prejudice is presumed and a Sixth Amendmentviolation is established. (Strickland v. Washington, supra, 466 U.S.at p. 692; Wood v. Georgia, supra, 450 U.S. at pp. 271-272; Cuylerv. Sullivan, supra, 446 U.S. at pp. 348-49; Glasser v. United States (1942) 315 U.S. 60, 76; People v. Roldan (2005) 35 Cal.4th 646, 673, and authorities cited therein; see also Holloway v. Arkansas, supra, 435 U.S.at pp. 489-490.) This presumption — often referred to as the “Sullivan limited presumption” — “is not quite the perse rule of prejudice that exists” for actual or constructive denials of counsel altogether. (Strickland, supra, 466 U.S. at p. 692.) Rather, “prejudice is presumed only if the defendant demonstrates that ‘counsel actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.” (Ibid.)® °° Whetherthe so-called Sullivan limited presumption of prejudice applies to all actual conflicts or only to specific kinds of actual conflicts (continued...) 64 The United States Supreme Court has held that an adverse effect (and thus an “actual conflict”) is established if it appears that counsel was “influencedin his basic strategic decisions by” the conflict. (Wheatv. United States, supra, 486 U.S.at p. 160; accord Wood v. Georgia, supra, 450 US.at pp. 272-273; United States v. Wells (9th Cir. 2005) 394 F.3d 725, 733, and authorities cited therein; Lewis v. Mayle (9th Cir. 2004) 391 F.3d 989, 998, and authorities cited therein; Sanders v. Ratelle (9th Cir. 1994) 21 F.3d 1446, 1452; People v. Mroczko, supra, 35 Cal.3d at p. 107.) Whether counsel was “influencedin his basic strategic decisions” by the conflict is governed by the reviewing court’s own examination of the record and not counsel’s perceptions. This is so because “[h]umanself-perception regarding one’s own motivesfor particular actionsin difficult circumstancesis too faulty to be relied upon, evenifthe individual reporting is telling the truth as he perceivesit.” (United States v. Shwayder (9th Cir. 2002) 312 F.3d 1109, 1119, as amendedby (9th Cir. 2003) 320 F.3d 889; accord, e.g., Lewis v. Mayle, supra, 391 F.3d at p. 998.) Thisis particularly true when the conflict arises from the attorney’s possible liability for crimes or other wrongdoingrelated to his client’s crimes becausethe attorney’s “inherent emotional and psychological barriers” makeit nearly impossible to “reliably determine to what extent the [trial] decisions were based on legitimate tactical considerations and to what extent they were the result of impermissible considerations.” (United States v. DeFalco (3d Cir. 1979) 644 F.2d 132, 137.) Hence, the reviewing “court itself must examine the record to *6(__ continued) shall be addressed at length in part F, post. 65 discern whether the attorney’s behavior seems to have been influenced by the suggested conflict.” (Sanders v. Ratelle, supra, 21 F.3d at p. 1452.) In orderto satisfy this standard, it is not necessary to prove that the conflict wasthe sole “cause of any” actions or inactions by defense counsel. (Lockhart v. Terhune (9th Cir. 2001) 250 F.3d 1223, 1231). The defendant need only show “that some effect on counsel’s handling of particular aspects ofthe trial was ‘likely’ [Citation].” (Jbid.; accord, e.g., United States v. Shwayder, supra, 312 F.3d at pp. 1118-1119; United States v. Christakis (9th Cir. 2001) 238 F.3d 1164, 1170; Mannhalt v. Reed, 847 F.2d at p. 583.) This Court has held that adverse effect is established when “‘the record showsthat counsel “‘pulled his punches’”— i.e., failed to represent defendant as vigorously as he might have had there been no conflict.’ (People v. Easley (1988) 46 Cal.3d 712, 725.)” (People v. Rundle, supra, 43 Cal.4th at p. 169, and authorities cited therein; accord, e.g., People v. Cox (2003) 30 Cal.4th 913, 948-949.) Similarly, an adverse effect is established if there was “‘some plausible alternative defense strategy or tactic that might have been pursued but was not and that the alternative strategy was inherently in conflict with or not undertaken due to the attorney’s other loyalties or interests.’ [Citation.]” (United States v. Wells, supra, 394 F.3d at p. 733, and authorities cited therein; accord, e.g., Winfield v. Roper (8th Cir. 2006) 460 F.3d 1026, 1039; Reyes-Vejarano v. United States (1st Cir. 2002) 276 F.3d 94, 97; Freundv. Butterworth (11th Cir. 1999) 165 F.3d 839, 860; Winkler v. Keane (2d Cir. 1993) 7 F.3d 304, 309; United States v. Bowie (10th Cir. 1990) 892 F.2d 1494, 1500; United States v. Gambino (3rd Cir. 1988) 864 F.2d 1064, 1070; United States v. Fahey (1st Cir. 1985) 769 F.2d 829, 836; 66 People v. Mroczko, supra, 35 Cal.3d at pp. 107-108 [adverse effect under federal constitution shown where, “[b]y discarding” viable alternative strategy, counsel “papered over the conflict that would have arisen” had he pursued it and thus his “very choice of strategies was colored by the conflict he faced”’].) The defendant need not show that the plausible alternative would necessarily have been successful if it had been used, but only “thatit possessed sufficient substance to be a viable alternative.” (United States v. Fahey, supra, 769 F.2d at p. 836; accord, e.g., Winkler v. Keane, supra, 7 F.3d at p. 309; United States v. Rodrigues (9th Cir. 2003) 347 F.3d 818, 823; United States v. Shwayder, supra, 312 F.3d at pp. 1118-1119; United States v. Novaton (11th Cir. 2001) 271 F.3d 968, 1011, and authorities cited therein; United States v. Gambino, supra, 864 F.2d at p. 1070.) Demonstrating that the plausible alternative was “inherently in conflict” with the attorney’s competing interests is sufficient to establish a causal “link” between the conflict and counsel’s decision to discard that alternative and, thus, that the conflict influenced and adversely affected counsel’s performance. (See, e.g., United States v. Novaton (11th Cir. 2001) 271 F.3d 968, 1011, and authorities cited therein; Lewis v. Mayle, supra, 391 F.3d at pp. 998-999.) As one court has explained: This is not a test that requires a defendant to show that the alternative strategy or tactic not adopted by a conflicted counsel was reasonable, that the lapse in representation affected the outcomeofthe trial, or even that, but for the conflict, counsel’s conduct of the trial would have been different. Rather, it is enough to show that a conflict existed that “was inherently in conflict with” a plausible line of defense or attack on the prosecution’s case. [Citation.] Once 67 such a showing is made, Strickland’s [and Sullivan’s] “fairly rigid” presumption of prejudice applies. (United States v. Malpiedi (2nd Cir. 1995) 62 F.3d 465, 469.) “Thetest is a strict one” for two reasons. (/bid.) First, “a defendant has a right to an attorney who can makestrategic and tactical choices free from any conflict of interest.” (United States v. Malpiedi, supra, 62 F.3d at p. 469.) An attorney whose ethical obligations or own compelling self-interests may prevent him or her from pursuing a strategy or tactic “is hardly an objective judge ofwhetherthat strategy or tactic is soundtrial practice.” (/bid.) Second, whenthestate or trial court knowsor reasonably knowsofthe potential conflict, they can avoid the problem entirely by either disqualifying or (in the case of the state, moving to disqualify) counsel or taking the defendant’s knowing,voluntary, and intelligent waiver. (United States v. Malpiedi, supra, 62 F.3d at p. 470; accord, Strickland v. Washington, supra, 466 U.S.at p. 692 [the “fairly rigid rule[s]” applied to actual conflicts are reasonable given the duties of counsel to avoid, and thetrial court to prevent, conflicts of interest that adversely affect counsel’s performance].) This test is satisfied in this case. As will be demonstrated below, and as all of the parties recognized, the state proceedings were inextricably linked to the federal proceedings. Certainly, it was not only the Orange County District Attorney’s Office that had a keen interest in Mr. Mai’s state capital murder conviction and death sentence; the outcomeofthe state proceedings wereclearly of critical importance to the U.S. Attorney’s Office, to whom the allegations against, and demand to investigate, Messrs. Peters and O’Connell were directly made. Both prosecuting agencies’ 68 powerto investigate and charge or indict them loomed overcounsel throughout the proceedings. 2. The Conflict Influenced, and Thus Adversely Affected, Defense Counsel’s Promise to the Federal Government — Madeoverthe Objection of Mr. Mai’s Unconflicted Federal Counsel — That, in Addition to Pleading Guilty to All of the Federal Charges and Submitting to Federal Confinement, Mr. Mai Would Plead Guilty to the State Capital Murder Charge Federal public defender Neison Marks was appointed to represent Mr. Maiagainst the federal charges. (2 CT 377-379.) However, on March 5, 1999, Mr. Peters appeared with Mr. Mai and Mr. Marksin the federal district court. Mr. Peters explained to Judge Carter that he had been appointed to represent Mr. Maiin state court, but not in federal court, “because up until this time it was a direct conflict I could be a witness. I ask at this time the court give me coequal powers of representation for sentencing purposes.” (2 CT 409.)”’ There was no further discussion regarding any potential conflicts. Judge Carter granted Mr. Peters’s request, giving him “coequal powers with Mr. Marksfor the plea and sentencing purposes.” (2 CT 409.) In that capacity, Mr. Peters explained that he had orchestrated an agreement with the U.S. Attorney’s Office — the federal agency that had the power to investigate and indict him and Mr. O’Connell for their alleged roles in the plot to kill Nguyen — whereby Mr. Mai promised to: (1) plead guilty to all 7 Judge Carter was the Orange County Superior Court judge initially assigned to preside over Mr. Mai’s state capital murdertrial. (See 1 RT 3.) Judge Carter was appointed to the federal bench during the pendency ofthe state trial, after which the state trial was assigned to Judge Weatherspoon. (1 RT 32.) 69 of the federal charges (2 CT 381, 476-477), for which he would receive the maximum sentence (1 RT 191-192); (2) remain in federal custody, even if sentenced to death in his state murdertrial, under extraordinarily harsh special administrative restrictions” (2 CT 405-406, 482); (3) waivehis right to appeal his sentence in federal court or to challenge his federal convictions by collateral attack other than via a claim of ineffective assistance of counsel (2 CT 403-404, 482); and (4) plead guilty in state courtto the state murder charge and admit the special circumstance allegation (2 CT 382, 385, 401-402, 477-478). With respect to the promisedplea to the state capital murder charge, Mr. Peters explained, he would be giving his statutory consentto it in state court (Pen. Code, § 1018) “because I believe Mr. Mai is doing this plea for the right reasons, and I will be — at the time he enters that plea, P’1l be waiving any objectionsI haveto his plea.” (2 CT 410.) Finally, according to Mr. Peters, the only bargained for benefit received in exchange for these sacrifices was the AUSA’spromise to recommend a sentence reduction for Mr. Mai’s girlfriend and indicted co-conspirator, Victoria Pham. (CT 402, 407; see also 1 RT 104-105, 125, 156-159, 169-170, 190-195.) *8 These harsh conditions are described in detail in part E-2-b, post. 2° Although the federal plea agreementalso indicatedthat the federal government would recommend a two-level reduction to the applicable sentencing guideline offense under U.S. Sentencing Guideline 3E1.1 (2 CT 400-402U.S. Sentencing Guideline 3E1.1 (2 CT 400-402), both AUSA Greenberg and defense counsel explained that anyone pleading guilty at the stage at which Mr. Mai pleaded guilty would receive those reductions, without any formal agreement, under the federal sentencing guidelines. (1 RT 190-195.) As AUSA Greenberg explained, “So there is no particular benefit granted there that wouldn’t be granted in every case, and it is simply (continued...) 70 Mr. Marks — Mr. Mai’s appointed federal counsel who did not have a conflict — refused to concurin the agreement. (2 CT 409-413.) In fact, he explicitly objected to the “deal” for “several reasons,” including Mr. Mai’s waiver of appeal and collateral review, the harshness ofthe special administrative restrictions, and the agreementto plead guilty to the state capital murder charge, which was “beyondthe scope of my representation” and therefore he could not advise Mr. Mai regarding the evidence, possible defenses, and the like. (2 CT 411.) Nevertheless, the federal court approved the agreement and accepted Mr. Mai’s guilty pleas to the federal charges, for which it imposed the maximum sentence. (2 CT 400-413; 1 RT 191-192.)*° The federal agreement, whereby Mr. Maisacrificed virtually everything in his power — including the possibility of his very life — for virtually nothing in return was highly unusual, to say the least. (Cf. Bordenkircher v. Hayes (1978) 434 U.S. 357, 364, fn. 8 [questioning propriety of plea bargain in exchange for promise of leniency for someoneother than the accused]; People v. Alfaro (2007) 41 Cal.4th 1277, 1300-1301 [Orange County Superior Court judge “expressed doubt that any attorney in Orange County ‘would consentto 299somebody pleading guilty to a capital offense’”].) The state trial court was fully informed of the situation and the federal change ofplea transcript and °(\_.continued) a matter of application of the law,it is not something the government can give or take away.” (1 RT 193-194.) °° The federal change ofplea colloquy wasinterrupted severaltimes by Mr. Mai’s requests to confer with Mr. Peters, resulting in the clarification that Mr. Mai wasnotstipulating to the factual bases for the pleas, but rather stipulating that the government could prove the offenses beyond a reasonable doubt. (2 CT 386-3942 CT 386-394.) 71 a copy of the federal plea agreement were submitted to the state trial court and madepart of the record. (1 RT 124-125, 162-165, 187; 2 CT 476-490.) Certainly, there is no question that the federal government reaped tremendousbenefit from the agreement while Mr. Mai received virtually nothing in return. Furthermore, Messrs. Peters and O’Connell had reason to believe that they could reap a substantial personal benefit from the agreement by currying favor with the U.S. Attorney, which held such tremendous powerovertheir future, while their client, Mr. Mai, received essentially no benefit for substantial sacrifices. (See Part C, ante, and authorities cited therein.) This Court has held that an adverse effect is shown whenitis likely that an unconflicted attorney would have handled aspects of the case differently. (See, e.g., People v. Rundle, supra, 43 Cal.4th at p. 170, and authorities cited therein; People v. Roldan, supra, 35 Cal.4th at p. 674; People v. Easley, supra, 46 Cal.3d at pp. 726-727.) This Court need look no further than the face of the federal change of plea transcript for proof that an unconflicted attorney would not have brokered or consented to the federal plea agreement. Mr. Mai’s appointed federal counsel, Neison Marks, who wasnot burdened by a conflict, explicitly objected and refused to concurin the agreementgiven allthat Mr. Mai was sacrificing without receiving anything of substance in return. (2 CT 411.) Indeed, Mr. Mai received no real benefit at all for the considerable sacrifices he did make. While the AUSA did make good onthe only promised benefit he made in exchange for Mr. Mai’s federal pleas and promised state plea by recommending a sentence reduction in federal court for Ms. Pham, Judge Carter denied the recommendation. (1 RT 158-159, 193-195; 2 CT 502.) 72 3. The Conflict Influenced, and Thus Adversely Affected, Defense Counsels’ Decision to Consent to Mr. Mai’s Unconditional Plea to the State Murder Charge and Special Circumstance Allegation Without Seeking a Return Benefit to their Client On July 23, 1999, and after Judge Carter refused the recommended sentence reduction for Ms. Pham, Messrs. Peters and O’Connell, AUSA Greenberg, the state prosecutor, and Mr. Mai appeared in state court and informedthetrial court that the parties had stipulated to waive jury trial and submit to a court trial based uponthe transcript of, and evidence presented at, the preliminary hearing. (1 RT 180-183.) At the preliminary hearing, defense counsel had presented no evidence or argument against the sufficiency of the evidence to hold Mr. Mai to answeronthefirst degree murder charge and special circumstance allegation. (3 Muni RT 577-578; see also 1 RT 14 [felony complaint].) By entering a stipulated submission based on the preliminary hearing transcript, defense counsel waived the right to present argumentor additional evidence. (1 RT 184.) Hence, the submission wasa “slow plea,” whichall agreed was“tantamount, that is the same as” a guilty plea to the first degree murder charge andspecial circumstance allegation (1 RT 180-184), thus essentially making the guilty verdict a “foregone conclusion.” (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 602 [slow pleais “tantamountto a guilty plea” which effectively makes guilty verdict a “foregone conclusion”; see also People v. Wright (1987) 43 Cal.3d 487, 495-499.) Furthermore, the plea was unconditional, made without any promised benefit in return. (1 RT 187- 189.) Both the trial court and the prosecutor recognized, and assured Mr. Maiand his defense counsel, that Mr. Mai’s promise to the federal 73 government to plead guilty to the state capital murder charge was not bindingin state court. (1 RT 188-189, 197; see also 1 RT 125-126.) While AUSAGreenberg emphasized that a plea to the state capital murder charge wasa term ofthe federal agreement which Mr. Mai wouldviolate if he insisted on goingto trial, he also concededthat the federal government would not moveto invalidate the agreement and federal pleas or move for resentencing if Mr. Maidid violate the agreement. (1 RT 194-197.) AUSAGreenberg’s position was hardly surprising. The federal government had reaped an enormousbenefit by obtaining Mr. Mai’s guilty pleasto all ofthefederal charges and having him sentencedto the federal maximum in exchange for an ephemera. In other words, if Mr. Mai’s federal agreementand pleas were invalidated, Mr. Mai had everything to gain and the federal government had everythingto lose. At the same time, Messrs. Peters and O’Connell had reason to fear that if they reneged on their promiseto the federal governmentto deliver Mr. Mai’s state capital murderplea, it would displease the U.S. Attorney’s Office, which had the powerto charge them based on Daniel Watkins’s actions and allegations. (See Part C, ante, and authorities cited therein.) Sumilarly, the unconditionalplea to the state capital murder charge was beneficial to the Orange County District Attorney’s Office, with whom counsel hadincentive to curry personal favor, which also had jurisdiction to investigate and charge them for any wrongdoingrelating to the conspiracy (See Part C, ante, and authorities cited therein.) In other words, while Mr. Mai wasfreeto insist on a full-blowntrial notwithstanding the federal plea agreement — and indeed had nothingto gain by entering the plea, as more fully discussedin the following sections — delivering Mr. Mai’s unconditional plea served defense counsel’s personalinterests. (Part C, 74 ante, and authorities cited therein.) Furthermore, by his own admission, Mr. Peters did not even attempt to negotiate with the state for anything in exchange for Mr. Mai’s plea. (1 RT 104-105.) The state prosecutor wasnot a party to, and indeed played no role in, the federal plea agreement promising Mr. Mai’splea to the state capital murder charge. (1 RT 100, 104-106, 125-126, 148, 168.) And as Mr. Peters emphasizedto the state trial court with respect to the plea, “I am not looking, and Mr. Maiis not looking to Mr. Evans[the state prosecutor], weare not looking for any deal from him... . [H]e is giving us absolutely nothing, and we are quite frankly not asking for anything at this point, because he has told us, and for good reasons, he is not going to give us anything.” (RT 105-106.) Thus, it is clear from the record that defense counsel made no attempt to offer Mr. Mai’s cooperation in the investigation and prosecution of crimesrelating to the plot to kill Nguyen to the Orange County District Attorney in exchange for any benefit to Mr. Mai. Based on Watkins’s actions and allegations, counsel had reason to fear that Mr. Mai’s cooperation could have unearthed evidence regarding their roles or other wrongdoingrelated to the plot to kill or influence the state’s witness. (See Part C-2, ante.) Where,as here, a plausible allegation has been made which implicates defense counsel in crimes related to those charged against his or herclient: at the pre-trial stage, counsel’s ability to advise the defendant as to whether he or she should seek to cooperate with the governmentis impaired. Cooperation almost alwaysentails a promise to answertruthfully all questions put by the government. Because the government knowsofthe accusations against defense counsel, questions concerning those allegations seem inevitable, and counsel may have good 75 reason to be apprehensive about whatthe client knowsor has heard from co-conspirators. In such circumstances, counselis hardly an appropriate negotiator of a plea and cooperation agreement. (United States v. Fulton, supra, 5 F.3d at p. 613; accord Mannhalltv. Reed, supra, 847 F.2d at pp. 582-583; United States v. Cancilla, supra, 725 F.2d at p. 870; cf. Holloway v. Arkansas, supra, 435 U.S.at p. 490 [attorney who has conflicting interests as between jointly chargedclients may be precluded from exploring plea negotiations whereby oneclient agrees to cooperate with authorities and implicate the other].) Therefore, when such allegations have been made against counsel, counsel’s failure to “make any significant effort to negotiate a... cooperation agreementon his [client’s] behalf” in exchange for some kind of benefit to the client demonstrates that the conflict likely influenced, and thus adversely affected, counsel’s performance. (United States v. Williams (2nd Cir. 2004) 372 F.3d 96, 106; accord, e.g., Mannhalt v. Reed, supra, at p. 583.) In other words, offering the client’s cooperation in investigating and prosecuting others involved in his crimes in exchangefor a benefit to the client is a “plausible alternative” to entering an unconditional guilty plea to capital murder, but an alternative that is “inherently in conflict” with the attorneys’ conflicting interests in their own liberty, livelihood, and reputation. (United States v. Williams, supra, supra, 372 F.3d at pp. 106- 107, and authorities cited therein; Part E-1, ante, and authorities cited therein.) To be sure, according to Mr. Peters, the state prosecutorindicated that he would not “give us anything.” (1 RT 105-106.) Nevertheless, Mr. Peters also madeit clear that he did not even attempt to broker a deal with the state prosecutor. (1 RT 105-106; see also 1 RT 100, 125-126, 148-168.) 76 Asdiscussed in Part E-1, ante, the question in assessing a conflict’s adverse effect does not focus its impact on the outcomeofthe case, but focuses on its impact on counsel’s performanceitself. Thus, the defendant “need not demonstrate that the government would have reduced his sentence” or agreed to other consideration “if he had provided information implicating” others with conflicting interests. (United States v. Christakis (9th Cir. 2001) 238 F.3d 1164, 1170; accord, United States v. Williams, supra, supra, 372 F.3d at pp. 106-107; Winkler v. Keane, supra, 7 F.3d at pp. 307-309.) Indeed, “‘assess[ing] the impact of a conflict of interest on the attorney’s... decisions in plea negotiations would be virtually impossible.” (Hollowayv. Arkansas, supra, 435 U.S. at p. 491.) In order to demonstrate adverse effect, the defendant need only show that his attorney did not pursue the plausible alternative of attempting to negotiate a cooperation agreement and that the alternative was inherently in conflict with counsel’s other interests and,thus, likely influenced his decision. (United States v. Williams, supra, supra, 372 F.3d at pp. 106-107; United States v. Christakis, supra, 238 F.3d at p. 1170; Winkler v. Keane, supra, 7 F.3d at pp. 307-309; cf. Lopez v. Scully (2nd Cir. 1995) 58 F.3d 38, 42 [although sentence was included in plea agreement and judge had previously indicated that he would not impose lower sentence, defense counsel’s failure to pursue the plausible alternative of arguing for mitigation constituted “adverse impact” from conflict].) The record here so demonstrates. (See also ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (1989) [hereafter “ABA Guidelines (1989)”], Guideline 11.6.1 and Commentary [“‘if the possibility of a negotiated disposition is rejected by either the prosecution or the client, when a settlement appears to counsel to be in the client’s best interests, counsel should continue efforts to negotiate 77 a plea agreement’’].) 4. The Conflict Influenced Defense Counsel’s Decision to Consent to the Unconditional Plea to Capital Murder Without The Promise or Expectation that it Would Avoid a Death Sentence Defense counsel not only failed to attempt to negotiate for a return benefit in exchange for Mr. Mai’s plea, such as a promise that it would avoid a death sentence, but they consented to the unconditional plea without even any expectation that it would be of any benefit to Mr. Mai. To be sure, when Mr. Mai entered the plea, Mr. Peters explained that he consentedto it because, “based on the quality of evidence against [Mr. Mail] and the nature of some of that evidence ... I have alwaysrealized if wehadanything to say and wanted credibility, we have to doit in the penalty phase.” (1 RT 189.) “I can havethat credibility by pointing out that Mr. Mai has donethe right thing.” (1 RT 190.) In other words, Mr. Peters explained that the strategic basis underlying his decision to consent to the unconditional plea was that there was no defense to the state capital murder charge and he hopedto gain a tactical advantage at the penalty phase by arguing Mr. Mai’s admission of wrongdoingasa reasonto sparehislife. But the other record evidence makesplain that this was not the reason for which Mr. Mai entered his plea. Immediately following Mr. Peters’s representation to the trial court, Mr. Mai conferred with Mr. Peters, after which Mr. Peters stated on the record that Mr. Mai “may not even want to go downthat road in terms of presenting evidence in the penalty phase, he hasn’t made that decisionyet, and that’s up to him.” (1 RT 189-190.) Thetrial court specifically inquired of Mr. Mai whether he wasentering his plea for “tactical” reasonsat the penalty phase, as his counsel had suggested. (1 RT 197.) Mr. Mai refused 78 to respond, even after the court directed counsel to obtain a response. (1 RT 197-198.) Mr. Peters finally explained to the court that the matter was “complicated” but Mr. Mai“is not disagreeing with my strategy if we come to a penalty phase. Is that correct, Mr. Mai?” (1 RT 198.) Mr. Maireplied, “J am disagreeing, yes.” (1 RT 198.) After yet another off-record discussion, Mr. Mai agreed that defense counsel had explained counsel’s “tactical and strategic reasons for doing this submission”andthat he is “not disagreeing with [counsel’s] advice.” (1 RT 198.) However, during the next court session on July 30, 1999, Mr. Peters explained that Mr. Mai was concerned aboutreports he had read in the newspaperthat he had entered the plea in orderto “beg for hislife.” (2 RT 208.) He wishedto clarify that his “primary purpose”in entering the plea wasto help and protect Ms. Pham,not to “beg for his life” in the penalty phase. (2 RT 207-208.) The court expressed its concern, then, that Mr. Mai wasentering the plea in the hope for some benefit for Ms. Pham that had not been disclosed. (2 RT 209-210.) Mr. Peters assured the court that Mr. Mai wasnot; “it is all done.” (2 RT 210.) Nevertheless, Mr. Mai insisted that he was not entering his plea in order to gain any advantageat the penalty phase or for himself. (2 RT 209-210; see also 3 RT 489-490.)?! *! Tn fact, although Mr. Peters represented that no other promises had been made, other record evidence reveals that before Mr. Mai originally entered his slow plea, Mr. Peters had negotiated a stipulated modification to the conditions of Mr. Mai’s federal confinement which permitted him to have supervised written communications with Ms. Pham while they were incarcerated in separate federal facilities. (1 RT 160-162, 188-189; 2 RT 373; 3 RT 434-435; 2 CT 611-613.) However, it was never honored because the wardensof both federal facilities refused to allow the communications and, ultimately, Judge Carter formally struck the stipulated (continued...) 79 To the contrary, and as more fully discussed in Part G, post, Mr. Mai expressed a desire to effectively stipulate to the death penalty by presenting no challenge to the prosecution’s aggravating evidence, no mitigation, and no closing argument, and by affirmatively presenting his own statement to the jurors that the death penalty was appropriate in this case. Messrs. Peters and O’Connel acquiesced and did not make any attemptto utilize the plea in order to save Mr. Mai life’s at the penalty phase. Even before defense counsel acquiesced in Mr. Mai’s death wish at the penalty phase, and as more fully discussed in Part G-2-c, post, defense counsel made numerous remarks expressing their view that, no matter what mitigating evidence they might unearth and present, “nobody would be fooled in thinking the odds of Mr. Mai getting the death penalty aren’t extremely high, because of the nature of the case.” (2 RT 323; see also 1 RT 263; RT 473, 5 RT 862; 6 RT 1081-1082.) Hence, on the face of the record, counsel not only consented to an unconditional plea to capital murder without the promise that it would avoid a death sentence, but they did so believing that it would likely result in a death sentence. Of course, as the parties recognized below, defense counsel had the power to prevent Mr. Mai from entering the plea under Penal Codesection 1018 by refusing to consent to consentto it. (Pen. Code, § 1018; 1 RT 189; 31(,. continued) modification. (2 RT 373; 3 RT 434; see also 3 RT 418-420, 434.) Evenafter Judge Carter formally struck the stipulated modification, Mr. Mai was given the opportunity to withdraw his slow plea, but he declined to do so. (3 RT 489-490.) Hence, the record still demonstrates that Mr. Mai did not expect to receive any benefit when he reaffirmedhis decision to plead and certainly did not enter the plea in order to “beg for his life” at the penalty phase. 80 see also 1 RT 100.) Section 1018 was enacted to servethe state’s independentinterest in “safeguard[ing] against erroneous imposition of a death sentence... . [and] serves interalia as a filter to separate capital cases in which the defendant might reasonably gain some benefit by a guilty plea from capital cases in which the defendant. . . simply wants the state to help him commit suicide.” (People v. Chadd (1981) 28 Cal.3d 739, 750- 751, 753.) Undersection 1018, this Court has consistently held that defense counsel has a duty to exercise his or her “independent, professional judgment” with respect to the decision to plead guilty in a capital case and cannotcede control ofthat decision to his client. (People v. Massie (1985) 40 Cal.3d 620, 625 [setting aside guilty plea made with counsel’s consent due to pressure from client but against counsel’s own judgment]; People v. Chadd (1981) 28 Cal.3d 739, 744, 747-850; see also ABA Model Rules of Prof. Resp., Model Rule 1.7 and Comment; ABA CodeofProf. Responsibility, Canon 5 [“A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client’’].) “Independent professional judgment”also entails judgment uninfluenced by the attorney’s own personal interests. (ABA Model Rule 1.7 and Comment; ABA Code, Canon 5.) Atthe timeoftrial, the American Bar Association acknowledged and considered Penal Code section 1018 in providing guidelines to counsel contemplating guilty pleas in capital cases. (ABA Guidelines (1989), supra; see also, e.g., Wiggins v. Smith (2003) 539 U.S. 510, 524 [Supreme Court has “long referred to ‘[the ABA Guidelines] as ‘guides to 299determining whatis reasonable’” attorney performance].) Guideline 11.6.3, subdivision (B) provided that “the decision to enter or to not enter a guilty $1 plea should be based solely on the client’s best interest.” The Commentary to that Guideline stated: In non-capital cases, the decision to enter a plea of guilty rests solely with the client [footnote]. When the decision to plead guilty is likely to result in the client’s death, however, counsel’s position is unique. If no written guarantee can be obtained that death will not be imposed following a plea of guilty, counsel should be extremely reluctant to participate in a waiverofthe client’s trial rights. In California, at least, a defendant cannot plead guilty over the objection of the attorney [footnote], giving counsel tremendousresponsibility for the client’s life... . [C]ounsel muststrive to prevent a (perhaps depressedor suicidal) client from pleading guilty whenthereis a likelihood that such a plea will result in a death sentence. The Commentary to Guideline 11.6.2 was even more explicit. It counseled: “counsel should insist that no plea to an offense for which the death penalty can be imposed will be considered without a written guarantee, binding on the court or other final sentencer, that death will not be imposed.” (ABA Guidelines (1989), supra, Guideline 11.6.2, Commentary, & fn. 2 [““‘it is suggested that this [entering a guilty plea to a capital offense] is an effective strategy only when the attorney knows without any doubt that no death sentence will result. Any other‘strategy’ for entering a guilty pleais ill-advised and should be abandoned.’ (Citation)”].)” 67 In 2003 — after thetrial in this case concluded — the ABA revised its Guidelines to clarify that “the decision whetherto enter a plea of guilty must be informed and counseled, but ultimately lies with the client.” (ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. 2003), reprinted in 31 Hofstra L-Rev. 913, 1044- (continued...) 82 Consistent with these guidelines, the cases demonstrate that when a defendant seeks to plead guilty to a capital offense without condition, or whenit is likely to result in a death sentence, disinterested counsel consistently refuse to consent to the plea. (See, e.g., People v. Alfaro, supra, 41 Cal.4th at pp. 1300-1301 [trial court correctly refused to accept unconditional guilty plea to capital offense to which defense counsel refused to consent on the groundthat “I can’t turn around andsay I consent to allow myclient to plead guilty when I know she’s pleading guilty forall intents and purposes to a death sentence,” and where thetrial court itself “expressed doubt that any attorney in Orange County ‘would consent to 399somebody pleading guilty to a capital offense’”]; People v. Chadd, supra, 28 Cal.3d at pp. 744, 747-850 [trial court erred in accepting guilty plea to capital offense to which defense counsel refused to consent on the ground that the “defendant’s basic desire is to commit suicide, and he’s asking for °7(...continued) 1045 [hereafter “ABA Guidelines (2003)”] Guideline 10.9.2, History of Guideline.) Of course, California law is to the contrary with regard to guilty pleas to capital offenses. (Pen. Code, § 1018.) Even when the decision to plead guilty does lie solely with the client, however, the revised Guidelinesstill state that “if no written guarantee can be obtained that death will not be imposed, counsel should be extremely reluctantto participate in a waiverofthe client’s trial rights.” (ABA Guidelines (2003), supra, 31 Hofstra L. Rev. at p. 1045, Commentary.) Furthermore, counsel’s duty “to ensure that the choice is as well considered as possible . .. . may require counsel to do everythingpossible to prevent a depressed or suicidalclient from pleading guilty when such a plea could result in an avoidable death sentence.” ([bid., italics added.) Since refusing to consentto the pleais within counsel’s power in California, it necessarily follows that even under the 2003 Guidelines, counsel should refuse to consent to a plea when the defendant wishesto enterit in order to receive the death penalty and a death sentence may be avoidable. 83 the cooperation of the State in that endeavor”].) Thus, consistent with the ABA Guidelines in existence at the time of trial, the purpose behind Penal Code section 1018, and prevailing professional norms, refusing to consent to the unconditional plea without a promise, or even a belief in the likelihood, that it would thereby avoid a death verdict, was a “plausible alternative” to the course defense counsel chose in this case. (See, e.g. United States v. Wells, supra, 384 F.3d at p. 733; Part E-1, ante, and authorities cited therein.) For all of the reasons discussed in the previous sections, this plausible alternative was “inherently in conflict” (ibid) with Messrs. Peters and O’Connell’s personalinterest in honoring their promise to the federal government and not provokingits ire by breakingit (see, e.g., United States v. Fulton, supra, at p. 610) and in currying favor with the state government (United States v. Levy, supra, 25 F.3d at p. 156) — the two entities with the powerto investigate and charge them for any wrongdoing ontheir part relating to the plotto kill or influencethe state’s witness, Nguyen. (See Part C, ante, and authorities cited therein) Furthermore,it is reasonable to infer that Messr. O’Connell and Peters had reason to fear their own client if they did not do as he instructed and consentto the plea. If Watkins’s allegations were true, Mr. Mai could corroborate them to the state and federal prosecutors. Even if Watkins’s allegations were untrue, it would be reasonable for counsel to fear that if they disregarded his instructions and refused to consent to his plea, Mr. Mai mightretaliate by falsely corroborating Watkins’s allegations. In some other case involving a conflict arising from allegations that defense counsel is involvedin his client’s crimes, but where the client seeks acquittal or to avoid a death sentence, such fear might inure to the client’s benefit since 84 counsel would have an incentive to curry favor with the client by vigorously defending him. Butthis is not such a case. As will be demonstrated in the following arguments, while the record casts compelling doubts on whether Mr. Mai’s decision to effectively stipulate to the death penalty was knowing, voluntary, intelligent, and competent, he did instruct his counsel to assist him in effectively stipulating to a death sentence and they complied. (See, e.g., 8 RT 1399-1402, 1409-1410.) Thus, the “plausible alternative” of disregarding their client’s wishes and refusing to consent to the unconditional plea when they believed that it was likely to lead — and whichtheir later performance guaranteed would lead — to a death verdict was“inherently in conflict” with counsel’s personal interests. (See Parts C and E-1, ante, and authorities cited therein.) Forall of these reasons, and pursuantto the authorities discussed in Parts C-1 and E-1, ante, the record supports the inference that the conflict of interest influenced counsel’s decision to consent to Mr. Mai’s unconditional plea to capital murder, made without promise or expectation that it would avoid a death sentence. Thus, the conflict adversely affected counsel’s performance. (Part E-1, ante, and authorities cited therein.) 5. The Conflict Influenced Counsel’s Decision to Consent to the Unconditional Slow Plea to the Sole Special Circumstance Allegation Without Arguing a Compelling Reasonable Doubt Defense Finally, Mr. Peters’s representation to the trial court that there was no defense — or nothing “‘to say” — to the capital murder charge was simply incorrect. (1 RT 189.) There was, in fact, a compelling reasonable doubt defense to the sole special circumstance alleged under Penal Codesection 190.2, subdivision (a)(7) (murder ofpeace officer while “engaged in the course of the performanceofhis or her duties”). 85 Mr. Mai’s waiverofhis right to jury trial and stipulation to submit the issue of guilt, or the truth of a special circumstanceallegation,to the trial court on the basis of the preliminary hearing transcript did not affect the prosecution’s burden ofproof or the presumption of Mr. Mai’s innocence. (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 603; People v. Martin (1973) 9 Cal.3d 687, 695.) As will be discussed in greater detail in Arguments II and II, post, which are incorporated by reference herein, an essential element of the section 190.2, subdivision (a)(7) allegation, on which the prosecution bore the burden of proof beyond a reasonable doubt (Pen. Code, §190.4, subd. (a); see, e.g., Ring v. Arizona (2002) 536 U.S. 584, 608-609, and authorities cited therein), is that the peace officer must be engagedin the Jawful performanceofhis or her duties whenheor sheis killed. (See In re Manuel G. (1997) 16 Cal.4th 805, 815; People v. Mayfield (1997) 14 Cal.4th 668, 791; People v. Gonzalez (1990) 51 Cal. 3d 1179, 1217; People v. Curtis (1969) 70 Cal.2d 347, 354; see also People v. Simmons (1996) 42 Cal.App.4th 1100, 1109.) In order to prove this element, the prosecution’s preliminary hearing evidence hadto besufficient to prove beyond a reasonable doubtthat the detention of Mr. Mai, during which the killing occurred, was lawful. (See, e.g., People v. Curtis, supra, 70 Cal.2d at p. 354; People v. Castain (1981) 122 Cal.App.3d 138, 145; People v. White (1980) 101 Cal-App.3d 161, 166-167; People v. Roberts (1967) 256 Cal.App.2d 488, 492-493.) “Lawfulness”in this context is assessed under Fourth Amendment standards. (See, e.g., In re Manuel G., supra, 16 Cal.4th at p. 821; People v. Curtis, supra, 70 Cal.2d at p. 354; People v. Mayfield, supra, 14 Cal.4th at pp. 791-792.) A traffic stop constitutes a seizure of the driver within the meaning of the Fourth Amendment. (See, e.g., Delaware v. Prouse (1979) 440 U.S. 86 648, 653.) A seizure or detention made without a warrantis only COGreasonable or Jawful “when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provides some objective manifestation that the person detained may be involved in criminal activity’ (People v. Souza (1994) 9 Cal.4th 224, 231)” (People v. Mayfield, supra, 14 Cal.4th at p. 791), which includesa traffic violation (Whren v. United States (1996) 517 U.S. 806, 809-810; see also, e.g., People v. Hernandez (2008) 45 Cal.4th 295, 299-300; Delawarev. Prouse, supra, 440 U.S.at p. 663). The prosecution’s preliminary hearing evidence focused on the evidence of criminal activity that Officer Burt discovered after theinitial traffic stop seizure of Mr. Mai — that the driver of the BMW wasdriving with a suspendedlicense and that there were possibly forged traveler’s checks in the trunk. (1 Muni RT 93-94, 134; 2 Muni RT 278-279.) Indeed, according to Detective Kennedy,the citation Officer Burt filled out and signed (which was completed but for the driver’s signature) only cited the BMwWdriver for driving with a suspended license. (1 Muni RT 65-66, 93- 94.) Officer Burt did not cite the driver for any vehicle code or other violation to justify or explain the initial stop and seizure. Facts discovered after a seizure (ortraffic stop) do not transform it into a lawful one. (See, e.g., Florida v. J.L. (2000) 529 U.S. 266, 271; Illinois v. Rodriguez (1990) 497 U.S. 177, 188; Florida v. Royer (1983) 460 U.S. 491, 507-508; People v. Hernandez, supra, 45 Cal.4th at pp. 299-301, and authorities cited therein; People v. Sanders (2003) 31 Cal.4th 318, 334, and authorities cited therein.) The only preliminary hearing evidence going to the reason for the traffic stop came from a statement attributed to Mr. Mai by Alex Nguyen. 87 Asdiscussed in the Statement of Facts, above, Nguyentestified to a number of admissions Mr. Mai allegedly made to him about shooting theofficer. (2 Muni RT 265-266, 272, 278-285, 340-343.) In the course ofthat testimony, Nguyen purported to recount not only Mr. Mai’s statements to him (Nguyen) but also the conversation Mr. Mai described betweenthe officer and himself, including the officer’s statements to Mr. Mai. (2 Muni RT 278-281.) Defense counsel objected to the “multiple hearsay” presented by the recounted conversation. (2 Muni RT 280.) The prosecutor responded that Mr. Mai’s statements fell within a hearsay exception because they constituted “an admission. I understand that the layer from the officerto the defendant is not for the truth of the matter.” (2 Muni RT 280.) Thetrial court overruled defense counsel’s objection, agreeing that Officer Burt’s statements were admissible for the non-hearsay purpose of explaining and putting in context Mr. Mai’s admissions. (2 Muni RT 280.) Thus, Nguyentestified, inter alia, that Mr. Mai had told him that “he wasdriving and he thoughthe hadhislight on, but he got pulled over by California Highway Patrolman fornot havinghis light [sic].” (2 Muni RT 278.) Nguyenlater clarified that Mr. Mai told him that he “thought he have his light on”but “[t]he officer told him that he pull him over because he was driving without his headlights.” (2 Muni RT 422.) Therefore, while the prosecutor offered, and the court admitted, Officer Burt’s statements during the conversation preceding the shooting in order to explain Mr. Mai’s admissions — including Officer Burt’s statement to Mr. Mai that he had stopped him becausehis headlights were not on — the prosecutor did not offer, and the court did not receive, those statements for their truth. The only evidence offered for its truth was Mr. Mai’s own statement that although Burt told him that he had stopped him becausehis 88 headlights were not on, Mr. Mai “thought” that his headlights were on. This evidence simply did not prove that Officer Burt in fact stopped Mr. Mai becausehis headlights were not illuminated. But even if Officer Burt had stopped Mr. Mai becausehis headlights were off, the prosecution presented no evidence to provethat this amounted to a traffic violation and, thus, no evidence to prove that the stop/seizure was lawful. Police officers are “reasonably expected to know”the Vehicle Code. (See, e.g., People v. Cox (2008) 168 Cal.App.4th 702, 710, and authorities cited therein.) At the time of the 1996traffic stop, the Vehicle Code only required that headlights be illuminated “from one-half hourafter sunset to one-half hour before sunrise” (Veh. Code, § 38335) or “during darkness” (Veh. Code, § 24400), which wasdefined as “any time from one- half hour after sunset to one-half hour before sunrise or at any other time whenvisibility is not sufficient to render clearly discernable any person or vehicle on the highwayat a distance of 1,000 feet” (Veh. Code, § 280). The prosecution presented no evidence to prove when the sun set on July 13, 1996 or that the stop occurred after “one-half hour after sunset” or “during darkness” as defined by the Vehicle Code. In fact, the only evidence the prosecution presented at the preliminary hearing regarding the time and conditionsofthe initial stop proved the contrary. According to Bernice Sarthou, while she estimated that it was about 8:30 p.m. when she witnessedthetraffic stop (1 Muni RT 152, 191), she also explicitly testified that “it wasstill daylight[,] [i]t wasn’t sunset yet” (1 Muni RT 190), and indeed that she wasstill wearing her sunglasses “because the sun wasstill bright enough to need them” (1 Muni RT 152; see also 1 Muni RT 190-192). Thus, even if Officer Burt’s hearsay statement to Mr. Mai had been offered, accepted, and were admissible for its truth — i.e., 89 to prove that he had, in fact, stopped Mr. Mai because he wasdriving with his headlights off— and even rejecting Mr. Mai’s own statement that he believed that his headlights were on, the prosecution presented no evidence to provethat at the time of the stop Officer Burt had an objectively reasonable suspicion that Mr. Mai had committed a traffic violation or was otherwise engaged in criminal activity. (See Whren v. United States, supra, 517 US.at pp. 809-810; Delaware v. Prouse, supra, 440 U.S.at p. 663.) Therefore, there was ample room for reasonable doubt that the detention of Mr. Mai was lawful and, thus, that Officer Burt was lawfully engaged in the performance of his duties when he waskilled. (See Jn re Manuel G., supra, 16 Cal.4th at p. 815.) Nevertheless, Messrs. Peters and O’Connell consented to the “slow plea,” and made no argument against the sufficiency of the evidence to prove the sole special circumstanceallegation rendering Mr. Maieligible for the death penalty. As previously discussed, and as defense counsel acknowledged, they had the powerto refuse to consentto the slow plea. (Pen. Code, § 1018.) And even by agreeing to stipulate to submit the issue of guilt based solely on the transcript of, and evidence presented in, the preliminary hearing, they still had the powerto argue against the sufficiency of that evidence to prove the sole special circumstance allegation. (Bunnell v. Superior Court, supra, 13 Cal.3d at p. 604 [defendant who submits issue of guilt to trial court on basis of preliminary hearing transcript retains right to challenge the sufficiency of the evidence both at trial and on appeal]; see also 1 RT 184 [Mr. Peters waivedright to “argue” any “point of law”].) In sum, arguing against the sufficiency of the preliminary hearing evidence to prove the sole special circumstance allegation was a “plausible alternative” (Part E-1, ante, and authorities cited therein) to counsel’s 90 decision to consentto the “slow plea” and effectively stipulate to Mr. Mai’s death eligibility when they believed that it would likely result in a death verdict. (See Part E-4, ante). However, that “plausible alternative” was “inherently in conflict” with their competing personal interests in currying favor with the both the federal government by making goodontheir promise to deliver Mr. Mai’s pleato the state capital murder charge and with the Orange County District’s Attorney’s office, the two agenciesthat held such awesome powerovertheir futures. (See Parts C and E-1, ante.) 6. Conclusion In sum, there were atleast four “plausible alternatives” to Messrs. Peters and O’Connell’s “strategy” of promising the federal government Mr. Mai’s plea to the state capital murder charge and consenting to Mr. Mai’s slow plea to that charge without attempting to negotiate any return benefit to Mr. Maiin these proceedings, without the promise or expectation thatit would avoid a death verdict, and without arguing against the sufficiency of the preliminary hearing evidenceto prove the sole special circumstance rendering Mr. Maideath eligible. First, counsel could have chosen not to inject themselves into the federal prosecution, in which Mr. Mai was already represented by unconflicted federal counsel, and certainly not promised the federal government, over the objection of federal counsel, that Mr. Mai would plead to the state capital murder charge. Second, counsel could have acted on the state court and prosecutor’s assurancesthat the promised plea wasnot binding in state court and attempted to negotiate a cooperation agreement with the state prosecutor whereby Mr. Mai would provide information regarding the conspiracyto kill the state’s witness, over which Orange County hadjurisdiction, in exchange for a reduced charge or other benefit or leniency in these proceedings. Third, counsel could have 91 refused to consent to the slow plea and demanded an adversarial trial on the murder charge and special circumstance allegation. Fourth, counsel could even have stipulated to submit the issue of Mr. Mai’s guilt based solely on the preliminary hearing transcript, but argued a compelling reasonable doubt defense to the sole special circumstanceallegation to thetrial court. However,all of these “plausible alternatives” were “inherently in conflict” with defense counsel’s competing personal interests in preventing evidence (including Watkins’s actions and allegations) of their wrongdoingrelating to the conspiracy from comingto light, in currying favor with the law enforcement agencies that held the powerto investigate and charge them, and in their liberty, livelihood, and reputation. (See Parts C and E-1, ante, and authorities cited therein.) The record therefore demonstrates that the conflict of interest influenced, and thus adversely affected, counsel’s performancein the pre-plea, plea and guilt phase stages of these capital proceedings. (Part E-1, ante, and authorities cited therein). F. The Conflict of Interest Influenced, and Thus Adversely Affected, Defense Counsel’s PerformanceIn Failing to Ensure that Mr. Mai was Not Tried, and Did Not Effectively Stipulate to the Death Penalty, While Incompetent 1. State Law and the Due Process Clause Prohibit Trying or Sentencing an Incompetent Defendant The Due Process Clause of the Fourteenth Amendmentto the United States Constitution and Penal Code section 1367 prohibit the state from trying or sentencing a criminal defendant while incompetent. (Dropev. Missouri (1975) 420 U.S. 162, 171; Pate v. Robinson (1966) 383 U.S.375, 384-386; Dusky v. United States (1960) 362 U.S. 402, 403.) Under section 1367, a defendant is mentally incompetentto standtrial or plead guilty “if, as a result of mental disorder or developmental disability, the defendant is 92 unable to understand the nature of the criminal proceedingsorto assist counsel in the conduct of a defense in a rational manner.” (See also Drope v. Missouri, supra, at p. 171 [a defendant is incompetent if “he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in the preparation of his defense”]; accord Godinez v. Moran (1993) 509 U.S. 389, 399 [competency requirementalso applies to guilty pleas and waivers of constitutional rights].) Penal Code section 1368, subdivisions (a) and (b), respectively, require the trial court to initiate proceedings to determine a defendant’s competence “if a doubt arises in the mind of the judge as to the mental competence of the defendant”or “[i]f counsel informs the court that he or she believes the defendant is or may be incompetent.” 2. Defense Counsel’s Repeatedly Expressed Belief, And Supporting Evidence, that Mr. Mai’s Mental State Had So Deteriorated in Solitary Federal Confinement that He Was No Longer Able to Rationally Participate in His Penalty Phase Defense Mr. Mai wasin state custody when the federal government indicted him. The federal government took temporary custody of Mr. Mai by way of the issuance of a writ of habeas corpus ad prosequendumfor the purpose of prosecuting him. (8/29/07 SCT 164-170; 8/29/07 RT 5.) One of the terms of Mr. Mai’s agreement with the federal government was that he would be housedin federal custody underspecial administrative restrictions under Code of Federal Regulations § 501.3. (2 CT 405-406, 482.) The State of California wasnot a party to that agreement. (1 RT 100, 104-106, 125, 148, 168.) In addition to the special administrative restrictions, the federal BureauofPrisons [“BOP”] imposed further, severerestrictions on the 93 conditions of Mr. Mai’s confinement. (See, e.g., 3 RT 446-448, 453-457.) As will be discussed in greater detail in Argument IV, post, whichis incorporated by reference herein, from the date that Mr. Maientered his slow plea on July 23, 1999, and repeatedly throughout the proceedings, Mr. Peters described those conditionsto the state court and expressedhis belief that Mr. Mai’s mental state had so deteriorated under them that he was no longerable to rationally participate in his penalty phase defense or indeed to decide to present no defense. (2 CT 497, 500-501; 2 RT 372-374, 383, 396, 403-405, 419; 3 RT 489; 4 RT 589; 3/16/07 2 SCT 42-44, 161, 175, 178, 180-181, 187-190.) As Mr. Peters first described them, the “administrative conditions on [Mr. Mai’s] custody ... are extremely onerous,virtually keeping him isolated something like Hannibal Lechter in Silence ofthe Lambs.” (1 RT 192-193; see also 3/16/07 3 SCT 308-320 [copy of section 501.3 restrictions as modified on July 23, 1999].) Thoserestrictions became even more onerousin the following months. At least since early January 2000, Mr. Mai was housed in a one-man cell in which the lights and a camera were on 24 hours a day. (2 RT 372, 374, 383.) He was allowed “[n]Jo reading material or pens or papers or nothing.” (2 RT 372.) His cell was “totally sealed off, so nothing can be slipped in and out” and he wasnot able to “flush his owntoilet for fear sometimes communications can take place throughtoilets.” (2 RT 372.) Apart from limited, sporadic visits with an aunt with whom Mr. Mai had a very difficult relationship, “he can have no contact with anybody.” (2 RT 374; see also 3 RT 419.) He was only permitted to talk to a lieutenant; he was not allowed even verbal contact with other detention facility personnel or inmates; indeed, inmates could not even work near his cell. (2 RT 374, 383.) Mr. Peters, the federal district 94 court judge, and other witnesses had seen for themselves during surprise midnightvisit to the detention facility that Mr. Mai “hadto lay there with his t-shirt over his eyes because he hadthe lights on 24 hours a day, and literally had nothing to read, nothing to write, nothing to do, 24, seven.” (2 RT 372, 374, 383; see also 3/16/07 2 SCT 178, 180; 2 CT 497, 500-501.)° Furthermore, Mr. Peters repeatedly representedto the state trial court judge, as well as in pleadingsfiled in the Ninth Circuit Court of Appeals and the Court of Appeal for the Fourth Appellate District — which were served on and reviewedbythe trial court — that Mr. Mai’s mental health wassteadily deteriorating under the extremeisolation and “lack of sensory stimuli”to the point that he was no longerable to rationally participate in his defense. (2 CT 497, 500-501; 3/16/07 2 SCT 171, 175, 178, 180-181, 187-190; 3 SCT 304-369; 2 RT 372, 374, 383, 396; 3 RT 403-405, 489; 4 RT 589; 5 RT 1075-1076; 6 RT 1079-1082.) For instance, Mr. Peters represented in one pleading filed on April 3, 2000, and whichthestatetrial judge reviewed (RT 1075),that: Petitioner’s confinement has been so severe that it has caused substantial changesin Petitioner’s mental health. Petitioner’s counsel told both the Federal and State Court that he was unable to effectively communicate with the Petitioner. The Petitioner was not incompetentto standtrial, but e [sic] was a breakdownin the attorney client relationship that is °8 In addition to the severerestrictions placed onhis federal confinement, the state court granted the prosecutor’s request to have heightened, “maximum security” measures during the state capital murder trial. These extra measures included additional metal detectors just outside of the courtroom, handheld metal detector “wanding”inside of the courtroom of everyone whoentered, including potential jurors, and additional bailiffs. (2 RT 305-309; 3 RT 460-474.) In addition, Mr. Mai was accompanied from the federal detention facility to the state courthouse and back by a “kind of S.W.A.T. team.” (2 RT 343, 384.) 95 jeopardizing Petitioner’s fundamental right to counsel guaranteed by the Sixth Amendmentofthe United States Constitution. [{] The changes have become so dramatic that Dr. Veronica Thomascan no longerfinish her evaluation ofthe Petitioner. Obviously a complete psychological evaluation of the Petitioner is a necessary componentofthe Petitioner’s defense at his penalty phasetrial. .... [7] The conditions surrounding the Petitioner’s custody status in the Metropolitan Detention Center are so inhuman and oppressive that Petitioner’s counsel cannot complete and presentto the Orange County Superior Court evidence of Petitioner’s mental state in mitigation of the death penalty. (3/16/07 2 SCT 42-44.) Mr. Peters further represented, inter alia, that they “can not [sic] longer present evidence as to [Mr. Mai’s] mental condition to the trier of fact at his penalty phasetrial because the conditions ofthis [sic] confinement have caused him to become mentally unstable to a point where his Counsel and psychologist cannot prepared[sic] the Petitioner for trial.” (3/16/07 2 SCT 161.) Mr. Peters also informedthe state court that “we have for some time talked about putting no penalty evidence on.” (3 RT 449.) However, he explained, “Mr. Mai needsto be in a situation where he can makerational decisions about this” and his current mental state, which Mr.Peters believed was caused by the confinement conditions, precludedrational decision making. (3 RT 449.) In addition, Mr. Peters presented to the state trial court the testimony of Dr. Veronica Thomas,a clinical and forensic psychiatrist appointed as an expert in this case to explore and develop possible mitigating evidence. (2 RT 403-407.) Her testimony was to the same effect: Mr. Mai’s mental state had so deteriorated under the extreme isolation and sensory deprivation 96 under which he was confinedthat she could not complete the work necessary to prepare or develop evidence for the penalty phase defense. (3 RT 406-411, 421, 427-428.) Mr.Peters did not present this evidence in order to declare a doubt regarding Mr. Mai’s competencyto stand trial. Instead, he presentedthis evidence to both the state court and the federal courts in an unsuccessful attempt to have the additional restrictions the BOP imposed on the conditions of Mr. Mai’s federal confinement removed or modified. (3 RT 403-405, 429, 446-449, 489; 2 CT 652; 3/16/07 2 SCT 28-170, 189; 3/16/07 3 SCT 353-354.) Thetoll of his isolation on Mr. Mai’s mental health eventually became apparent to everyone. In early proceedings, before he was taken into federal custody, Mr. Mai conducted himself appropriately. However, Mr. Mai’s behavior changed dramatically after 15 months underthe federal confinement conditions. In one court session, Mr. Mai was obviously disoriented and confused, which Mr. Peters attributed to the impact of the confinement conditions on his mental health. (2 RT 395-398, 400.) In others throughout the pre-penalty phase and penalty phase proceedings, Mr. Mai had numerous, enraged and irrational “outbursts” both inside and outside the courtroom, prompting the court to warn him several times he would be removed fortherestofthe trial if he continued to disrupt the proceedings. (2 RT 305-309, 345, 349; 6 RT 1079-1083, 1089-1091, 1098; 7 RT 1319, °° Indeed, the debilitating effects of solitary confinement and “supermax”confinement conditions on prisoners have long been well documented and recognized by many other courts and mental health professionals. (See Argument IV-C-3, post, and authorities cited therein.) 97 1325-1331.) Mr. Mai himselfwas concerned abouthis inability to control his behavior and therefore requested that he be placed in visible shackles throughout the trial. (6 RT 1086-1087; see also 2 RT 348, 365.) Mr. Peters joined in Mr. Mai’s request “‘for his [Mr. Mai’s] safety and my safety and Dennis [O’Connell]’s safety” and the trial court granted the request. (RT 1086.) The shackles likely compounded Mr. Mai’s already deteriorating mental state (see, e.g., People v. Hill (1998) 17 Cal.4th 800, 846, and authorities cited therein [recognizing the “pain ‘and consequential burden 399on the mind and body of the defendant’” caused by physical restraints, which can “‘impair[] his mental faculties’” and his “ability to cooperate or communicate with counsel”]; accord J/linois v. Allen (1970) 397 U.S. 337, 344) and “create[d] the impression in the mindsofthe jurors that the court believe[d] the defendant [was] a particularly dangerous and violent person” —a critical issue in the penalty phase (Duckett v. Godinez (9th Cir. 1995) 67 F.3d 734, 748). Indeed, while shackled, Mr. Mai had such a violent outburst during the testimony of one penalty phase witness that he upended his counsel’s table ~ to which he was chained — and had to be removedby a bailiff. (RT 1331.)” Asfully discussed in Part G, post, it was in this condition that Mr. Maidirected defense counsel to present no defenseto the state’s case for death and instead present his own statement to the jurors that they should return a death verdict — directions his attorneys followed. 7 Aggression and poor impulse contro! are symptoms of a mental disorder caused in wholeor in part by solitary, or segregated housing, confinement. (See, e.g., Madrid v. Gomez (N.D. Cal. 1995) 889 F.Supp. 1146, 1265-1266, and authorities cited therein.) 98 3. Defense Counsel’s Insistence that No Competency Proceedingsbe Initiated Defense counsel’s repeated representationsthat, as a result of the sensory deprivation created by the onerous conditions of his federal confinement, Mr. Mai’s mental state had deteriorated to the point that he wasno longerableto assist the defense team in the preparation ofhis penalty phase defense in a rational manner mirrored the standard for incompetence under Penal Code section 1367. That statute provides that a defendant is mentally incompetentto standtrial “‘if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” (Pen. Code, § 1367, italics added; see also Drope v. Missouri, supra, 420 U.S.at p. 171) Nevertheless, Mr. Peters repeatedly representedto thestate trial court that, “if he were 1368, I’d say that, I am not doing that because that would be a game,and I am not here to play games.” (5 RT 1077; see also 2 RT 396, 3 RT 452; 5 RT 1077; 6 RT 1081.) Mr. Peters’s representations were obviously irreconcilable. 4. The Conflict of Interest Influenced, and thus Adversely Affected, Counsel’s Failure to Move for the Initiation of Competency Proceedings It is abundantly clear that Messrs. Peters and O’Connell genuinely (and reasonably) believed that Mr. Mai was unable toassist in the preparation of his defense in a rational manner based upon their own interactions with Mr. Mai, their observations of Mr. Mai, and the opinion of a psychologist who was well acquainted with Mr. Mai and personally observedthe deterioration of his mental health while in federal custody. It is equally clear that whenever defense counsel has a genuine beliefthat his 99 or her client is not competentto assist in the client’s defense, counselis legally and ethically obligated to act in the client’s best interest by requesting a competency evaluation and hearing, even overthe client’s objections. (See, e.g., People v. Stanley (1995) 10 Cal.4th 764, 804-805, and authorities cited therein [in the face of substantial evidence of incompetence, due process demands competency hearing and “attorney representing the defendant is required to ‘advocate the position counsel perceivesto be in the client’s best interests even when that interest conflicts with the client’s stated position”]; United States v. Boigegrain (10th Cir. 1998) 155 F.3d 1181, 1188, and authorities cited therein [“the defendant’s lawyeris not only allowedto raise the competency issue, because of the importance ofthe prohibition against trying [the incompetent], she has a professional duty to do so when appropriate”; Burt v. Uchtman (7th Cir. 2005) 422 F.3d 557, 566-569; ABA Criminal Justice Mental Health Standards (1989) Standard 7-4.2, subd. (c) [defense counsel should move for evaluation of client’s competence to stand trial whenever counsel has good faith doubt regarding the matter].) Since even a minimally competent attorney who harbors doubts regarding his or her client’s competence would take steps to ensure that the client is not tried while incompetent, moving for the initiation of competency proceedingsin this case wascertainly a “plausible alternative” to defense counsel’s failure to do so in this case. (See Part E-1, ante, and authorities cited therein.) Mr. Peters’s irreconcilable representations that Mr. Mai was no longer able to assist in his penalty defense in a rational manner, but that he was “not 1368,” can only be attributable to two explanations: 1) he was not aware of the statutory definition of incompetency, which would fall below objective standards of reasonabletrial assistance (see, e.g., Kimmelmanv. 100 Morrison (1986) 477 U.S. 365, 385 [counsel’s decision based upon ignorance or misunderstanding of law is unreasonable]); and/or 2) his insistence that no competency proceedings be initiated served his and Mr. O’Connell’s own conflicting interests. Given Mr. Peters’s representation that he had practiced law for 28 yearsat the time oftrial (8 RT 1491) and the state prosecutor’s own description of Messr. Peters and O’Connell as “extremely experienced homicide investigators and capital case defenders” (1 RT 82),it is doubtful that Mr. Peters was unawareofthe statutory definition of incompetence. In any event, even if counsel’sperformance waspartly due to incompetence and ignorance, the record supports the inference that it was also influenced by the conflict. (See, e.g., Lockhartv. Terhune, supra, 250 F.3d at p. 1231, and authorities cited therein [defendant need not show that the conflict was the sole “cause” of counsel’s trial decisions, but only that “that some effect on counsel’s handling of particular aspects ofthe trial was ‘likely’” in order to demonstrate adverse effect]; Part E-1, ante, and authorities cited therein.) It would certainly be reasonable to assumethat the state and federal prosecutors would have been displeased if Mr. Mai were declared incompetent, and Messrs. Peters and O’Connell had reason to fear displeasing those prosecutors. (See Part C, ante.) If Mr. Mai were declared incompetent, he would be unable to standtrial at the penalty phase;his incompetency might necessitate the withdrawalofhis slow plea at the guilt phase — a plea in which notonly thestate, but also the federal government had a strong interest, as evidenced by the federal plea agreement; his incompetency might provide grounds on whichto collaterally attack his guilty pleas in federal court (see, e.g., Burt v. Uchtman, supra, 422 F.3d 557, 566-569); and a finding of incompetence would obviously affect the 101 place and conditions of Mr. Mai’s confinement, in which the federal governmentalso had a strong and compelling interest, as demonstrated by the plea agreementitself (see, e.g., Pen. Code, § 1370). Furthermore, Messrs. Peters and O’Connell had reasonto believe that advocating in favor of Mr. Mai’s incompetence would displease Mr. Mai, as well. As will be discussed in Part G, post, Mr. Mai expressed the desire to be executed and instructed his attorneys to effectively stipulate to a death verdict. He even threatened to disrupt the proceedingsif his attorneys madea plea for the jurors’ mercy. (8 RT 1399-1403.) Thus, advocating for their client’s incompetence would go against Mr. Mai’s wishes andinstructions to obtain a death sentence. And, as discussed in Part E-4, ante, it is reasonable to infer that counsel had reasonto fear that if they displeased Mr. Mai, he could — truthfully or otherwise — retaliate by corroborating Watkins’s allegations against them to the state and federal prosecutors. Hence,believing that their client was unable to makerational life and death decisionsor rationally participate in his defense, counsel found themselves caught betweenthe rock of their ethical and constitutional duties to advocatein their “client’s best interests even [if] that interest conflict[ed] with [their] client’s stated position’” (People v. Stanley, supra, 10 Cal.4th at pp. 804-805) and the hard place of fearing that if they disregarded their client and the state prosecutor’s desires to obtain a death sentence, as well as their promise to the federal government that Mr. Mai would remain inits custody underspecial administrative conditions, by movingforthe initiation of competency proceedings their own freedom,livelihood, and reputation would be at risk. Thus, moving for the initiation of competency proceedings was a “plausible alternative” that was “inherently in conflict” with defense counsel’s competing personal interests. (Part E-1, ante, and 102 authorities cited therein.) Pursuant to the authorities cited in Part E-1, ante, this showing establishes that the conflict of interest influenced, and adversely affected, defense counsel’s performancein this regard. G. The Conflict of Interest Influenced, And Thus Adversely Affected, Counsel’s Penalty Phase Performance Mr. Maiinformed defense counsel (and, ultimately, the court) that he wished to forgo the presentation of any penalty phase defense, including the presentation of mitigating evidence or closing argument. (7 RT 1375-1377, 8 RT 1399-1403.) Furthermore, Mr. Mai informed counsel and the court that he wishedto testify that the jurors should return a death verdict. (8 RT 1399-1401.) Defense counsel acquiesced. (8 RT 1399-1402.) They presented no meaningful challenge to the state’s aggravating evidence. They presented no mitigating evidence or closing argument. Apart from a single, overruled objection to CALJIC No. 17.41.1 — on the groundthat “T have neverliked this instruction, just because it makes snitches out of the other jurors” (7 RT 1394) — they neither objected to, nor requested, any jury instructions. Finally, they presented to the jurors as “the only defense evidence” (8 RT 1409) Mr. Mai’s narrative “testimony” that death was the appropriate penalty in this case (8 RT 1409-1410) — testimony that the prosecutor argued as a basis for a death verdict (8 RT 1424). As will be demonstrated below, there were “plausible alternative tactics” available to defense counsel, both in regard to counseling Mr. Mai on his desire to seek execution andin regard to their own decision to acquiesce in that desire. (See Part E-1, ante, and authorities cited therein) However, the discarded plausible alternative of fighting for their client’s life through an adversarial penalty phasetrial was “inherently in conflict” 103 with their conflicting personal interests to avoid the significant risks to their liberty, livelihood, and reputation, as well as insurmountable ethical dilemmas,that such a trial would have posed. (/bid.) On this record, this Court cannot be confident that counsel’s effective stipulation to a death verdict was solely the result of their disinterested, independent professional judgment, and not influenced by their eagernessto seize onto a troubled young man’s purported death wish as an answerto their own prayers. 1. Counsel Had Compelling Personal Interests that Would be Served By Acquiescing In Mr. Mai’s Purported Death Wish and Foregoing An Adversarial Penalty Phase Trial As previously discussed, counsel had reason to believe that disregarding Mr. Mai’s wishes posedtherisk that he would retaliate by corroborating Watkins’s allegations against them to the state and federal prosecutors. Similarly, defense counsel certainly had reason to believe that stipulating to a death sentence would please the state prosecutor, with whom they hadinterest to curry personal favor. (See Part C, ante, and authorities cited therein.) | But counsel’s conflicting interests ran even deeper with respect to their decisions over the penalty phase trial and certainly deeper than they represented to thestate trial court and Mr. Mai. As discussed in Parts D-2 and 3, ante, during the state court proceedings regarding the perceived conflict of interest arising from the possibility that they would be “called as witness[es]” in Watkins’s federaltrial, the state prosecutor and defense counsel Mr. Peters represented that the prosecutor had agreed not to present any evidence regarding the conspiracy to kill Alex Nguyen in Mr. Mai’s trial. (1 RT 80-81.) This, Mr. Peters emphasizedto thetrial court, “reduces the conflict to about zero.” (1 RT 80-81.) However, as discussed in Part D- 104 3, ante, these representations were grossly misleading. In truth, the agreement wasthat the prosecutor would not introduce the evidencein his penalty phase case-in-chief; he explicitly reserved the right to present the evidence on rebuttal or as impeachmentif Mr. Mai presented a penalty phase defense with mitigating evidence. (3/16/07 2 SCT 132-134.) Far from “‘reduc[ing] the conflict to about zero,” the true agreement made the conflict far more acute. If Mr. Mai presented a penalty phase defense with mitigating evidence, the state would be free to present evidence regarding the conspiracy to kill Nguyen. Presenting such evidence would necessarily entail the state’s own investigation into the conspiracy. And that investigation could have unearthed evidence of defense counsel’s rolesin it, including their directions to Watkins to engage in acts that the federal government alleged were overt acts in furtherance of the conspiracy and Watkins’s own allegations that defense counsel were, in effect, unindicted co-conspirators. Certainly, Watkins would bea logical witness to prove the conspiracy in Mr. Mai’s penalty phasetrial. In June 1999 — well before Mr. Mai’s penalty phase commenced with jury selection on April 3, 2000 — Watkins entered a guilty plea in federal to the lesser charge of accessory after the fact to (attempted) murder for hire pursuant to a plea bargain and waived hisright to appeal.”’ Therefore, Watkins could not avoid testifying at Mr. Mai’s penalty phasetrial by invoking his Fifth Amendmentprivilege ” A motion to take judicial notice of federal court recordsreflecting these facts pursuant to Evidence Code section 452, subdivisions (c) [official acts ofjudicial departments of United States is proper subject ofjudicial notice] and (d) [records of any court of record of the United States]) and Evidence Code section 459 accompaniesthisbrief. 105 against self-incrimination. (See, e.g., Reina v. United States (1960) 364 U.S. 507, 513 [once a person has been convicted, he or she can no longer be “incriminated” and thus privilege no longerapplies].)” Indeed, Watkins may have wantedto testify given his allegations against defense counsel. (1 CT 155-156.) As a witness regarding the plot to kill Nguyen, there was certainly a significant risk that Watkins’s allegations against Mr. Mai’s defense counsel would have been laid bare during the very public (and widely publicized) penalty phase trial. Obviously, Mr. Mai’s counsel would have a powerful personalinterest in preventing the public airing of those allegations. Furthermore, counsel would have a had a strong disincentive from subjecting Watkins to any vigorous and searching examination, which could uncover evidence of their own wrongdoing. (See, e.g., Mannhalt v. Reed, supra, 847 F.2d at pp. 582-583 [when it is government witness who makes accusation that defense counsel engaged in criminal conductrelating to client’s crimes, counsel’s “personal interest in his own reputation and avoiding criminal prosecution” may make effective cross-examination impossible]; accord United States v. Fulton, supra, 5 F.3d at pp. 610, 613; United States v. Hobson, supra, 672 F.2d at pp. 828-829; see also Part C, ante, and authorities cited therein.) Furthermore, given Watkins’s allegations and the evidence that many of the alleged overt acts in furtherance of the conspiracy were undertaken at ” While the privilege continues during the pendency of appeal(see, e.g., In re Courtney S. (1982) 130 Cal.App.3d 567, 573), Watkins waived, and thereby extinguished, his right to appeal. (See, e.g., People v. Lopez (1999) 71 Cal.App.4th 1550, 1554, and authorities cited therein [when - defendant pleads guilty to charge from which he can no longerappeal, privilege no longer exists with respect to facts underlying conviction].) 106 counsel’s direction andin his role as counsel’s investigator (see Part C-2, ante), Messrs. Peters and O’Connell independent personal knowledge regarding relevant evidencerelating to the plot would have made them logical witnesses regarding the conspiracy. Underthe crime/fraud exception to the attorney-client privilege, defense counsel would not be able to avoid testifying by invokingthat privilege. (Evid. Code, § 956 [exception to attorney-client privilege where “the services of the lawyer were soughtor obtained to enable or aid anyone to commit or plan to commit a crime or a fraud”’]; see United States v. Levy, supra, 25 F.3d at pp. 156-158.) Counsel would have obvious personalinterests in avoiding being called as witnesses in Mr. Mai’s penalty phasetrial. It could put them in the unseemly position of havingto testify against their ownclient, invoking their ownrights against self-incrimination or, at the very least, having to withdraw as counsel andlose a substantial portion of their fees. (See Pen. Code, § 987.2 CT 1-13; Rules Prof. Conduct, Rule 5-210 [attorney must withdraw if called as a witnessin client’s trial]; see, e.g., United Statesv. Levy, supra, 25 F.3d at pp. 156-158 [where counsel, who had been accused of wrongdoing connected to client’s crimes, pursued strategy that avoided possibility of his being called as a witness, court concludedthat the conflict influenced strategy and demonstrated adverse effect]; United States v. Livinston (D. Del. 2006) 425 F.Supp.2d 554, 560-561, & fn. 4 [strategy that would call for attorney’s own testimony and thus necessitate his withdrawal is one that inherently conflicts with attorney’s own interests]; see also United States v. Fulton, supra, 5 F.3d at p. 613 [“when a government witness implicates defense counselin a related crime, the resultant conflict. . . permeates the defense”’].) 107 In addition, had defense counsel presented a penalty phase defense with mitigating evidence, thus prompting the state to present evidence relating to the conspiracy, there wasa significantrisk that yet another conflict of interest would reveal itself and adversely affect defense counsel’s counsel’s representation of Mr. Mai. Another logical witness to prove the conspiracy would be Mr. Mai’s other indicted co-conspirator and girlfriend, Vicky Pham. On April 29, 1999, Ms. Pham pled guilty to aiding and abetting (attempted) murderfor hire in violation of 18 U.S.C § 1958 and waived her appeal rights.” Hence, like Watkins, Ms. Pham could not avoidtestifying at Mr. Mai’s 2000 penalty phasetrial by invoking her Fifth Amendmentprivilege against self-incrimination. In July 1999, Mr. Peters informedthe state court that he had assumedthe role of Ms. Pham’s co- counsel at her own sentencing hearing. (2 CT 497, 501; see also 1 RT 158, 170, 202-203; 2 RT 223.) Indeed, according to Mr. Peters, he and Ms. Pham’s federal counsel “organized a strategy for a presentation at Ms. Pham’s sentencing. I arranged for Dr. Veronica Thomas, Ph.D.to present testimonyat the sentencing to the affect [sic] that Ms. Pham had acted under Mr. Mai’s duress caused by physical and mental abuse,” from which she also suffered “battered women’s syndrome.” (2 CT 501.) As mentioned in Part F-2, ante, Dr. Thomas was appointed by the state court to assist Mr. Mai with his defensein this case. (1 RT 170, 202-203; 3 RT 403- 407.) 3 A motion for this Court to take judicial notice of the records of the United States District Court for the Central District of California reflecting these facts accompaniesthis brief. (Evid. Code, §§ sections 452, subdivisions(c) [official acts ofjudicial departments of United States is propersubject ofjudicial notice] and (d) [records of any court of record of the United States], 459.) 108 Had defense counsel presented a penalty phase defense with mitigating evidence, and thereby promptedthe state to present evidence — including Ms. Pham’s testimony — relating to the conspiracyat the penalty phase, defense counsel would have faced an insurmountable ethical dilemma. First, they had actively produced aggravating evidence adverse to Mr. Maithat he had forced Ms. Pham toassist him in conspiringto kill the state’s witness throughtheinfliction of “duress” and “physical and mental abuse.” (See, e.g., People v. Easley, supra, 46 Cal.3d at pp. 722-725 [conflict of interest existed where, inter alia, in course of representing anotherclient in a civil case arising from arson of building, defense counsel elicited the defendant’s confession to the arson and the prosecution intendedto introduce the arson evidence in penalty phase of defendant’s owntrial].) Moreover, defense counsel would have been precluded from subjecting Ms. Pham to effective cross-examination, given that she was a formerclient in a case substantially related to this one to whom defense counsel oweda duty of loyalty. (See, e.g, United States v. Shwayder, supra, 312 F.3d at pp. 118-119; United States v. Malpiedi, supra, 62 F.3d atp. 469; Mannhalt v. Reed, supra, 847 F.2d at p. 580; People v. Easley, supra, 46 Cal.3d at pp. 730-732.) The conflict of interest inherent in defense counsel’s representation of Ms. Pham,andthe potential it had to adversely affect defense counsel’s representation of Mr. Maiin the penalty phase of this case, were never even addressed, muchless explored, on the record. To the extentthat thetrial court ultimately became awarethat, contrary to counsel’s representation at the conflict hearing, the state prosecutor was free to present evidence relating to the conspiracy on rebuttal (see footnote 24, ante), the trial court erred in failing to inquire into the potential conflicts of interest that inhered 109 Choice of Strategies was colored bythe conflict[s] [they] faced.” (People y. Mroczko, Supra, 35 Cal.3d at pp. 107-108.) 110 2. There Were Several Plausible Alternatives to Defense Counsel’s Response And Counsel to Mr. Mai With Regard to his Expressed Desire to Forgo a Penalty Phase Defense and Seek a Death Verdict It is not unusualforclients to initially insist that they want to be executed. (ABA Guidelines (2003), supra, 31 Hofstra L.Rev.at p. 1009, Guideline 10.5 and Commentary.) Indeed, defendants whoinitially “volunteer” for execution frequently change their minds. (See, e.g., R. Bonnie, Mentally Ill Prisoners on Death Row: Unsolved Puzzlesfor Courts and Legislatures (2004-2005) 54 Catholic U. L. Rev. 1169, 1189-1192; R. Garnett, Sectarian Reflections on Lawyers’ Ethics and Death Row Volunteers (2002) 77 Notre Dame L. Rev. 795, 801; W. White, Defendants Who Elect Execution (1986-1987) 48 U.Pitt. L. Rev. 853, 854-855.) In light ofthese realities, “it is ineffective assistance for counsel to simply acquiesce in those wishes, which usually reflect the distorting effects of overwhelming feelings of guilt and despair rather than a rational decision in favor of a state-assisted suicide.” (ABA Guidelines (2003), supra, 31 Hofstra L.Rev. at pp. 1009-1010 and fn. 186, Guideline 10.5 and Commentary; accord, e.g., ABA Guidelines (1989) Guidelines 11.4.1, 11.4.2, 11.6.3 and Commentary; Douglas v. Woodford (9th Cir. 2003) 316 F.3d 1079, 1089-1090; Comer v. Stewart (9th Cir. 2000) 215 F.3d 910, 914, fn. 2; Hardwick v. Crosby (11th Cir. 2003) 320 F.3d 1127, 1190, and authorities cited therein.) At a minimum,an attorney confronted with such a client must assure himself or herself that the client’s instructions are: (1) rational, by ensuring that the client is competent; and (2) informed, by conducting necessary investigation and fully and accurately advising the client of his or her options based upontheresults of such investigation. (See, e.g., ABA Guidelines (2003), supra, Guidelines 10.5 and 10.7 and 111 Commentary; ABA Guidelines (1989), Guidelines 11.4.1, 11.4.2, 11.6.2and Commentary; ABACriminal Justice Mental Health Standards (1989)Standard 7-4.2, subd. (c).) a. Defense Counsel Did Not Take PlausibleSteps to Ensure that Mr. Mai’s Decision wasa Competent and Rational OneAs fully discussed in Part F, ante, despite their reasonable andgenuine belief— repeatedly and emphatically €xpressed — that the federalconfinement conditions had had such a debilitating effect on Mr. Mai’smental state that he Was no longerable to assist in the Preparation ofhisdefense in a rational manner, counsel also insisted that competencyProceedings under section 1368 were unnecessary. constitutional and ethical duties. (See, e.g., Comer v. Stewart (9th Cir. 2000) 215 F.3d 910, 914, fn. 2, and authorities cited therein [attorneys were not obligated to accedein client’s death wish when they had doubt regarding his competency due to impact of confinement in “sensory deprivation unit”; “[i]f his attorneys followed [the defendant’s] current expressed desire, despite their apparently reasonable belief that he suffers from a mental disability, they would clearly violate the ethical rules governing their conduct”]; People v. Stanley, supra, 10 Cal.4th at pp. 804- 805, and authorities cited therein [in the face of substantial evidence of incompetence, an “attorney representing the defendant is required to advocate the position counsel perceives to be in the client’s best interests even whenthat interest conflicts with the client’s stated position”]; ABA Model Rules, Rule 1.14 [attorney should take protective action contrary to client’s wishes when “the lawyer reasonably believes that the client cannot adequately act in the client’s own interests”]; ABA Guidelines (2003), supra, 31 Hoftra L.Rev. at pp. 1009-1010, Commentary to Guideline 10.5; ABAGuidelines (1989), Guidelines 11.4.1, 11.4.2, 11.6.2 and Commentary; ABA Criminal Justice Mental Health Standards (1989) Standard 7-4.2, subd. (c); ABA Criminal Justice Mental Health Standards (1989) Standard 7-4.2, subd. (c).)” ™ See also United States v. Boigegrain (10th Cir. 1998) 155 F.3d 1181, 1188 [“if there were doubt of the defendant’s competence, counsel should not necessarily respect the client’s expressed desires”]; Thompsonv. Wainwright (11th Cir. 1986) 787 F.2d 1447, 1451 [defense counsel’s decision to accedein his client’s wishes not to investigate or present mitigating evidence “is especially disturbing in this case because [attorney] himself believed that [defendant] had mental difficulties”]; Brennan v. Blankenship (W.D. Va. 1979) 472 F.Supp. 149, 156 [“under any (continued...) 113 This is particularly true in death penalty cases in whichtheclient insists that he wants to be executed. “Due to the extraordinary and irrevocable nature of the [death] penalty, at every stage of the proceedings, counsel must make ‘extraordinary efforts on behalf of the accused.’” (ABA Guidelines (2003), supra, 31 Hofstra L. Rev. at p. 923, Commentary to Guideline 1.1, quoting from ABA Standards for Criminal Justice: Prosecution and Defense Function (3d ed. 1993) [hereafter “ABA Standards for Criminal Justice’’], Standard 4-1.2, subd. (c); accord, ABA Guidelines (1989), Guideline 1.1 and Commentary.) Hence, even a minimally competent attorney who doubts his or her client’s ability to makerational life and death decisions would not accede in the client’s death wish without at least demandingthe initiation of competency proceedings. Certainly, when an attorney doubts his client’s ability to make rational life and death decisions, movingfor the initiation of competency proceedingsis a “plausible” tactic to pursue, but which counsel in this case discarded. (See Part E-1, ante, and authorities cited therein.) b. Defense Counsel Did Not Take Plausible Steps to Ensure that Mr. Mai’s Decision was a Fully Informed One Therecord also provides compelling circumstantial evidencethat Messrs. Peters and O’Connell failed to ensure that Mr. Mai’s decision not 7™4(__.continued) professional standard, it is improper for counsel to blindly rely on the statement of a criminal client whose reasoning abilities are highly suspect”; Blancov. Singletary (11th Cir. 1991) 943 F.2d 1477, 1501-1502 [counsel provided constitutionally inadequate representation where “morose and irrational” defendant whose mental state was in question instructed counsel not to present mitigating evidence, and counsel simply acquiescedin that request; defense counsel’s independent duties to investigate and analyze are “even greater” where defendant is “noticeably moroseandirrational”). 114 to present mitigation was a fully informed one. Criminal defense attorneys have “the duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” (Stricklandv. Washington, supra, 466 U.S. at p. 691.) This includes the duty to investigate potentially relevant mitigating evidence. (See, e.g., Rompilla v. Beard (2005) 545 U.S. 374, 390-391 [counsel ineffective for failing to adequately investigate mitigating evidence]; Wiggins v. Smith (2003) 539 U.S. 510, 523-525 [same]; Williams v. Taylor (2000) 529 U.S. 362, 394.) Consistent with these principles, the ABA Guidelines in existence at the time oftrial unequivocally provided that “counsel’s duty to investigate is not negated by the expressed desires of a client.” (ABA Guidelines (1989), Guideline 11.4.1, Commentary; accord, ABA Guidelines (2003), supra, 31 Hofstra L.Rev. at p. 1015, Guideline 10.7, subd. (a)(2).) Hence, as numerous courts recognize, before acceding to even a competentclient’s wishes to forgo the presentation of mitigation, his or her attorney must investigate potential mitigating evidence and presentit to the client. (See, e.g., Douglas v. Woodford (9th Cir. 2003) 316 F.3d 1079, 1089-1090; Summerlin y. Schriro, supra, 427 F.3d at p. 638; Silvav. Woodford (9th Cir. 2002) 279 F.3d 825, 838; Battenfield v. Gibson (10th Cir. 2001) 236 F.3d 1215, 1227-1235; Blanco v. Singletary, supra, 943 F.2d at pp. 1500-1503; Hamblin v. Mitchell (6th Cir. 2003) 354 F.3d 482, 487, 492; Coleman v. Mitchell (6th Cir. 2001) 268 F.3d 419, 449-450; Matthew v. Evatt (4th Cir. 1997) 105 F.3d 907, 920; Weekly v. Jones (8th Cir. 1996) 76 F.3d 1459, 1466; see also, e.g., People v. Roldan, supra, 35 Cal.4th at p. 682 [“counsel’s decision to contact defendant’s family over his express wishes wasa tactical decision counsel wasentitled to make”as “captain of the ship’”].) Where — as here — defense counsel has reason to doubthis or 115 her client’s competencyorthe rationality of the client’s expressed desire not to present mitigating evidence, counsel has an even “greater obligation to investigate and analyze available mitigation evidence,’ rather than ‘latch[ing] onto [his client’s] statements that he [does] not want any witnesses called.” (Hardwick v. Crosby (11th Cir. 2003) 320 F.3d 1127, 1190; accord Blanco v. Singletary (11th Cir. 1991) 943 F.2d 1477, 1501- 1502.) Without conducting such investigation, the defendant cannot make a fully informed decision not to present mitigating evidence nor can counsel make an objectively reasonable decision to accede in the defendant’s wishes. (See, e.g., Douglas v. Woodford, supra, at p. 1090, and authorities cited therein; Hamblin v. Mitchell (6th Cir. 2003) 354 F.3d 482, 487, 492; Battenfield v. Gibson, supra, 236 F.3d at pp. 1227-1235.) Here, according to Mr. Peters and Dr. Thomas, Mr. Mai’s girlfriend of many years, Victoria Pham, told Dr. Thomas that Mr. Mai had been in a terrible, near fatal car accident, after which his behavior changed dramatically to become quite violent. (2 CT 501; 1 RT 170-171; 2 RT 231- 232.) In Dr. Thomas’s opinion, this evidence suggested the possibility of brain damage,potentially critical mitigating evidence that demanded investigation. (1 RT 170-171; 2 RT 231-232.) Dr. Thomas wasquite correct; brain injury is compelling, “classic mitigation evidence.” (Correll v. Ryan (9th Cir. 2006) 465 F.3d 1006, 1017; accord, Porter v. McCollum (2009) ___—aU:«S. -_, 130 S.Ct. 447, 454- 666455.) Indeed, evidence of brain damage and mental impairment ““‘not only can act in mitigation, it could also significantly weaken the aggravating factors.’ [Citation.]” (Middleton v. Dugger (11th Cir. 1988) 849 F.2d 491, 495; accord, e.g., Caro v. Woodford (9th Cir. 2002) 280 F.3d 1247, 1257; Simmons v. Luebbers (8th Cir. 2002) 299 F.3d 929, 939.) 116 According to Dr. Thomas, preliminary neuropsychologicaltesting was necessary in order to investigate this possible mitigation and, based on the results of that testing, an MRI or CAT scan mightalso be necessary. (2 CT 501; 1 RT 170-171; 2 RT 231-233.) The record demonstrates that Dr. Thomas wasthe only expert that Messrs. Peters and O’Connellretained in this case; howeverher itemized billing does not include neuropsychological testing or (obviously, due to her lack of qualification) an MRI or CATscan. ( 987.9 CT 117-118, 129-133, 153-188.) It is reasonable to infer from the absence of any evidence in the Penal Code section 987.9 materials that Dr. Thomas performed neuropsychologicaltesting or that counsel retained any other expert to conduct suchtesting or perform an MRI or CATscan that there simply is no such evidence — i.e., that defense counsel did not investigate the evidence suggestive of brain damage. (See, e.g., Burkle v. Burkle (2006) 141 Cal.App.4th 1029, 1036 [from absence of evidence of loan agreement, it was reasonable to infer that there was no such agreement].) Since objective standards of competence demandthat an attorney investigate such evidencein orderto ensurethathis client’s decision not to present mitigation is an informed andintelligent one, a fortiori such investigation was a “plausible alternative” to defense counsel’s failure to conduct such investigation in this case. (See Part E-1, ante, and authorities cited therein). Furthermore, and as will be discussed in ArgumentIV,post, evidence ofbrain trauma followed by a changein behavior,particularly whencoupled with irrational conduct before or duringtrial, is a classic warning sign that the defendant may be incompetentto standtrial. (See, e.g., Pate v. Robinson, supra, 383 U.S. at p. 378; Odle v. Woodford (9th Cir. 2001) 238 F.3d 1084, 1087-1089.) Hence, given its potential impact on 117 Mr. Mai’s cognitive functioning, investigation into the possibility of brain damage to ensure that Mr. Mai’s decision to effectively stipulate to the death penalty was a rational and competent one was a “plausible alternative” for defense counsel to take. (See Part E-1, and authorities cited therein) Cc. The Record Reveals Circumstantial Evidence that Defense Counsel Did Not Pursue the Plausible Alternative of Attempting to Persuade Mr. Mai to Change His Mind and Fight For his Life, but Rather Overstated the Hopelessness of His Case and Even Encouraged His Decision When a defendant expresses a desire to withhold the presentation of a penalty defense so as to receive a death verdict, among the “extraordinary efforts” counsel must makein a capital case is an effort to attempt to persuade the defendant to change his or her mind. (See ABA Guidelines (1989), Guidelines 11.4.1, 11.4.2, 11.6.2 11.6.3, and Commentary; ABA Guidelines (2003), supra, 31 Hofstra L. Rev. at p. 1009, Guidelines 10.9.2 and Commentary; Silva v. Woodford, supra, 279 F.3d at p. 847; Summerlin v. Schriro, supra, 427 F.3d at p. 631; Stankewitz v. Woodford (9th Cir. 2004) 365 F.3d 706, 721.) In so doing, counsel must be careful not to understate or overstate the risks, hazards, or prospects of the case. (ABA Standards for Criminal Justice (1993), Standard 4-5.1, subd. (b); accord, e.g., Harris ex rel. Ramseyer v. Blodgett (W.D. Wash. 1994) 853 F.Supp. 1239, 1262, affirmed by Harris ex rel. Ramseyer v.Wood (9th Cir. 1994) 64 F.3d 1432.) Here, while the appellate record does not revealthe full extent of the private communications between Messrs. Peters and O’Connell and Mr. Mai, the remarks defense counsel made on the record shed considerable 118 light on the advice they gave Mr. Mai and the efforts they made to convince him to fight for his life. (8 RT 1401.) First, as discussed in Part E-4, ante (and morefully in Arguments II and II], post), defense counsel represented to the state court that there was not “anything to say” to defend against the capital murder charge at the guilt phase. (1 RT 189-190.) Presumably, they gave the same counsel to Mr. Mai. Defense counsel expressed equally pessimistic views regarding the outcomeofthe penalty phase. In an early proceeding, Mr. Peters stated that “nobody would be fooled in thinking the odds of Mr. Maigetting the death penalty aren’t extremely high, because ofthe nature of the case.” (2 RT 323.) This was so even if they discovered and presented evidenceofbrain injury and its impact on Mr. Mai’s mental state. In discussing the needto investigate Mr. Mai’s head traumaforthe presence ofbrain injury, Mr. Peters stated, “I have never seen a case work with psychiatric testimony unless the client was a blithering idiot, and was so mentallyill that the prosecutor was goingforit. I testified in my own habeascorpus hearing in myfirst death penalty, Douglas, and they asked methe question, the issue about psychological, and I said, well, I have never seen a jury buy a psychological issue, they would only buy a psychological defense in a death case if the client was so mentally ill he couldn’t have committed the crime in the first place.” (2 RT 263.) Onstill another date before the commencementofthe penalty phase, Mr.Peters emphasized that Mr. Mai “has no illusions about what the outcome”ofthe penalty phase would be. (3 RT 473.) At another, Mr. Peters referred to this as a “death case with a high probability of a death verdict.” (5 RT 862.) At still another, immediately after the penalty phase jurors were sworn, Mr. Peters explained that Mr. Mai“is quite fatalistic, 119 [because] we know whatthe highest percentageis in this case, nobodyis fooling anybody... .” (6 RT 1081.) Indeed, Mr. Mai “knows what the outcomeis, he does and you do, we can’t be certain, but this kind of case, and the fact that we may put on no defense, is the evidence is overwhelming and awfully brutal, you know,ifwe just — if we can get throughthis.” (6 RT 1082.) Furthermore, defense counsel made a numberof statements indicating that they believed that Mr. Mai’s decision to die wastheright, moral and just course to take, which provides circumstantial evidence that they provided such counsel to Mr. Mai. Very early on in the proceedings, Mr. Peters informed the state court that he was aiding in Mr. Mai’s decision to sacrifice himself in order to help Ms. Pham because“I believeit is the right thing to do.” (1 RT 99.) Mr. Peters informed the state court that he had offered Mr. Mai’s plea to the state capital murder charge in exchange for the federal government’s recommendation to reduce Ms. Pham’s sentence: “Now I have control over that under [Penal Code section] 1018. I can stop that from happening as his counsel. I have not attempted to stop that, because I considerall I know about this case, and the hours I spent with Mr. Mai, I think he is doing the right thing under the circumstances. . . .’ (1 RT 100.) Similarly, he told the federal court: “I can affirm that also I have a statutory power in capital cases to keep [Mr. Mai] from pleading guilty and I have willingly waived that because I believe Mr. Mai is doing this plea for the right reasons, and I will be — at the time heentersthat plea, I’ll be waiving any objections I haveto his plea.” (2 CT 410.) Mr. Peters’s later remarks strongly suggested that the “right thing” did not refer to sometactical or strategic benefit, but rather referred to his own (purported) moral judgment. When judgmentand sentence were 120 imposed, Mr. Peters presented a rather bizarre narrative in which hestated, among other things, that the death penalty was just and right in this case and that Mr. Mai’s decision to die was an admirable one. Referring to Mr. Mai’s penalty phase testimony that death was the appropriate penalty in this case (see Part 3-c, post), Mr. Peters declared in open court: “I just want to say this on behalf of Mr. Mai, certainly his crime and background merit whereheis at, there is no question about that, and Mr. Mai lookedinto the eyes ofthejurors and told them that.” (8 RT 1491, italics added.)’> Mr. Peters went on to emphasize that Mr. Mai’s decision to waiveall rights and volunteer for execution was “not rash,” but rather was a “rational, mature decision on his part.” (8 RT 1493, italics added.) Mr. Peters closed by expressing his admiration for Mr. Mai, who “stood up, unlike any defendant in Orange County that I can think of, he stood up and said, I am good for this, and this is the appropriate penalty, and J just wanted to memorialize that to kind of balancethe picture, the mythological Henry Maithat sometimesis out there.” (8 RT 1493.) Thus, defense counsel’s remarks throughout the proceedings provide compelling circumstantial evidence of the advice and counsel they gave to Mr. Mai: there was no guilt phase defense and a death verdict wasvirtually a foregone conclusion no matter what mitigating evidence they might unearth and offer, while volunteering for death was “the right thing” and “certainly ... merit[ed]” based on “his crime and his background.” As will be demonstrated, even a minimally competent attorney would not have provided such counsel; certainly, withholding such counsel and attempting » Asdiscussed in Part 3-c, post, this statement referred to Mr. Mai’s penalty phase “testimony”that the jurors should return a death verdict. 121 to persuade Mr. Maito fight for his life was a “plausible alternative” to defense counsel’s course in this case. (See Part E-1, ante, and authorities cited therein.) Preliminarily, defense counsel’s remarks that their judgment was driven by their own moral considerations and that Mr. Mai’s decision to surrender to execution wasa “right” andjust one were completely at odds with their roles and duties as advocates. (Osborn v. Shillinger (10th Cir. 1988) 861 F.2d 612, 626 [counsel ineffective where, inter alia, he wrote letter after sentencing in which hestated “in essence,that his client deserved the death penalty”); United States v. Swanson (9th Cir. 1991) 943 F.2d 1070, 1074 [“an attorney who adopts and acts upona beliefthat his client should be convicted fails to function in any meaningful sense as the Government’s adversary”]; accord Frazer v. United States (9th Cir. 1994) 18 F.3d 778, 782-783].) Indeed, as the supreme court of one state has emphatically stated, “we cannot countenance or condonerepresentation of a defendant by an attorney whohasstated in a public document [or forum] that his client is a ‘prime candidate for the death penalty.” ... An attorney is not justified in asserting that his client deserves the death penalty, even if his client desires to have thatpenalty imposed.” (State v.Holland ( Utah 1994) 876 P.2d 357, 358-361 & fn.3, italics added.) Furthermore, much of the advice Messrs. Peters and O’Connell offered Mr. Mai was simply incorrect or misleading. As discussed in Part E-4, ante (and more fully in Arguments IJ and III, post), and contrary to defense counsel’s representation, there certainly was something “to say” in responseto the sole special circumstance allegation rendering Mr. Mai eligible for a death verdict: the evidence wasinsufficient to prove it beyond a reasonable doubt. 122 Similarly, the nature of the special circumstancealonedid not, contrary to counsel’s remarks, make a death verdictvirtually a foregone conclusion. (See, e.g., People v. Gonzalez (2005) 34 Cal.4th 1111 [jury rejected death penalty in favor of life for defendant convicted of first degree murder of one peace officer with peace-officer murder special circumstance, as well as attempted premeditated murder of second peace officer]; People v. Johnson (1993) 114 Cal.App.4th 778, 785 [of three defendants convicted of murderofpeaceofficer, jury rejected death penalty in favorof life for one andtrial court modified jury’s death verdict and reducedto a life sentence for another]; People v. Noble (1981) 126 Cal.App.3d 1011, 1012-1013, 1015 [jury rejected death in favoroflife for defendant convicted of murder of peace officer with special circumstance]; Al-Amin v. State (Ga. 2004) 597 S.E.2d 332, 330 [jury rejected death in favor oflife for defendant convicted of killing police officer]; see also People v. Vasquez (Cal.App. 1st Dist., Jan. I, 2006, No. A102559) 2006 WL 226759 [jury hung at penalty and court imposedlife]; People v. Ferris (Cal. App. 4th Dist., Nov. 14, 2002, No. E030349) 2002 WL 31520553 [two juries deadlocked at penalty phase for defendant convicted of murdering peace officer, who had previously been convicted of another first-degree murder, prompting prosecution to abandon pursuit of death penalty].)”° 7° Mr. Maiis aware that unpublished decisions maynotberelied upon as legal authority. (Cal. Rules of Court, rule 8.1115.) Hecites the above unpublished decisions not as legal authority, or as proof of the underlying facts discussed therein. Ratherhe cites those cases simply to reflect the evidence presented and verdicts rendered in them. Judicial notice of those decisions for these purposes under Evidence Codesections 452 and 459 is appropriate and a motion for judicial notice accompanies this brief. (continued...) 123 Nor was Mr. Mai’s criminal history or the circumstancesofthe crime so aggravating that they made a death verdict a forgone conclusion. (See, e.g., Williams v. Taylor, supra, 529 U.S. at p. 418, dis. opn. of Rehnquist, J. [emphasizing that majority reversed for counsel’s failure to investigate and present mitigating evidence under Strickland standard despite extensive aggravating evidence that appellant had “savagely beaten an elderly woman,stolen twocars,set fire to a home, stabbed a man during a robbery, and confessed to choking two inmates and breaking a prisoner’s jaw”]; People v. Sturm (2006) 37 Cal.4th 1218, 1244 [penalty phase errors required reversal despite fact defendant murderedthree friends, after he bound them and even as they “cried or begged for mercy,” in order to rob store in which they worked; “although the crime committed was undeniably heinous, a death sentence in this case was by no meansa foregone conclusion”); In re Lucas (2004) 33 Cal.4th 682, 735 [death not forgone conclusion despite aggravating evidence based on crimes in which defendant “brutal[ly]” killed two elderly and “vulnerable” neighbors in their home, and on defendant’s violent criminal history]; Douglas v. Woodford, supra, 316 F.3d at pp. 1082-1084, 1091 [death penalty not unavoidable for defendant who committed sexual offenses against two teenagegirls before eventually murdering them and attemptedtosolicit additional similar crimes, and who hadviolent criminal history that included other sex offenses andsolicitation to kill]; Mayfield v. Woodford (9th Cir. 2001) 270 F.3d 915, 918-919, 929-932 [death not forgone conclusion despite “strong” 76(...continued) (See, e.g., People v. Hill, supra, 17 Cal.4th at pp. 847 848 & fn.9 [it is entirely appropriate to take judicial notice of unpublished opinions in unrelated cases, without violating prohibition against citing unpublished opinions as precedent or legal authority].) 124 aggravating evidence based on current crimes in which defendantcarefully planned and committed murders of three people in two separate incidents, and on defendant’s prior violent assaults]; Mak v. Blodgett (9th Cir. 1992) 970 F.2d 614, 619-622 [same — despite defendant having been convicted of thirteen counts of aggravated first-degree murder].) To the contrary, while there is no question that the murder was a tragedy for the victim and his family, the circumstances of the crimeitself were notparticularly aggravating above and beyondthe nature of the special circumstance. According to the prosecution’s own evidence, the crime wasnot pre-planned, but rather the spontaneousresult of a moment of panic born of Mr. Mai’s (mistaken) belief that if he were arrested, he would be convicted as a third strike offender and imprisonedfor the rest of his life. (2 Muni RT 278-284;see, e.g., Belmontes v. Woodford (9th Cir. 2003) 350 F.3d 861, 906-907 [fact that murder was not pre-planned waspart of “substantial mitigating evidence” that could have persuaded jury to reject death penalty]; Jackson v. Herring (11th Cir. 1995) 42 F.3d 1350, 1369 {circumstances of crime were not especially aggravating as compared to “many death penalty cases (which) involve murdersthat are carefully planned or accompanied bytorture, rape, or kidnapping”].) Thus, contrary to defense counsel’s remarks — and presumably his advice to Mr. Mai — the state’s case for death was not “so overwhelming” (2 RT 224) or so “awfully brutal” (6 RT 1082) that “nobody would be fooled in thinking the odds of Mr. Maigetting the death penalty aren’t extremely high” (2 RT 323), or that Mr. Mai should have been left with “noillusions” that the “outcome”ofthe trial (3 RT 473) would be anything other than a death verdict. Nor wasit true that penalty phase juries are not responsive to evidence of mental impairment caused by brain injury “unless the client[is] 125 a blithering idiot,” as Mr. Peters represented, or — as he had “testified in my own habeas corpushearing in myfirst death penalty, Douglas” — that juries don’t “buy a psychological issue, they would only buy a psychological defense in a death case if the client was so mentally ill he couldn’t have committed the crimein the first place.” (2 RT 263.) More than little ironically, in the “Douglas” case to which Mr. Peters referred, Mr. Peters was found to have provided ineffective assistance of counsel for failing to investigate and present mitigating evidence, including a serious head injury from an automobile accident, brain damage and a social history. (Douglas v. Woodford, supra, 316 F.3d at pp. 1088-1091.) In truth, evidence of brain damage and mental impairment“is exactly the kind of evidence that garners the most sympathy from jurors.” (Smith v. Mullin (10th Cir. 2004) 379 F.3d 919, 942-943, and authorities cited therein.) Indeed, it “not only can act in mitigation, it could also significantly weaken the aggravating factors.’ [Citation.]” (Middletonv. Dugger, supra, 849 F.2d at p. 495; accord, e.g., Caro v. Woodford (9th Cir. 2002) 280 F.3d 1247, 1257; Simmons v. Luebbers (8th Cir. 2002) 299 F.3d 929, 939.) In sum, the record provides substantial circumstantial evidence that defense counsel overstated the hopelessness of Mr. Mai’s case and even encouraged his decision to die on moral grounds, rather than pursuing the “plausible alternative tactic” of attempting to change his mind and convince him to fight for his life. (See Part E-1, ante.) 126 3. There Were Plausible Alternatives to Defense Counsel’s Own Decision to Forgo Any Penalty Phase Defense and Effectively Stipulate to the Death Penalty “When a defendant exercises his or her constitutional rightto representation by professional counsel, it is counsel who‘is in charge of the case’ and the defendant ‘surrendersall but a handful of “fundamental” personalrights to counsel’s complete control of defense strategies and tactics.’” (dn re Barnett (2000) 31 Cal.4th 466, 472,italics added, quoting from People v. Hamilton (1989) 48 Cal.3d 1142, 1163, and authorities cited therein; accord People v. Cook (2007) 40 Cal.4th 1334, 1343 [“‘counsel, as ‘captain of the ship,’ maintains complete control over defense tactics and strategies, except that the defendant retains a few “fundamental personal rights]; New York v. Hill (2000) 528 U.S. 110, 114-115 [an attorney has full authority to manage the conduct ofthetrial without obtainingclient’s approval]; Taylor v. Illinois (1988) 484 U.S. 400, 417-418 [same]; Jonesv. Barnes (1983) 463 U.S. 745, 751-752 [while client controls certain limited fundamental personal rights, counsel otherwise controls the case, even when contrary to client’s wishes]; ABA Standards for CriminalJustice, supra, Standard 4-5.2.) Absent those limited, personal rights that the client controls, counsel has no duty “to abide by the wishes ofhis client... . Indeed, in some instances,listening to the client rather than to the dictates of professional judgment mayitself constitute incompetence.” (United States v. McGill (ist Cir. 1992) 11 F.3d 223, 226-227, cited with approval in New Yorkv. Hill, supra, 528 U.S. at p. 115.) Thus, as “captain of the ship” (Peoplev. Roldan, supra, 35 Cal.4th at p. 682), counsel has the powerto pursue strategies that are inconsistent with the client’s wishes or even with the 127 client’s testimony. (See, e.g., Jones v. Barnes, supra, 463 U.S. at pp. 751- 752; People v. Welch (1999) 20 Cal.4th 701, 725-729; People v. McPeters (1992) 2 Cal.4th 1148, 1186-1187; Townsend v. Superior Court (1975) 15 Cal.3d 774, 781; People v. Williams (1970) 2 Cal.3d 894, 905; Silva v. Woodford, supra, 279 F.3d at p. 847; United States v. McGill, supra, 11 F.3d at pp. 226-227.) Consistent with these principles, while this Court has held that defense counsel may not be required to present mitigation overhis or her competentclient’s objections (see, e.g., People v. Lang (1989) 49 Cal.3d 991, 1031), it has also held that counsel has the power to do so (People v. Deere (1985) 41 Cal.3d 353, 364-365; accord People v. Roldan, supra, 35 Cal.4th at pp. 678, 682, 722-723; People v. Welch, supra, 20 Cal.4th at pp. 727-728). Other courts are in accord. (See, e.g., Duvall v. Reynolds (10th Cir. 1998) 139 F.3d 768, 780 [“the ultimate decision to introduce mitigating evidence (other than the defendant’s own testimony) is vested in the defendant’s trial counsel”]; accord Douglas v. Woodford, supra, 316 F.3d at p. 1089; Brecheen v. Reynolds (10th Cir. 1994) 41 F.3d 1343, 1368-1369.) Indeed,this principle is consistent with the very text of the Sixth Amendment, which “requires not merely the provision ofcounselto the accused, but ‘Assistance’ whichis to be ‘for his defence.’” (United States v. Cronic, supra, 466 U.S. at p. 654, quoting text of Sixth Amendment, italics added.) Pursuant to these principles, even if defense counsel had attempted to persuade Mr. Mai to change his mind about foregoing a penalty phase defense and were unsuccessful, they still had the powerto override his wishesand present a penalty phase defense, particularly given their repeatedly expressed doubts overhis ability to makerationallife and death 128 decisions. Importantly, defense counsel recognized that they hadthis power. (2 RT 241; 8 RT 1399-1400.) Indeed, Mr. Peters has exercised that powerin at least one other case in which he had no competing personal interests impelling him to do otherwise. (Douglas v. Woodford, supra, 316 F.3d at pp. 1087-1089 [finding Mr. Peters had rendered ineffective assistance of counsel in failing to investigate and present certain mitigating evidence, which could not be excused basedon his client’s instructions not to present mitigation since Mr. Peters had already “disregardedhis client’s wishes and did put on what mitigating evidence he had unearthed” and further disregardedhis client’s instructions not to present closing argument].) Thus, while lead defense counsel, Mr. Peters, has pursued the “plausible alternative” of disregarding a client’s wishes and presenting a penalty phase defense with mitigating evidencein at least one other case, defense counsel discardedthat “plausible alternative” in this case. (See Part E-1, ante, and authorities cited therein.) Of course, in this case, that “plausible alternative” was “inherently in conflict” with their own compelling interests to avoid the risks to their liberty, livelihood, and reputation, as well as the the ethical dilemmas,that presenting a defense with mitigating evidence would have posed. (See Parts C , E-1, and G-1, ante, and authorities cited therein) a. Defense Counsel Discarded the Plausible Alternative of Presenting Available Mitigating Evidence The face of the record reveals mitigating evidence that Mr. Mai’s defense counsel had the powerto present, but chose not to present. As the trial court recognized, Mr. Mai had family andfriends, including his father and uncle who had flown in from Vietnam, present in the courtroom and 129 available to testify on his behalf. (8 RT 1488; see also 5 RT 861-862.) Indeed, defense counsel characterized them as “essential, material and ‘relevant witnesses” (2 RT 327) who “played a significant role in [Mr. Mai’s childhood] escape from Vietnam ....” (5 RT 861.) According to Mr. Peters’s, Mr. Mai’s childhood was quite traumatic. (2 RT 221, 224; see also 3 CT 1049 [probation report].) His father was a soldier with the South Vietnamese Army and his mother wasa “bargirl” who abandoned him as a young child. (3 CT 1049, 1065-1066; 2 RT 219- 222, 227.) Mr. Mai’s illegitimate birth was a “big shame”to his father’s family. (3 CT 1049, 1065-1066.) His early years were thus spent in a war- torn country, abandoned by both parents, and a shameto his family. Saigon fell when Mr. Mai was only four years old, forcing him to flee Vietnam by boat in the company of his 72-year-old paternal grandmother, who did not speak English. (2 RT 219-222, 225; 3 CT 1049.) After fleeing Vietnam, Mr. Mai did not see or communicate with his father again until the time of his capital murdertrial; he never saw or communicated with his mother again. (2 RT 221; 5 RT 858.) In the United States, Mr. Mai lived with his paternal aunt and her husband, who — according to Mr. Peters — “brutally beat[]” Mr. Mai. (3 CT 1049, 1065-1066.) In 1986, a child abuse report wasfiled with Orange County Social Services after Mr. Mai reported that his uncle had beaten him. (CT 1065-1066.) Unfortunately, the agency determined that there was “insufficient information to warrant child abuse investigation.” (3 CT 1065-1066.) However, according to the juvenile history detailed in the probation report, an officer noted in 1990 that Mr. Mai had darkcircles under his eyes, burn marks on his hands, and was “extremely thin.” (3 CT 1054.) In 1991, another officer noted that he “continue[d] to have the 130 appearance of a malnourished cadaver.” (3 CT 1054.)” Certainly, all of this evidence regarding the cultural implications of Mr. Mai’s illegitimate birth to a “bar girl” in Vietnam,his flight from Vietnam without his parents and under extreme circumstances as a young child, and his abusive and traumatic childhood would have been highly relevant evidence in mitigation. (See Eddings v. Oklahoma (1982) 455 U.S. 104, 114 [there can be no doubtthat a turbulent family history, of beatings by a harsh father, and of severe emotional disturbanceis particularly relevant” mitigation]; accord, Wiggins v. Smith (2003) 539 U.S. 510, 534; Williams v. Taylor (2000) 529 U.S. 363, 397-398; In re Lucas (2004) 33 Cal.4th 682, 734 [“childhood abandonment”and abuseis “forceful” mitigation]; Jackson v. Calderon (9th Cir. 2000) 211 F.3d 1148, 1163; Mak v. Blodgett (9th Cir. 1992) 970 F.2d 614, 619 [cultural expert testimony regarding difficulty of children immigrants assimilating to life in United States is constitutionally relevant mitigating evidence]; Tran v. Borg (9th Cir. 1990) 917 F.2d 566 [California jurors who heard evidence regarding violence of war-time life in Vietnam, defendant’s escape from Vietnam, “and psychological trauma and adjustment problemsfacing the Vietnamese,” rejected death penalty in favor of life without parole for defendant convicted offirst degree murder with special circumstances despite aggravating evidencethat included prior manslaughter conviction, prior homicide, and prior robbery];”* cf. United States v. Vue (D. Neb. 1994) ™ While the officers “suspect[ed]” that Mr. Mai’s appearance was due to drug use (3 CT 1054), it was equally consistent with signs of abuse and neglect. 8 Tran v. Borg, supra, is an unpublished decision. However, Mr. (continued...) 131 865 F.Supp. 1353, 1359-1360 [in non-capital case, sentencing court found as significantly mitigating the defendants’ status as war refugees, who were “driven from their homeland” because they had engaged in military service to our country and its “democratic ideals”’].) Furthermore, there was mitigating evidence of Mr. Mai’s remorse. (Pen. Code, § 190.3, subd. (k).) According to Mr. Peters, Mr. Mai apologized to the Burt family during the federal sentencing proceeding — when hehad nothingat all to gain from such an expression of remorse. (2 RT 230.) Certainly, Mr. Mai accepted responsibility for his crime. Indeed, as defense counsel characterizedit to the trial court, Mr. Mai’s plea to the capital murder charge laid the foundation for a “my client doing the right thing defense”at the penalty phase. (2 RT 257; see also 1 RT 190.)” And the trial court recognized in this regard that Mr. Mai “surely spared the victim’s family some delay in the process and someofthe ordealoftrial, and to that extent are mitigating factors.” (8 RT 1488.) Yet the jurors 78(...continued) Mai doesnotcite it as precedentor legal authority. (See Cal. Rules of Court, rule 8.1115.) Nor does hecite it for purposes ofproving the truth of the facts therein. Rather, it is relevant only insofaras to reflect the evidence presented in that case and the verdict reached; accordingly, a motion for judicial notice of that decision for this purpose under Evidence Code sections 452 and 459 accompaniesthis brief. (People v. Hill, supra, 17 Cal.4th at pp. 847 848 & fn. 9 [it is entirely appropriate to take judicial notice of unpublished opinions in unrelated cases, without violating prohibition against citing unpublished opinions as precedentor legal authority].) ” In addition, as discussed in the preceding section, there was potentially vital mitigating evidence — the strong possibility of brain trauma which profoundly affected his impulse control and aggression — that defense counsel did not investigate. 132 never learned, through evidence, instructions, or argument, that Mr. Mai’s guilt had been established byplea. Messrs. Peters and O’Connell could have presentedall of this evidence to the penalty jurors even over Mr. Mai’s objections, but chose not to do so. Particularly given the serious questions regarding the rationality and informed nature of Mr. Mai’s instructions to effectively stipulate to a death verdict, presentation of the available mitigating evidence — even over Mr. Mai’s objections — was a “plausible alternative” to the course they chose. (See, e.g., Douglas v. Woodford, supra, 316 F.3d at pp. 1087-1089 People v. Roldan, supra, 35 Cal.4th at pp. 678, 682, 722-723; Comerv. Stewart, supra, 215 F.3d at p. 914, fn. 2, and authorities cited therein; Thompson v. Wainwright, supra, 787 F.2d at p. 1451.) b. Defense Counsel Discarded the Plausible Alternative of Challenging the Prosecution’s Aggravating Evidence Aspreviously discussed, defense failed to make any meaningful challenge to the prosecution’s aggravating evidence. They conducted virtually no cross-examination of the penalty phase witnesses, made only two minor evidentiary objections, and otherwise left the prosecution’s aggravating evidence unchallenged.*® Indeed, they “agreed to a number of ®° Defense counsel only subjected four of the prosecution’s twenty- two penalty phase witnesses to very minimal cross-examination: (1) from Benjamin Baldauf, defense counselelicited only that Mr. Mai seemed scared during the shooting of Officer Burt (6 RT 1114-1115); (2) from Michael Lyman, defense counselelicited that he hadinitially identified someoneelse as the driver of the BMW (6 RT 1163-1167); (3) from Robert Bachand — the witness whosetestimony so agitated Mr. Maithat he upended the counsel table to which he was shackled — defense counsel elicited that he had seen Mr. Mai on the newsbefore identifying him as one (continued...) 133 - stipulations,” which included “all the foundation for the D.N.A. .. . also for fingerprints, D.N.A., chain of evidence for D.N.A.,” and Mr. Mai’s prior felony convictions. (2 RT 247, 252-253).®! The face of the record reveals that Messrs. Peters and O’Connell had evidence with which to dispute at least one of the prosecution’s prior acts of violence offered in aggravation — the alleged carjacking and kidnapping of the Honda salesman, Robert Bachand. (7 RT 1323-1337.) As his outbursts during that witness’s testimony clearly demonstrated, Mr. Mai vehemently denied that he had committed those prior criminal acts. (7 RT 1325-1331.) Mr. Peters later represented to thetrial court, “I knew from my own investigation that Mr. Mai was not good for that... .” (8 RT 1489.) Yet, 8°. .continued) of the men whohad carjacked him in a prior incident (7 RT 1340-1341); and (4) from Aryan Neghat, defense counselelicited that he had not seen Mr. Mai in any news coveragebefore identifying him (7 RT 1349). Otherwise, defense counsel did not cross-examine any ofthe prosecution’s other 18 penalty phase witnesses. (See 6 RT 1139, 1155, 1180, 1188, 1196; 7 RT 1213, 1224, 1230, 1241, 1255, 1263, 1284, 1289, 1307, 1323, 1358, 1361, 1370.) Similarly, defense counsel made only two minor objectionsattrial: (1) to two autopsy photographs, on the ground that they were cumulative of other such photographs, which the court overruled (7 RT 1267-1268; see also 2 RT 297); and (2) a motion for mistrial (having made no objection before or during the testimony) based on the testimony of a Secret Service agent connecting Mr. Maito a national fraud scam, on the groundthatit wasnot included in the prosecution’s notice of aggravation, which the court denied (7 RT 1309). 8 While counsel and the prosecutor referred to these as “stipulations,” no formal stipulations were madeor read to the jurors. Instead, defense counsel simply declined to challenge any ofthe prosecution’s evidence. 134 Mr. Peters never presented the exculpatory evidence his “own investigation” had unearthed. Once again, presenting this evidence and subjecting the prosecution’s aggravating evidence to meaningful adversarial testing was a “plausible alternative,” particularly given defense counsel’s doubts over the rationality of Mr. Mai’s decision to effectively stipulate to the death penalty. (See, e.g., Stankewitz v. Woodford, supra, 365 F.3d at pp. 720-723 [counsel’s failure to present available evidence to dispute or rebut prosecution’s aggravating evidence regardingprior criminalact fell below objective standard of reasonably competent assistance]; cf. United States v. Cronic, supra, 466 U.S. at p. 659 [whentrial is held, counsel must subject state’s case to meaningful adversarialtesting].) Cc. Defense Counsel Discarded the Plausible Alternatives of Objecting to Mr. Mai’s Request to Testify that Death Was the Appropriate Penalty in this Case and Pleading for His Life in Closing Argument Aspreviously mentioned, defense counsel and Mr. Mai informed the trial court that Mr. Mai wishedto testify that death was the appropriate penalty and requested that he be permitted to do so. (8 RT 1399, 1401.) Furthermore, Mr. Mai instructed counselnot to present closing argument and threatened to “act out” in front of the jury verbally or “turn tables over or do something to indicate his displeasure with my taking a position contrary to him, he being myclient.” (RT 1399, 1402-1403.) Mr. Peters acknowledged that he had the powerto present closing argument even over Mr. Mai’s objections. (8 RT 1399-1400; see, e.g., Bell v. Cone (2002) 535 U.S. 685, 701-702 [presentation of closing argumentis tactical matter controlled by counsel]; People v. Roldan, supra, 35 Cal.4th at pp. 679-682, 685; People v. Welch, supra, 20 Cal.4th at pp. 725, 754; People v. 135 in suicides,” jt granted the request, reasoning that Mr. Mai had “the right totake the stand and talk to the Jurors.” (8 RT 1401.) Hence, defense counsel’s only remarksto the penalty phase Jurors Before | Start, I would like to Say that I did request for my lawyers not to Say anything on my behalf, and J appreciateat. J mylife. Personally, I believe in an eye for an eye. I believe in two eyes for every eye. If you were to take down one of my fellows, I would do everything that is necessary to take downat least two of yours, just to be even. In this penalty phase trial, the prosecutor, Mr. Jacobs, is seeking the maximum penalty, which weall know is death. I personally feel that the maximum penalty is properly suited for this occasion. I also feel that it is the right thing, for you, the jurors, to do so. Being in mysituation now I feel it is only fair, there’s a price to pay for everything in life, now that I am hereit’s time I pay that price. Because,afterall of this entire ordeal, it is just part of the game. That’s all I haveto say, your honor. (8 RT 1409-1410.) Following Mr. Mai’s statementto the jurors, the prosecutor presented his summation. His closing words poundedthe final nail in Mr. Mai’s coffin: “Mr. Maitestified and told you what he expects from you and whathe believes he deserves. I don’t see a reason to disappoint him onthis point... . the death penalty is the only appropriate verdict.” (8 RT 1424.) Counsel made no objection to the prosecutor’s argument. The jurors agreed with the prosecutor; they returned the death verdict a mere 50 minutesafter retiring to commencetheir “deliberations.” (3 CT 867-868.) There were “plausible alternatives” to defense counsel’s presentation of Mr. Mai’s statement that death was the appropriate penalty in this case. As more fully discussed in ArgumentV, post, which is incorporated by reference herein, while the court and counsel were certainly correct that Mr. Maihadtherightto testify (8 RT1301; see also 7 RT 1376), they were absolutely incorrect that he had the “right” to “testify” that death was the appropriate penalty in this case. (8 RT 1401; see also 7 RT 1376.) The right to testify is not absolute but rather encompassesonly “the right to present relevant testimony.” (Rock v. Arkansas (1987) 483 U.S. 44, 137 51-53, 55, italics added; see also, e.g., People v. Lancaster (2007) 41 Cal.4th 50, 101-102 [trial court properly precluded defendant from testifying to irrelevant matter at penalty phase withoutviolating his constitutional right to testify]; People v. Alcala (1992) 4 Cal.4th 742, 806- 807 [same].) This Court and the United States Supreme Court have consistently condemned witness opinion testimony that death is the appropriate punishment, as well as most testimonythat life is the appropriate punishment, as constitutionally irrelevant and inadmissibleat the penalty phase ofa capital trial. (Booth v. Maryland (1987) 482 U.S. 496, 502-503; People v. Smith (2005) 30 Cal.4th 581, 622-62, and authorities cited therein; People v. Danielson (1992) 3 Cal.4th 691, 715 [“a defendant’s opinion regarding the appropriate penalty the jury should impose usually would be irrelevant to the jury’s penalty decision”].) Thus, objecting to Mr. Mai’s testimonyas irrelevant and inadmissible (see, e.g., United States v. Pierce (Sth Cir. 1992) 959 F.2d 1297, 1304 & fn. 13 [rejecting argument that defense counsel’s refusal to allow client to testify to irrelevant matter amounted to ineffective assistance]) or, at the very least, refusing to join in his request (see,e.g., People v. Klvana (1993) 11 Cal.App.4th 1679, 1713-1718 [it was entirely appropriate for defense counsel to refuse to join in defendant’s request to testify to certain matters on the groundthat it was against counsel’s advice to testify because it would not be in client’s best interest and his testimony could contradict defense witnesses, which resulted in trial court’s refusal to allow testimony]) were “plausible alternatives” to the course defense counsel chose. Similarly, there were “plausible” alternatives to counsel’s decision to withhold any argument in favor of sparing Mr. Mai’s life. While it is true 138 that defense counsel’s own choicesleft them little to argue, they could have made a simple plea of mercy for their client’s life “grounded primarily on notions of humanity, moral conscience, mercy and forgiveness,” and pointed to his acceptance of responsibility for the crime. (Campbell v. Kincheloe (9th Cir. 1987) 829 F.3d 1453, 1460;see, e.g., Darden v. Wainwright (1986) 477 U.S. 168, 186-187 [where no mitigation was presented, counsel reasonably made simple plea for mercy].) It is also true that Mr. Mai threatened to “act out” if his counsel presented closing argument pleadingfor his life. (RT 1399-1400.) It is not true, however, that the court and counsel had to be held hostage to that threat. Indeed, the court had removed Mr. Mai from the courtroom on prior occasionsfor his disturbances and had repeatedly threatened to do so if he disrupted further proceedings. (See, e.g., 2 RT 345, 349; 6 RT 1082-1083; 7 RT 1331.) No doubt if Mr. Mai had threatened to disrupt the prosecutor’s plea for his death, the court would have made good onits promise to remove him from the courtroom. (See, e.g., [/linois v. Allen (1970) 397 U.S. 337, 343 [defendant’s disruptive behavior can waive his constitutional right to be personally present duringtrial]; accord People v. Majors (1998) 18 Cal.4th 385, 413-415, and authorities cited therein [trial court may order removal of capital defendant from penalty phase based onhis threats to disrupt the proceedings].) It is profoundly troubling that the court declined to do so when Mr. Mai threatened to disrupt a plea for his very /ife. In any event, the issue here is whether defense counsel had plausible alternatives to withholding a plea for their client’s life in the face of Mr. Mai’s threat to “act out” and the answeris clearly yes. (Douglas v. Woodford, supra, 316 F.3d at pp. 1087-1088; see also State v. Morton (N.J. 1998) 715 A.2d 228, 255, 258-259 [where capital defendant opposed presentation of mitigating 139 evidence and “threatened to react in a disorderly and violent fashion to the presentation of mitigating evidence,” it was within counsel’s authority to request client’s absence from courtroom during presentation of mitigation]; McGregor v. Gibson (10th Cir. 2001) 248 F.3d 946, 961 [court removed capital murder defendant after defense counselnotified the court that defendant had threatened to disrupt reading of guilt phase verdict with a statement that “will absolutely kill him, literally and figuratively”].) 4. Conclusion In sum, in expressing a desire for execution, Mr. Mai was not necessarily an unusualcapital client. It is not uncommonfor capital murder defendants insist that they want to be executed and therefore the law and ethical cannons provide guidelines for attorneys in how to respond to such clients. What was unusual was defense counsel’s response to Mr. Mai’s expressed desire to be executed. Despite their profound misgivings regarding Mr. Mai’s competence to make such a decision, both direct and circumstantial evidence demonstrate that defense counsel discarded the “plausible alternatives”of: (1) moving for the initiation of competency proceedings; (2) investigating evidence that was potentially vital not only as mitigation, but also as bearing upon Mr. Mai’s ability to make a competent, rational and fully informed decision to effectively stipulate to a death verdict; (3) making any meaningful attempt to persuade Mr. Maito fight for his life in favor of giving him misleading and inappropriate advice that there was no defense to the sole special circumstance rendering him eligible for the death penalty, that a death verdict was virtually a foregone conclusion no matter what evidence they might unearth and offer, and that his decision to submit to execution wasthe “right” and admirable “thing to do;” and, ultimately, (4) 140 overriding their questionably competent client’s death wish by presenting a penalty phase defense with mitigating evidence in favorof effectively stipulating to a death verdict. Furthermore, while Mr. Mai’s defense counsel may not have been requiredto override his instructions to effectively stipulate to the death penalty, they certainly had the powerto pursue the “plausible alternative” of fighting forhis life by presenting a penalty phase defense with mitigating evidence. Forall of the reasons discussed in Parts C and G-1, that “plausible alternative” was “inherently in conflict” with defense counsel’s personalinterests to avoid an adversarial penalty phasetrial that would pose severerisks to their ownliberty, livelihood, and reputation and could create insurmountable ethical dilemmas. Given the serious conflicts under which Mr. Mai’s defense counsel labored, combined with their consistently expressed doubts over Mr. Mai’s ability to make rational life and death decisions, this Court cannot be confident that Messrs. Peters and O’Connell’s highly unusual decision to accede in their client’s death wish wasthe sole result of their disinterested, independent professional judgment, and not influencedby their instinctive desire for self- preservation. (See W. White, Defendants Who Elect Execution (1987) 48 Univ.Pitt. L. Rev. 853, 861 [among interviewed capital defense attorneys, some acknowledged the ethical dilemma posed when client wants death penalty, but “not one indicated that he could imagine a case in which he would voluntarily allow a capital defendant to submit to execution.”].) The record provides ample basis from which to conclude that counsel’s conflicting interests influenced, and thus adversely affected, their performance and they thereby labored under “actual conflicts” of interest in violation of the state and federal constitutions. (Part E-1, ante, and 141 authorities cited therein). H. The Judgment Must Be Reversed For over 20 years, it was fairly well accepted under both state and federal law that when any conflict of interest adversely affected defense counsel’s performance, it amounted to an actual conflict in violation of the state and federal constitutions, prejudice was presumed(the so-called “Sullivan limited presumption”), and the judgment could not stand. (See, e.g., Mickens v. Taylor, supra, 535 U.S.at p. 174, and authorities cited therein [noting federal appellate courts had largely accepted that the Sullivan limited presumption applied to “all kinds of alleged attorney ethical conflicts”); People v. Hardy, supra, 2 Cal.4th at pp. 135-136; People v. Bonin, supra, 47 Cal.3d at p. 843.) As the United States Supreme Court explained in Sullivan, presuming prejudice when a conflict adversely affects counsel’s performancereflects the Court’s “refus[al] ‘to indulge in nice calculations as to the amountofprejudice’attributable to the conflict. The conflict itself demonstrate[s] a denial of the ‘right to have the effective assistance of counsel.’” (Cuyler v. Sullivan, 446 U.S. at p. 349, quoting Glasser v. United States, supra, at p. 76.) Moreover, this “fairly rigid rule of presumed prejudice for [actual] conflicts of interest” is reasonable given the duties of counsel to avoid, and the trial court to prevent, conflicts of interest that adversely affect counsel’s performance. (Stricklandv. Washington, supra, 466 U.S. at p. 692; see also Part H, post, and authorities cited therein.) A series of recent decisions, however, has raised a question as to whetherall “actual conflicts” triggers the Sudlivan limited presumption of prejudice, whether that presumptionis limited to certain types of actual conflicts and, if so, what types. As will be demonstrated below, where, as 142 here, a plausible allegation has been madethat an attorney is complicit in his client’s crimes, or may be subject to investigation by the same agency that is prosecuting the client, and the conflict adversely affects counsel’s performance throughout the proceedings — from the pre-trial and plea through the sentencing stages — the Sullivan limited presumption of prejudice is warranted. 1. Mickens y. Taylor and this Court’s Interpretation and Application of the Federal Constitutional Standard in People v. Rundle In Mickens v. Taylor, supra, 535 U.S. 162, the question before the high court was whethera trial court’s failure to inquire into a potential conflict of interest, of which the trial court was or should have been aware but to which defense counsel made no objection, requires automatic reversal without the need to demonstrate that the conflict adversely affected counsel’s performance. (/d. at pp. 165-166, 172-175.) In answering this question, a five-justice majority of the Court observed that generally a defendant must provethat his attorney’s deficient performance prejudiced the outcome of the defendant’s case under the Strickland standard in order to make out a Sixth Amendmentviolation warranting relief. (/d. at p. 166.) However, there is an exception to that rule, and prejudice is presumed, where “assistance of counsel has been denied entirely or during a critical stage of the proceeding”or in “circumstances of that magnitude... . Wehaveheld in several cases that ‘circumstances of that magnitude’ may. . . arise when the defendant's attorney actively represented conflicting interests.” (Mickens v. Taylor, supra, 535 U.S. at p. 166.) In order to demonstrate that an actual conflict of interest violated the defendant’s Sixth Amendmentright, the defendant must “‘show[] that a conflict of interest actually affected the adequacy ofhis representation,’” in which case “‘he 143 need not demonstrate prejudice in order to obtainrelief.’” (Jd. at p. 171, quoting from Cuyler v. Sullivan, supra, 466 U.S. at pp. 349-350, emphasis in original.) In other words, for a conflict of interest to rise to a Sixth Amendmentviolation,it “requir{es] a showing of defective performance, but not... in addition (as Strickland does in other ineffectiveness-of-counsel cases), a showing of probable effect upon the outcomeoftrial.” (/d. at p. 174.) Hence, based on the majority’s interpretation of the high court’s precedent, it rejected a rule of automatic reversal that does not require a showing of adverse effect for the failure to inquire into a potential conflict of interest. Ud. at pp. 173-174.) As the Mickens majority itself emphasized, the legal issue before the court did not present the additional question ofwhether an actual conflict that adversely affects counsel’s performancealwaystriggers the Sullivan limited presumption of prejudice, whether that presumption is confined to certain kinds of actual conflicts and, if so, what kinds.®** (Mickens v. Taylor, supra, 535 U.S. at pp. 174-175.) Nevertheless, the bare five-justice majority embarked on a “foray into an issue that [wa]s not implicated by the question presented.” (/d. at p. 185 & fn.8, dis. opn. of Stevens, J.) In dicta, the majority observed that the potential conflict at issue in that case arose in the successive representation context and had been presented and argued on the assumptionthat if the trial court’s failure to inquire into the potential conflict did not require automatic reversal, then the Sullivan limited presumption — mandating reversal upon a showing of adverse effect — would apply. (Mickens v. Taylor, supra, 535 U.S.at p. ® Throughoutthis argument, Mr. Mai’s use of the term “actual conflict” refers to the United States Supreme Court’s definition of that term —i.e., a conflict that adversely affects counsel’s performance. 144 174.) However, the majority further observed: the language of Sullivan itself does not clearly establish, or indeed even support, such expansive application. “[U]ntil,”it said, “a defendant showsthat his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.” [Sullivan, supra,| 446 U.S., at 350, 100 S.Ct. 1708). Both Sullivan itself, see id., at 348-349, 100 S.Ct. 1708, and Holloway, see 435 U.S., at 490-491, 98 S.Ct. 1173, stressed the high probability of prejudice arising from multiple concurrent representation, and the difficulty of proving that prejudice. [Citation]. Notall attorney conflicts present comparable difficulties. (Mickens v. Taylor, supra, at p. 175.) At bottom, the majority explained, “[t]he purpose of our Holloway and Sullivan exceptions from the ordinary requirements of Strickland... is to apply needed prophylaxis in situations where Stricklanditself is evidently inadequate to assure vindication of the defendant's Sixth Amendmentright to counsel. [Citation.]” (Mickens v. Taylor, supra, 535 U.S.at p. 176.) As to the kind of actual conflicts for which the prophylaxis is needed, the majority’s dicta concluded that it is “an open question” under the precedent of that Court. ([bid.) In People v. Rundle, supra, 43 Cal.4th 76, this Court considered the effect ofMickens on the federal constitutional standard applicable to conflicts of interest. It focused on the Mickens dicta that the Sullivan limited presumption is a prophylactic measure that should apply to “situations where Stricklanditself is evidently inadequate to assure vindication of the defendant’s Sixth Amendmentright.’ (Mickens, supra, at p. 176.)” (People v. Rundle, supra, 43 Cal.4th at p. 173.) Construing the Mickens dicta, along with the holdings of other United States Supreme Court decisions on the subject, this Court reasoned that the presumption 145 applies to the complete denial of counsel and “to circumstances ofthat magnitude” when an attorney “actively represented conflicting interests” (People v. Rundle, supra, 43 Cal.4th at p. 169, quoting from Mickens, supra, at p. 166) and “the possibility of prejudice and the corresponding difficulty in demonstrating such prejudice are sufficiently great compared to other more customary assessments of the detrimental effects of deficient performance by defense counsel, . . . [that] the presumption [must] be applied in order to safeguard the defendant's fundamental right to the effective assistance of counsel under the Sixth Amendment.” (Peoplev. Rundle, supra, 43 Cal.4th at p. 173, citing Mickens v. Taylor, supra, 535 USS. at p. 175; see also Wood v. Georgia, supra, 450 U.S. at pp. 271-272 [Sullivan limited presumption applies to actual conflict that adversely affects counsel’s performance in representing defendants while being paid by third party whoseinterests conflict with those of defendants]; Holloway v. Arkansas, supra, 435 U.S. at p. 490 [it is appropriate to presume prejudice from conflict due to difficulty in assessing harm, which consists not only of what counsel does, but of “what the advocate finds himself compelled to refrain from doing, not only at trial but also asto pretrial plea negotiations and in the sentencing process”].) Applying that standard to the conflict of interest at issue in that case, this Court emphasized that defense counsel only labored undera conflict with respect to a discrete jury misconduct issue, as opposed to his representation as a whole, and the conflict’s adverse effect was similarly limited to that discrete issue. (People v. Rundle, supra, 43 Cal.4th atp. 173.) Hence,it did not present the “high probability of prejudice” or corresponding“difficulty of proving that prejudice” (Mickens v. Taylor, supra, 535 US.at p. 175) that inheres in conflicts for which the Sullivan 146 limited presumption is necessary to safeguard the defendant’s Sixth Amendmentrights. (People v. Rundle, supra, at p. 173; cf. Ellis v. United States (1st Cir. 2002) 313 F.3d 636, 643 [Sixth Amendmentright to counsel violations that fall within narrow category of cases to which presumption of prejudice is applied are those that are “pervasive in nature” while harmless error analysis generally applies to “short-term”or “localized” violations].) Thus, this Court in Rundle did not hold that the Mickens dicta changedthe federal constitutional standard to confine the Sullivan limited presumption to actual conflicts involving multiple concurrent representation nor that it would be appropriate to limit the presumption to such conflicts under Mickens. Instead, the Rundle decision focusedits interpretation of United States Supreme Court precedentnot on a particular category of conflict but rather on whereit rightfully belonged: whether an actual conflict is sufficiently pervasive or severe that its high probability of prejudice and the corresponding difficulty in proving prejudice warrants the Sullivan limited presumption in order to safeguard the defendant’s Sixth Amendment rights. (See, e.g., Mickens v. Taylor, supra, 535 U.S. at pp. 174-176; Cuyler v. Sullivan, supra, 446 U.S. at pp. 348-349; Holloway v. Arkansas, supra, 435 U.S.at pp. 490-491; Wood v. Georgia, supra, 450 U.S. at pp. 271-272.) This interpretation of the federal constitutional standard is consistent with United States Supreme Court precedent, as well as other courts’ interpretation of the standard post-Mickens. (See, e.g., Rubin v. Gee (4th Cir. 2002) 292 F.3d 396, 401-402 & fn. 2; United States v. Mota-Santana (1st Cir. 2004) 391 F.3d 42, 46; Alberni v. McDaniel (9th Cir. 2006) 458 F.3d 860, 873-874; Acosta v. State (Tex.Crim.App. 2007) 233 S.W.3d 349, 353-355; People v. Hernandez (Ill. 2008) 238 Ill.2d 134, 305; People v. Miera (Colo. App. 2008) 183 P.3d 672, 676-677; see also 147 Tueros v. Greiner (2nd Cir. 2003) 343 F.3d 587 [under AEDPA,“for ‘clearly established Federal law’ . .. we must look to Sullivan, not to the Mickens postscript” which was“dicta”; neither Sullivan nor Woodv. Georgia expressly limits presumption to multiple concurrent representation].) 2. People v. Doolin And Its Adoption, Interpretation, and Application of the Federal Constitutional Standard Only eight monthsafter issuing its decision in People v. Rundle, supra, this Court issued its decision in People v. Doolin, supra, 45 Cal.4th 390. In Doolin, this Court held that conflict of interest claims under the state Constitution are to be assessed under the samestandard as conflict of interest claims under the federal Constitution and disapprovedits prior decisions to the extent that they held otherwise. (/d. at p. 421.) However, its interpretation of the federal constitutional standard differed dramatically from its interpretation of that standard in Rundle, supra. In Doolin, the defendant’s attorney was appointed under a fee contract whereby he was permitted to save for himself any unspent funds allocated for experts and other defense services. The defendant appealed his murder conviction and death sentence on the groundthat the fee contract created a conflict of interest that adversely affected his counsel’s performance and thusviolated his state and federal constitutionalrights to the effective assistance of conflict-free counsel. (People v. Doolin, supra, 45 Cal.4th at pp. 411-416.) In assessing that claim, a majority of this Court “harmonize[d] California conflict of interest jurisprudence with that of the United States Supreme Court[,] adopt[ed] the standard set out in Mickens,” and disapprovedofthis Court’s “earlier decisions to the extent that they can be 148 read to hold that attorney conflict claims under the California constitution are to be analyzed under a standard different from that articulated by the United States Supreme Court.” (People v. Doolin, supra, 45 CalAth at p. 421.) Thus, in order to establish a violation of the state and federal constitutional guarantees to the effective assistance of conflict-free counsel, the defendant must establish that his or her counsel labored underan“actual conflict” —i.e., a conflict of interest that adversely affected his or her performance. (/d. at pp. 417-418.) Applying that standard in Doolin, this Court held that the defendant had failed even to demonstrate that the conflict of interest adversely affected, or rendered deficient, counsel’s performance in any respect. (People v. Doolin, supra, 45 Cal.4th at pp. 422-429.) Nevertheless, “in an abundance of caution,” the Court “assume[d] without deciding”that the conflict adversely affected counsel’s penalty phase performance in two ways: (1) failing to obtain a social study report; and (2)failing to adequately investigate potential character witnesses. (/d. at pp. 427-428.) The question then became whether the Su//ivan limited presumption or the Strickland standard applied. With respect to application of the Sullivan limited presumption,this Court’s interpretation of the federal constitutional standard under United States Supreme Court precedent was identical to its interpretation in Rundle: while the limited “presumption of prejudice need not attach to every conflict” (People v. Doolin, supra, 45 Cal.4th at p. 428), it is appropriate when“‘defense counsel actively represented conflicting interests.’ (Mickens, supra, 535 U.S. at p. 166)”(id. at p. 418), and “the possibility of prejudice and the corresponding difficulty in demonstrating such prejudice are sufficiently great compared to other more customary 149 assessments of the detrimental effects of deficient performance by defense counsel.” (/d. at p. 428; see also id. at p. 418, citing Cuyler v. Sullivan (1980) 446 U.S. 335, 348-349, Holloway v. Arkansas (1978) 435 U.S. 475, 490-491, and People v. Rundle, supra, 43 Cal.4th at p. 173.) Thus, as in Rundle, in Doolin, this Court recognized that the United States Supreme Court has not limited application of the Sullivan limited presumption to actual conflicts involving multiple concurrent representation. (See also Woodv. Georgia, supra, 450 U.S.at pp. 271-272 [Sullivan limited presumption applies to actual conflict that adversely affects counsel’s performance in representing defendants while being paid by third party whoseinterests conflict with those of defendants].) Nevertheless, in an abrupt departure from this Court’s interpretation of the federal constitutional standard in Rundle only monthsearlier, the Doolin decision followed the bright-line rule of the Fifth Circuit Court of Appeals’ closely divided decision in Beets v. Scott (Sth Cir. 1995) 65 F.3d 1258, confining the Sudlivan limited presumption ofprejudice to actual conflicts in “multiple concurrent representation”situations. (People v. Doolin, supra, 45 Cal.4th at pp. 428-429.) Asto all other actual conflicts, the defendant must prove prejudice undertraditional Strickland analysis. ([bid.) Applying that bright-line rule in Doolin, the majority held that the Strickland standard applied to the assumed actual conflict arising from the fee arrangement, requiring the defendant to prove prejudice from his counsel’s failures to obtain a social study report and adequately investigate potential character witnesses. (People v. Doolin, supra, 45 Cal.4th at pp. 429-430.) Because the record did not reveal what evidence a social study or adequate investigation would have yielded, the defendant could not prove 150 on direct appeal that absent the conflict the result of the proceeding would have been different under the Strickland standard. (Ibid.) Asa preliminary matter, while this Court in Doolin cited the majority’s decision in Beets v. Scott, supra, 65 F.3d 1258, in support of such a rule, it read the Beets decision too narrowly. The majority in Beets did not hold that the Sud/ivan limited presumption is confined to actual conflicts involving “multiple concurrent representation” (People v. Doolin, supra, 45 Cal4th at p. 428), but rather explicitly stated that the presumption applies to actual conflicts in both the multiple concurrent representation and multiple serial or successive representation contexts (Beets v. Scott, supra, 65 F.3d at p. 1265 & fn. 8; accord United States v. Infante (Sth Cir. 2005) 404 F.3d 376, 392 & fn. 12). Indeed, only seven monthsafter issuing its decision in Doolin,this Court implicitly recognized that the Sudlivan limited presumptionis not strictly confined to actual conflicts in the multiple concurrent representation context, but may also be applied to actual conflicts in the multiple serial representation context. (People v. Friend (2009) 47 Cal.4th 1, 46-47.) In Friend, the Court concluded that counsel labored under an actual conflict arising from his prior representation of a prosecution witness, which adversely affected his performancein failing to impeach that witness with evidencerelating to the prior representation, although counsel did cross- examine the witness and impeach him with other evidence. (/d.at pp. 46- 47.) While this Court declined to apply the Sudlivan limited presumption,it did not do so based on any bright-line rule that the presumption only applies to multiple concurrent representation conflicts, as this Court had suggested in Doolin. Instead, this Court declined to apply the presumption under the same analysis it had employed in People v. Rundle, supra: 151 because the conflict adversely affected counsel’s performance only with respect to a discrete and limited issue, it did not present the high “probability of prejudice and corresponding difficulty in demonstrating such prejudice’” for which the Sullivan limited presumption is necessary to safeguard the defendant’s Sixth Amendmentrights. (People v. Friend, supra, at pp. 46-47, quoting People v. Rundle, supra, 43 Cal.4th at p. 173; accord, Mickens v. Taylor, supra, 535 U.S.at p. 175.) Thus, while Friend signals this Court’s implicit recognition that the Sullivan limited presumption may be applied to actual conflicts in both the multiple concurrent and multiple serial representation contexts, it should decline to follow or adopt Beets’ rigid, bright-line rule confining the Sullivan limited presumption to such conflicts for several reasons. First, approving or disapproving such a bright-line rule was unnecessary in Doolin. Since this Court held that Mr. Doolin had not even established an actual conflict (i.e., that the conflict of interest adversely affected counsel’s performance), it was not necessary to reach the question of what standard of prejudice applied. (People v. Doolin, supra, 45 Cal.4th at pp. 422-429.) And even accepting the Court’s “assum[ption] without deciding”that the conflict did adversely affect two discrete parts of defense counsel’s penalty phase performance “in an abundance of caution” (Ud. at pp. 427-428), the question of what standard of prejudice applied was arguably resolved under its interpretation of the United States Supreme Court’s jurisprudence on federal constitutional standard in Rundle, Doolin itself, and later in Friend. Thatis, the Sullivan limited presumption applies when “‘defense counsel actively represented conflicting interests’ (Mickens, supra, 535 U.S. at p. 166)” (People v. Doolin, supra, 45 Cal.4th p. 418), and “the possibility of prejudice and the correspondingdifficulty in demonstrating such prejudice 152 are sufficiently great compared to other more customary assessments of the detrimental effects of deficient performance by defense counsel.” (/d.p. 428; accord People v. Rundle, supra, 43 Cal.4th at p. 173; People v. Friend, supra, 47 Cal.4th at pp. 46-47.) Consistent with its application of that standard in Rundle and Friend, because a conflict arising from a fee contract is not typically the kind of-conflict that threatens defense counsel’s representation as a whole and becausethe conflict in Doolin in fact arguably affected only two discrete parts of defense counsel’s performance, the conflict in Doolin did not warrant the Sullivan prophylaxis under that standard. Furthermore, as demonstrated below, while the bright-line rule of Beets may be enticing for its ease of application,it is artificial, flawed, and inconsistent with United States Supreme Court precedent and with the very purposeofthe Sullivan prophylaxis. Hence, this Court should declineto adopt or follow the Beets majority’s interpretation of the federal constitutional standard and instead continue to adhereto its interpretation of the federal constitutional standard based on thejurisprudence ofthe United States Supreme Court, as stated in Rundle, Friend, and Doolin itself. 3. Beets v. Scott’s Bright-Line Rule Limiting the Sullivan Prophylaxis to Actual Conflicts Arising from Multiple Representation is Flawed and Inconsistent with United States Supreme Court Jurisprudence on the Subject and Indeed with the Very Purpose the Prophylaxis is Intended to Serve In Beets v. Scott, a closely divided Fifth Circuit Court of Appeals concludedthat the Sullivan limited presumption of prejudice should be confined to actual conflicts in multiple representation cases becauseit is only in such casesthat an attorney has conflicting ethical obligations. “In 153 no other category of conflicts is the risk of prejudice so certain as to justify an automatic presumption.” (Beets v. Scott, supra, 65 F.3d at p. 1271.) No doubt because of the uniquely conflicting ethical obligations involved in multiple representation situations, the Beets majority reasoned, the United States Supreme Court had only applied the Su/livan limited presumption to such conflicts and therefore it is to such conflicts that the high court’s “actively represented conflicting interests” language necessarily refers. (/d. at pp. 1266-1267, citing Cuyler v. Sullivan, supra, 446 U.S.at p. 350.) However, the Beets majority’s reading of United States Supreme Court precedent is simply incorrect. As this Court implicitly recognized in Rundle, Doolin, and Friend, the United States Supreme Court has neither explicitly limited the Su/livan presumptionto actual conflicts in the multiple . representation context nor hasit only applied the Sullivan presumption in that context. To the contrary, and as the Beets dissent emphasized, in Wood v. Georgia, supra, 450 U.S.at pp. 171-172, the United States Supreme Court held that the Sullivan limited presumption would apply to an actual conflict arising from an arrangement in which one attorney is paid by third party with interests that conflict with the defendant/client’s. (Beets v. Scott, supra, 65 F.3d at pp. 1294-1296, dis. opn. of King, J. joined by Politz, Garwood, Smith, and Wiener, JJ.) The Beets majority curiously acknowledged as much,but fleetingly dispatched Wood on the groundthatit “simply recognized that some third- party fee arrangements can develop into thefunctional equivalent of multiple representation,” to which the Sullivan limited presumption will apply. (Beets v. Scott, supra, 65 F.3d at p. 1268, italics added.) But in this context, the “functional equivalent” of multiple representation is just another way of saying that counsel “actively represented conflicting 154 interests,” which might usually arise in the multiple representation context, but is not /imited to that context. In other words, even the Beets majority’s characterization of Wood — 1.e., that the Sullivan limited presumption applies to actual conflicts arising from multiple representation andits “functional equivalent” — is inconsistent with rigid, bright-line rule confining the Sullivan presumptionto strict multiple representation situations. For similar reasons, the Beets majority’s focus on the conflicting ethical obligations counsel faces in multiple representation contexts was flawed. Once again, even when counsel’s fees are paid by a third party, his or her ethical obligations are to the client alone, not the third party. (See, e.g., Rules of Prof. Conduct, Rule 3-310, subd. (e)(1); Model Rules of Prof. Conduct (ABA), Rules 1.8, subd. (f) and 1.7, Comment.) Nevertheless, the high court has held that the Sudlivan limited presumption applies to actual conflicts that arise in that context. (Wood v. Georgia, supra, 450 U.S.at pp. 271-272.) Moreover, as the Mickens majority itself observed, the Sullivan limited presumption does not hinge on the violation of one ethical cannon over another. (Mickens v. Taylor, supra, 535 U.S. at p. 176.) Indeed,it does not even hinge on one category of conflict over another. (See Burger v. Kemp (1987) 483 U.S. 776, 783 [“we have neverheld that the possibility of prejudice that ‘inheres in almost every instance of multiple representation’ justifies adoption of an inflexible rule that would presume prejudice in all such cases. [Citation.] Rather, we presumeprejudice... [when] counsel ‘represented conflicting interests’ and .. . ‘an actual conflict 299of interest adversely affected his . . . performance’”].) Rather, application of the Sullivan limited presumption turns on its purpose, whichis “to apply 155 needed prophylaxis in situations where Stricklanditself is evidently inadequate to assure vindication of the defendant’s Sixth Amendmentright to counsel.” (Mickens v. Taylor, supra, at p. 176.) While the “needed prophylaxis” might usually arise in the multiple representation context,it is not necessarily limited to that context. To be sure, and as this Court emphasized in Doolin, even the dissenting opinion in Beets acknowledged that not every conflict warrants a presumption of prejudice. (People v. Doolin, supra, 45 Cal.4th at p. 429.) Asthe Beets dissent observed, Stricklandis often adequate to assess conflicts of interest that are “frequently or normally encountered in the practice of law.” (Beets v. Scott, supra, 65 F.3d at pp. 1294, 1298,dis. opn. of King, J., joined by Politz, Garwood, Smith, and Wiener, JJ.) For instance,virtually all attorney fee arrangements (such asthat at issue in Doolin) involve conflicts of interest, the adverse effects ofwhich often go to limited discrete issues under which prejudice may be analyzed under Strickland, and should be analyzed under Strickland in order to avoid having the Sullivan “exception” swallow the Strickland rule. (/d. at p. 1297.) However, the Beets dissent also recognized that “there are exceptional conflicts between an attorney’s self-interest and his client’s interest, stemming from highly particularized and powerfully focused sources, of the sort not normally encountered in law practice, that demand the application of [Sudlivan].” (Beets v. Scott, supra, 65 F.3d at pp. 1297- 1298, dis. opn. of King, J. joined by Politz, Garwood, Smith, and Wiener, JJ.) One such “exceptional conflict” exists when the attorney is alleged to have been involved“in the allegedly criminal conduct of his client. These circumstancespresent situations so fraught with the temptation for the 156 lawyerto sacrifice his client’s best interest for his own benefit that they constitute particularly serious threats to the duty of loyalty.” (/d. at p. 1298, and authorities cited therein.) Other courts agree. In Rugiero v. United States (E.D. Mich. 2004) 330 F.Supp.2d 900, the defendant’s attorney was under federal investigation while representing the defendant throughouthis federal pre-trial andtrial proceedings. (Jd. at pp. 903-904.) This conflict of interest adversely affected counsel’s performancein at least two ways: 1) counsel failed to pursue plea negotiations on behalf of his client becausehis client’s cooperation could expose his own wrongdoing; and 2) counselpulled his punches in examining a key government witness, from whichit could be inferred that he sought to serve his own interests by currying favor with the government. (/d. at p. 908.) Thus, the conflict was an actual one and the question was whetherthe Strickland standard or the Sullivan limited presumption applied. (/d. at pp. 905-906.) The Rugiero court acknowledged the Mickens dicta cautioning courts from “unblinkingly” applying the Sullivan limited presumptiontoall actual conflicts of interest because the prophylaxis is not necessary in all contexts. However, the court concluded that the Sullivan presumption was necessary in that case: The rationale behind [Su/livan’s] presumption-of-prejudice rule is (1) the high probability of prejudice arising from the conflict and (2) the difficulty ofproving that prejudice. See Mickens, 535 U.S. at 175, 122 S.Ct. 1237. These two elements are present here. First, when an attorneyis the subject of a criminal investigation by the same prosecutor whois prosecuting the attorney’s client, there is a high probability of prejudice to the client as the result of the attorney’s obviousself-serving bias in protecting his own liberty interests and financial interests. The liberty concern at 157 issue is avoiding or minimizing imprisonment. Thefinancial interests include avoiding disbarment and avoiding termination of the attorney’s current representation of the client in question. [footnote omitted] The high probability of prejudice in this situation distinguishes this personalinterest conflict from the weaker personalinterest conflicts listed in the dicta in Mickens, e.g., book deals. See Mickens, 535 U.S. at 174-75, 122 S.Ct. 1237. Second, such prejudiceis difficult to prove because the client could be harmed bythe attorney’s actions or inactions that are known only to the attorney. In short, the personalinterest conflict at issue presents comparable difficulties to situations involving concurrent representation conflicts. See Mickens, 535 U.S. at 175, 122 S.Ct. 1237. (Rugiero v. United States, supra, 330 F.Supp.2d at pp. 905-906; accord State v. Cottle (N.J. 2008) 946 A.2d 550, 558-562 [“‘the same concerns about divided loyalties” that exist in actual conflicts arising from multiple representation “are present here” where counsel was under indictment by sameprosecutor’s office that was prosecuting his client, a conflict that adversely affected counsel’s performance in providing,inter alia, a “nerfunctory opening statement” along with other “pre-trial andtrial lapses,” to which the presumption ofprejudice was warranted even under Mickens]; see also Stenson v. Lambert (9th Cir. 2007) 504 F.3d 873, 886 [characterizing actual conflict where defense counsel is alleged to have committed crimes related to defendant’s crimesas active representation of conflicting interests under Mickens and Sullivan].) While there is a dearth of case law post-Mickens regarding the appropriate standard to apply to an actual conflict arising from allegations that defense counsel was involvedin his client’s crimes due to the exceptional and extraordinary nature of such conflicts — as the Beets dissent recognized — some pre-Mickens decisions are nevertheless instructive. In 158 United States v. Fulton (2nd Cir. 1993) 5 F.3d 605, for instance, the Second Circuit Court of Appeals considered whether such a conflict is even waivable. The court acknowledged that while potential conflicts from multiple concurrent representation may be waived: The dangerarising from representation by a counsel who has been implicated in related criminal activity by a government witnessis of a different order of magnitude, however. Advice as well as advocacy is permeated by counsel’s self-interest, and norational defendant would knowingly andintelligently be represented by a lawyer whose conduct was guided largely by a desire for self-preservation. (Fulton, supra, 5 F.3d at p. 613.) “Given the breadth and depth ofthis type of conflict, we are unable to see how a meaningful waiver can be obtained.” ([bid.; accord, e.g., United States v. Perez (2nd Cir. 2003) 325 F.3d 115, 126-127 [citing Fulton and characterizing joint representation of co- defendants as “lesser conflict” as compared to onearising from an accusation by defendant’s co-conspirator that defendant’s counsel wasalso involved in the conspiracy].) Indeed, pre-Mickens, the Second Circuit held that the potential for, and difficulty in demonstrating, prejudice arising from a conflict based on allegations that counsel was involvedin his client’s crimes (or is under investigation by the same entity prosecuting his client), is even greater than in the multiple representation context and thus warranteda rule ofper se reversal, even without inquiry into adverse effect. (See, e.g.,United States v. Fulton, supra, 5 F.3d at p. 611; United Sates v. Cancilla, supra, 725 F.2d at p. 867; 3 Lafave, Criminal Procedure, § 11.9(d) at pp. 939-940 (3d ed. 2007) [given high possibility of, but difficulty in proving, prejudice from such conflicts, “much can be said for adopting in such cases, as the Second Circuit has done, a standard of per se ineffectiveness”].) While such a per 159 se rule maybe inconsistent with Mickens,the rationale underlyingit nevertheless demonstratesthatit is not only in the multiple representation context that “the possibility ofprejudice and the correspondingdifficulty in demonstrating suchprejudiceare sufficiently great compared to other more customary assessments ofthe detrimental effects of deficient performance by defense counsel, . . . [that] the presumption [must] be applied in orderto safeguard the defendant’s fundamental right to the effective assistance of counsel under the Sixth Amendment.” (People v. Rundle, supra, 43 Cal.4th at p. 173, citing Mickens v. Taylor, supra, 535 U.S. at p. 175; accord People v. Doolin, supra, 45 Cal.4th at pp. 418, 428.) As the majority in Mickens emphasized, “[b]oth Sullivanitself [citation] and Holloway [citation] stressed the high probability of prejudice arising from multiple concurrent representation,andthe difficulty of provingthat prejudice.” (Mickens vy. T,aylor, supra, 535 U.S.at p. 175.) As the Holloway Court explained, the high probability of, and difficulty in demonstrating, prejudice from multiple concurrent representation conflicts stems from the dangerthat the conflict could impact every aspect of counsel’s representation: .... the evil-it bears repeating-is in what the advocate finds himself compelled to refrain from doing,not onlyat trial but also as to possiblepretrial plea negotiations and in the sentencing process. It may be possible in somecases to identify from the record the prejudice resulting from an attorney’s failure to undertakecertain trial tasks, but even with a record of the sentencing hearing available it would be difficult to judge intelligently the impact ofa conflict on the attorney’s representation of a client. Andto assess the impact of a conflict of interest on the attorney’s options, tactics, and decisions in plea negotiations would be virtually impossible. Thus, an inquiry into a claim of harmless error [under such circumstances] would require, unlike most cases, unguided 160 speculation. (Holloway v. Arkansas, supra, 435 U.S. at pp. 490-491, cited in Mickensv. Taylor, supra, 535 U.S. at p. 176.) It is equally true that “counsel’s fear of, and desire to avoid, criminal charges, or even the reputational damage from an unfounded, but ostensibly plausible accusation” that he or she was involvedin his or herclient’s crimes, can “affect virtually every aspect of his or her representation of the defendant.” (United States v. Fulton, supra, 5 F.3d at p. 613; accord,e.g., Mannhalt v. Reed, supra, 847 F.2d at p. 583 [“when an attorney is accused of crimessimilar or related to those of his client, an actual conflict exists because the potential for diminished effectiveness in representation is so great”at virtually every stage of the proceedings].) Indeed,in this case, the conflict did influence “virtually every aspect” of defense counsel’s representation of Mr. Mai. Hence, just as in the multiple representation context, “the possibility of prejudice and the corresponding difficulty in demonstrating such prejudice are sufficiently great compared to other more customary assessments of the detrimental effects of deficient performance by defense counsel, . . . [that] the presumption [must] be applied in orderto safeguard [Mr. Mai’s] fundamentalright to the effective assistance of counsel under the Sixth Amendment.” (People v. Rundle, supra, 43 Cal.4th at p. 173, citing Mickens v. Taylor, supra, 535 U.S. at p. 175; accord People . Doolin, supra, 45 Cal.4th at pp. 418, 428.) 161 4, The Possibility of Prejudice and the Corresponding Difficulty in Demonstrating Such Prejudice Are Sufficiently Great Compared to Other More Customary Assessments of the Detrimental Effects of Deficient Performance by Defense Counsel, That the Sullivan Limited Presumption Must Be Applied in Order to Safeguard Mr. Mai’s Fundamental Right to the Effective Assistance of Counsel under the Sixth Amendment and Article I, section 15 of the California Constitution As demonstrated in Parts D through G, ante, the conflict of interest arising from Daniel Watkins’s conduct and allegations against Messrs. Peters and O’Connell adversely affected their representation of Mr. Maiat virtually every stage of the proceedings, from the conflict hearingitself, to the advice they gave Mr. Mairegarding the relative strengths and weaknessesofthe case, plea negotiations, entry of the slow plea, the question of Mr. Mai’s competencyto standtrial, and through the penalty phase in whichthey effectively stipulated to a death verdict. In such a case, the risk of prejudice and the corresponding difficulty in proving it are just as great — if not more so — as they are in the multiple concurrent representation context. (See, e.g., Holloway v. Arkansas, supra, 435 U.S.at pp. 490-491, cited in Mickens v. Taylor, supra, 535 U.S. at p. 175; accord Strickland v. Washington, supra, 466 U.S. at p. 692; Cuyler v. Sullivan, supra, 446 U.S.at p. 349.) In other words, while it may be true that “[n]ot all attorney conflicts present comparable difficulties” to those presented in the multiple representation context (Mickens v. Taylor, supra, 535 U.S. at p. 175), when, as here, the nature of the conflict is such as to pose a “high possibility of prejudice” and the conflict actually does adversely affect virtually every aspect of counsel’s performance, it does present “comparable difficulties” and thus warrants application of the Sullivan 162 prophylaxis. Finally, application of the Sullivan limited presumption to an actual conflict that adversely influences counsel’s performance from the beginning oftrial through the end, and results in guilty pleas and an effective stipulation to a death sentence,is entirely consistent with United States Supreme Court jurisprudence in which prejudice is completely presumed when defense counsel“entirely fails to subject the prosecution’s case to meaningful adversarial testing” and the trial process “losesits character as a confrontation between adversaries.” (United States v. Cronic, supra, 466 U.S. at pp. 656-659 [prejudice is presumed underthese circumstances because “there has been a denial of Sixth Amendmentrights that makes the adversarial processitself unreliable”]; see also Bell v. Cone, supra, 535 U.S. at pp. 695-697 [where counsel’s performanceis deficient with respect to discrete issues or points, Strickland standard is appropriate, but where counsel completely fails to submit prosecution’s case to any meaningful adversarial testing, prejudice is presumed and a Sixth Amendmentviolation is established]; accord Turrentine v. Mullen (2004) 390 F.3d 1181, 1207-1208 [complete or entire failure to test state’s case resulting in constructive denial of counsel under Bell and Cronic exists oewhen “‘the evidence overwhelmingly established that (the) attorney abandoned the required duty of loyalty to his client,’ and where counsel ‘acted with reckless disregard for his client’s best interests and, at times, apparently with the intention to weakenhis client’s case’’].)® * Of course, the Sullivan limited presumptionis “is not quite the per se rule of prejudice that exists” under the Bell and Cronic exceptionsto the Strickland standard since “prejudice is presumedonly if the defendant demonstrates that ‘counsel actively represented conflicting interests’ and (continued...) 163 Forall of these reasons, this Court should resist the seduction of adopting a rigid, bright-line rule that may be easy to apply, but which only provides false comfort. Confining the Sullivan limited presumption to actual conflicts arising from multiple representation is inconsistent with the purpose of Sullivan, with United States Supreme Court jurisprudence, and with this Court’s own expressed concerns about the need to “closely guard” a defendant’s right to the effective assistance of counsel when counsel labors underan actual conflict (People v. Rundle, supra, 43 Cal.4th at p. 175, and authorities cited therein). Instead, the Court should continue to adhere to its interpretation of the federal constitutional standard under the United States Supreme Court’s jurisprudence: the Sullivan limited presumption applies when defense counsel “‘actively represented conflicting interests’ (Mickens, supra, 535 U.S. at p.166)” (Peoplev. Doolin, supra, 45 Cal.4th p. 418) and “the possibility of prejudice and the correspondingdifficulty in demonstrating such prejudice are sufficiently great compared to other more customary assessments of the detrimental effects of deficient performance by defense counsel.” (Ud. at p. 428; accord People v. Rundle, supra, 43 Cal.4th at p. 173; People v. Friend, supra, 47 Cal.4th at pp. 46-47.) Under that standard, the Sullivan limited presumption is warranted here andthe violations of Mr. Mai’s state and federal (continued) that ‘an actual conflict of interest adversely affected his lawyer’s performance.’” (Strickland v. Washington, supra, 466 U.S.at p. 692.) Nevertheless, the cases are analogous in that they stand for the general proposition that where, as here, counsel fails to subject the state’s case to meaningful adversarial testing — as opposed to garden variety ineffective assistance of counsel claims going to discrete parts of counsel’s performance — the Strickland standard is inadequate to safeguard a defendant’s Sixth Amendmentrights. 164 constitutional rights to the effective assistance of conflict-free counsel demandreversal. 5. Alternatively, Should this Court Adopt Beetsv. Scott’s Interpretation of the Federal Constitutional Standard,it Should Do So in its Entirety and Hold That the Sullivan Limited Presumption Applies to Actual Conflicts Arising from Multiple Concurrent and Serial Representation andits “Functional Equivalent” And Therefore Applies Here In the alternative, should this Court continue to “share the view” of the Beets majority (People v. Doolin, supra, 45 Cal.4th at p. 428), thenit should adopt that “view”in its entirety. That is, the Sudlivan limited presumption applies to actual conflicts arising in the multiple concurrent and serial representation contexts and — as in Wood v. Georgia, supra, 450 USS. at pp. 271-272 — their “functional equivalent[s].” (Beets v. Scott, supra, 65 F.3d at p. 1268; see also, e.g., Tueros v. Greiner, supra, 343 F.3d at pp. 593-594 & fn. 4 [even if Sudlivan presumption were limited to “multiple representation,” when counsel labors under an actual conflict in which heor she actively represents conflicting interests, counsel “effectively engage[s] in multiple representation” and presumption applies].) This is just such a case. Asthey represented Mr. Mai throughoutthe pre-trial and guilt and penalty phase proceedings, Messrs. Peters and O’Connell simultaneously and actively represented themselves as unindicted co-conspirators and their owninterests in avoiding criminal investigation, charges, indictment, and/or serious ethical consequencesarising from the conspiracy involving their client, Mr. Mai, and their agent and investigator, Mr. Watkins and Watkins’s allegations that they were equally culpable. (Cf. Lockhartv. Terhune (9th Cir. 2001) 250 F.3d 1223, 1231-1232 [counsel labored under 165 an actual conflict of interest when he represented defendant and another client who was implicated in, but not indicted for, crime alleged against defendant; having established adverse effect, prejudice presumed under Sullivan]; United States v. Allen (9th Cir. 1987) 831 F.2d 1487, 1497-1498 [same, where attorney had ongoing attorney-client relationship with unindicted persons implicated in defendant’s crimes].) This was the “functional equivalent” of multiple representation. Hence, even under Beets, and consistent with the principles discussed above, the Sullivan limited presumption applies to the actual conflict established here and demandsreversal of the judgment. Finally, should this Court adopta rigid, bright-line rule limiting the Sullivan presumption to actual conflicts arising from multiple representation and therefore apply the Strickland standard here, reversal is nevertheless required. This is so for the reasons discussed in ArgumentIII, post, which are incorporated by reference herein. I. Conclusion The question of whether to acquiesce in a client’s purported death wish by consenting to an unconditional plea to a capital offense when the defendant is not — or may not be — even eligible for the death penalty, presenting no penalty phase defenseatall, and indeed taking affirmative steps to effectively join in the state’s case for death presents a host of complex legal, moral, and ethical dilemmas for any attorney. (See, e.g., M. Treuthart, A. Branstad, and M. Kite, Mitigation Evidence and Capital Cases in Washington: Proposalsfor Change (2002) 26 Seattle Univ.L. Rev. 241, 278-281; C. Harrington, A Community Divided: Defense Attorneys and the Ethics ofDeath Row Volunteering (2000) 25 Law & Soc. Inquiry 849; C. Chandler, Voluntary Executions (1998) 50 Stan. L. Rev. 166 1897, 1913.) Resolving these dilemmasis an exquisitely delicate matter. Whether an attorney should ever accede andassist in a competent defendant’s death wish may be open to debate. But whether an attorney may do so when,ashere, the attorney has both compelling personal interests that can be served by accedingin his or her client’s wish and clearly expressed doubts regarding the client’s competency to make such a decision, is not. A death verdict that is the product of an attorney’s resolution of the dilemmain favor of accedingin his or her questionably competent client’s death wish and against attempting to save the client’s life, when that resolution may in any way have been influenced by the attorney’s instinctive desire for self-preservation, is constitutionally, morally, and ethically intolerable. The judgment cannotstand. // // 167 II THE TRIAL COURT’S TRUE FINDING ON THE SOLE SPECIAL CIRCUMSTANCE UNDER PENAL CODE SECTION190.2, SUBDIVISION (a)(7), MUST BE SET ASIDE, AND THE DEATH JUDGMENT REVERSED, BECAUSE IT WAS UNSUPPORTED BY SUFFICIENT EVIDENCEIN VIOLATION OF STATE LAW AND THE EIGHTH AND FOURTEENTH AMENDMENTS A. Introduction The prosecution alleged a single special circumstance under Penal Code section 190.2, subdivision (a)(7) (murder of peace officer while lawfully engaged in performanceofhis or her duties). (1 CT 16.) As discussed in the preceding argument, Mr. Mai waivedjury trial on the issue of his guilt of the charged murderandthetruth ofthe special circumstance allegation. (2 CT 491; 1 RT 180-201.) The defense and the prosecution agreed to submit both issuesto the trial court based solely upon transcript of, and evidence presentedat, the preliminary hearing. (1 RT 180-181.) Defense counsel further waivedtheir right to present argument or additional evidence, thus rendering the submission a “slow plea.” (1 RT 183-184; see, e.g., People v. Wright (1987) 43 Cal.3d 487, 495-499.) Based upon the preliminary hearing evidence,the trial court found Mr. Maiguilty of the charged murder and foundthe special circumstance to be true. (2 CT 503; 2 RT 214-216.) Aswill be demonstrated below, the preliminary hearing evidence wasinsufficient to prove beyond a reasonable doubtthat Officer Burt was lawfully engaged in the performanceof his duties when he waskilled — an essential element of the peace-officer murder special circumstance. Thus, the trial court’s true finding on the only special circumstance allegation, which rendered Mr. Mai death eligible, violated state law, as well as Mr. Mai’s rights under the Eighth and Fourteenth Amendments to the United 168 States Constitution. The special circumstance must be set aside and the death judgmentreversed. B. In Order To Prove the Section 190.2, Subdivision (a)(7), Special Circumstance Allegation in this Case, State Law And The Due Process Clause Required the Prosecution to Prove Beyond a Reasonable Doubt that Officer Burt was Lawfully Engaged in the Performance of his Duties When He wasKilled Both state law and the Due Process Clause of the federal Constitution demandthe prosecution prove every elementof a special circumstance beyond a reasonable doubt. (Pen. Code, §190.4, subd.(a); Ring v. Arizona (2002) 536 U.S. 584, 609.) As discussed in Argument I-E- 5, ante, when a defendant waiveshis right to a jury trial and agrees to a court trial based uponthe transcript of (and evidence presented in) the preliminary hearing without presenting argument, the procedure is known as a “slow plea.” (See People v. Wright (1987) 43 Cal.3d 487, 495-499; Bunnell v. Superior Court (1975) 13 Cal.3d 592, 602-604.) While a slow plea is “tantamountto a guilty plea” and waives most importanttrial rights, suchas the rightsto trial by jury, confrontation, and to present evidence,it is different from a guilty plea in one important respect. When a defendanthas entered a not guilty plea but stipulates to submit the issue of his guilt on a transcript, the submission does not supercede the not guilty plea or waive the defendant’s rightto a trial altogether. (Bunnell v. Superior Court, supra, 13 Cal.3d at pp. 602-604.) Instead, the submission is a court trial in which the Peoplestill bear the burden ofproving the defendant’s guilt beyond a reasonable doubt. (d. at p. 603.) Furthermore, “the trial court must weigh the evidence contained in the transcript and convict only if, in view ofall matters properly contained therein, it is persuaded beyond a reasonable doubt of the defendant’s guilt.” 169 (People v. Martin (1973) 9 Cal.3d 687, 694-695.) A defendant whoenters a slow plea thus reserveshis right to challenge the sufficiency of the evidence to support the conviction or true finding on appeal “irrespective of any foregone conclusion or understanding that he will be found guilty.” (Bunnell v. Superior Court, supra, 13 Cal.3d at p. 604; People v. Martin, supra, 9 Cal.3d at pp. 693-694.) Asfurther discussed in Argument I-E-5, ante, an essential element of the special circumstance codified in Penal Code section 190.2, subdivision (a)(7), is that the peace officer victim must be “engaged in the course of the performance ofhis or her duties” when heorsheis killed. (Pen. Code,§ 190.2, subd. (a)(7).) With regard to this element: The long standing rule in California and other jurisdictions is that a defendant cannot be convicted of an offense against a peace officer “engaged in . . . the performanceof. . . [his or her] duties’” unless the officer was acting /aw/ully at the time the offense against the officer was committed. (Peoplev. Gonzalez (1990) 51 Cal. 3d 1179, 1217; see also People v. Simmons (1996) 42 Cal.App.4th 1100, 1109.) “The rule flows from the premise that because an officer has no duty to take an illegal action, he or she is not engaged in ‘duties’ for purposesof an offense defined in such terms,ifthe officer’s conductis unlawful... (4) . . . (The lawfulness of the victim’s conduct forms part of the corpus delecti of the offense.” (People v. Gonzalez, supra, 51 Cal.3d at p. 1217.) Un re Manuel G. (1997) 16 Cal4th 805, 815, italics added; accord,e.g., People v. Mayfield (1997) 14 Cal.4th 668, 791; People v. Curtis (1969) 70 Cal.2d 347, 352.) “Lawfulness”in this context is assessed under Fourth Amendmentstandards. (See, e.g., Jn re Manuel G., supra, 16 Cal.4th at p. 821; People v. Curtis, supra, 70 Cal.2d at p. 354; People v. Mayfield, supra, 14 Cal.4th at pp. 791-792.) A traffic stop constitutes a seizure of the driver within the meaning 170 of the Fourth Amendment. (See, e.g., Brendlin v. California (2007) 551 USS. 249, 255-256, 2406; Whren v. United States (1996) 517 U.S. 806, 809- 810; Delaware v. Prouse (1979) 440 U.S. 648, 653; People v. Hernandez (2008) 45 Cal.4th 295, 299, and authorities cited therein.) As the United States Supreme Court has explained: [E]xcept in those situations in whichthereis at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered,or that either the vehicle or an occupantis otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to checkhis driver's license and the registration of the automobile are unreasonable underthe Fourth Amendment. ... [P]Jersons in automobiles on public roadways may not for that reason alone havetheir travel and privacy interfered with at the unbridled discretion of police officers. (Delaware v. Prouse, supra, 440 U.S.at p. 663.) Thus, a detention or seizure made without a warrantis only reasonable or /awful “‘whenthe detaining officer can point to specific articulable facts that, considered in light ofthe totality of the circumstances, provides some objective manifestation that the person detained may be involvedin criminal activity’ (People v. Souza (1994) 9 Cal.4th 224, 231)” (People v. Mayfield, supra, 14 Cal.4th at p. 791), which includesa traffic violation (Whren v. United States, supra, 517 U.S. at pp. 809-810). (See also People v. Hernandez, supra, 45 Cal.4th at pp. 299-300.) Reasonable suspicion in this regard is measured by an objective standard (see, e.g., Whren v. United States, supra, at pp. 812-813), and assessed by the information knownto the officer at the time of the seizure; facts learned after a seizure cannot be usedto justify it. (See, e.g., Florida v. J.L., supra, 529 US. at p. 271; Illinois v. Rodriguez (1990) 497 U.S. 177, 188; Florida 171 v. Royer (1983) 460 U.S. 491, 507-508; People v. Hernandez, supra, 45 Cal.4th at pp. 299-301, and authorities cited therein; People v. Sanders (2003) 31 Cal.4th 318, 334, and authorities cited therein.) Absent such reasonable suspicion, the detention violates the Fourth Amendmentand thus is not “lawful.” (See, e.g., Delaware v. Prouse, supra, 440 U.S.at p. 663.) Hence, when a defendant murders a peace officer while he or sheis being detained by the officer and a special circumstanceis alleged under section 190.2, subdivision (a)(7), the prosecution must prove beyond a reasonable doubt that the detention (or arrest) was lawful under the foregoing standards. (See, e.g., People v. Curtis (1969) 70 Cal.2d 347, 354; People v. Castain (1981) 122 Cal.App.3d 138, 145; People v. White (1980) 101 Cal.App.3d 161, 166-167; People v. Roberts (1967) 256 Cal.App.2d 488, 492-493.) Absent such proof, the defendantis still guilty of murder; but he is not “guilty” of the special circumstance. (See People v. Curtis, supra, at pp. 354-356.) C. Because the Evidence WasInsufficient to Prove That Officer Burt Was Lawfully Engaged in the Performance of His Duties When He WasKilled, the Trial Court’s True Finding onthe Section 190.2, Subdivision (A)(7) Special Circumstance Allegation Violated State Law and the Eighth and Fourteenth Amendments, Requiring Thatit Be Set Aside and the Death Judgment Reversed The samestandard of appellate review applies to challenges to the sufficiency of the evidence to support convictions and special circumstance findings. (See, e.g., People v. Mayfield, supra, 14 Cal.4th at pp. 790-791, and authorities cited therein; Ring v. Arizona, supra, 536 U.S.at p. 609.) The test on appeal is whether the record “‘discloses substantial evidence — that is evidence which is reasonable, credible and of solid value — such that a reasonabletrier of fact could find defendant guilty beyond a reasonable 172 doubt.’ [Citations.]” (People v. Mayfield, supra, 14 Cal.4th at p. 791; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) In makingthis determination, an appellate court “looksto the whole record, not just the evidence favorable to the respondent, to determine if the evidence supporting the verdictis substantial in light of other facts.” (Jackson v. Virginia, supra, at p. 319.) Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture is not substantial evidence. (See, e.g., People v. Marshall (1999) 15 Cal.4th 1, 35; People v. Rowland (1982) 134 Cal.App.3d 1, 8-9.) A state court special circumstancecreating death eligibility that is unsupported by sufficient evidence violates the defendant’s state and federal rights to due processoflaw,a fair trial and reliable determinations thatheis guilty of a capital offense and that the death penalty is warranted. (U.S. Const., Amends. V, VIII, XIV; Calif. Const. art. I, §§ 1, 7, 12, 15,16, 17; Ring v. Arizona, supra, 536 U.S. at p. 609; Jackson v. Virginia, supra, 443 U.S.at p. 319; Beck v. Alabama (1980) 447 U.S. 625, 637; People v. Thomas (1992) 2 Cal.4th 489, 545, conc. & dis. opn. of Mosk,J.) In this case, the preliminary hearing evidence wasinsufficient to provethat the detention of Mr. Mai, during which the killing occurred, was lawful; hence, it was insufficient to prove that Officer Burt was lawfully engagedin the performanceofhis duties when he waskilled. (See, e.g., People v. Curtis, supra, 70 Cal.2d at p. 354.) As discussed in ArgumentI- E-5, ante, the prosecution’s preliminary hearing evidence focused on the evidence ofcriminal activity that Officer Burt discovered after the initial traffic stop and seizure of Mr. Mai. That is, according to Officer Kennedy, the citation Officer Burt wrote, and Alex Nguyen’s testimony regarding Mr. Mai’s admissions, after 173 Burt effected the stop and detained Mr. Mai, Mr. Maiidentified himself as Phu Duc Nguyen. (1 Muni RT 70, 92, 95, 97.) The prosecution’s evidence established that Officer Burt did not reasonably suspect that Mr. Mai had provided a false name and certainly that he did not know,or reasonably could have known,that the person who had falsely identified himself as Phu Duc Nguyen wasin fact Mr. Mai. Officer Burt radioed dispatch for a license check for Phu Nguyen, whichis typically run to determine if a license is suspended. The check did report a suspendedlicense for Phu Nguyen, and Officer Burt wrote and signed a citation for driving on a suspendedlicence issued in Phu Nguyen’s name. (1 Muni RT 23, 52-53, 70, 92, 95, 97.) After determining that he was driving on a suspendedlicense, Officer Burt told Mr. Mai that he would haveto tow the car after doing an inventory search. (2 Muni RT 278-279.) Mr. Mai told Officer Burt to just give him a ticket and tell him whereto collect the car, but Burt told him that he had to wait until the inventory search was concluded. (2 Muni RT 280- 281.) According to Alex Nguyen, Mr. Maitold him that he had some “stuff” in the trunk, which Alex Nguyen speculated meant forged traveler’s checks. (2 Muni RT 280-281.) After searching the trunk, Officer Burt told Mr. Mai that he was underarrest. (2 Muni RT 280-281.) Mr. Mai then shot and killed him. (2 Muni RT 282-283, 438.) Thus, the prosecution’s preliminary hearing evidence demonstrated that, after the traffic stop and his conversations with Mr. Mai andthe police dispatcher, Officer Burt had reasonable suspicion that Mr. Mai was driving on a suspendedlicense and, after searching the trunk, possibly suspected 174 Mr. Mai ofbeing involvedin the forgery oftraveler’s checks. But Officer Burt only learned of these facts after — and as direct result of — the initial traffic stop and seizure of Mr. Mai. As discussedin part B, ante, a detention must be based on facts knowntothe officer at the time of the detention; facts learned after a detention do not justify it or transform it into a lawful one. (See, e.g., Florida v. J.L., supra, 529 U.S.at p. 271; Illinois v. Rodriguez, supra, 497 U.S. at p. 188; People v. Hernandez, supra, 45 Cal.4th at pp. 299-301, and authorities cited therein; People v. Sanders, supra, 31 Cal.4th at pp. 331-334, and authorities cited therein.) As discussed in ArgumentI-E-5, ante, the prosecution’s only preliminary hearing evidence regarding the reasonfor theinitial seizure came from a statementattributed to Mr. Mai by Alex Nguyen. That is, Alex Nguyentestified that Mr. Mai told him that he “thought he havehis light on [sic]but “[t]he officer told [Mr. Mai] that he pull him over because he was driving without his headlights [sic].” (2 Muni RT 422,italics added; see also 2 Muni RT 278.) As further discussed in Argument I-E-5, ante, the prosecutor did not offer, and the trial court did not receive, Officer Burt’s statements to Mr. Maifortheir truth, but rather only for the non-hearsay ** The prosecution’s preliminary hearing evidence was also paper thin with regard to what criminalactivity a police officer might reasonably have suspected following a search of the BMW’s trunk. While Officer Burt did tell Mr. Mai that he was underarrest immediately after, and thus apparently as a result of, his search of the trunk, the only preliminary hearing evidence regarding trunk’s contents was Alex Nguyen’s testimony that Mr. Maitold him that he had some“stuff” in the trunk, which Neuyen speculated meant forged traveler’s checks (2 Muni RT 281-282). In addition, Officer Kennedy testified that some traveler’s checks were found on the ground nearthe cars after the shooting. (1 Muni RT 118). There was no evidence that the checks were obvious forgeries or otherwise suggested the existence of criminal activity, however. 175 purpose of explaining and putting into context Mr. Mai’s alleged admissions. (2 Muni RT 280; see also Evid. Code, § 1200.) Thus, Officer Burt’s statement to Mr. Maithat he had effected the traffic stop because the BMW’sheadlights were not on was neither offered nor admitted for its truth. The only evidence offered for its truth was Mr. Mai’s own statement that although Officer Burt had told him that he had stopped him becausehis headlights were not on, Mr. Mai “thought”that his headlights were on. This evidence wasplainly insufficient to prove that Officer Burt in fact stopped Mr. Mai because his headlights were not on. In any event, even if Officer Burt did stop Mr. Mai becausehis headlights were not illuminated, the prosecution presented no evidence to prove that Officer Burt reasonably believed that Mr. Mai had thereby committed a traffic violation and, hence, no evidence to prove that Mr. Mai was lawfully detained for a traffic violation. As discussed in ArgumentI-E- 5, ante, police officers are “reasonably expected to know”the Vehicle Code. (See, e.g., People v. Cox (2008) 168 Cal.App.4th 702, 710, and authorities cited therein.) At the time of the 1996traffic stop, the Vehicle Code only required that headlights be illuminated “from one-half hour after sunset to one-half hour before sunrise” (Veh. Code, § 38335) or “during darkness” (Veh. Code, § 24400), which was defined as “any time from one- half hour after sunset to one-half hour before sunrise or at any other time whenvisibility is not sufficient to render clearly discernable any person or vehicle on the highway at a distance of 1,000 feet” (Veh. Code, § 280). The prosecution presented no evidenceto prove the time of sunset on July 13, 1996, or that the stop occurred after “one-half hour after sunset” or “during darkness” as defined by the Vehicle Code. In fact, the only evidence the prosecution presented at the preliminary hearing regarding the 176 time and conditionsofthe initial stop proved the contrary. According to Bernice Sarthou, while she estimated that it was about 8:30 p.m. when she witnessed the traffic stop and shooting (1 Muni RT 152, 191), she also explicitly testified that when she first observed the vehicles, “it wasstill daylight. It wasn’t sunset yet.” (1 Muni RT 190,italics added.) Indeed, she wasstill wearing sunglasses “because the sun wasstill bright enough to need them” (1 Muni RT 152) and she was “facing toward the sun” (1 Muni RT 190; see also 1 Muni RT 191-194). Therefore, even if Officer Burt’s statement to Mr. Mai had been offered and accepted forits truth — i.e., to prove that Officer Burt had, in fact, stopped him for driving with his headlights off — and even rejecting Mr. Mai’s own statementthat believed that his headlights were on, the prosecution presented no evidenceto provethat at the time of the stop Officer Burt had reasonable suspicion that Mr. Mai had committed a traffic violation or was otherwise engagedin criminalactivity. (See Whrenv. United States, supra, 517 U.S. at pp. 809-810; Delaware v. Prouse, supra, 440 U.S.at p. 663.) Hence, the preliminary hearing evidence wasstill insufficient to prove that Officer Burt’s traffic stop and seizure of Mr. Mai was lawful. In sum,the prosecution failed to prove the reason for Officer Burt’s seizure of Mr. Mai, muchless that the reason rendered the seizure a lawful one. The evidence wastherefore insufficient to prove that Officer Burt was lawfully engaged in the performanceof his duties when he waskilled and, thus, insufficient to support the trial court’s true finding on the sole special circumstance allegation. (People v. Mayfield, supra, 14 Cal.4th at pp. 791- 792; People v. Gonzalez, supra, 51 Cal.3d at p. 1217; People v. Curtis, supra, 70 Cal.2d at p. 354; People v. Castain, supra, 122 Cal.App.3d at p. 177 145; People v. White, supra, 101 Cal.App.3d at pp. 166-167; People v. Roberts, supra, 256 Cal.App.2d at pp. 492-493.) The court’s true finding on the allegation therefore violated state law, Mr. Mai’s state and federal constitutional rights to due process oflaw,a fair trial and reliable determinations that he waseligible for the death penalty and that the death penalty was warranted. (U.S. Const., Amends. V, VIII, XIV; Calif. Const. art. I, §§ 1, 7, 12, 15,16, 17; Ring v. Arizona, supra, 536 U.S.at p. 609; Jackson v. Virginia, supra, 443 U.S. at p. 319; Beck v. Alabama, supra, 447 U.S. 625, 637; People v. Thomas, supra, 2 Cal.4th 489, 545, conc. & dis. opn. of Mosk, J.) The true finding must be set aside and the death judgment reversed. // // 178 il DEFENSE COUNSEL’S CONSENT TO MR. MAI’S SLOW PLEA TO THE SOLE SPECIAL CIRCUMSTANCE ALLEGATION AND THEIR FAILURE TO ARGUE OR PRESENT EVIDENCEIN SUPPORT OF A COMPELLING REASONABLE DOUBT DEFENSE TOIT VIOLATED MR. MAPS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL AND DEMANDS REVERSAL A. Introduction Asset forth in the previous argument, the prosecution’s preliminary hearing evidence waslegally insufficient to prove the “lawful performance of duties” elementofthe sole special circumstanceallegation. (Pen. Code, § 1°90.2, subd. (a)(7).) Even assuming arguendothat the evidence was legally sufficient to prove the special circumstance allegation underthe highly deferential standard of appellate review that applies to such claims (see, e.g., People v. Smith (2005) 37 Cal.4th 733, 744), there certainly existed a compelling defense to the allegation centered on reasonable doubt. However, rather than argue or otherwise pursue that defense, defense counsel, by consenting to Mr. Mai’s slow plea to the allegation, effectively stipulated to the allegation, making true finding a “foregone conclusion.” (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 602 [slow pleais “tantamount to a guilty plea” which effectively makes guilty verdict a “foregone conclusion”]; Pen. Code, § 1018 [counsel must consent to guilty pleas in capital cases]; | RT 180-181, 184.) Furthermore, defense counsel’s consent to Mr. Mai’s slow pleato the special circumstance allegation cannot be justified on the groundthatit secured a benefit in return for that plea; it did not. In Argument I-E-5, ante, Mr. Mai argues that defense counsel’s performancein this regard was influenced by their conflicting personal 179 interests and, hence, created an actual conflict of interest in violation of Mr. Mai’s rights under the Sixth Amendmentto the United States Constitution and article I, section 15 of the California Constitution. However, even if counsel’s conflicting personal interests played norole in their decision to consent to the slow plea, their performance nevertheless deprived Mr. Mai of his state and federal constitutional rights to the effective assistance of counsel underthe traditional Strickland v. Washington (1984) 466 U.S. 668 analysis. As discussed in ArgumentI, ante, article I, section 15 of the California Constitution and the Sixth Amendmentto the United States Constitution guarantee criminal defendants the right to the effective assistance of counsel. (See, e.g., Powell v. Alabama (1932) 287 U.S.45; People v. Nation (1980) 26 Cal.3d 169, 178.) Ineffective assistance of counsel underboth the state and federal Constitutions is established when: (1) counsel’s representation fell below an “objective standard of reasonableness”; and (2) but for counsel’s errors, there is a “reasonable probability” that the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 693-694; People v. Ledesma (1987) 43 Cal.3d 171, 217-219 [California employs same analysis as Strickland].) Importantly, in order to prove the second prongofthe Strickland analysis, the defendantis not required to prove that the evidence waslegally insufficient to support the verdict. Indeed, the defendant is not even required to prove that his or her counsel’s deficient performance “more likely than not altered the outcome ofthe case.” (Strickland v. Washington, supra, 466 U.S. at p. 693; accord, e.g., Nix v. Whiteside (1986) 475 US. 157, 175.) Rather, in order to demonstrate a “reasonable probability” that 180 the result would have been different, a defendant need only demonstrate a “probability sufficient to undermine confidencein the outcome.” (Strickland v. Washington, supra, at p. 694; accord, e.g., Nix v. Whiteside, supra, at p. 175.) As will be demonstrated below, defense counsel’s consent to Mr. Mai’s slow plea to the special circumstance allegation andtheir failure to argue or pursue a compelling reasonable doubt defenseto the sole special circumstance creating death eligibility fell below an objective standard of reasonable competence that undermines confidencein thetrial court’s true finding on that allegation. Thus, Mr. Mai was deprived ofhis state and federal constitutional rights to the effective assistance of counsel, which demandsthat the special circumstance be set aside and the death judgment reversed. B. The Governing Legal Principles With respect to the first prong of the Strickland analysis, the United States Supreme Court has “long referred to ‘[the ABA Guidelines] as 399“guides to determining what is reasonable’” performance. (Wigginsv. Smith (2003) 539 U.S. 510, 524,citing Strickland v. Washington, supra, 466 U.S.at pp. 688-689; accord Rompilla v. Beard (2005) 545 U.S. 374, 387 & fn. 7; Williams v. Taylor (2000) 529 U.S. 362, 396.) As this Court, other courts, and the ABA Guidelines all recognize, since “‘representation of an accused murderer is a mammoth responsibility’ (/n re Hall [1981] 30 Cal.3d [408], 434), the ‘seriousness of the charges against the defendantis a factor that must be considered in assessing counsel’s performance.’ (Profitt v. Wainwright (11th Cir. 1882) 685 F.2d 1227, 1247.)” Un re Jones (1996) 13 Cal.4th 552, 566.) As one court has observed, “weare particularly vigilant in guarding this right [to the effective assistance of counsel] when a 181 defendant faces a sentence of death. Our heightened attention parallels the heightened demandson counselin a capital case. (See ABA Standards for Criminal Justice 4-1.2(c) (3d ed. 1993) (‘Since the death penalty differs from other criminal penalties in its finality, defense counselin a capital case should respondto this difference by making extraordinary efforts on behalf of the accused.’)” (Smith v. Mullen (10th Cir. 2004) 379 F.3d 919, 938- 939.) While ineffective assistance of counsel claims are often reviewed by way of habeas corpus, “when counsel’s ineffectiveness is so apparent from the [appellate] record” that a Sixth Amendmentviolation may be demonstrated, it is appropriate to raise and consider the merits of the claim on direct appeal. (Massaro v. United States (2003) 538 U.S. 500, 508; accord, e.g., People v. Pope (1979) 23 Cal.3d 412, 426.) For instance,ifno conceivable, reasonabletrial tactic or strategy could justify counsel’s acts or omissions, his or her deficient performancein established. (See,e.g., People v. Pope, supra, at p. 426; see also, e.g., People v. Nation, supra, 26 Cal.3d at p. 179 [no conceivable, reasonabletrial strategy could justify failure to move to exclude suggestive pre-trial identification]; People v. Donaldson (2001) 93 Cal.App.4th 916, 927-932 [no conceivable, reasonable strategy could justify failure to object to prosecutortestifying and arguing personalbelief in witness’s credibility]; United States v. Villalpando (8th Cir. 2001) 259 F.3d 934, 939 [no conceivable “strategic value” could have been gained by counsel’s elicitation of highly damaging testimony against client]; People v. Torres (1995) 33 Cal.App.4th 37, 49 [improper opinion as to definitions of charged crimes and implication defendant guilty]; People v. Stratton (1988) 205 Cal.App.3d 87, 93 [prejudicial, minimally relevant evidence]; People v. Moreno (1987) 188 182 Cal.App.3d 1179, 1191 [damaging hearsay evidence]; People v. Jackson (1986) 187 Cal.App.3d 499, 505-506 [prior convictions]; People v. Guizar (1986) 180 Cal.App.3d 487, 491-492, and fn. 3 [other crimes]; People v. Ellers (1980) 108 Cal.App.3d 943, 951 [suppression of “seriously damaging evidence”]; People v. Zimmerman (1980) 102 Cal.App.3d 647, 658; People v. Farley (1979) 90 Cal.App.3d 851, 858-868; People v. Sundlee (1977) 70 Cal.App.3d 477, 482-485.) An attorney’s deficient performance mayalso be established on direct appeal if he or she explained on the record the strategical basis for a particular act or omission andthat strategy is unreasonable. (See, e.g., People v. Pope, supra, 23 Cal.3d at pp. 425-426.) Mr. Mai’s case is such case. C. Even if Defense Counsel Reasonably Decided to Stipulate to Submitting the Issue of Mr. Mai’s Guilt on the Transcript of the Preliminary Hearing, Their Consent to the Slow Plea, Without Arguing the Reasonable Doubt Regarding the Truth of the Sole Special Circumstance Allegation, Nevertheless Deprived Mr. Mai of His State and Federal Constitutional Rights to the Effective Assistance of Counsel and Demands That the Special Circumstancebe Set Aside and the Death Judgment Reversed Asdiscussed in Arguments J-E-5 andII, ante, defense counsel consented to a “slow plea” by waivingjury trial and stipulating to a court trial in which the issue of guilt would be submitted on the transcript of, and evidence presentedat, the preliminary hearing, and waivedtheir right to present argumentor additional evidence. (1 RT 180-184; People v. Wright (1987) 43 Cal.3d 487, 495-499 [“slow plea” is submission without presentation of argumentor additional evidence]; Bunnell v. Superior Court, supra, 13 Cal.3d at p. 602 [slow plea is “tantamountto a guilty plea” which makesguilty verdict a “foregone conclusion”]; Pen. Code, § 1018 183 [counsel must consentto guilty pleas in capital cases].) As further discussed in ArgumentI-E, ante, there was no promisedor actual benefit for the plea in these proceedings. Asdiscussed in Argument I-E-4 & I-E-5, ante, this Court has repeatedly held that Penal Codesection 1018’s requirement of consent by defense counsel to any guilty plea to a capital offense is not an empty formalism. It imposes on counsel a duty to exercise his or her “independent, professional Judgment” with respect to the decision to plead and may not cedecontrolofthat decisionto his or herclient. (People y. Massie (1985) 40 Cal.3d 620, 625 [setting aside guilty plea to which counsel consented dueto pressure from his client, but which was against counsel’s own professional judgment]; see also People v. Alfaro (2007) 41 Cal.4th 1277, 1299-1301, and authorities cited therein [defense counsel properly withheld consent to, andtrial court properly refused to accept, defendant’s plea to capital offense without counsel consent].) Asdiscussed in ArgumentI-E-4, ante, the 1989 ABA Guidelines, whichreflected the prevailing professional normsat the time oftrial, acknowledged and considered Penal Codesection 1018 in providing guidelines to counsel contemplating a guilty plea ina capital case. (See, €.g., Wiggins v. Smith (2003) 539 U.S. 510, 524 [Supreme Court has “long referred to ‘[the ABA Guidelines] as ‘guides to determining whatis reasonable’”attorney performance].) Guideline 11.6.3, subdivision (B), provided that“the decision to enter or to not enter a guilty plea should be basedsolely on the client’s bestinterest.” The Commentary to that Guideline stated: In non-capital cases, the decision to enter a plea ofguilty restssolely with theclient [footnote]. When the decision to pleadguilty is likely to result in the client’s death, however, 184 counsel’s position is unique. If no written guarantee can be obtained that death will not be imposed following a plea of guilty, counsel should be extremely reluctant to participate in a waiverofthe client’s trial rights. In California, at least, a defendant cannot plead guilty over the objection of the attorney [footnote], giving counsel tremendousresponsibility for the client’s life. . . . [C]ounsel muststrive to prevent a (perhaps depressedorsuicidal) client from pleading guilty whenthereis a likelihood that such a plea will result in a death sentence.* Consistent with these guidelines, the cases demonstrate that when a defendant seeks to plead guilty to a capital offense without any benefit, or whenit is likely to result in a death sentence, defense attorneys consistently refuse to consentto the plea. (See, e.g., People v. Alfaro, supra, 41 Cal.4th at pp. 1300-1301; People v. Chadd (1981) 28 Cal.3d 739, 744, 747-850; see also W. White, Defendants Who Elect Execution (1987) 48 Univ.Pitt. L. Rev. 853, 861 [among interviewed capital defense attorneys, some acknowledgedthe ethical dilemma posed whenclient wants death penalty, but “not one indicated that he could imagine a case in which he would voluntarily allow a capital defendant to submit to execution.”’].) Indeed, as this Court has recognized, the Legislature’s enactment of section 1018 contemplated that defense attorneys would refuse to consent to such pleas *® The Commentary to Guideline 11.6.2 was even more explicit. It unequivocally stated that “counsel should insist that no plea to an offense for which the death penalty can be imposed will be considered without a written guarantee, binding on the court or other final sentencer, that death will not be imposed.” (ABA Guidelines (1989), supra, Guideline 11.6.2, Commentary, & fn. 2 [““it is suggested that this [entering a guilty plea to a capital offense] is an effectivestrategy only when the attorney knows without any doubt that no death sentence will result. Any other ‘strategy’ for entering a guilty pleais ill-advised and should be abandoned.’ (Citation)”’].) 185 and therebyact “as a filter to separate capital cases in which the defendant might reasonably gain somebenefit by a guilty plea from capital cases in which the defendant . . . simply wants the state to help him commitsuicide.” (People v. Chadd, supra, 28 Cal.3d at pp. 750-751, 753.)*° Here, as discussed in Argument I-E-4, defense counsel consented to an unconditional slow plea without a promise of any return benefit in these proceedings, much less a promise or expectation that it would avoid a death sentence. As further discussed in ArgumentI-E-4, ante, although Mr. Peters represented that he and Mr. O’Connell were consentingto the plea in order to gain an advantage at the penalty phase by arguing that Mr. Mai’s acceptance of wrongdoing should be weighedin favorof sparing his life (RT 189-190), Mr. Mai himself made it abundantly clear that he was not 86 Tn 2003 — after thetrial in this case concluded — the ABA revised its Guidelines to clarify that “the decision whetherto enter a plea of guilty must be informed and counseled, but ultimately lies with the client.” (ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. 2003), reprinted in 31 Hofstra L.Rev. 913, 1044- 1045 [hereafter “ABA Guidelines (2003)”] Guideline 10.9.2, History of Guideline.) Of course, California law is to the contrary with regard to guilty pleas to capital offenses. (Pen. Code, § 1018.) Even when the decision to plead guilty does lie solely with the client, however, the revised Guidelinesstill state that “if no written guarantee can be obtained that death will not be imposed, counsel should be extremely reluctant to participate in a waiverofthe client’s trial rights.” (ABA Guidelines (2003), supra, 31 Hofstra L. Rev.at p. 1045, Commentary, italics added.) Furthermore, counsel’s duty “to ensure that the choice is as well considered as possible . . . . May require counsel to do everything possible to prevent a depressed or suicidal clientfrom pleading guilty when such a plea could result in an avoidable death sentence.” (Ibid., italics added.) Since refusing to consent to the plea is within counsel’s power in California, it necessarily follows that even under the 2003 Guidelines, counsel should refuse to consent to a plea when the defendant wishesto enterit in order to receive the death penalty and a death sentence may be avoidable. 186 entering the plea in an effort to save his life. (1 RT 189-190, 197-198, 2 RT 207-210.) To the contrary, the record as a whole amply demonstrates that Mr. Mai entered the plea with the intention of obtaining a death sentence. (See Argument I, ante.) Finally, and as further discussed in Argument I-E-4 & I-G-2-c, ante, defense counsel made remarks throughoutthe proceedings ~ and even before they acquiesced in Mr. Mai’s death wish and effectively stipulated to a death sentence — that they had no expectation that the plea would actually avoid a death verdict. To the contrary, and as discussed in Argument J-G-2-c, defense counsel madeit clear that they believed that a death verdict was virtually a foregone conclusion no matter what mitigating evidence they might offer. (2 RT 323; see also 1 RT 263; RT 473, 5 RT 862; 6 RT 1081-1082.) On the face of this record, defense counsel’s consentto the unconditional slow plea, knowing that it would almost inevitably result in a death sentence, wasplainly inconsistent with the 1989 ABA Guidelines for counsel in capital cases, with prevailing professional norms, and indeed with the very purpose of section 1018. With this background in mind, there is no doubt that, given the dearth of the prosecution’s preliminary hearing evidence to prove the only special circumstance rendering Mr. Maieligible for what defense counsel believed would be — and what their subsequent performance guaranteed would be — an inevitable death verdict,their consent to the unconditional slow plea was grossly unreasonable. (Strickland v. Washington, supra, 466 U.S.at pp. 693-694.) Assuming arguendothat defense counsel reasonably stipulated to a court trial in which Mr. Mai’s guilt would be determined basedsolely on the evidence in, and transcript of, the preliminary hearing (but see Part C, ante), they still retained the right to refuse to consent to the unconditional “slow plea” and 187 the right to argue the enormous room for reasonable doubt the preliminary hearing evidenceleft regarding the truth of the special circumstance allegation, as described in detail in ArgumentII, ante, which is incorporated by reference herein. (Bunnell v. Superior Court, supra, 13 Cal.3d at p. 604 [defendant who submits issue of guilt to trial court based upon preliminary hearing transcript retains rights to have prosecution prove guilt beyond a reasonable doubt and to challenge the sufficiency of the evidence both at trial and on appeal]; People v. Martin (1973) 9 Cal.3d 687, 695 [submission still requires trial court, sitting as trier of fact, to weigh the evidence and be persuadedof guilt beyond a reasonable doubt].) Given thestate of the preliminary hearing evidence, objective standards of reasonable competence demandedthat defendant counsel exercise those rights. (Strickland v. Washington, supra, 466 U.S. at pp. 693-694; see also, e.g., Young v. Zant (11th Cir. 1982) 677 F.2d 792, 798-799 [defense counsel’s concession to guilt and failure to “adopt obvious defenses” based on weaknessesin prosecution’s evidencefell below objective standard of reasonably competent assistance].) Defense counsel’s consent to the unconditional slow plea and their failure to argue a compelling reasonable doubt defense to the sole special allegation cannotbe justified by any conceivable, reasonable strategic decision. Indeed, as previously discussed, while acknowledging that he had the powerto prevent the slow plea, Mr. Peters but explained on the record his “strategic” basis for consentingto it: based on the quality of the evidence against him and the nature of someofthat evidence .... I have alwaysrealized that it we had anything to say and wantedcredibility, we have to do it in the penalty phase. That’s why I am willing to go along with this. Mr. Evans [the prosecutor] is going to put this evidence on anyways, some ofit, and hopefully it will be 188 lesser than he would have otherwise. And I need, if I am going to have the hope of looking jurors in the eyes and making the pitches I want to make,that I have to have the highest degree of credibility with them, and that I can have that credibility by pointing out that Mr. Mai has donethe right thing. (1 RT 189-190.) Of course, as previously discussed, Mr. Maiinsisted that he was not entering the plea in order to gain an advantage at the penalty phase and seek a life sentence (1 RT 197-190; 2 RT 207-210), and defense counselin fact neverutilized the plea for any benefit at the penalty phase, in which they effectively stipulated to a death sentence. Furthermore, contrary to Mr. Peters’s representation, there wascertainly “something to say” about the deficiencies in the state’s case to prove the “lawful performance of duties” element ofthe sole special circumstanceallegation. As defense counsel apparently failed to appreciate that fact, their “strategy” was unreasonable. (See, e.g., Kimmelman v. Morrison (1986) 477 U.S. 365, 385 [counsel’s decision based upon ignorance or misunderstanding oflaw is unreasonable].) Moreover, if Messrs. Peters and O’Connell’s strategy was to gain an advantage at the penalty phase in hopes of avoiding a death verdict (despite Mr. Mai’s insistence to the contrary), they obviously had no valid strategical reason not to present a compelling defense to the sole special circumstance allegation that would have prevented even the possibility of a death verdict. Respondent may contend that counsel’s performance was “reasonable,” or that Mr. Mai is estopped from arguing that his counsel was ineffective, because it was Mr. Mai’s wish to enter the plea and submit to execution. Forall of the reasons above, any such contention must be rejected as contrary to Penal Code section 1018, in whichthe state has an 189 independentinterest that cannot be waived by a defendant (People v. Chadd, supra, 28 Cal.3d at pp. 747-748; see also Cowan v. Superior Court (1996) 14 Cal.4th 367, 371, and authorities cited therein), prevailing professional norms, and indeed the fundamental underpinnings of our system ofjustice, which simply does not allow a defendant to commit suicide by submitting to execution when heorsheis not even legally eligible for execution. (See, e.g., People v. Chadd, supra, 28 Cal.3dat p. 753 & fn. 9, citing, inter alia, Commonwealth v. McKenna ( Pa. 1978) 383 A.2d 174, 181 [overwhelming public interest in ensuring that death penalty is imposed in constitutional manner warranted reviewing court’s sua sponte reversal of death sentence on ground defendant wasnoteligible for death penalty, despite fact that appellate counsel did not raise issue on appeal becausehis client preferred a death sentenceto life in prison and therefore instructed counsel not to challenge its imposition].) Finally, respondent may speculate that counsel did not challenge the sufficiency of the evidence to support the special circumstance allegation because the prosecution might have had other evidence, whichit had not presented at the preliminary hearing, to prove that Officer Burt’s detention of Mr. Mai was lawful. Again, any such contention must be rejected. The prosecution agreed to submitits case to the trial court based solely upon evidenceit had presented at the preliminary hearing. (1 RT 181-182.) As both the court and defense counsel recognized, defense counsel nevertheless retained the right to argue that the preliminary hearing evidence left reasonable doubt regarding the truth of the sole special circumstance allegation. (1 RT 183-184; see, e.g., Bunnell v. Superior Court, supra, 13 Cal.3d at p. 604.) Underthe law,if the trial court in Mr. Mai’s case had reasonable doubt based upon that preliminary hearing 190 evidence, it was obligated to find that the sole special circumstance allegation wasnot true. (People v. Martin, supra, 9 Cal.3d at p. 695.)*” In sum, defense counsel explained their reasons for consenting to the slow plea and effectively stipulating to the sole special circumstance allegation that rendered Mr. Maieligible for what they believed would be — and what their subsequent performance guaranteed would be — aninevitable death verdict. Neither was a reasonablestrategic decision justifying their performance. (See, e.g., People v. Pope, supra, 23 Cal.3d at p. at p. 426.) Moreover, there is no conceivable, reasonable strategy that could justify their performance. (See, e.g., People v. Nation, supra, 26 Cal.3d at p. 179.) Hence, his Court should resolve the issue on appeal and conclude that defense counsel’s effective stipulation to the special circumstance allegation fell below an objective standard of reasonably competenttrial assistance demandedin a capital murdertrial. (Strickland v. Washington, supra, 466 U.S.at pp. 693-694.) Finally, for all of the reasons discussed in ArgumentII, ante,it is reasonably probable that if defense counsel ad highlighted and argued the deficiencies in the state’s preliminary hearing evidence to prove the lawful performanceofduties element of the sole special circumstanceallegation, the trial court would have had reasonable doubt regarding the truth of the allegation and entered a not true finding. (Strickland v. Washington, supra, 466 U.S. at pp. 693-694.) In other words, defense counsel’s deficient performance undermines confidencein the outcomeofthe court trial on the *” In any event, as discussed in Part C, post, given the record as a whole, it is unreasonable to think that the prosecution might have had other, admissible evidence to prove the lawful performance of duties element of the sole special circumstanceallegation which it had not presented. 191 special circumstanceallegation, thereby resulting in a violation of Mr. Mai’s state and federal constitutional rights to the effective assistance of counsel. (/d. at p. 694; U.S. Const., Amend. VI; Ca. Const.art. I, § 15.) Thus, the sole special circumstance in this case must be set aside and Mr. Mai’s death judgment reversed. D. Alternatively, Defense Counsel’s Failure to Present Evidence to Support a Reasonable Doubt Defenseto the Sole Special Circumstance Allegation Also Violated Mr. Mai’s State and Federal Constitutional Rights to the Effective Assistance of Counsel Assuming arguendo that defense counsel’s consent to the slow plea and failure to argue against the sufficiency of the prosecution’s preliminary hearing evidenceto prove the sole special circumstance allegation did not alone deprive Mr. Maiofhis rights to the effective assistance of counsel, defense counsel’s agreement to submit the issue of Mr. Mai’s guilt on the preliminary hearing transcript without presenting any additional evidence did. (1 RT 184.) The face of the record in this case reveals the existence of ample additional evidence casting further doubt on the “lawful performance of duties” element of the sole special circumstanceallegation. At the penalty phase, the prosecution presented additional evidence regardingthetraffic stop and the events preceding the shooting, but presented no evidenceat all (even Alex Nguyen’s testimony or Mr. Mai’s statement to Alex Nguyen that Officer Burt had told him that he stopped him because his headlights were not illuminated) to explain the reason for the traffic stop and seizure of Mr. Mai. The prosecution did present a photographofthe citation Officer Burt completed and signed, butit only cited the driver for driving on a suspended license. (3/16/07 3 SCT 420- 421 [People’s Exhibit 20]; 6 RT 1134.) The prosecution also presented the 192 transcript of Officer Burt’s call to police dispatch, as well as the testimony of the dispatcher, butthat evidence also demonstrated that Officer Burt only suspected the driver of driving on a suspended license. (4 CT 1129-1133 [People’s Exhibit 36]; 6 RT 1173-1180.) As discussed in ArgumentII, ante, these facts were discoveredafterthe traffic stop and thus did not explain, muchless justify, Officer Burt’s seizure and detention of Mr. Mai. (See, e.g., Florida v. JL. (2000) 529 U.S. 266, 271; Illinois v. Rodriguez (1990) 497 U.S. 177, 188; Florida v. Royer (1983) 460 U.S. 491, 507-508; People v. Hernandez, supra, 45 Cal.4th at pp. 299-301, and authorities cited therein; People v. Sanders (2003) 31 Cal.4th 318, 331-334, and authorities cited therein.) Similarly, the parties stipulated at the penalty phase that there was an active warrant for Mr. Mai’s arrest at the time of the stop that would have been discovered if Officer Burt had run a standard record or warrant check in Mr. Mai’s name. (6 RT 1181-1182.) However,as the transcript of Officer’s Burt’s conversation with the police dispatcher and the dispatcher’s testimony demonstrated, Officer Burt did not run such a check. Nor was there a scintilla of evidence to suggest that Officer Burt ever had reasonable cause to suspect that the name ofthe driver of the BMW wasnot Phu Nguyen, the name Mr. Mai provided to Officer Burt, or that there was an active warrant for Mr. Mai’s arrest. To the contrary, the evidence as a whole — including the citation Officer Burt wrote, his conversation with the police dispatcher, and Mr. Mai’s description of the circumstances surrounding to shooting to Alex Nguyen — amply demonstrated that Officer Burt believed that the driver of the BMW was Phu Nguyen. Hence, because Officer Burt was not aware of the arrest warrant, it did not justify or render lawful his initial stop and seizure of Mr. Mai. (See, e.g., [inois v. 193 Rodriguez, supra, 497 U.S. at p. 188 [factual determinations bearing upon search and seizure” must be judged against an “objective standard” based on “facts available to the officer at the moment”]; Moreno v. Baca (9th Cir. 2005) 431 F.3d 633, 638-639, cert. denied Baca v. Moreno (2006) 537 U.S. 1207 [because officers were unaware of outstanding warrantat time of seizure and search,it did not justify or render lawful seizure and search]; cf. People v. Sanders (2003) 31 Cal.4th 318, 333-335 [because officers were unaware that defendant was parolee subject to search condition at time of search, it did not justify search].) Thus, the prosecution presented no evidenceat all to explain or justify the stop and seizure of Mr. Maiat the penalty phase. At the same time, the prosecution did present evidence to show that, even if it could prove beyond a reasonable doubt that Officer Burt had stopped Mr. Mai because he wasdriving with his headlights off, as he had told Mr. Mai, according to Alex Nguyen’s preliminary hearing testimony, it could not prove that Officer Burt reasonably suspected that Mr. Mai had thereby committed a traffic violation and thus could not prove that Officer Burt was killed while engaged in the lawful performanceofhis duties. (See Whren v. United States, supra, 517 U.S. at pp. 809-810; Delaware v. Prouse, supra, 440 US.at p. 663; see also People v. Mayfield, supra, 14 Cal.4th at pp. 791-792; People v. Gonzalez, supra, 51 Cal.3d at p. 1217; People v. Curtis, supra, 70 Cal.2d at p. 354.) Asdiscussed in Arguments I-E-5 andII, ante, at the time of the traffic stop in 1996, the Vehicle Code only required that headlights be illuminated “from one-half hour after sunset to one-half hour before sunrise” (Veh. Code, § 38335) or “during darkness” (Veh. Code, § 24400), which wasdefined as “any time from one-half hourafter sunset to one-half 194 hour before sunrise or at any other time whenvisibility is not sufficientto render clearly discernable any person or vehicle on the highway at a distance of 1,000 feet” (Veh. Code, § 280). According to the Old Farmer’s Almanac, the sunset at 8:04 p.m. on July 13, 1996 in Fullerton. (The Old Farmer’s Almanac, http://www.almanac.com.)** Furthermore, it was a clear day with zero precipitation and a meanvisibility of 11.4 miles, or 60,192 feet. (Ibid.) Evidence Codesection 452, subdivision (h), provides that judicial notice may be taken of “Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” Accordingto the Assembly Committee Commentto section 452,“sources of ‘reasonably indisputable accuracy’” under subdivision (h) include “treatises, encyclopedias, almanacs andthelike.” (Italics added; accord Gouldv. Maryland Sound Industries (1995) 31 Cal.App.4th 1137, 1145 [subdivision (h) includes “facts which are widely accepted as established by experts and specialists in the natural, physical, and social sciences which can be verified by reference to treatises, encyclopedias, almanacs and the like or by persons learned in the subject matter”); 31 Cal.Jur.3d (2009) Evidence, § 50 (“courts take judicial notice of various incidents of time,” including “the time the sun . . . rises and sets on the several days of the year . . . or that it wasdark or light”’]; see also, e.g., People v. Chee Kee (Cal. 1882) 10 88 A request for judicial notice of the time of sunset and the weather conditions in Fullerton, California on July 13, 1996, pursuant to Evidence Code sections 452, subdivision (h) [“facts and propositions that are not reasonably open to dispute and are capable of immediate and accurate determination by resort to resources of reasonably indisputable accuracy” are proper subjects ofjudicial notice] and 459 accompaniesthisbrief. 195 P.C.L.J. 142 [it was appropriate to admit into evidence almanacreflecting that the sun rose at a certain time on the relevant day since “the fact, for the proof of which the Almanac wasoffered, was one of those facts of which a Court may take judicial notice”]; Scarborough v. Woodill (1907) 7 Cal.App. 39, 42 [properto take judicial notice of “climatic conditions]; People v. Harness (1942) 51 Cal.App.2d 133, 138-139 [court sitting as trier of fact properly took judicial notice of time sun set on certain date].) Furthermore, Evidence Code section 453 mandates thatthetrial court “shall take judicial notice of any matter specified in section 452 if a party requests it” so long as the party “furnishes the court with sufficient information to enableit to take judicial notice of the matter” and provides the adverse party notice and an opportunity to “meet the request.”” Thus, had Mr. Mai’s trial counsel movedthetrial court to take judicial notice of the facts that on July 13, 1996 in Fullerton, California, “one-half hour after sunset” was 8:34 p.m. and “darkness” did not occur until that time, the court would have been required to do so. Based uponthesefacts, if Mr. Mai was stopped before 8:34 p.m., he was not committing a traffic violation by driving with his headlights off and, thus, the stop was not lawful. The prosecution’s penalty phase evidence established that Mr. Mai was, in fact, stopped before 8:34 p.m.. According to penalty phase witness Robert Excell, he heard the shots at about 8:15 p.m., shortly afer which he witnessed Mr. Mai driving the C.H.P. car. (6 RT 1147-1151.) Penalty phase witness and Reserve Fullerton Police Officer Michael Lymantestified that he witnessedthetraffic stop itself between 8:00 and 8:20 p.m. (6 RT 1156-1157.) His estimate was consistent with the penalty phase evidence that Officer Burt listed 8:30 p.m.as the time that he wrote the citation for driving with a suspendedlicense (3/16/07 3 SCT 420-421 196 [People’s Exhibit 20] — which occurred after the initial stop, after Officer Burt’s conversation with Mr. Mai, and after Officer Burt’s communications with the dispatcher and the dispatcher’s checks on two names,a driver’s license number, andthe license plate of the vehicle (4 CT 1130-1131 [People’s Exhibit 36]). The police dispatcher estimated that Officer Burt first contacted dispatch to check the name and date of birth Mr. Mai provided — which occurred after the stop and Officer Burt’s subsequent conversation with Mr. Mai — “shortly before 2032”(or 8:32 p.m.) (6 RT 1176-1177, italics added.) Furthermore, prosecution witness Benjamin Baldauf agreed with the prosecutor’s leading question that “about 8:00, 8:30” was “about the right time frame” when he noticed the C.H.P. car and BMW andtheofficer searching the BMW’s trunk. (6 RT 1099-1100, 1102-1103.) As Mr. Baldauf describedit, at that time it was “long on shadows,just before dark.” (6 RT 1101.) Of course, absent someartificial light source, “shadows”are created by blocking the rays ofthe sun. (See, e.g., Oxford American Dictionary (1980)at p. 622 [defining “shadow,”as, interalia, “shade”or “a patch of this with the shape of the body that is blocking the rays”|.) And it is common knowledgein this regard that shadowsfrom the sun’s rays become “long[er]” when the sun is low — 1.e., shortly after sunrise or before sunset. Finally, while Bernice Sarthou agreed with the prosecution’s leading question that it was “about 8:30 in the evening” (6 RT 1189) whenshefirst observed the C.H.P. car and BMW,her preliminary hearing testimony was inconsistent with that estimate. As discussed in ArgumentIJ, she repeatedly testified with certainty that “it was still daylight. It wasn’t sunset yet.” (1 Muni RT 190; see also 1 Muni RT 191-194.) Indeed, she wasstill wearing 197 sunglasses when shefirst observed the vehicles “because the sun wasstill bright enough to need them” (1 Muni RT 152; see also 6 RT 1190) and she was“facing toward the sun” (1 Muni RT 190). Hence, her testimony that the sun had not yet set meant that the stop occurred before 8:04 p.m. and not at 8:30 p.m. The prosecution presented no other evidence regarding the time of the traffic stop. Thus, while the prosecution’s evidence did not establish the precise time ofthe traffic stop, all of its evidence established that it occurred before 8:34 p.m. (which was “one-half-hour after sunset” and when “darkness” commenced). Therefore, even if Officer Burt’s statement to Mr. Maithat he had stopped him becausehis headlights were not illuminated had been offered and properly accepted forits truth (and even ignoring both Mr. Mai’s own statement, which had been acceptedforits truth, that he believed that his headlights were illuminated and the absence of any mention of headlights — or any other reason for the stop — on the citation Officer Burt completed and signed), the prosecution’s own penalty phase evidence created more than a reasonable doubt that Officer Burt had a reasonable suspicion that Mr. Mai had committed a traffic violation. Hence, the prosecution’s own evidence created compelling reasonable doubt that Officer Burt’s seizure of Mr. Mai was lawful and thus, that Mr. Mai shot and killed him while he was engaged in the “lawful” performance ofhis duties, an essential element of the sole special circumstance allegation. (Pen. Code, § 190.2, subd. (a)(7); People v. Mayfield, supra, 14 Cal.4th at pp. 791-792; People v. Gonzalez, supra, 5\ Cal.3d at p. 1217; People v. Curtis, supra, 70 Cal.2d at p. 354.) Of course, defense counsel wasentitled to the prosecution’s 198 evidence understate law (Pen. Code, § 1054.1) and the due process clause of the federal Constitution (Brady v. Maryland (1963) 373 U.S. 83, 87). Nevertheless, rather than presenting that evidence to support (or even argue) a reasonable doubt defense, Mr. Mai’s counsel consented to his “slow plea” to the sole special circumstance allegation, making a true finding and death eligibility “a foregone conclusion.” (Bunnell v. Superior Court, supra, 13 Cal.3d at p. 602.) As discussed in Part C, ante, defense counsel’s explained strategy that they consented to the slow plea and effectively stipulated to the sole special circumstance allegation because they did not “have anything to say” at the guilt phase and hopedto gain an advantage at the penalty phase was objectively unreasonable. (1 RT 189- 190.) Hence, this Court should resolve the issue on appeal and conclude that defense counsel’s consent to the unconditional slow plea andfailure to mount a compelling reasonable doubt defense to the sole special circumstance allegation fell below an objective standard of reasonably competent assistance demandedof counsel in a capital murdertrial. (See Strickland v. Washington, supra, 466 U.S.at pp. 693-694.) Finally, for all of the reasons explained above and in ArgumentII, ante, this Court cannot be confident that if counsel had presented a reasonable doubt defenseto the sole special circumstanceallegation, the trier of fact (court or jury) would have been convincedofthe truth of the allegation beyond a reasonable doubt. (Strickland v. Washington, supra, at p. 694; accord, e.g., Nix v. Whiteside, supra, 475 U.S. at p. 175.) Mr. Mai wasthus deprived of his state and federal constitutional rights to the effective assistance of counsel, requiring that the special circumstance be set aside and the death judgmentreversed. 199 IV THE DEATH JUDGMENT MUST BE REVERSED BECAUSE THE TRIAL COURT VIOLATED MR. MAPS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A RELIABLE DEATH VERDICT BY FAILING TO SUSPEND THE CRIMINAL PROCEEDINGS AND INITIATE COMPETENCY PROCEEDINGS A. Introduction As discussed in ArgumentI-F, ante, the trial court was presented with a host of evidence — including the reports of defense counsel, the opinion of court-appointed psychologist Dr. Veronica Thomas, and Mr. Mai’s ownincreasingly irrational behavior — which called into grave doubt Mr. Mai’s ability to assist counsel in the preparation of his defense in a rational manner. Despite this evidence, at no timedid the trial court question whether Mr. Mai was competentto standtrial. Because there was substantial evidence to raise a reasonable or bona fide doubt as to Mr. Mai’s competencyto standtrial, the trial court violated state law, as well as Mr. Mai’s federal constitutional rights to due process and a reliable determination that the death penalty was appropriate, by failing to order a competency hearing on its own motion. The death judgment must be reversed. B. The Evidence of Mr. Mai’s Decompensating MentalState and Inability to Participate in his Defense in a Rational Manner Asdiscussed in Argument I-F, ante, Mr. Mai wastaken into federal custody on July 27, 1998, and remained in federal custody throughouthis state capital murdertrial, which ended on June 23, 2000. (8/29/07 SCT 164-170; 8/29/07 ART 5; 4 CT 1119-1123.) He was confined under unusually onerous special administrative restrictions pursuant to Code of 200 Federal Regulations § 501.3. (2 CT 405-406, 482.)In addition to the special administrative restrictions, the federal Bureau of Prisons imposed additionalrestrictions on the conditions of Mr. Mai’s confinement. (See, e.g., 3 RT 453-456.) On July 23, 1999, the date on which Mr. Maientered his slow plea in state court, Mr. Peters, first described some of those conditions to the court and his concern that their impact was having on Mr. Mai’s mental health. Mr.Peters explained that the “‘administrative conditions on his custody . . are extremely onerous, virtually keeping him isolated something like Hannibal Lechter in Silence ofthe Lambs.” (1 RT 192; see also 3/16/07 3 SCT 308-320 [copy of section 501.3 restrictions as modified on July 23, 1999].) “... He is going to be in a very, very isolated condition, and I can speak personally that its effects on a human being are horrendous.” (1 RT 193.) A weeklater, on July 30, 1999, defense counsel Messrs. Peters and O’Connell filed a motion to continue the penalty phase trial with Mr. Peters’s supporting declaration in which he further described the conditions of Mr. Mai’s federal confinement and their impact on his mental state: Only 13 other individuals in the federal prison system have these draconianrestrictions. As a result, Mr. Mai is kept in a single cell, he’s not allowed contact with other inmates and his phone calls are restricted to an aunt, grandmother, and attorney.[”’] Heis not allowed writing instruments and must 8° Indeed, Mr. Mai remainsin federal custody, under severespecial restrictions, to this day. (3 CT 1082-1085; 4 CT 1127.) °° Mr. Mai’s grandmother was 92 years old, in “frail health,” and living in a nursing homeout of state. (2 RT 219; 3 RT 419.) She was, apparently, unable to communicate effectively, as defense counsel informed (continued...) 201 write under the supervision of the Bureau ofPrisons (“BOP”) whoretrieve the writing instrument and letter immediately after completion. All incoming and outgoing mail is read and approved by the FBI. In essence, Mr. Mai has subjected himself to solitary confinementfull-time except for a shower every other day and a three hour a week exercise by himself in an empty room. This intensive confinement and isolation has a very negative impact on his mental health.... That isolation and lack of sensory stimuli interfere with the defendant’s ability to organize his thoughts and results in very hostile emotion. (2 CT 497, 500-501.) The toll of the isolation on Mr. Mai’s ability to control his “hostile emotion[s]” soon became apparent to everyone. In proceedings held before he wastaken into federal custody, Mr. Mai wasable to control his behavior, even throughout the preliminary hearing in which Alex Nguyen ~— a friend whohad offered him shelter only in order to betray him to benefit himself— testified at length against him. However, Mr. Mai’s behavior changed dramatically after 15 months in federal custody underthe special restrictions. On October 18, 1999, Mr. Mai had a lengthy, furious outburst, prompting the court to warn him that if he had another“emotional outburst” he would be removedforthe rest of the trial. (2 RT 305-309, 345, 349.) During the same proceeding, Mr. Peters informed the court that Mr. Mai 7°(...continued) the court that the only relative from whom they could obtain any information at all was his aunt, who was uncooperative and with whom Mr. Mai had always had a very difficult relationship. (2 RT 219; 3 RT 419.) Thus, while Mr. Mai was permitted limited communications with his aunt and grandmother, this “privilege” appears to have been merely illusory. 202 had “decided”to wear jail garb, instead of civilian clothing, throughout the proceedings. (2 RT 319, 348.) When the court specifically inquired of Mr. Maiif that was his choice, he provided no audible response. (2 RT 319.) Asthe restrictions on Mr. Mai’s confinementincreased in severity over the following months, so too did their impact on his mental health. On February 4, 2000, Mr. Peters informed the state court that at least since early January 2000, Mr. Mai had been housed in a one-mancell in whichthe lights and a camera were on 24 hours a day. (2 RT 372, 374, 383.) He was allowed “[n]o reading material or pens or papers or nothing.” (2 RT 372.) His cell was “totally sealed off, so nothing can be slipped in and out” and he wasnot able to “flush his own toilet for fear sometimes communications can take place throughtoilets.” (2 RT 372.) Apart from limited, sporadic visits with an aunt with whom Mr. Mai had a very difficult relationship,“he can have no contact with anybody.” (2 RT 374; see also 3 RT 419.) He was only permitted to talk to a lieutenant; he wasnot allowed even verbal contact with other detention facility personnel or inmates; indeed, inmates could not even work near his cell. (2 RT 374, 383.) Mr. Peters, the federal district court judge, and other witnesses had seen for themselves during a surprise midnightvisit to the detention facility that Mr. Mai “hadto lay there with his t-shirt over his eyes because he hadthe lights on 24 hours a day, andliterally had nothing to read, nothing to write, nothing to do, 24, seven.” (2 RT 372, 374, 383.) While there had recently “been a slight modification, but only in terms of dimmingthe lights and giving him backhis legal material” (2 RT 372), Mr. Peters expressed his concern over “how this virtual total isolation and lack of stimulation impact on Mr. Mai, which as tough as Mr. Maiis mentally andintellectually, he still can be subject to problemsbeingso utterly isolated.” (2 RT 374.) “So 203 believe me,” Mr. Peters continued, “I believe that Mr. Mai is a very strong individual emotionally and psychologically, that he can withstand a great deal of that, but even Mr. Mai is not madeof stone.” (2 RT 383.) Indeed, the truth of this observation was born out in the next court session during which Mr. Maiwasclearly disoriented and confused. On February 25, 2000, after discussing scheduling matters, the court directed Mr. Peters to take Mr. Mai’s time waiver. (2 RT 395-396.) The following colloquy occurred: Mr. Peters: Mr. Mai, your jury trial is set presently on March 13th. The defendant: I don’t understand. Mr. Peters: Excuse me? The defendant: I don’t understand. (2 RT 396.) Mr. Peters reminded the court that Mr. Mai was incarcerated under “rigid conditions” and explained: [W]e werein court all day yesterday with Judge Carter exploring the nature of that, and trying to make some modifications that may alleviate some ofthe stress caused by isolation and sensory deprivation on Mr. Mai. And Mr. Mai is very agitated this morning. And part of that is no doubt a result of what the — some ofthe evidence we put on yesterday was about how stressful, even as tough as Mr. Mai is, how stressful that isolation is. And although heis not 1368, but his condition interferes with the ability to deal with him on a rational basis, but I am not saying he is 1368, if he was I would tell you, of course, my obligation. (2 RT 396.) The court then attempted to take Mr. Mai’s time waiver, to which Mr. Mai again expressed confusion: [The court:] is it all right with you the matter be set for April 3rd for jury selection? The defendant: I don’t understand. The court: Pardon me? The defendant: I don’t understand. 204 The court: You understand? Mr. Peters: He said he didn’t understand. The defendant: Do not. The court: You don’t understand? Well, you understand that you have gota trial date set for March 13? The defendant: I don’t understand that either. I need, I need time to talk to my lawyers. The court: Go ahead. The defendant: There’s only one lawyerhere. The court: Well, he is your chief lawyer here, Mr. Peters. The defendant: That’s only one of mine. I need two. (2 RT 397-398.) At the court’s suggestion, a short recess was taken for Mr. Peters to confer with Mr. Maiin the holding cell. (2 RT 398.) Upon their return, Mr. Peters advised the court that Mr. Mai would waive time. (2 RT 398.) Whenthe court asked Mr. Maiif that was correct, Mr. Mai responded with a simple “yes.” (2 RT 398.) In closing, Mr. Peters reminded the court that “this is a very unique case, the federal court has jurisdiction over his custody situation, and yet you have constitutional responsibilities to see he gets a fair death penalty trial.” (2 RT 400.) During the next session on March 2, 2000, Mr. Peters informedthe court that the conditions of Mr. Mai’s confinement were having such a profound psychological impact on him that Mr. Peters was unable to proceed with necessary preparation for the penalty phaseofhis trial. (3 RT 403-405.) He explained that Dr. Veronica Thomashadtestified to that effect in a hearing before Federal District Court Judge Carter and that Judge Carter had askedfor the state court’s recommendations regarding a solution. (38 RT 403-404.) To that end, Mr. Peters offered the testimony of Dr. Thomas, a clinical and forensic psychiatrist appointed as an expert in this case to explore and develop possible mitigating evidence. (3 RT 406- 205 407.) According to Dr. Thomas, she began meeting with Mr. Maiin January of 1999. (3 RT 406-407.) Initially, Mr. Mai was cooperative and she was able to accomplish someofthe work necessary to prepare his defense. (3 RT 408, 428.) However, as his confinement conditions increasedin their severity, his mental condition deteriorated to the point that she was unable to complete the work necessary to preparehis defense. (3 RT 409-411, 428.) Dr. Thomas described Mr. Mai’s current confinement conditions, which she had witnessed herself. She said that Mr. Mai was housed in a one-man cell with two video cameras recording all of his movements and lights on 24 hours a day. (3 RT 409-410.) He was allowed no general reading material, but did have access to somelegal material. (3 RT 410.) He washousedin his one-mancell for 24 hours a day except whenhe was allowed out for a showerevery other day. (3 RT 409, 417.) The doorto his cell, unlike any other cells, was painted red and a sign was affixedtoit reading, “[n]Jo visual contact with inmate, no verbal communication with inmate.” (3 RT 410.) There wasa “little trap door” to which only a lieutenant had a key and only the lieutenant was permitted to communicate with Mr. Mai. (3 RT 410.) The doorto the cell was also completely sealed. (3 RT 410.) Mr. Mai was unableto flush thetoilet in his small, sealed cell, which wasparticularly difficult for him because he was “extremely fastidious.” (3 RT 410, 415.) As Dr. Thomas explained,“this is a defendant whocleanshiscell five times a day, andis very, very interested in being clean.” (3 RT 416.) The combination of these conditions amounted to sensory deprivation, which was havinga severe impact on Mr. Mai’s mental health and his ability to assist in his defense. (3 RT 410-411, 206 427-428.) Although Dr. Thomasopined that Mr. Mai was “not out oftouch with reality,” she said that he was “alternately enraged andirrational” and “his ability to process the issues that we needed to discuss with regard to his case had been impaired by, what I thought wasthe changein his security, and possibly in addition to that was a failure to have contact with the persons on his defense team that he could discuss the matters with.” (3 RT 411.) Dr. Thomas spoke to Mr. Peters and his current investigator, Mr. Rasch, whoalso had contact with Mr. Mai, and their impressions were also that “the rage and the emotionallability of the defendant was impairing the process of the defense all the way around.” (3 RT 411.) Mr. Mai no longer trusted anyone on his defense team, which madeit “difficult to absolutely address the issues that are imperative, to at least mypart, in finishing with this phase of the case” and his custodial situation was “causing his emotions to, on a frequentbasis, to override his judgment.” (3 RT 414.) Indeed, for the last two months, the defense team’s entire focus had been on trying “to handle this emotionalvolatility” resulting from “restrictions that he can’t cope with.” (3 RT 421.) Given the conditions and the state of Mr. Mai’s mental health, Dr. Thomas explained, she was “unable to move forward”in her preparation of evidence for the penalty phase defense. (3 RT 428.) Furthermore, she was unable “to do what I need to do to get him to be able to work with [defense counsel].” (3 RT 428.) If he remainedin solitary confinement, her prognosis wasthat his ability to think and process information would only continue to diminish. (3 RT 428.) As discussed, in ArgumentI-F, ante, defense counsel offered this evidence not to declare a doubt as to Mr. Mai’s competencyto standtrial due to his inability to rationally participate in his defense under Penal Code 207 sections 1367 and 1368, but rather to ask the state court to recommendto the federal court certain changes to the conditions of Mr. Mai’s federal confinement. (3 RT 429.) The state court did make those recommendations, but the federal court rejected them for the mostpart (3 RT 446-448) and — as Dr. Thomas predicted — Mr. Mai’s mental state continued to deteriorate. On March 29, 2000, Mr. Peters informed the state court that “we have for some time talked about putting no penalty evidence on.” (3 RT 449.) However, he explained, “Mr. Mai needsto be in a situation where he can makerational decisions about this” and his current mental state, which Mr. Peters believed was caused by the confinement conditions, precluded rational decision making. (3 RT 449.) Mr. Peters further explained that “the situationis still the same” with respect to Mr. Mai’s “emotional difficulties” and inability to control his behavior in the courtroom. (3 RT 471-473.) Nevertheless, Mr. Peters represented, “[i]f I wanted to play gamesI could declare him 1368 or something, but I don’t believe he is 1368, he is just in a very difficult situation.” (3 RT 452.) Therefore, rather than requesting the initiation of competency proceedings under section 1368, Mr. Peters informedthestate trial court that he intended to “tak[e] a writ” to the Ninth Circuit Court of Appeals seeking relief from some of Mr. Mai’s federal confinement conditions imposed by Judge Carter and the BOP. (3 RT 449.) However, the “writ” to which Mr. Peters referred flatly contradicted his statementthat “I don’t believe [Mr. Mai] is 1368.” (RT 452.) Onor about April 3, 2000, defense counsel filed the “writ” — namely, a “Petition for Writ of Prohibition/Mandate Request for Emergency Stay” in 208 the Court of Appeals for the Ninth Circuit in Mai v. United Stated District Court, Central District ofCalifornia, et. al, No. 0-70364. (2 CT 652; 3/16/07 2 SCT 28-156; see also, 5 RT 1075.) In the petition, defense counsel represented, inter alia: Petitioner’s confinementhas been so severe that it has caused substantial changes in Petitioner’s mental health. Petitioner’s counsel told both the Federal and State Court that he was unable to effectively communicate with the Petitioner. The Petitioner was not incompetentto standtrial, but e [sic] was a breakdownin the attorney-client relationship thatis jeopardizing Petitioner’s fundamental right to counsel guaranteed by the Sixth Amendmentofthe United States Constitution. [§]] The changes have becomeso dramatic that Dr. Veronica Thomascan no longerfinish her evaluation of the Petitioner. Obviously a complete psychological evaluation of the Petitioner is a necessary componentofthe Petitioner’s defense at his penalty phasetrial..... [§]] The conditions surrounding the Petitioner’s custody status in the Metropolitan Detention Center are so inhuman and oppressive that Petitioner’s counsel cannot complete and present to the Orange County Superior Court evidence of Petitioner’s mental state in mitigation of the death penalty. (3/16/07 2 SCT 42-44.) The petition was served on the state superior court and received and reviewed by the state trial court. (3/16/07 2 SCT 156; 5 RT 1075.) Also, on April 3, 2000, Mr. Peters informedthe state court that he had filed the petition in the Ninth Circuit, describing it as “basically say[ing] the conditions set by the federal court are inadequate to allow Mr. Mai to properly defend himself and his witnesses.” (3 RT 489.) On the same date, the penalty phase ofthe state trial commenced with jury selection. (2 CT 654; 3 RT 492.) On April 6, 2000 and in the midst of voir dire, Mr. Peters informed 209 the state court that he and Dr. Thomaswere of the opinion that Mr. Mai’s mental state had not improved since Dr. Thomas’s March 2 testimony. (4 RT 589.) While defense counsel made an unsuccessful request, unsupported by any authority,to the trial court to order that Mr. Mai remain in the county jail rather than returned to the federal confinement conditions (see ArgumentI-F-4, ante), they did not request the initiation of competencyproceedings. On April 7, 2000, defense counselfiled Petitioner’s Reply Brief in the Ninth Circuit. (3/16/07 2 SCT 158-170; see also 5 RT 1075.) In that brief, defense counsel further represented, inter alia, that they “can not [sic] longer present evidence as to [Mr. Mai’s] mental condition to thetrier of fact at his penalty phasetrial because the conditionsofthis [sic] confinement have caused him to become mentally unstable to a point where his Counsel and psychologist cannot prepared [sic] the Petitioner fortrial. Neither Real Party has disputed this in their brief’s [sic].” (3/16/07 2 SCT 161.) Also on April 7, 2000, the Ninth Circuit denied the petition. (3/16/07 3 SCT 353-354.)' This pleading wasalso served on, and reviewedby,the state trial court. (3/16/07 2 SCT 169; 5 RT 1075.) *! The Court’s of Appeal’s order denyingthe petition stated in relevantpart: Weconstrue Mai’s petition for writ of prohibition and/or mandate as an emergency motion for injunctive relief and a petition for write of mandamus. Thepetition for writ of mandamusis denied. See Bauman v. United States, 557 F.2d 650, 654-655 (9th Cir. 1997). The request for injunctive relief is denied. (3/16/07 3 SCT 354.) 210 On April 11, 2000, defense counsel informed the state court that he hadfiled a “Petition for Writ of Prohibition/Mandate Request for Emergency Stay” in Mai v. Superior Court ofOrange County, et al., in the Court of Appeal for the Fourth Appellate District of California, No. G027090. (5 RT 866.) That pleading wasalso served onthestate trial court. (3/16/07 2 SCT 171-303; 3/16/07 3 SCT 304-369.) In that petition, defense counsel again represented that the conditions of confinement were so “dehumanizing” (3/16/07 2 SCT 178, 180) that they have “caused substantial changesin the Petitioner’s mental health” (3/16/07 2 SCT 187). Mr. Mai “has becomeincreasingly unstable” (3/16/07 2 SCT 175) and “extremely volatile” (3/16/07 2 SCT 178, 180), “cannot control his emotions” (3/16/07 2 SCT 178, 180-181), and “cannotthink clearly.” (3/16/07 2 SCT 178). His mental state had deteriorated to the point that he was “having great difficulty assisting his Counsel in the defenseofhis case. ....” (3/16/07 2 SCT 175), counselis “unable to effectively communicate withthe Petitioner” (3/16/07 2 SCT 187), and his court-appointed expert, Dr. Thomas, can “not complete her work up for thecritical penalty phase trial” (3/16/07 2 SCT 178, 190), including an evaluation, which “is a necessary componentofthe Petitioner’s defense at his penalty phasetrial” (3/16/07 2 SCT 187). As aresult of Mr. Mai’s mental state, caused by the federal confinement conditions, there was ‘“‘a breakdownin the attorney client relationship that is jeopardizing Petitioner’s fundamental right to counsel guaranteed by the Sixth Amendmentto the United State Constitution.” (3/16/07 2 SCT 187.) Moreover, “[t]he conditions surrounding the Petitioner’s custody status in the Metropolitan Detention Center are so inhuman and oppressive that Petitioner’s counsel cannot complete and 211 present to the Orange County Superior Court evidence of Petitioner’s ‘mental state in mitigation of the death penalty,” in violation of his constitutional rights as defined by the United States Supreme Court in Skipper v. South Carolina (1986) 476 U.S. 1. (3/16/07 2 SCT 189-190.) Furthermore, “Petitioner is alleging that his mental state has been continually deteriorating since he has been in Federal custody.” (3/16/07 2 SCT 190.) And, unless someofthe conditions of his confinement were changed, “Petitioner will continue to deteriorate. .... If the Petitioneris forced to wait several years to havethis issue resolved on appeal who knowswhathis mental state will be. It is very probable that after the time it takes to complete the appellate process, Petitioner’s mental state will have deteriorated to a point where the effects of his restrictive incarceration have becomeirreversible.” (3/16/07 2 SCT 190.) Later during the same April 11, 2000, state court proceedings, the state trial court noted that it had reviewedthe petition and reply brief filed in the Ninth Circuit Court of Appeals. (5 RT 1075.) The court expressed its concern overthe representation in the petition that: “Petitioneris alleging that he cannot any longer present evidence as to his mental condition to the trier of fact at his penalty phasetrial, because the conditions of his confinement have caused him to become mentally unstable, to the point where his counsel and psychologist cannot prepare petitioner for trial.” (5 RT 1075.) The court then madecertain “observations for the record” regarding Mr. Mai’s courtroom demeanoron April 3, 6, 10, and 11. (5 RT 1075-1076.) According to the court, during the voir dire proceedings held on those dates, Mr. Mai“attentively followedroll call page by page,” read the juror questionnaires, made notes, consulted with both his attorneys 212 regarding the questionnaires and “has assisted Mr. Peters in the exercise of peremptory challenges.” (5 RT 1075.) Furthermore, Mr. Mai “has not — given an appearance of being nervous or upset. On the contrary, he has appeared to be rather calm and collected during this four-day time frame.” (5 RT 1076.) Mr. Peters asked the court if he could respond. The court replied, “sure, respond, it won’t change myobservations, but you may respond.” (5RT 1076.) _ Mr. Peters replied that Dr. Thomas had met with Mr. Mai again “last Wednesday” (April 5, 2000) and “she noted there was an increasein his physiological symptoms, headaches, nausea, dizziness. Andthat the — there was an increase in the intensity of his emotional reaction to innocuous stimuli, the smaller the problem, the bigger the reaction which she expected. And westill have those going on.” (5 RT 1076.) Furthermore, “she confirmedherprior opinions that he can’t be objective in dealing with her or me, becauseall his little efforts at anything are being thwarted, including flushing his owntoilet. And this morning, of course, the defendant did have an outburst, and we did have to pause for a while to calm him down, or I did.” (5 RT 1076.) Once again, however, Mr. Peters took pains to emphasize that he was not requesting the initiation of competency proceedings. “[I]f he were 1368, I’d say that, I am not doing that because that would be a game, and I am not here to play games.” (5 RT 1077.) Also on April 11, 2000, the Fourth District Court of Appeal issued a postcard denial of the petition. (3/16/07 3 SCT 368-369.) During the next court session on April 12, 2000, Mr. Peters noted for the record that he had been informed that Mr. Mai would not comeout of his cell voluntarily and reminded the court that “with his mentalstate, the 213 little things drive him crazy.” (6 RT 1079.) The court similarly noted that both defense counsel had beenin the holdingcell talking to Mr. Mai and that Mr. Mai “has been so loud you can almost hear it out in the courtroom.” (6 RT 1079.) Furthermore, the jurors had been waiting over an hour while defense counsel attempted to calm Mr. Mai. (6 RT 1080- 1081.) The court continued, “... you have told me his concerns with his custodial situation; is it something beyondthat that is our problem this morning?” (6 RT 1081.) Mr. Peters responded,“thereis a lot of things, he is not talking, and I am not saying 1368, I am not saying that, but he is very upset, and part of it he can control and part he can’t because of the frustrations he goes through.” (6 RT 1081.) For instance,“[i]t drives him crazy whenthere is lunch problems .... I mean,this is what kind of mentality he has....” (6 RT 1081.) Mr. Peters continued that Mr. Mai’s emotions were volatile and erratic, as Dr. Thomashadtestified to the court. (6 RT 1082.) After an outburst, Mr. Mai will “come out and be quite calm. Andthat is caused by being so isolated. And when anything goes wrong,like the visits with the father, or lunch, they become magnified. .... WhatI am trying to say to the court is, when we havelittle issues, please take into consideration .... he knows what the outcomeis, he does and you do, we can’t be certain, but this kind of case, and the fact that we may put on no defense,is the evidence is overwhelming and awfully brutal, you know,ifwe just — if we can get through this.” (6 RT 1082.) The court again reminded counselthat Mr. Mai would be removed from the courtroom if he continued to “act out.” (6 RT 1082-1083.) | After a brief off-the-record discussion with Mr. Mai, Messrs. Peters and O’Connell informed the court that Mr. Mai himself was concerned 214 about his inability to control himself. (6 RT 1086-1087.) Therefore, Mr. © Mai requested that he be shackled throughout the remainderofthe proceedings. (6 RT 1086-1087.) Mr. Peters joined in Mr. Mai’s request — “for his [Mr. Mai’s] safety and my safety and Dennis [O’Connell]’s safety.” (RT 1086.) The court agreed and ordered that Mr. Mai be shackled with “Martin chains,” which are chains around the waist to which handcuffs are attached (2 RT 348) — in addition to the leg chain the court had already ordered (2 RT 365) — for the remainderofthe trial. (6 RT 1086.) As the court had pointed out in an earlier proceeding, “Martin chains”are visible to jurors. (2 RT 348.) Within moments, Mr. Mai again acted out in front of the jurors and was admonishedby the court. (6 RT 1089-1090.) Mr. Mai askedifhe could address the court, but the court refused. (6 RT 1090.) Mr. Mai turned to Mr. Peters and asked, “Mr. Peters, my lawyer, can you please speak up for me?” (6 RT 1090.) After a brief conference, Mr. Peters informed the court — still in front of the jurors — “Mr. Mai just wanted to be assured it was your order that he be here this morning.” (6 RT 1090.) The court replied that it was. (6 RT 1090.) Mr. Maiinterjected: “if you have the order [sic] to do that, why don’t you have the power to do anything else?” (6 RT 1090.) Again, the court admonished Mr. Mainot to disrupt the proceedings. (6 RT 1090.) Mr. Mai continued, “Excuse me, Mr.Peters, could you ask him if you have the powerto do that, why you don’t have the powerto do other stuff?” (6 RT 1090.) Again, the court ordered Mr. Mai not to disrupt the proceedings. (6 RT 1090.) The prosecutor commencedhis penalty phase opening statement immediately thereafter, during which Mr. Mai again disrupted the proceedings, prompting another admonishmentfrom the court. (6 RT 215 1091.) Nevertheless, Mr. Mai again disrupted the proceedingsat the close of the prosecutor’s statement, prompting yet another admonishment from the court. (6 RT 1098.) On April 17, 2000, Mr. Mai had another outburst, disrupting the testimony of a prosecution witness. (7 RT 1319.) Helater had yet another outburst, repeatedly disrupting the testimony of another prosecution witness. (7 RT 1325-1331.) He eventually becamesoirrational and enraged that he turned over counsel table (to which he was shackled) in front of the jurors and had to be removed from the courtroom by the bailiffs. (7 RT 1331.)” H/ H °2 Mr. Mai wasapparently incensed atthe notion that someonein his position could be accused — as the witness had accused him — oftrying “‘to carjack a piece of shit Honda.” (RT 1325.) Aggression and poor impulse control are symptoms of a mental disorder caused in wholeor in part by solitary, or segregated housing, confinement. (See, e.g., Madrid v. Gomez (N.D.Cal. 1995) 889 F.Supp. 1146, 1265-1266, and authorities cited therein.) 216 C. The Trial Court’s Failure to Suspend Criminal Proceedings and Initiate Competency Proceedings in the Face of Substantial Evidence That Mr. Mai’s Mental State Had Deteriorated in Solitary Confinement to the Point That He Was Unable to Rationally Assist In the Preparation of his Defense Violated State Law and Mr. Mai’s Federal Constitutional Right to Due Process Asdiscussed in Argument I-F-1, ante, the Due Process Clause ofthe Fourteenth Amendmentto the United States Constitution and Penal Code section 1367 prohibit the state from trying or sentencing a criminal defendant while incompetent. (Drope v. Missouri (1975) 420 U.S. 162, 171; Pate v. Robinson (1966) 383 U.S. 375, 384-386; Dusky v. United States (1960) 362 U.S. 402, 403.) Under the federal constitutional standard, “a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, andto assist in preparing his defense may not be subjected to atrial.” (Drope v. Missouri, supra, 420 U.S. at p. 171; see also Dusky v. United States, supra, 362 U.S. at p. 402 [competency demandsthat defendant have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and has “a rational as well as factual understanding of the proceedings against him”’].) Similarly, under Penal Code section 1367, a defendant is mentally incompetentto standtrial “if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedingsor to assist counsel in the conductof a defense in a rational manner.” 217 1. Due Process Imposes An Absolute Obligation On Trial Courts to Hold a Competency Hearing WheneverSubstantial Evidence Raises a Reasonable Or Bona Fide Doubtasto the Defendant’s Competency to Stand Trial In order to prevent the trial of an incompetent person, the “applicable legal principles are well settled”: Both the due process clause of the Fourteenth Amendmentto the United States Constitution and state law require a trial judge to suspend proceedings and conduct a competency hearing wheneverthe court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant’s competenceto standtrial. (People v. Halvorsen (2007) 42 Cal.4th 379, 401; see also Pen. Code,§ 1368, subds.(a)-(c) [trial court must suspend proceedingsandinitiate competency proceedings “if a doubt arises in the mind of the judge as to the mental competence of the defendant”or “[i]f counsel informsthe court that he or she believes the defendant is or may be incompetent”]; People v. Pennington (1967) 66 Cal.2d 508, 518 [Pate v. Robinson, supra, transformed Penal Code Section 1368 into constitutional requirement].) Faced with substantial evidence of incompetence,thetrial court is required to declare a doubt and initiate competency proceedings sua sponte. (See, e.g., Pate v. Robinson, supra, 383 U.S.at pp. 384-386; People v. Koontz (2002) 27 Cal.4th 1041, 1064, and authorities cited therein; Od/ev. Woodford, supra, 238 F.3d at pp. 1088-1089, and authorities cited there; Thetrial court has no discretion in this regard. (See, e.g., People v. Welch (1999) 20 Cal.4th 701, 738; People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 69; People v. Pennington (1967) 66 Cal.2d 508,518-519.) Furthermore, “the matter is jurisdictional, and cannot be waived by 218 counsel” or the defendant himself. (People v. Hale (1988) 44 Cal.3d 531, 541, and authorities cited therein; accord People v. Marks (1988) 45 Cal.3d 1335, 1340, 1342; In re Davis (1973) 8 Cal.3d 798, 808; Pate v. Robinson, 383 US.at p. 384 [defendant cannot waivehis right to have the court determine his capacity to standtrial]; Miles v. Stainer (9th Cir. 1997) 108 F.3d 1109, 1112, and authorities cited therein.) The court’s duty to conduct a competency hearing arises when substantial evidence of incompetenceis presented at “any time ‘prior to judgment.’” (People v. Jones (1991) 53 Cal.3d 1115, 1152-1153, and authorities cited therein; accord, e.g., Drope v. Missouri, supra, 420 U.S. at p. 181; Moore v. United States (9th Cir. 1972) 464 F.2d 663, 666.) 2. The Sufficiency of Evidence to Raise a Reasonable or Bona Fide Doubt Regarding The Defendant’s Competency and Demand TheInitiation of Competency Proceedings “Substantial evidence” of incompetence is judged by anobjective standard. It does not mean unconflicting evidence(see, e.g., People v. Young (2005) 34 Cal.4th 1149, 1219; People v. Welch, supra, 20 Cal.4th at p. 738); it does mean persuasive evidence (People v. Hale, supra, 44 Cal.3d at p. 539; People v. Pennington, supra, 66 Cal.2d 518; People v. Ary (2004) 118 Cal.App.4th 1016, 1024-1025); and it does not mean evidence sufficient to raise a subjective doubt regarding the defendant’s competence in the mindofthe trial judge(see, e.g., People v. Jones, supra, 53 Cal.3d at p.1153 [“substantial evidence” is measured by an objective standard and, hence, cannot be defeated by the trial court’s own observations of the defendant or judge’s subjective belief that he appears competent]; accord, e.g., People v. Pennington, supra, 66 Cal.2d at p. 518; People v. Castro (2000) 78 Cal.App.4th 1415, 1402). As the Ninth Circuit Court ofAppeals 219 has explained: Evidenceis “substantial”if it raises a reasonable doubt about the defendant’s competencyto stand trial. Once there is such evidence from any source, there is a doubt that cannot be dispelled by resort to conflicting evidence. The function of the trial court in applying Pate’s substantial evidencetestis not to determine the ultimate issue: Is the defendant competent to stand trial? Its sole function is to decide whetherthere is any evidence which, assumingits truth, raises a reasonable doubt about the defendant’s competency. At any time that such evidence appears,the trial court sua sponte must order an evidentiary hearing on the competencyissue. It is only after the evidentiary hearing, applying the usualrules appropriate to trial, that the court decides the issue of competency of the defendantto standtrial. (Moore v. United States, supra, 464 F.2d at p. 666; see also Peoplev. Welch, supra, 20 Cal.4th at p. 738, and authorities cited therein; People v. Danielson (1992) 3 Cal.4th 691, 726; Tillery v. Eyman (9th Cir. 1974) 492 F.2d 1052, 1058-1059.) In this regard, this Court has consistently recognized that “[i]fa psychiatrist or qualified psychologist [citation], who has had sufficient opportunity to examine the accused states under oath and with particularity that in his [or her] professional opinion the accused is, because of mental illness [or disorder], incapable of understanding the purpose or nature of the proceedings being taken against him oris incapableofassisting in his defense or cooperating with counsel, the substantial evidencetest is satisfied.” (People v. Pennington, supra, 66 Cal.2d at p. 519; accord, e.g., People v. Young (2005) 34 Cal.4th 1149, 1217; People v. Welch, supra, 20 Cal.4th at p. 748; People v. Stankewitz (1982) 32 Cal.3d 80, 92.) Otherwise, in determining whetherthere is substantial evidence to require a competency hearing, the trial court must considerall of the 220 relevant circumstances. (Drope v. Missouri, supra, 420 U.S.at p. 180.) There are “no fixed or immutable signs which invariably indicate the need for further inquiry to determinefitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuancesare implicated.” (bid.) In some cases, many factors may be significant, while in others, just one factor may be enough to require that a competency hearing be held. (bid.; accord People v. Laudermilk (1967) 67 Cal.2d 272, 283 [what constitutes substantial evidence “cannot be answered by a simple formula applicable to all cases”].) However, amongthe factors that courts have consistently considered in finding substantial evidenceto raise a reasonable or bonafide doubt regarding the defendant’s competencyare: (1) mental health professionals’ prior determinations of incompetency and/or observations and conclusionsregarding the defendant’s present ability to understand the proceedings or rationally assist in his defense (see, e.g., Drope v. Missouri, supra, 420 U.S.at p. 180; People v. Ary (2004) 118 Cal.App.4th 1016, 1022, 1024; Miles v. Stainer, supra, 108 F.3d at p. 1112; Moore v. United States (9th Cir. 1972) 464 F.2d 663, 666; Burt v. Uchtman (7th Cir. 2005) 422 F.3d 557, 566); (2) trial counsel’s opinion regarding his client’s mental state and competency(see, e.g., Medina v. California (1992) 505 USS. 437, 450 [while counsel’s opinion is not necessarily determinative, “defense counsel will often have the best- informed view ofthe defendant’s ability to participate in his defense”]; Drope v. Missouri, supra, 420 U.S. at p. 177 and 221 (3) (4) (5) fn. 13 [“an expressed doubtin that regard by one with ‘the closest contact with the defendant,” is unquestionably a factor which should be considered]; McGregor v. Gibson (10th Cir. 2001) 248 F.3d 946, 954-955, 959-960; Torres v. Prunty (9th Cir. 2000) 223 F.3d 1103, 1109); the relevant observations of others in close contact with the defendant(see, e.g., Drope v. Missouri, supra, 420 U.S.at pp. 179-180; Pate v. Robinson, supra, 383 U.S.at pp. 385-386; Odle v. Woodford, supra, 238 F.3d at p. 1087); the defendant’s irrational or unusual behavior, including outbursts and disturbances, inside and outside of the courtroom (Drope v. Missouri, supra, 420 U.S. at pp. 179- 180; McGregor v. Gibson, supra, 248 F.3d at pp. 958-959, 961 [bona fide doubt of competency based,inter alia, on “odd behavior” duringtrial, including overreactive “temper tantrum’ outside courtroom, possible disorientation, and threats to disrupt proceedings]; Torres v. Prunty, supra, 223 F.3d at p. 1109 [same — continually disrupting proceedings, prompting defendant’s removal, and threatening to assault attorney]; United States v. Williams (10th Cir. 1997) 113 F.3d 1155, 1160 [same — “outbursts, interruptions ofthe attorneys, and defiance ofthe district court’s instructions”]; Chavez v. United States (9th Cir. 1981) 656 F.2d 512, 519 [emotional outbursts, one of which resulted in defendant’s forcible removal]); the defendant’s otherwise “self-defeating” behavior (Torresv. Prunty, supra, 223 F.3d at p. 1109 [insistence on wearingjail 222 (6) (7) garb and being shackled during proceedings]; accord Dropev. Missouri, supra, 420 U.S. at pp. 179-180; Pate v. Robinson, supra, 383 U.S.at pp. 385-386; Burt v. Uchtman (7th Cir. 2005) 422 F.3d 557, 565, and authorities cited therein [“guilty plea with no attempt to seek concessions from the prosecution may, when coupled with other evidence of mental problems, raise doubts as to the defendant’s competency”]; Chavez v. United States (9th Cir. 1981) 656 F.2d 512, 519 [desire to plead guilty with no attempt to plea bargain, when combined with other evidence]; United States v. Sandoval (E.D.N.Y. 2005) 365 F.Supp.2d 319, 325; see also Agan v. Dugger (11th Cir. 1987) 835 F.2d 1337, 1340 [remanding for evidentiary hearing where defendant’s “self-defeating behavior” including confessing to crime, waiving all constitutional rights regarding crime and pleading without seeking benefit, and attempting to prevent defense counsel from presenting mitigating evidence, along with other evidence, “should have alerted [counsel] to the possibility that [defendant] was incompetent to renderhis guilty plea” to capital murder]); evidence of a head injury or brain trauma followed by a change in behavior(see, e.g., Pate v. Robinson, supra, 383 U.S. at p. 378; Odle v. Woodford, supra, 238 F.3d 1084, 1087; Torres v. Prunty, supra, 223 F.3d at p. 1106 & fn. 2; Burt v. Uchtman, supra, 422 F.3d at pp. 555-556; McGregor v. Gibson, supra, 248 F.3d at pp. 955-956); and evidence of suicide attempts or suicidal ideation(see,e.g., People v. Rogers (2006) 39 Cal.4th 826, 848; Dropev. 223 Missouri, supra, 420 U.S. at pp. 166-167, 179-180; United States v. Loyola-Dominguez (9th Cir. 1997) 125 F.3d 1315, 1318-1319; Moran v. Godinez (9th Cir. 1994) 40 F.3d 1567, 1572, modified 57 F.3d 690, 695-696 [previous suicide attempt along with defendant’s expressed wishto “fire his attorneys, plead guilty to three counts of capital murder, and die”’].) “Once such substantial evidence appears, a doubtasto the sanity [or competency] of the accused exists, no matter how persuasive other evidence — testimony of prosecution witnesses or the court’s own observations ofthe accused — may be to the contrary.’ (People v. Pennington, supra, 66 Cal.2d at p.518.)... The existence of other evidence, even if deemedto be in conflict with the substantial evidence of incompetency, does notrelieve the trial court of the duty to conduct a competency hearing.” (Peoplev. Stankewitz, supra, 32 Cal.3d at p. 93, italics in original.) 3. The Evidence Raised a Reasonable Doubt Regarding Mr. Mai’s Competencyto Stand Trial Pursuant to the foregoing authorities, the trial court in this case was presented with substantial evidence calling into doubt Mr. Mai’s competencyto standtrial. As discussed in detail in Part B, above, the court was well aware that Mr. Mai wastaken into federal custody in July 1998 and held underincreasingly restrictive conditions of solitary confinement. (1 RT 192-193; 2 RT 372, 374, 382-383, 396; 3 RT 403-405, 409-411, 415- 417, 419, 427-428, 449, 453-456, 471-473; 4 RT 589; 2 CT 405-406, 482, 497, 500-501; 3/16/07 2 SCT 52-44, 161, 175-177, 190; 3/16/07 3 SCT 308-320.) Asfurther discussed in Part B, one month before the penalty phase 224 trial commenced, court-appointed clinical and forensic psychologist, Dr. Veronica Thomas, who met with Mr. Mai several times over several months, testified before the court that Mr. Mai’s mental state deteriorated as the severity of the confinement conditions and his sensory deprivation increased. (3 RT 409-411, 414-417, 421, 427-428.) Also according to Dr. Thomas,the observations of both trial counsel andthetrial investigator and their interactions with Mr. Mai were similar to her own and led all members of the defense team to the conclusion that Mr. Mai could not “cope with” the sensory deprivation of his increasingly restrictive confinement conditions and “the rage and the emotional lability of the defendant was impairing the process of the defenseall the way around.” (3 RT 411.) Dr. Thomas was quite explicit in testifying that Mr. Mai’s “alternately enraged and irrational” mental state compromised “his ability to process the issues” and had madeit impossible for her to complete the work necessary to prepare his penalty phase defense. (3 RT 411, 414, 421, 428.) A month after Dr. Thomasgavethis testimony, and in the middle ofthe penalty phase, defense counsel reported to the trial court that Dr. Thomas met with Mr. Mai again and “noted there was an increase in his physiological symptoms, headaches, nausea, dizziness. And that there was an increase in the intensity of his emotional reaction to innocuousstimuli, the smaller the problem, the bigger the reaction which she expected. And westill have those going on.” (5 RT 1076.) Indeed, at the time oftrial, and consistent with Dr. Thomas’s impressions in this case, it was “well accepted that conditions such as those in [segregated housing units] . . . can cause psychological decompensation to the point that individuals may become incompetent.” (Miller ex. rel. Jones v. Stewart (9th Cir. 2000) 231 F.3d 1248, 1252; accord, e.g., Comer 225 v. Stewart (9th Cir. 2000) 215 F.3d 910, 915, and authorities cited therein.) As one court has explained, this phenomenon, knownassolitary confinementor “Segregated Housing Unit ((SHU’) Syndrome”is a “constellation of symptoms” and “made up ofofficial diagnoses such as paranoid delusional disorder, disassociative disorder, schizophrenia, and panic disorder. The extremely isolated conditions in supermaximum confinement cause SHU Syndromein relatively healthy prisoners .. . who have never suffered a breakdown in the past but are prone to breakdown whenthe stress and trauma become exceptionally severe. Many prisoners are not capable of maintaining their sanity in such an extreme andstressful environment.” (Jones v. El Berge (W.D. Wis. 2001) 164 F.Supp.2d 1096, 1101-1102; accord, e.g., Madrid v. Gomez (N.D. Cal. 1995) 889 F.Supp. 1146, 1265-1266 [“social sciences andliterature have consistently reported that when humanbeings are subjected to social isolation and reduced environmental stimulation, they may deteriorate mentally and in some cases develop psychiatric disturbances,” including “aggressive fantasies, overt paranoia, inability to concentrate, and problems with impulse control’”’]; Comerv. Stewart (D. Ariz. 2002) 230 F.Supp.2d 1016, 1025, 1056-1057, fn. 18, affirmed in Comer v. Schriro (9th Cir. 2006) 480 F.3d 960, and authorities cited therein; In re Medley (1890) 134 U.S. 160, 168; Terry Kruper, Prison Madness: Mental Health Crisis Behind Bars and What We Must Do AboutIt (1999), 56-64; Craig Hainey & Mona Lynch, Regulating Prisons ofthe Future: A Psychological Analysis ofSupermax and Solitary Confinement (1997) 23 N.Y.U. Rev. OfLaw & Soc. Change 447; Dr. Stuart Grassian, Psychopathological Effects ofSolitary Confinement (1983) 140 Am.J. Psychiatry 1450; David Fathi, The Common Law ofSupermax Litigation (Spring 2004) 24 Pace Law Review 675 ) 226 As discussed in part C-2, above, this Court has consistently recognizedthat “[i]f a psychiatrist or qualified psychologist [citation], who has had sufficient opportunity to examine the accused states under oath with particularity that in his [or her] professional opinion the accused is, because of mentalillness [or disorder], incapable of understanding the purpose or nature of the proceedings being taken against him oris incapable of assisting in his defense or cooperating with counsel, the substantial evidencetest is satisfied.” (People v. Pennington, supra, 66 Cal.2dat p. 519; accord, e.g., People v. Young, supra, 34 Cal.4th 1149, 1217, People v. Welch, supra, 20 Cal.4th at p. 748.) While it is true that Dr. Thomasdid not use the word “incompetent”or specifically address his mental condition under Penal Code section 1367 — becauseneither trial counsel nor the court asked her that question — it is clear from her testimony and reported impressions as a whole that, based on her expertise, meetings with Mr. Mai, and his defense team’s reports, she believed that the “sensory deprivation” created by the confinement conditions resulted in Mr. Mai’s inability to assist counsel in the conduct of his defense in a rational manner. (See Pen. Code, § 1367; Drope v. Missouri, supra, 420 U.S.at p. 180; People v. Kaplan (2007) 149 Cal.App.4th 372, 386-387 [although psychologist “did 999not expressly state the opinion defendant was ‘incompetent,’” she submitted a report in which she “addressed at length how and why defendant was unable to assist counsel,” which was sufficient to raise reasonable doubt regarding competency and demandhearing]; People v. Ary (2004) 118 Cal.App.4th 1016, 1023-1024 [court erred in failing to initiate competency proceedings in face of substantial evidence raising reasonable doubt as to defendant’s competency; despite fact psychologist did not offer an explicit opinion as to whether the defendant was competentto standtrial, he did 227 testify in effect that defendant was unable to understand the proceedings or assist counsel in his defense]; see also Comer v. Stewart (9th Cir. 2000) 215 F.3d 910, 915-917, and authorities cited therein [competency hearing ordered where,inter alia, defendant sought to be executed and there was evidence that the conditions of his confinement had such an adverseeffect on his mental state that he was rendered incompetent].) Pursuantto the foregoing authorities, Dr. Thomas’s testimony alone wassufficient to raise a reasonable doubt as to Mr. Mai’s competencyto stand trial — and indeed take control of his case and make decisions which made a death judgment a foregone conclusion — within the meaning of section 1367 and demanda competency hearing. Even if Dr. Thomas’s testimony alone were not sufficient, the trial court was aware of a wealth of other evidence which, in combination with Dr. Thomas’s testimony, was clearly sufficient to raise a reasonable doubt that Mr. Mai was competent to stand trial and decide to die. (See, e.g., Drope v. Missouri, supra, 420 U.S. at pp. 175-180 [although psychiatrist’s report did not specifically address issue of competencyto standtrial because that question was not presented to him, information contained therein, including descriptions of “episodic irrational acts” and difficulties in participating, along with other evidence, was sufficient to raise a reasonable doubt regarding defendant’s competency, whichtriggered the trial court’s sua sponte duty to initiate competency proceedings].) Asdiscussed in Argument I-G-4, ante, the court was aware that Victoria Pham and Mr. Mai hadlived together and been involved in a romantic relationship for 10 to 12 years. (3 RT 419; 7 RT 1315-1316; Muni RT 571-572; 2 CT 499.) According to defense counsel and Dr. Thomas, Ms. Pham informed them that Mr. Mai had beenin a terrible, near fatal car 228 accident, after which his behavior changed dramatically, causing him to become quite violent. (2 CT 501; 1 RT 170-171; 2 RT 231-232.) In Dr. Thomas’s opinion, this evidence suggested the possibility of brain damage. (1 RT 170-171; 2 RT 231-232.) As noted above,this type of evidenceis well-recognizedas raising a red flag regarding a defendant’s competency, particularly where, as here, it accompaniesothersignsofirrational thinking or behavior. (See, e.g., Pate v. Robinson, supra, 383 U.S.at p. 378 [evidence that defendant suffered head injury, after which his behavior changed, along with evidence ofirrational behavior, was sufficient to raise bona fide doubt as to the defendant’s competency and court’s failure to initiate proceedings violated defendant’s right to due process]; Odlev. Woodford, supra, 238 F.3d at pp. 1087-1089 [evidence that defendant had been in a car accident and suffered brain injury, after which his behavior changed and becameincreasingly erratic, raised reasonable doubtas to defendant’s competency and court’s failure to initiate proceedings violated defendant’s right to due process]; Torres v. Prunty, supra, 223 F.3d atpp. 1106, & fn. 2; Burt v. Uchtman, supra, 422 F.3d at pp. 555-556.) Furthermore, as discussed in Part B, above, from the date of Mr. Mai’s slow plea to capital murder throughoutthe penalty phase proceedings, defense counsel repeatedly informed the court, both orally and in writing, that Mr. Mai’s mental state had deteriorated underthe harsh conditions of confinementto the point that he wasirrational and unable to assist the defense team with necessary preparation for the penalty phase defense. In this regard, the United States Supreme Court has recognized that defense counsel are often those in closest contact with the defendant and therefore “defense counsel will often have the best-informed view of the defendant’s ability to participate in his defense.” (Medina v. California, 229 supra, 505 U.S. at p. 450.) As such, counsel’s representations regarding his or her client’s mental state and ability to rationally assist in the defense are entitled to great weight. (/bid., accord Drope v. Missouri, supra, 420 U.S. at p. 177 and fn. 13; People v. Howard (1992) 1 Cal.4th 1132, 1164; McGregor v. Gibson, supra, 248 F.3d at pp. 954-955, 959-960; Torresv. Prunty, supra, 223 F.3d at p. 1109.) The manifestations of Mr. Mai’s deteriorating mental health were not limited to his behavior with his defense team, but extendedto the courtroom. As discussed in Part B, above, in some proceedings, Mr. Mai seemed disoriented and confused. (2 RT 395-398; see McGregor v. Gibson, supra, 248 F.3d at p. 959 [statements suggesting possible disorientation was among evidenceraising reasonable doubt of competency].) In others, he wasirrational and violent both inside and outside of the courtroom. (2 RT 305-309, 345, 349; 5 RT 1076; 6 RT 1079, 1082-1083, 1089-1091, 1098; 7 RT 1319, 1325-1331; Torres v. Prunty, supra, 223 F.3d at p. 1109 [substantial evidence raising reasonable doubt of competency based,inter alia, on continual disruption of proceedings]; accord United States v. Williams, supra, 113 F.3d at p. 1160, and authorities cited therein [same — proper andrational assistance includes ““comportment in the courtroom before the jury’”’]; Chavez v. United States, supra, 656 F.2d at p. 519; McGregorv. Gibson, supra, 248 F.3d at pp. 958-959, 961.) Thetrial court repeatedly admonished Mr. Maito stop disrupting the proceedings and warned him that he would be removed if he could not control himself— orders Mr. Mai would not or could not follow. (2 RT 305-309, 345, 349, 1082-1083, 1089-1091, 1098; see, e.g., United States v. Williams (10th Cir. 1997) 113 F.3d 1155, 1160 [substantial evidencein light of, inter alia, “outbursts, interruptions of the attorneys, and defiance ofthe district court’s 230 instructions”].) His outbursts outside of the courtroom caused substantial delays in the proceedings. (5 RT 1076; 6 RT 1079-1082.) Indeed, Mr. Mai eventually becameso irrational and enraged that he overturned counsel table — to which he wasshackled — in front of the jurors and hadto be forcibly removed from the courtroom bythe bailiffs. (7 RT 1331; see, e.g., Torres v. Prunty, supra, 223 F.3d at p. 1109 [substantial evidence where, inter alia, there were disruptions resulting in defendant’s removal from courtroom]; Chavez v. United States, supra, 656 F.2d at p. 519 [same].) Moreover, Mr. Mai engaged in other increasingly self-defeating behavior. (See also Drope v. Missouri, supra, 420 U.S. at pp. 179-180; Pate v. Robinson, supra, 383 U.S.at pp. 385-386.) Thetrial court was aware that Mr. Mai agreedto, and did, plead guilty to all of the federal charges, plead guilty to the state murder charge with special circumstances, and remain in the custody of the federal government under draconian confinement conditions in exchangefor virtually nothing: a mere promise from the federal government to “recommend”a sentence reduction for Ms. Pham, which was ultimately rejected by the federal court. (See ArgumentI- E, ante.) Even after Ms. Pham was sentenced and Mr. Mai could no longer help her with his own sacrifices, Mr. Maiinsisted on pleading guilty to capital murderin state court, despite the existence of a viable “defense”(the insufficiency of evidence to prove the sole special circumstance allegation, as discussed in ArgumentII, ante), without seeking (or receiving) any concession or benefit from the state. (See ArgumentI-E, antee.) As noted above, a “guilty plea with no attempt to seek concessions from the prosecution may, when coupled with other evidence of mental problems, raise doubts as to the defendant’s competency.” (Burt v. Uchtman, supra, 422 F.3d at p. 565, and authorities cited therein; accord Agan v. Dugger, 231 supra, 835 F.2d at p. 1340; Chavez v. United States, supra, 656 F.2d at p. 519; United States v. Sandoval, supra, 365 F.Supp.2d at p. 325.) Indeed, Mr. Mai’s explanation for his state guilty pleas was nonsensical. As discussed in Argument I-E-2, ante, Mr. Mai was emphatic that he was not pleading guilty to capital murder in order to “beg for his life” or gain sometactical advantage in the penalty phase. (1 RT 197-198; 2 RT 207-210.) Despite defense counsel’s repeated representations that nothing Mr. Mai did could now help Ms. Pham because she had already been sentenced, Mr. Mai was adamantthat he was entering the plea in order to help Ms. Pham. (1 RT 197-198; 2 RT 207-210; see also 3 RT 489-490.) The court recognized that Mr. Mai’s explanation madenosense if what Mr. Peters wastelling him was true and inquired into the rationality of Mr. Mai’s explanation by asking counselif there was somepossible benefit to Ms. Pham for Mr. Mai’s plea that had not been disclosed. (2 RT 209-210.) According to Mr. Peters, there was no potential benefit: “it is all done.” (2 RT 210.) Nevertheless, despite the on-record emphasis by both the court and counsel that Mr. Mai’s slow plea would in no way help Ms. Pham, Mr. Maiinsisted that he was entering the plea for just that reason. (2 RT 209- 210.) Mr. Mai’s explanation for entering a slow plea and admitting a special circumstance allegation unsupported by sufficient evidence, without the promise of any benefit at all, was compelling evidence to buttress Mr. Peters’s and Dr. Thomas’s impressions that Mr. Mai simply was not engaging in rational, competent decision-making. (See, e.g., Burt v. Uchtman, supra, 422 F.3d at p. 565; Agan v. Dugger, supra, 835 F.2d at p. 1340; Chavez v. United States, supra, 656 F.2d at p. 519; United States v. Sandoval, supra, 365 F.Supp.2d at p. 325.) Of course, as further discussed in Part B, ante, Mr. Mai’s self- 232 defeating “decisions” extended to the penalty phase, as well. During sessions in which he continually displayed irrational behavior through violent outbursts and constant disruptions, defense counsel also informed the court that Mr. Mai wished to appear in jail garb and visible shackles in front of the penalty phase jurors — requests that were granted. (2 RT 305- 309, 319, 348, 365; 3 RT 490; 4 RT 586; 6 RT 1086-1090 1089-1090; Torres v. Prunty (9th Cir. 2000) 223 F.3d at p. 1109 [bonafide doubt where,inter alia, defendant insisted on wearingjail garb and being shackled during trial].) When the court specifically inquired of Mr. Mai if he wished to appearin jail garb, he provided no audible response. (2 RT 319; see, e.g., United States v. John (7th Cir. 1984) 728 F.2d 953, 956-957, and authorities cited therein [substantial evidence raised doubt about competency where, in combination with other evidence, defendanteither remained silent when questioned by the judge or provided monosyllabic responses].) According to defense counsel, Mr. Mai wished to be shackled because he himself was concerned abouthis inability to control himself during the proceedings. (2 RT 348, 365; 6 RT 1086-1087; see, e.g., People v. Hill (1998) 17 Cal.4th 800, 846, and authorities cited therein [recognizing the “pain ‘and consequential burden on the mind and bodyofthe defendant’” caused by physical restraints, which can “‘impair[] his mental faculties’” and his “ability to cooperate or communicate with counsel”]; accord J/linois v. Allen (1970) 397 U.S. 337, 344; Duckett v. Godinez (9th Cir. 1995) 67 F.3d 734, 748 [visible restraints are inherently prejudicial during the penalty phase because they “may create the impression in the minds ofthe jurors that the court believes the defendantis a particularly dangerous and violent person,” whichis often a critical issue in the penalty phase].) And defense counsel joined in Mr. Mai’s request “for his safety 233 and my safety and [co-counsel]’s safety.” (6 RT 1086.) As further discussed in detail in Argument I, ante Mr. Mai declined to present any penalty phase defenseat all, including the presentation of compelling mitigating evidence or closing argument. Indeed, he threatened to “act out” again, as he had when he overturned counsel table to which he was shackled,if his defense attorneys presented closing argument pleading for his life. (8 RT 1399, 1400, 1402-1403; see McGregor v. Gibson, supra, 248 F.3d at pp. 958-959, 961 [bona fide doubt where,inter alia, defendant threatened to disrupt proceedings, which prompted his removal, and threatened to assault attorney].) And, at his request, he took the stand and testified that the jurors should return a death verdict. (8 RT 1409-1410.) Again, Mr. Maidid not offer any rational explanation for his decision to die. His counsel told the court that Mr. Mai wished to commit suicide by jury “for what he believes are valid moral reasons” (8 RT 1399), but Mr. Mai himself never offered any “valid moral” or any other coherent reason for his choice. Mr. Mai simply volunteered to the court: Your honor, I am not suicidal, if I was suicidal I wouldn’t be here this day. I just feel this is something I need to do. I feel this is something that is important to everybody,I believe. I am just doing the right thing that I feel that’s necessary. I am not looking at this the way everyoneelse here is lookingat it. I feel I am competent, I can do this, and I would appreciate my lawyernot to say anything. (8 RT 1402.) Mr. Maidid not elaborate on whythis wasthe “right thing” or “necessary” or in what way his view of “looking at this” was different from “the way everybodyelse here is lookingat it” nor did the court ask him to do so. His testimony to the jurors, however, did provide somehints regarding the impetus for his decisions. He told the jurors that imposition 234 of the death penalty wasright and appropriate becauseit followed the law ofthe streets: “I believe in two eyes for every eye. If you were to take downone ofmy fellows, I would do everything that is necessary to take down at least two of yours, just to be even.” (8 RT 1409.) Therefore, the jurors should do the same “becauseis only fair, there’s a price to pay for everything in life, now that I am hereit’s time I pay that price. Because, after all of this entire ordeal, it is just part ofthe game.” (8 RT 1410,italics added.) It is true that this Court has held that “a defendant’s preference for the death penalty and overall death wish does not alone amountto substantial evidence of incompetence requiring the court to order an independent psychiatric evaluation.” (People v. Ramos (2004) 34 Cal.4th 494, 509, italics added; accord People v. Guzman (1988) 45 Cal.3d 915, 964.) However,it is equally true that suicidal behavior or ideation and other self-defeating behavior, “in combination with other factors, may constitute substantial evidence raising a bonafide doubt regarding a defendant’s competenceto standtrial.” (People v. Rogers, supra, 39 Cal.4th at p. 848; accord, e.g., Drope v. Missouri, supra, 420 U.S.at pp. 166-167, 179-180 [“we need not address the Court of Appeals’ conclusion that an attempt to commit suicide does not create a reasonable doubt of competence to stand trial as a matter of law” because that attempt “did not stand alone”; the attempt in combination with other evidence created reasonable doubt as to competencyto standtrial]; United States v. Loyola-Dominguez (9th Cir. 1997) 125 F.3d 1315, 1318-1319; Moran v. Godinez (9th Cir. 57 F.3d 690, 695-696.) This is just such a case. Mr. Mai’s wish to commitstate- assisted suicide, in combination with the other substantial evidencethat it wasinfluencedbyhisirrational and decompensating mental state, was more 235 than sufficient to raise an objectively reasonable doubt regarding his competency andtriggerthe trial court’s duty to order a competency hearing. Althoughthetrial court never explicitly addressed the issue of Mr. Mai’s competenceto standtrial, the record suggests two reasonsfor the court’s failure to declare a doubt regarding Mr. Mai’s competency, suspend the criminal proceedings andinitiate competency proceedings: (1) defense counsels’ statements that although they and Dr. Thomasbelieved that Mr. Mai’s mental state had so deteriorated in solitary confinement that he was no longerable to rationally participate in his defense, defense counsel also did not believe that he was incompetent understate law; and (2) the court’s | own observations of Mr. Mai’s courtroom demeanor. However, neither reason negated the substantial evidence raising an objective, reasonable doubt regarding Mr. Mai’s competencyorrelieved thetrial court ofits independent duty to initiate competency proceedingsin the face ofthat evidence. 4. Neither Defense Counsels’ Statements That, Although They Believed That Mr. Mai Was Unable to Rationally Participate in His Defense, They Did Not Believe That He Was Incompetent, Nor the Trial Court’s Own Observations of Mr. Mai’s DemeanorRelieved the Trial Court ofits Independent Duty to Declare a Doubt Regarding Mr. Mai’s Competency to Stand Trial and Initiate Competency Proceedings To be sure, Mr. Peters repeatedly stated that he did not believe that Mr. Mai “was 1368.” However, these statements were irreconcilable with his other, repeated remarksto the state trial court, the federal district court, the Ninth Circuit Court of Appeals, and the Court ofAppeal for the Fourth Appellate District, that Mr. Mai’s mental state had deteriorated to the point that he could no longerrationally participate in his defense. While Mr. 236 Peters’s statements regarding his interactions with Mr. Maiin the preparation of his defense wereentitled to significant weight, as discussed above, his further, nonsensical and indefensible statements that he did not believe that Mr. Mai was incompetent were not. (Cf. Odle v. Woodford, supra, 238 F.3d at p. 1089 [“counselis not a trained mental health professional andhis failure to raise petitioner’s competence doesnot establish that petitioner was competent;” holding other evidencein the record, including evidence of head trauma andbrain injury followed by psychotic behavior, some of which occurred while awaitingtrial, sufficient to raise doubt in a reasonable jurist regarding competencyto standtrial].) Those statements certainly did notrelieve thetrial court of its independent duty to initiate competency proceedings in the face of substantial evidence raising an objective, reasonable doubt regarding Mr. Mai’s competency. (See, e.g., United States v. John, supra, 728 F.3d at p. 957 [substantial evidence raising doubt regarding defendant’s competency demanded hearing despite defense counsel’s statement that he believed his client was competent]; People v. Ary, supra, 118 Cal.App.4th at p. 1025 [same]; United States v. Timmins (9th Cir. 2002) 301 F.3d 974, 981 [same — “Courts mustresist the unquestioning acceptance of counsel’s representations concerning client competence”’].) In addition, as discussed in Part B, above, after having received and reviewed the pleadingsfiled in the Ninth Circuit, the trial court expressed its concern over defense counsel’s representation in those pleadingsthat “the conditions of [Mr. Mai’s] confinement have caused him to become mentally unstable, to the point where his counsel and psychologist cannot prepare petitionerfortrial.” (5 RT 1075.) The court then “observ[ed] for the record”that, during those voir dire proceedings, Mr. Mai “attentively 237 followedroll call page by page,” read the juror questionnaires, made notes, consulted with both his attorneys regarding the questionnaires and “has assisted Mr. Peters in the exercise ofperemptory challenges.” (5 RT 1075.) Furthermore, Mr. Mai “has not given an appearance of being nervousor upset. On the contrary, he has appeared to be rather calm andcollected during this four-day time frame.” (5 RT 1076.) In addition to informing the court that Dr. Thomashadspent“considerable time with” Mr. Mai just days earlier and “noted an increase in his physiological symptoms. . . and confirmedherprior opinions that he can’t be objective in dealing with her or me,” Mr. Peters pointed out that the court’s observations about Mr. Mai’s seeming calmness wassimply incorrect: “this morning, of course, the defendant did have an outburst, and we did have to pause for a while to calm him down,or I did.” (5 RT 1076.) Not only werethetrial court’s observations incorrect; they were entirely speculative. Thetrial court simply had no way of knowing whether Mr. Mai wasactually reading the juror questionnaires for voir dire purposes, simply appearing to read them,or reading them for hidden messages from aliens conspiring to kill him. Nor could the court know that when Mr. Maispoke with his attorneys on those days, he wasrationally consulting with them about voir dire, and not about the stench from his full toilet, or a desire to removeall jurors with red hair, or aboutlittle green men. The most that the court could say was that Mr. Mai appeared to be participating in the voirdire. It seems clear from the court’s remarksthat it believed that its own observations regarding Mr. Mai’s demeanor and apparent participation in the voir dire process trumped the overwhelming other evidence — including the representations of his own counsel and a qualified psychologist who had 238 frequent contact with Mr. Mai — that he was unable to participate in his defense in a rational manner. Of course, the court was wrong. As discussed in part C, above, “[t]he doubt which triggers the obligation of the trial judge to order a hearing . . . is not a subjective one but rather a doubt determined objectively from the record.” (People v. Humphrey (1975) 45 Cal.App.3d 32, 36; accord, e.g., People v. Jones, supra, 53 Cal.3d at p. 1153; People v. Pennington, supra, 66 Cal.2d atp. 518; People v. Castro, supra, 78 Cal.App.4th at p. 1402; McGregorv. Gibson, supra, 248 F.3d at p. 952; United States v. Williams (Sth Cir. 1988) 819 F.2d 605, 619.) Consistent with this objective standard: Although section 1368, subdivision (a), refers to a doubtthat arises “in the mind of the judge as to the mental competenceofthe defendant,” case law interpreting this subdivision establishesthat when the court becomes aware of substantial evidence which objectively generates a doubt about whether the defendant is competentto standtrial, the trial court must on its own motion declare a doubt and suspend proceedingsevenifthe trial judge’s own observationslead the judge to a belief that the defendantis competent. (People v. Castro, supra, 78 Cal.App.4th at p. 1415, citing People v. Jones, supra, 53 Cal.3d at p. 1153 and People v. Pennington, supra, 66 Cal.2dat p. 518.) Here, the court was aware of substantial evidence raising an objective, reasonable doubt regarding Mr. Mai’s competency,or ability to participate in his defense in a rational manner. Once presented with such evidence, the court had absolutely no discretion to decline to declare a doubt and suspend criminal proceedings based on its own observations of Mr. Mai’s demeanororits subjective belief that he was competent. (See, e.g., People v. Jones, supra, 53 Cal.3d at p. 1153 [“substantial evidence”is measured by an objective standard and, hence, cannot be defeated by the 239 trial court’s own observations of the defendant]; accord, e.g., People v. Pennington, supra, 66 Cal.2d at p. 518.) In any event, even assuming arguendo the correctness of the court’s implicit conclusion that Mr. Mai was competent during the voir dire proceedings on April 3, 6, 10, and 11 based on its observations ofhis demeanor, Mr. Mai’s later behavior — in combination with the other evidence — called his competency into doubt, as fully discussed above. The trial court has a continuing obligation to initiate competency proceedings wheneversubstantial evidence of incompetenceis presented at “any time prior to judgment.” (People v. Jones, supra, 53 Cal.3d at pp. 1152-1153; accord, e.g., Drope v. Missouri, supra, 420 U.S. at p. 181 [the court “must always be alert” to new evidence suggestive of incompetency and suspend proceedings whenever competency is in reasonable doubt].) The remarks of one court are particularly apt here: Even were weto credit the [judge’s] interpretation of that event [as proof of defendant’s competency], the due process requirement of competency continues throughouttrial; one instance of demonstrable competency on [defendant’s] part does not overcome the numerousoccasions, occurring before and after [that event], in which his competency wascalled into doubt. (McGregor v. Gibson, supra, 248 F.3d at p. 961.) For all of these reasons, the trial court’s failure to declare a doubt regarding Mr. Mai’s competency to stand trial violated both state law and Mr. Mai’s federal constitutional right to due process. 240 D. The Court’s Failure to Hold a Competency Hearing Requires Reversal Where,as here, a defendant showsthatthetrial court failed to hold a competency hearingin the face of substantial evidence raising a doubtasto his competencyto standtrial, the ensuing due process violation typically demandsreversal per se of the judgment. (See, e.g., People v. Young, supra, 34 Cal.4th at pp. 1216-1217; People v. Welch, supra, 20 Cal.4th at p. 738; People v. Pennington, supra, 66 Cal.2d at p. 521; Drope v. Missouri, supra, 420 U.S.at p. 183; Pate v. Robinson, supra, 383 U.S.at pp. 386-387; Dusky v. United States, supra, 362 U.S. at p. 403.) As the United States Supreme Court has explained, this is so because a limited remandfor a retrospective determination of the defendant’s competencyto standtrial years earlier would generally be futile and inappropriate becausethe “jury would not be able to observe the subject of their inquiry [i.e., the defendant at the time oftrial], and expert witnesses would havetotestify solely from information contained in the printed record. That [the defendant’s] hearing would be held... years after the fact aggravates these difficulties.” (Pate v. Robinson, supra, 383 U.S. at p. 387 [reversing outright, rather than remanding, six years after the fact]; accord Dusky v. United States, 362 U.S.at p. 403 [observing the “difficulties of retrospectively determining the petitioner’s competency as of more than a year ago,” Court reversed outright for failure to hold competency hearing]; Drope v. Missouri, supra, 420 U.S. at p. 183 [given “inherent difficulties of ...anunc pro tunc determination [of competency] under the most favorable circumstance,” retrospective determination would be inadequate when seven years had elapsed sincetrial].) While this Court has observed that the United States Supreme Court 24] in Drope v. Missouri, supra, recognized “the possibility of a constitutionally adequate posttrial or even postappeal evaluation of the defendant’s pretrial competence” (People v. Superior Court (Marks), supra, | Cal.4th at p. 67, citing Drope v. Missouri, supra), retrospective competency hearings are “strongly disfavored” (Weisberg v. State (8th Cir. 1994) 29 F.3d 1271, 1278). It is only in the “rare” and “highly unusual”case, in which there is extensive record evidence, including qualified expert opinions, on which a reliable retrospective competency determination might be possible, that remand is appropriate. (People v. Ary (2004) 118 Cal.App.4th 1016, 1028- 1030, cited without approval or disapproval in People v. Young, supra, 34 Cal.4th at p. 1217, fn. 16 [while reliable retrospective competency determinations are often impossible, under “highly unusual’ circumstances of case wherein there were twopretrial proceedings on defendant’s competence to waive Miranda rights at which “extensive expert testimony and evidence was proffered regarding defendant’s mental retardation and ability to function in the legal arena,” which were held only four and five years earlier, a reliable retrospective determination might be possible].) Indeed, in Dropeitself, the Court held that a reliable retrospective competency determination would be impossible and inappropriate “[g]iven the inherent difficulties of such a nunc pro tunc determination underthe most favorable circumstances.” (Drope v. Missouri, supra, 420 U.S.at p. 183.) Of course, as the Pate court recognized, these “inherent difficulties” are most acute when a substantial period of time has passedsincethetrial. (See, e.g., Pate v. Robinson, supra, 383 U.S. 375, 387 [six years]; see also Drope v. Missouri, supra, 420 U.S. 162, 183 [seven years]; Dusky v. United States, supra, 362 U.S. at p. 403 [more than a year]; People v. Pennington (1967) 66 Cal.2d 508, 511 [two years]; see also, e.g., United States v. Day 242 (8th Cir. 1991) 949 F.2d 973, 982 & fn. 9 [“to require a... court to decide whether a defendant was competent during proceedingsthat took place years earlier would be an exercise in futility”].) In fact, in every case in which this Court and the United States Supreme Court have found error in the failure to hold a competency hearing, complete reversal has been ordered. (Drope v. Missouri, supra, 420 U.S. 162, 183; Pate v. Robinson, supra, 383 U.S., at pp. 386-387; Dusky v. United States, supra, 362 U.S.at p. 403; People v. Marks, supra, 45 Cal.3d at p. 1344; People v. Hale, supra, 44 Cal.3d at p. 541; People v. Stankewitz, supra, 32 Cal.3d at p. 94; People v. Pennington, supra, 66 Cal.2d at p. 521.) Asofthis writing, nearly 10 years have passedsince the issue of Mr. Mai’s competence to standtrial arose — more time than that at issue in Drope, Pate, and Dusky. Furthermore, becausethis is a capital case, state law and the Eighth and Fourteenth Amendments demand a heightened need for reliability in all stages of the proceedings. (See, e.g., Mongev. California (1998) 524 U.S. 721, 732 [“‘we have consistently required that capital proceedingsbe policedat all stages by an especially vigilant concern for procedural fairness and for the accuracy of factfinding’”’]; accord Ford v. Wainwright (1986) 477 U.S. 399, 411 [same — applying heightened scrutiny standard to determination of competency to be executed]; Spaziano v. Florida (1984) 486 U.S. 447, 456; People v. Coffman (2004) 34 Cal.4th 1, 44 [pre-trial rulings]; Beck v. Alabama (1980) 447 U.S. 625, 637-638 [guilt phase]; Caldwell v. Mississippi (1985) 472 U.S. 320, 340 [penalty phase].) Thus, the question is not merely whether a retrospective competency determination is possible, but whether a highly reliable determination that Mr. Mai was competentto stand trial 10 year agois possible. The answeris no. 243 In this regard, any retrospective competency determination must be limited to evidence in thetrial record or that existed at the timeoftrial. (See, e.g., Pate v. Robinson, supra, 383 U.S.at p. 387 [at any retrospective competency hearing, expert witnesses would have totestify solely from information contained in the printed record”]; People v. Ary, supra, 118 Cal.App.4th at p. 1028 [retrospective competency determination is limited to evidencein trial record; only “new” evidence permissible is that from qualified experts who evaluated defendantattrial based on those evaluations; thus, since the trial record is generally deficient in this regard, meaningful retrospective competency determinations are usually impossible]; People v. Robinson (2007) 151 Cal.App.4th 606, 617-618, citing United States v. Collins (10th Cir. 2005) 430 F.3d 1260, 1267 [retrospective competency determination based on reports and other evidencein trial record and testimony — if available — of individuals based on their memories of interactions with defendant before and duringtrial]; Odle v. Woodford (9th Cir. 2001) 238 F.3d 1084, 1089-1090 [“We have said that retrospective competency hearings may be held whenthe record contains sufficient information upon which to base a reasonable psychiatric judgment”); Silverstein v. Henderson (2nd Cir. 1983) 706 F.2d 361, 369 [“a retrospective determination of [defendant’s] competencyto standtrial would haveto be based on three conflicting written reports [in record], a cold, sparse record, and the recollection of those who saw and dealt with him six years ago. Such a hearing would be wholly inadequate to substitute for the ‘concurrent hearing’ into competency mandated by Patev. Robinson’’}.) Here, the only expert to evaluate Mr. Mai was Dr. Thomas. She came to the conclusion that Mr. Mai’s mental health had so deteriorated in 244 solitary confinement that he wasnot able to rationally participate in the preparation of his defense. Furthermore, the face of the record provides ample evidence regarding defense counsel’s impressions of Mr. Mai — despite their nonsensical statements that Mr. Mai was “not 1368,” they firmly believed that Dr. Thomas was correct and Mr. Mai was unable to participate in his defense, or make a decision to waiveall rights and voluntarily submit to execution, in a rational manner. (See, e.g., Odlev. Woodford, supra, 238 F.3d at pp. 1089-1090 [trial counsel’s statements in record regarding interactions with defendant and competency relevant to retrospective competency determination].) Thus, based on this evidence,it is certainly possible to makea retrospective determination that Mr. Mai was incompetentto standtrial 10 years ago. However, the oppositeis nottrue. If, as the United States Supreme Court has explicitly recognized, reliable retrospective competency determinations are extraordinarily difficult under even the “most favorable circumstances” (Drope v. Missouri, supra, 420 U.S.at p. 183), the circumstances here makea highly reliable determination, consistent with Mr. Mai’s Eighth and Fourteenth Amendmentrights, that Mr. Mai was competent to standtrial 10 years ago impossible. Thus, the judgment must be reversed outright. Of course, the state is free to retry Mr. Mai ifhe is competentto be retried. (See Dropev. Missouri, supra, 420 U.S.at p. 183.) Hence, this Court should reverse with directions that if the state elects to retry him,the trial court must suspend criminal proceedings andinitiate competency proceedings. (See,e.g., People v. Castro, supra, 78 Cal.App.4th at p. 1420.)” >This is particularly appropriate here since Mr. Mai has remained in the custody of the federal government, under onerousspecial restrictive (continued...) 245 Finally, should this Court determine that a limited remand is appropriate, it must do so with directionsto the trial court to first determine whetherthetrial “‘record containssufficient information upon which to 399base a reasonable psychiatric judgment’” that Mr. Mai was competent to stand trial 10 years ago. (People v. Ary, supra, 118 Cal.App.4th at p. 1028 [remanding with directionsto the trial court to determineifthe trial record contained sufficient evidence on whichto basea reliable, retrospective competency determination]; accord, e.g., People v. Kaplan (2007) 149 Cal.App.4th 372, 386-387 [remanding with same directions where record contained four-year-old competency evaluations].) The prosecution shall carry the burden ofproving that a retrospective competency determination would not only be feasible, but — consistent with the Eighth Amendment — highly reliable. (Ibid.; cf. Ford v. Wainwright, supra, 477 U.S.at p. 411 [Eighth Amendment demandsheightenedreliability in procedure to determine competencyto be executed].) If such a determinationis not possible, then the judgment mustbe reversed. If the prosecution carriesits initial burden of proving the feasibility of a highly reliable retrospective determination that Mr. Mai was competent to stand trial in 1999 and 2000, the prosecution carries the further burden of proving that Mr. Mai was,in fact, competentto stand trial. As one court has explained, the United States Supreme Court in “Pate, [supra,] in essence, established a rebuttable presumption of incompetency upon a showing by a habeaspetitioner [or appellant] that the state trial court failed to hold a competency hearing on its owninitiative despite information 3(,_ continued) confinement conditions, for approximately the last 12 years, as of this writing. (See 3 CT1082-1085; 4 CT 1127.) 246 raising a bona fide doubtas to petitioner’s [or appellant’s] competency. According to Pate, the state could rebut this presumption by proving that the petitioner had, in fact, been competentat the time oftrial.” (Jamesv. Singletary (11th Cir. 1992) 957 F.2d 1562, 1570-1571; accord, e.g., Watts v. Singletary (11th Cir. 1996) 87 F.3d 1282, 1287 & fn. 6; United States ex rel. Lewis v. Lane (7th Cir. 1987) 822 F.2d 703, 706; compare Pen. Code, §§ 1368, 1369 subd. (f) [for competency hearings held “during the pendency ofan action andprior to judgment,” burden on defendant to prove incompetency by preponderance] and Medina v. California (1992) 505 U.S. 437, 447 [placing burden of proof on defendant to prove present incompetency by preponderance at contemporaneous competencyhearing does not violate due process].)”* Indeed, a remandfor a retrospective competency determination is, in essence, a remand to determine whetherthe . due process violation arising from thetrial court’s failure to hold a contemporaneous competency hearing was harmless. (See, e.g., Jamesv. Singletary, supra, at pp. 1570-1571 & fns. 11 & 12, citing Pate v. Robinson, supra, 383 U.S. at p. 387; see also, e.g., Odle v. Woodford, supra, 238 F.3d at pp. 1089-1090 [remandingfor a retrospective competency determination allows state to “cure” the federal constitutional violation resulting from failure to hold contemporaneous hearing].) And, of course, the state bears the burden of proving federal constitutional errors harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Ifthe prosecution fails to carry its burden, the death judgment 4 This Court has recently granted review in order to resolve whether the prosecution bears the burden of proving competency upon remandfor the erroneousfailure to hold a competency hearing. (People v. People v. Ary (2009) 173 Cal.App.4th 80, rev. granted July 29, 2009 (S173309.) 247 must be reversed. // // 248 Vv THE DEATH JUDGMENT MUST BE REVERSED BECAUSE THE TRIAL COURT VIOLATED STATE LAW AND THE EIGHTH AND FOURTEENTH AMENDMENTSBY PERMITTING MR. MAI TO PRESENT AN IRRELEVANT AND INFLAMMATORY STATEMENT TO THE JURORS THAT DEATH WAS THE APPROPRIATE PENALTYIN THIS CASE A. Introduction Asdiscussed in ArgumentI-G-3-c, ante, Mr. Mai and his counsel informedthe trial court that Mr. Mai wished to take the stand andtestify that the jurors should return a death verdict. (8 RT 1399, 1401.) Neither the prosecution nor defense counsel had any objection to this proposed testimony. (8 RT 1400.) The court informed Mr. Mai that his proposed testimony would be “tantamount to suicide andthe state of California doesn’t assist or participate in suicides.” (8 RT 1401.) While the court “recommend|[ed] that [Mr. Mai] not do that” (8 RT 1401), it ruled that Mr. Mai had “the right to take the stand andtalk to the jurors” (8 RT 1401). Based upon Mr. Mai’s proposed testimony, defense counsel’s only statement to the jurors was: “[A]s you can see, Mr. Maiis goingto tell you whathe wants to tell you, and this will be the only defense evidence,this is Mr. Mai’s request. And he will be addressing you directly and speaking, with the agreement of the prosecutor, in narrative, he will just tell you what he wantsto tell you.” (8 RT 1409.) Mr. Mai then madethe following sworn statementto the jurors: Before I start, I would like to say that I did request for my lawyers not to say anything on mybehalf, and I appreciate that. Jurors, I am not here to ask or beg for your sympathy or pity. Nor am I here to ask or beg of you,the jurors, to spare my life. Personally, I believe in an eye for an eye. I believe 249 in two eyes for every eye. Ifyou were to take down one of my fellows, I would do everything that is necessary to take downat least two ofyours, just to be even. In this penalty phasetrial, the prosecutor, Mr. Jacobs, is seeking the maximum penalty, which weall know is death. I personally feel that the maximum penalty is properly suited for this occasion. I also feel that it is the right thing, for you, the jurors, to do so. Being in mysituation now I feelit is only fair, there’s a price to pay for everything in life, now that I am here it’s time I pay that price. Because,afterall of this entire ordeal, it is just part of the game. That’s all I haveto say, your honor. (8 RT 1409-1410.) Mr. Mai’s “testimony” wasthe last piece of evidence presented at the penalty phase. And it formedthe basis for the last words the jurors heard before retiring to deliberate: in the only summation presented to the jurors, the prosecutor closed by reminding them, “Mr. Maitestified and told you what he expects from you and what he believes he deserves. I don’t see a reason to disappoint him onthis point. . . . [T]he death penalty is the only appropriate verdict.” (8 RT 1424.) The jurors agreed, returning their death verdict only minutes later. (3 CT 867-868.) As will be demonstrated below,the trial court violated state law and the Eighth and Fourteenth Amendments of the United States Constitution by permitting Mr. Maito presentirrelevant, inadmissible, and extraordinarily damaging testimony that death was the appropriate penalty in this case, which the jurors were encouraged to consider and weigh on death’s side of the scale. Because it cannot be shown beyond a reasonable doubt that no juror relied on this evidentiary bombshell in returning his or her death verdict, the death judgment be reversed. 250 B. Mr. Mai’s Testimony That Death Was The Appropriate Penalty In This Case WasIrrelevant and Inadmissible Under State Law and The Eighth and Fourteenth Amendments 1. The Right to Testify Is Not Absolute and Extends Only to Relevant and Admissible Material A criminal defendant generally enjoys the right to take the stand and testify in his own defense. (Rock v. Arkansas (1987) 483 U.S. 44, 51-53, 55 [recognizing right under due process and compulsory process guarantees to present evidence in one’s defense underthe Fifth, Sixth, and Fourteenth Amendments]; People v. Robles (1970) 2 Cal.3d 205, 215 [recognizing right under California law].) But that right is not absolute. It encompasses only “the right to present relevant testimony.” (Rock v. Arkansas, supra, at p. 55, italics added; see also, e.g., People v. Lancaster (2007) 41 Cal.4th 50, 101-102 [trial court properly precluded defendant from testifying to irrelevant matter at penalty phase withoutviolating his constitutional right to testify]; People v. Alcala (1992) 4 Cal.4th 742, 806-807 [same]; United States v. Carter (7th Cir. 2005) 410 F3d 942, 951 [“Simply stated, a criminal defendant does not have an absolute, unrestrainable right to spew irrelevant — and thus inadmissible — testimony from the witness stand”]; United States v. Moreno (9th Cir. 1996) 102 F.3d 994, 998 [constitutional right to testify is not violated by exclusion ofirrelevant testimony]; United States v. Gonzalez-Chavez (8th Cir. 1997) 122 F.3d 15, 18 [court’s refusal to permit defendantto testify to irrelevant matter did not violate right to testify].) The defendant must comply with rules ofprocedure and evidence designed to assure fairness andreliability. (See, e.g., United States v. Gallagher (9th Cir. 1996) 99 F.3d 329, 332,citing Chambers v. Mississippi (1973) 410 U.S. 284, 302.) 251 Furthermore, the right to present even relevant testimony is “not Geewithout limitation” and “‘may, in appropriate cases, bow to accommodate 999other legitimate interests in the criminal trial process.’” (Rock v. Arkansas, supra, 483 U.S. at p. 55, quoting Chambers v. Mississippi, supra, 410 U.S. at p. 295.) Thus, the state may restrict the defendant’s rightto testify so long as therestrictions are not “arbitrary or disproportionate to the purposes they are designed to serve.” (/d. at pp. 55-56; accord, e.g., United Statesv. Gallagher, supra, 99 F.3d 329, 332 [it is “neither arbitrary nor disproportionate” to refuse to allow a defendantto give narrative testimony]; People v. Lucero (2000) 23 Cal.4th 692, 717, and authorities cited therein [“we have repeatedly held there is no right of allocution at the penalty phase ofa capital trial”’].) 2. Mr. Mai’s Opinion That Death Wasthe Appropriate Punishment Was Irrelevant and Inadmissible at the Penalty Phase of this Capital Trial, and Offended the Eighth Amendment and Fourteenth Amendments In Booth v. Maryland (1987) 482 U.S. 496, 502-503, the United States Supreme Court held that the Eighth Amendmentprohibited a capital sentencing jury from considering victim impact evidence, whichis irrelevant to the jury’s sentencing decision andthusrisks arbitrary and capricious imposition of the death penalty. At issue in that case were two types ofvictim impact evidence: (1) the personal characteristics of the victims and the impact of the crimes on their families; and (2) the family members’ opinions and characterizations of the defendant and his crimes, and their view of the appropriate sentence. (/d. at pp. 507-510.) In Payne v. Tennessee (1991) 501 U.S. 808, the Court partially overruled Booth. The Court held “that if the State chooses to permit the 252 admission of victim impact evidence and prosecutorial argumenton that subject, the Eighth Amendmenterects no per se bar.” (Payne v. Tennessee, supra, 501 U.S. at p. 827.) However, the Court took care to notethatits holding encompassed only the first category of evidence addressed in Booth, not the second category of evidencerelating to the witnesses’ views on the appropriate punishment. (/d. at p. 830, fn. 2.) Hence, as this Court and others have recognized, the high court in Payne “left intact” that part ofBooth holding that the Eighth Amendment prohibits admission ofpenalty phase testimony regarding the propriety of, or desire for, one penalty over another. (People v. Smith (2003) 30 Cal.4th 581, 622-623; accord, e.g., Welch v. Sirmons (10th Cir. 2006) 451 F.3d 675, 703, and authorities cited therein [admission of testimony that defendant deserved the death penalty violated Eighth Amendment]; State v. Payne (Idaho 2008) 199 P.3d 123, 148-149 [same]; see also United States v. Brown (11th Cir. 2006) 441 F.3d 1330, 1351 [collecting cases].) This prohibition applies with equal force to testimony offered by the prosecution and by the defense, and to testimony that either death or life without parole is the appropriate penalty. (See, e.g., People v. Smith, supra, 30 Cal.4th at pp. 622-623 [just as the prosecution may not present witness opinion that death is the appropriate penalty, so too is the defendant prohibited from presenting witness opinionthat life without parole is the appropriate penalty, absent single narrow exception]; United States v. Brown, supra, 441 F.3d at p. 1351 & fn. 8, and authorities cited therein [testimony of victim’s relative that appropriate punishmentis life is irrelevant to jury’s sentencing decision and inadmissible under Booth, even in light ofPayne]; Robison v. Maynard (10th Cir. 1991) 943 F.2d 1216, 1217-1218 [same]; see also People v. Lancaster, supra, 41 Cal.4th at pp. 190-191 [trial court 253 properly precluded defense counsel from arguing victim’s opposition to the death penalty].) The only exception to this firm rule of exclusionis “testimony from somebody ‘with whom defendant hada significant relationship, that defendant deservesto live, [which] is proper mitigating evidence as “indirect evidence of the defendant’s character.” (Citations).” (People v. Smith (2003) 30 Cal.4th 581, 622-623.) But this exception exists not because opinion regarding appropriate punishmentis relevant or admissible evidence;rather, it exists because evidence regarding the defendant’s good character is admissible mitigation under Penal Code section 190.3, factor (k), and a close family memberorfriend’s testimony that the defendant deservesto live provides insight into the defendant’s good character. (People v. Smith, supra, 30 Cal.4th at p. 623; accord People v. Ervin (2000) 22 Cal.4th 48, 102.) This exception is a narrow onethat does not include, for instance, testimony from a victim with whom the defendant did not have a significant relationship that the appropriate punishmentis life, not death. (See, e.g., People v. Smith, supra, 30 Cal.4th at pp. 621-622; United States v. Brown, supra, 441 F.3d at p. 1351 & fn. 8.) In addition to the Eighth Amendmentbar, due process prohibits death penalty decisions based on “aggravation”that is “totally irrelevant to the sentencing process.” (Zant v. Stephens (1983) 462 U.S. 862, 885; accord Johnson v. Mississippi (1988) 486 U.S. 578, 585-586; see also Gregg v. Georgia (1976) 428 U.S. 153, 192 [Eighth and Fourteenth Amendments demandthat aggravation be “particularly relevant to the sentencing decision”].) A witness’s testimony that death is the appropriate punishmentis certainly aggravating in that it weighs on death’s side of the scale; because such evidenceis irrelevant to the jury’s sentencing decision 254 (Booth v. Maryland, supra, 482 U.S. at pp. 507-510), “due process of law would require that the jury’s decision to impose death” based on such aggravating evidence “be set aside” (Zant v. Stephens, supra, 462 U.S.at p. 885; accord, e.g., Brown v. Sanders (2006) 546 U.S. 212, 220 [due process violation where juror is permitted to consider aggravating evidence in the weighing process that it would not otherwise have heard)]). Consistent with the foregoing principles, this Court has recognized that “a defendant’s opinion regarding the appropriate penalty the jury should impose usually would be irrelevantto the jury’s penalty decision” and inadmissible. (People v. Danielson (1992) 3 Cal.4th 691, 715.) Indeed, as this Court has emphasized with respect to the general prohibition against witness opinions regarding the appropriate penalty, the United States Supreme Court “has never suggested that the defendant must be permitted to do what the prosecution may not do” — in this case, offer irrelevant and inadmissible opinion testimony that death is the appropriate punishment. (People v. Smith, supra, 30 Cal.4th at p. 622.) Pursuant to the foregoing principles, while Mr. Mai did indeed have a right to testify in his defense at the penalty phaseofhis trial, he did not havethe right to offer irrelevant and otherwise inadmissible “testimony” that death was the appropriate or desired punishmentin this case. Indeed, he had no right to makethe narrative statement he madeat all. (See, e.g., United States v. Gallagher (9th Cir. 1996) 99 F.3d 329, 332 [right to testify does not include right to present narrative testimony]; People v. Lucero (2000) 23 Cal.4th 692, 717, and authorities cited therein [“we have repeatedly held there is no right of allocution at the penalty phase of a capital trial”].) Thus, the trial court erred in ruling that Mr. Mai had the right to make such a statement, and violated state law and the Eighth and 255 Fourteenth Amendments in permitting the testimony and allowing the jurors to considerit in reaching their penalty phase decision. (Booth v. Maryland, supra, 482 US. at pp. 507-510; see also Payne v. Tennessee, supra, 501 USS.at p. 830, fn. 2; Johnson v. Mississippi, supra, 486 U.S. at pp. 585-586; Zant v. Stephens, supra, 462 U.S.at p. 885.) Certainly, the exclusion of Mr. Mai’s statementas irrelevant and inadmissible would not have been deemed“arbitrary or disproportionate.” (Rock v. Arkansas, supra, 483 U.S. at pp. 55-56 [state mayrestrict the defendant’s right to testify so long as the restrictions are not “arbitrary or disproportionate to the purposes they are designed to serve”]; United States v. Gallagher, supra, 99 F.3d at p. 332.) To the contrary, the United States Supreme Court has held that admitting such testimony and allowingit to enter into the jury’s penalty decision risks arbitrary and capricious imposition of the death penalty. (Booth v. Maryland, supra, 482 U.S. at pp. 507-510.) With one limited exception, opinion testimony regarding the appropriate penalty is irrelevant and inadmissible when it comes from any other witness. It would be both arbitrary and capricious not to apply that same rule of exclusion to a defendant’s testimony when his constitutional right to testify is not absolute, but rather encompassesonly relevant evidence. Morever, and as more fully discussed in Argument VIII, post, the public has a legitimate, vital interest — one that cannot and should not be overridden by a particular criminal defendant — in ensuring that criminal trials are both fair and appearto be fair, and that death verdicts are just, based on reason, and reliable. (See, e.g., Indiana v. Edwards (2008) U.S.__, 128 8.Ct. 2379, 2387 [state has independentinterest in ensuring that criminaltrials are fair “and appear to be fair to all who observe them’’]; 256 Beck v. Alabama (1980) 447 U.S. 625, 637-638 [recognizing “vital importanceto the . .. community that any decision to impose the death sentence be, and appear to be, based on reason”]; People v. Guzman (1988) 45 Cal.3d 915, 962 [“Beyond doubt, the state has a strong interest in promoting the reliability of a capital jury’s sentencing decision”]; People v. Deere (1985) 41 Cal.3d 353, 362-364.) In other words, society has a legitimate andvital interest in ensuing that the penalty phaseof a capital trial transcends a particular defendant’s desire to commit suicide. (See, e.g., People v. Chadd (1981) 28 Cal.3d 739, 744-745, 753; see also Argument VII, post, and authorities cited therein.) To be sure, defense counselnot only failed to object to Mr. Mai’s requestto testify that death was the appropriate penalty in this case, they actively presented his testimony to the jurors as the only “evidence”the defense wasoffering. (RT 1409.) As discussed in ArgumentI-G, ante, counsel’s performancein this regard deprived Mr. Maiofhis state and federal constitutional rights to the effective assistance of counsel. In any event, whether constitutionally defective or not, defense counsel’s actions did not relieve the trial court of its independent obligation to ensure thatthis capital murder trial comported with fundamental notionsoffairness, reliability and justice by excluding Mr. Mai’s testimony. 257 C. The Trial Court Had an Independent Obligation to Exclude Mr. Mai’s Testimony that Death Wasthe Appropriate Penalty, Which was Not Relieved by Defense Counsel’s Failure to Object The United States Supreme Court long ago recognizedthat “[i]t is one of the equitable powers, inherent in every court ofjustice so long asit retains control of the subject-matter and ofthe parties, to correct that which has been wrongfully done by virtue of its process.” (Arkadelphia Milling Co. v. St. Louis Southwestern Ry. Co (1919) 249 U.S. 134, 145-146, citations omitted; United States v. Young (1985) 470 U.S. 1, 10 [duty of trial court to keep trial within proper bounds]; Glasser v. United States (1942) 315 U.S. 60, 71 [“Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused”’].) Indeed, as Justice Learned Hand emphasized over 60 years ago, “Ta] judge, at least in a federal court, is more than a moderator; he is affirmatively charged with securing a fair trial, and he must intervene sua sponte to that end, when necessary.” (Brown v. Walter (2nd Cir. 1933) 62 F.2d 798, 799.) California judges are held to the same standard. As this Court has held: “The rule that a trial judge’s unwarranted interference with the handling of a case is misconduct. . . is sometimes distorted into a prohibition against any participation in the trial contrary to the desires or strategy of counsel. This is a complete misconception. ‘It apparently cannot be repeated too often for the guidanceof a part of the legal profession that a judge is not a mere umpire presiding over a contest of wits between professional opponents, but a judicial officer entrusted with the grave task of determining wherejustice lies under the law and the facts between the parties who have sought the protection of our courts. Within reasonable limits, it is not only the right but the duty ofa trial judge to clearly 258 bring out the facts so that the important functionsofhis office maybefairly and justly performed.’ (Estate ofDupont (1943) 60 Cal.App.2d 276, 290.)” (People v. Carlussi (1979) 23 Cal.3d 249, 256,italics in added; accord People v. Sturm (2006) 37 Cal.4th 1218, 1237 [‘‘the court has a duty to see that justice is done’”’]; People v. McKenzie (1983) 34 Cal.3d 616, 626-627, quoting ABAStandards for Criminal Justice — Special Functionsofthe Trial Judge, std. 6-1.1 [“The adversary nature of the proceedings doesnotrelieve the trial judge of the obligation of raising on his orherinitiative, at all appropriate times and in an appropriate manner, matters which may significantly promote a just determination ofthe trial’”]; People v. Santana (2000) 80 Cal.App.4th 1994, 1206; People v. Shelley (1984) 156 Cal.App.3d 521, 530-532.) This duty is codified in Penal Code section 1044, which provides: It shall be the duty of the judge to control all proceedings during thetrial and to limit the introduction of evidence and argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment oftruth regarding the matters involved. (See, e.g., People v. Sturm, supra, 37 Cal.4th at p. 1237 [undersection 1044, “the court has a statutory duty to controlthe trial proceedings, including the introduction and exclusion of evidence”’].) Here, presented with a suicidal defendant at best and an incompetent defendant at worst, and with defense counsel who abandonedtheirclient to his ownirrational whimsat best and to the service of their own personal interests at worst, it became incumbent uponthetrial court to take control of the proceedings,“limit the introduction of evidence . . . to relevant and material matters,” and ensure that the penalty phasetrial was fair, appeared fair, and producedajust and reliable verdict. (Pen. Code, § 1044; see also 259 People v. McKenzie, supra, 34 Cal.3d at pp. 626-627 [by permitting proceeding to go forward when defense counsel declinedto participate in trial, the trial court violated its independent “duty to protect the rights of the accused andits duty to ensure a fair determination of the issues on the merits” and its obligation to promote “the orderly administration ofjustice”’]; People v. Shelley, supra, 156 Cal.App.3d at pp. 530-533 [same, even though client assented in defense counsel’s non-participation]; Clisby v. Jones (11th Cir. 1992) 960 F.2d 925, 934 & fn. 12 [suggesting that trial courts have independent “duty to intervene” when the “trial proceedings are so evidently and so fundamentally unfair as to threaten to render the trial a mockery of justice”); United States v. ex rel. Darcy v. Handy (3d Cir. 1953) 203 F.2d 407, 427 [there are circumstances under which counsel’s representationis “so lacking in competency or good faith that it would becomethe duty ofthe trial judge or the prosecutor, as officers of the state, to observe and correct it” so as to avoid trial that amounts to a “farce and a mockery ofjustice” in violation of due process]; cf. Commonwealth v. McKenna (PA 1978) 383 A.2d 174, 181 [overwhelming public interest in ensuring that death penalty is imposed in constitutional manner warranted reviewing court’s sua sponte reversal of death sentence based uponissue appellate counsel did not raise due to client’s preference for the death penalty]; Massaro v. United States (2003) 538 U.S. 500, 508 [recognizing that appellate court may find sua sponte ineffective assistance of counsel whenthere are “obvious deficiencies in representation”in thetrial record].) In sum, “[i]n a death penalty case, [this Court] expects the trial court and the attorneys to proceed with the utmost care and diligence and with the most scrupulous regard for fair and correct procedure. The proceedings here fell well short of this goal.” (People v. Hernandez (2003) 30 Cal.4th 835, 260 878, italics added.) D. This Court’s Decisions in People v. Guzman andits Progeny Do Not Compel a Contrary Result Respondent may argue that Mr. Mai’s testimony was appropriate and admissible under this Court’s decisions in People v. Guzman (1988) 45 Cal.3d 915 andits progeny. (See, e.g., People v. Webb (1993) 6 Cal.4th 494, 535; People v. Grant (1988) 45 Cal.3d 829, 848-849.) Any such argument mustbe rejected. In Guzman, the defendanttestified extensively to substantial mitigating evidence regarding a childhood marked by abandonment and horrific abuse, periods in state mental hospital hospitals, having been the victim of threatened rape while incarcerated as a juvenile, his remorse, and his efforts to solve and control the problemshe had “inherited”in his life by asking for help, attempting to educate himself, committing charitable acts, and turning himself in when he had committed crimes. (People v. Guzman, supra, 45 Cal.3d at pp. 929-933.) He told the jurors that he would prefer the “mercy” of the death penalty over a “cruel and inhumane”life in prison without the possibility of parole. (/d. at p. 933.) He explained that if he were sentenced to prison, he would be forced to kill or be killed, that life in prison held the promise ofa relentless lifetime of “fighting and violence, which(had) been (typical of his) last 15 years,” and that he could not “bear being alone anymore.” (Jbid.) On appeal from his ensuing death judgment, Guzman arguedthat the admission of his death-preference testimony: (1) diminished the jury’s sense of responsibility in selecting the appropriate punishmentandthusits death verdict may have been unreliable in violation of the Eighth Amendment; and (2) amounted to improper aggravating evidence under People v. Boyd (1985) 261 38 Cal.3d 762, 774. (People v. Guzman, supra, 45 Cal.3d at p. 961.) This Court rejected both arguments. Importantly, the Guzman court did not hold that a defendant’s constitutional right to testify is absolute or encompassestherightto testify to the appropriate penalty in a capital case. Instead, this Court recognized that a defendant’s desire to testify might sometimes be at odds with the public’s “strong interest in promoting the reliability of a capital jury's sentencing. determination.” (People v. Guzman, supra, 45 Cal.3d at p. 961.) Nevertheless, this Court held that Guzman’s testimony did not render the ensuing death verdict constitutionally unreliable for a numberofreasons. Guzmanhadtestified at length to substantial mitigating evidence and his defense counsel argued that mitigating evidenceto the jurors. (Peoplev. Guzman, supra, 45 Cal.3d at pp. 959-960, 962-963.) Furthermore, the prosecutor did not even mention Guzman’s death-preference testimony in closing argument, muchless argueit as a basis for a death verdict. (/d. at pp. 962-963.) Finally, the jurors understood the scope of their consideration of Guzman’s mitigating evidence andtheir duty to exercise their discretion to determine the appropriate punishment notwithstanding his testimony. (/bid.) This Court rejected the claim of error under Boyd for similar reasons. First, this Court reasoned, Boyd “is distinguishable [because] [i]t stands for the proposition that the 1978 [death penalty] law prevents the prosecution from introducing, in its case-in-chief, aggravating evidence not contained in the various factors listed in section 190.3. But no such event occurred here; defendant, not the prosecution, presented the evidence.” (People v. Guzman, supra, 45 Cal.3d at p. 963.) Second, because “the prosecutor madenoeffort to capitalize on the testimony. . . . [w]e conclude no Boyderror occurred here.” (/bid.; accord People v. Webb, supra, 6 Cal.4th at pp. 534-535 & fn. 262 29 [following Guzmanto hold that defendant’s death-preference testimony did not render death verdict unreliable given “extensive case in mitigation” andlimiting instruction]; People v. Grant (1988) 45 Cal.3d 829, 848-849 [following Guzman where defendant presented evidence to rebut prosecution’s aggravating evidence, as well as mitigating evidence, prosecutor did not mention defendant’s death-preference testimony in argument, and jurors were given limiting instruction]; see also, e.g., People yv. Sapp (2003) 31 Cal.4th 240, 311 [it is unlikely that jurors would believe that a defendant “who bypresenting a substantial case in mitigation was actively fighting a death verdict, truly believed that he deserved to die”].) Guzman and its progeny do not compela rejection of Mr. Mai’s claim for two reasons. First, this case is readily distinguished from Guzman. Unlike Guzman, Mr. Mai’s jurors heard no mitigating evidenceat all — not from Mr. Mai or any other witnesses — or even a plea for mercy from his own counsel. Furthermore, unlike Guzman, Mr. Mai’s prosecutor did capitalize on Mr. Mai’s “testimony;”his final wordsto the jurors reminded them of Mr. Mai’s statement that the death penalty was the appropriate sentence and urged them to return the very verdict Mr. Mai himself asked them to return. (8 RT 1424.) Second, and even more importantly, the Guzman court did not consider the claims raised here. Here, Mr. Mai arguesthat his testimony was irrelevant to the jury’s sentencing decision and inadmissible under well settled principles of state law and the federal Constitution, as construed in Booth v. Maryland. No such claim was made in Guzman. Furthermore, while the Guzman court recognized a defendant’s fundamental right to testify, it did not address or considerthe black letter law thatthis right is not absolute and does not encompassirrelevant or otherwise inadmissible 263 matter. “It is axiomatic that cases are not authority for propositions not considered.” (People v. Avila (2006) 38 Cal.4th 491, 566, and authorities cited therein.) To be sure, since Guzman, this Court has cited that case, without independentanalysis, for the broad proposition that “Guzman implies that a defendant’s absolute right to testify cannot be foreclosed or censored based on content” (People v. Webb, supra, 6 Cal.4th at p. 535), that “[t]he defendanthasthe right to take the stand and . . . request imposition ofthe death penalty” (People v. Clark (1990) 50 Cal.3d 617), and that “every defendant has theright to testify .. . even if that testimony indicates a preference for death” (People v. Nakahara (2003) 30 Cal.4th 705, 719). However, as this Court recently recognized in People v. Lancaster, supra, 41 Cal.4th 50, in which it held that the trial court properly excluded the defendant’s testimony regarding cases in which innocent people had been sentenced to death as irrelevant, those statements are overly broad. (/d. at pp. 101-102.) In Lancaster, this Court held that the statements in the above-cited cases must be viewedin the context of their limited holdings that the defendants’ death-preference testimony did not render the ensuing verdicts in those cases unreliable. Importantly, however, this Court explained, in those cases, “[t/he relevance ofthe testimony was not challenged. It is beyond cavil that evidence presented in mitigation must be relevant” and “evidence of third persons’ having been wrongfully convicted of capital offenses is irrelevant to the jury’s function in the case before them andis inadmissible.’ (Citation.)” (/d. at p. 102, italics added; accord, e.g., People v. Alcala (1992) 4 Cal.4th 742, 806-807.) Pursuant to the authorities discussed in the previous section,it is 264 equally “beyond cavil that evidence presented in [aggravation or support ofa death verdict] must be relevant,” that a defendant’s constitutional right to testify does not extendto irrelevant matter, and that any witness’ opinion that death is the appropriate punishmentis totally “irrelevant to the jury’s function in the case before them andis inadmissible.” (People v. Lancaster, supra, 41 Cal.4th at p. 102.) Permitting the jurors to hear and consider Mr. Mai’s statement that they should return a death verdict, compoundedby the prosecutor’s argumentthat the jurors should return a death verdict based on that testimony, violated state law, as well as the Eighth and Fourteenth Amendments. E. The Death Judgment Must be Reversed A violation of the federal Constitution demandreversal unless the state can provethat the violation was harmless beyond a reasonable doubt. (Chapmanv. California (1967) 386 U.S. 18, 24.) Whenan errorresults in penalty phase jurors hearing aggravating evidence (or evidence in support of a death verdict) that they should not have otherwise heard, and that evidence is considered by them in assessing the appropriate penalty, the ensuing death judgmentis constitutionally invalid and must be reversed. (Brownv. Sanders (2006) 546 U.S. 212, 220-221 [when an “improper element” has been “add[ed] to the aggravation scale in the weighing process,” and results in the jurors hearing and considering facts or evidence it could not otherwise have heard or considered, the ensuing death judgmentis unconstitutional]; accord Johnson v. Mississippi (1988) 486 U.S. 578, 585-586 [due process demandsthat death sentence based even in part upon improperortotally irrelevant aggravation must be set aside]; Zant v. Stephens, supra, 462 U.S. 862, 885 [if death sentence were based upon “totally irrelevant” aggravation, “due process of law would require that the jury’s decision to impose death be 265 set aside”’]; see also Tuggle v. Netherland (1995) 516 U.S. 10, 13-14 [construing Zant for proposition that reliance on invalid aggravating factor does not necessarily demandreversal ifthe evidence in support of that factor were otherwise properly admitted].) Hence, when,as here, a defendant’s constitutionally irrelevant and inadmissible testimony that the jurors should return a death verdict is admitted erroneously, the state bears the burden of proving beyond a reasonable doubtthat no single juror’s vote for death was based — even in part —- upon it. (Chapmanv. California (1967) 386 US. 18, 24.) Underthis analysis, the results of Guzman and someofits progeny, discussed in part D, ante, might arguably have been correct: based on the facts of those cases — such as the absence ofprosecutorial reliance on the defendants’ death-preference testimony, the mitigating nature of the testimony, or the defendant’s presentation of other substantial mitigating evidence which makes the defendant’s testimony that he deserved to die unbelievable — this Court could arguably determine that the jurors did not rely on the testimonyas a basis for their death verdict and therefore that admission of the testimony was harmless beyond a reasonable doubt and did not render the ensuing verdict unreliable or otherwise constitutionally invalid. (People v. Guzman, supra, 45 Cal.3d at pp. 959-960, 962-963; People v. Webb, supra, 6 Cal.4th at pp. 534-535 & fn. 29; People v. Grant, supra, 45 Cal.3d at pp. 848-849; see also People v. Sapp, supra, 31 Cal.4th at p. 311.) The facts in this case stand in stark contrast to those in Guzman and its progeny. Based uponthe record in this case, respondent cannot carry its burden ofproving beyond a reasonable doubt that none of the jurors based his or her death verdict — even in part — upon Mr. Mai’s erroneously admitted statement. 266 Jurors are, of course, presumedto beintelligent people. (See, e.g., People v. Lewis (2001) 26 Cal.4th 334, 390.) Those intelligent people no doubtinferred thatif the trial court admitted Mr. Mai’s testimony, then that testimony was both relevant to and should be considered by them in their sentencing decision. (See also Evid. Code, § 402, subd. (c) [ruling on admissibility of evidence implies whateverfinding of fact is requisite thereto, such as relevance].) Indeed,thetrial court’s instructions effectively told Mr. Mai’s jury that it should consider Mr. Mai’s testimony in assessing the appropriate penalty andthat it could weigh it on death’s side of the scale. The court broadly, and repeatedly, instructed the jury in mandatory languagethat “in determining which penalty is to be imposed on the defendant, you shall considerall ofthe evidence” introducedat trial — which included Mr. Mai’s testimony — unless instructed otherwise. (8 RT 1425-1426,italics added; 3 CT 725 [CALJIC No. 8.85]; see also 8 RT 1424; 3 CT 724 [CALJIC No. 8.84.1].) In addition, in obvious recognition of the legal prohibition against a penalty phase jury’s consideration of a witness’s opinion that death is the appropriate sentence, thetrial court specifically instructed the jurors that they could “not consider a victim’sfamily member’s .. . opinions(if any) about the . . . appropriate sentence.” (8 RT 1430-1431, italics added; 3 CT 731.) Jurors apply logic and commonsenseto their understanding of instructions. (See, e.g., Boyde v. California (1990) 494 U.S. 370, 381; People v. Coddington (2000) 23 Cal.4th 529, 594.) The maxim expressio unius est exclusio alterius, or the expression of one thing is the exclusion of another, is “a product of logic and commonsense”(Alcaraz v. Block (9th Cir. 1984) 746 F.2d 593, 607-608; accord People v. Superior Court 267 (Romero) (1996) 13 Cal.4th 497, 522), and a “deductive concept commonly understood”(People v. Castillo (1997) 16 Cal.4th 1009, 1020, conc. opn. of Brown, J.). The maxim holds that where specific itemsare listed,it is assumedthat the omission of items similar in kind is intentional and the omitted items are therefore excluded. (/bid.) This Court, the United States Supreme Court, and many other appellate courts consistently apply the maxim in resolving how lay jurors would understand a particular instruction, whether explicitly (see, e.g., People v. Castillo, supra, at p. 1020; People v. Watson (1899) 125 Cal. 342, 344) or implicitly (see, e.g., Hitchcockv. Dugger (1987) 481 U.S. 393, 397 [instruction specifying factors jurors “may”consider necessarily implied that it “may not” consider factors that were not mentioned]; People v. Vann (1974) 12 Cal.3d 220, 226-227 [where standard reasonable doubt instruction omitted, provision of instruction applying reasonable doubt standard to circumstantial evidence implied that the standard did not apply to direct evidence]; People v. Dewberry (1959) 51 Cal.2d 548, 557 [instruction that doubts between greater and lesser offenses are to be resolved in favor of lesser specified first and second-degree murder but did not mention second-degree and manslaughterleft “clearly erroneous implication”that rule did not apply to omitted choice]; People v. Salas (1976) 58 Cal.App.3d 460, 474 [instruction on circumstantial evidence specifically directed to intent element of one charge created reasonable probability that jurors understood omission of second charge to be intentional and thus that circumstantial evidence rules did not apply to second charge].) Applying that maxim to the court’s specific instruction prohibiting the jurors from considering only the “victim’s family member’s . . . opinions (if any) about the... appropriate sentence” (8 RT 1430-1431, italics added; 3 268 CT 731), the jurors would have understood that they could consider any other witness’s opinion regarding “the appropriate sentence,” such as Mr. Mai’s opinion that death was the appropriate sentence in this case. Again,it must be presumedthat the jurors followed these instructions. (See,e.g., People v. Bennett (2009) 45 Cal.4th 577, 596, and authorities cited therein.) Finally, and in contrast to Guzman and someofits progeny, the prosecutor explicitly told Mr. Mai’s jury to consider and rely upon Mr. Mai’s statement that death was appropriate and return a death verdict, just as he had asked them to do. (8 RT 1424.) It is reasonable to infer that the jurors believed that they could do what the prosecutor urged them to do. (See,e.g., People v. Perez (1962) 58 Cal.2d 229, 247 [“juries very properly regard the prosecuting attorney as unprejudiced, impartial and nonpartisan, and statements madeby him areapt to have great influence”].) Anditis likely that the jurors did just that. It is well-settled in this regard that a prosecutor’s reliance on erroneously admitted aggravating evidence is a compelling indication that the jurors also relied on that evidence, and indeed were swayed by that evidence, in returning their death verdict. (Johnsonv. Mississippi, supra, 486 U.S. at p. 586 [prosecutor’s reliance in summation on erroneously admitted aggravating evidence wascritical factor in Court’s conclusion that error was not harmless]; see also People v. Quartermain (1997) 16 Cal.4th 600, 622 [error in admitting evidence prejudicial due in large part to prosecutor’s reliance upon it in summation]; People v. Woodard (1976) 23 Cal.3d 329, 341 [same]; People v. Powell (1967) 67 Cal.2d 32, 56-57.) Certainly, the swiftness with which the jurors returned their verdict in this case — only a matter of minutes — is a compelling indication that they took the easy way out, and based the death verdict upon Mr. Mai’s testimony, just as the prosecutor encouraged them to do. (Cf. People v. 269 Barnes (1997) 57 Cal.App.4th 552, 557 & fn. 3 [brevity ofjurors’ deliberations indicated that they based verdict on factually easy, but legally erroneous, theory, just as the prosecutor urged them to do in summation]; Bollenbach v. United States (1946) 302 U.S. 607, 612, 614 [promptreturn of verdict following erroneousinstruction demonstrates prejudice]; accord,e.g., People v. Stouter (1904) 142 Cal. 146, 149-150; Powell v. United States (9th Cir. 1965) 347 F.2d 156, 158.) In sum,the trial court’s admission of Mr. Mai’s testimony andits instructions effectively told the jurors that the testimony was relevant evidencethat they could consider and rely upon in returning a death verdict and the prosecutor encouraged them to do just that. On this record, respondent cannot, as it must, prove beyond a reasonable doubtthat no single juror considered and weighed Mr. Mai’s statement on death’s side of the scale and basedhis or her verdict at least in part upon it. (Cf. People v. Brown (1988) 45 Cal.3d 1247, 1255-1256 [whereit is reasonably likely that “the interplay of argument and individually proper instructions produced a distorted meaning” of the applicable legal principles, error has occurred ‘understate law]; accord, e.g., People v. Claire (1992) 2 Cal.4th 629, 663; People v. Edelbacher (1989) 47 Cal.3d 983, 1035-1040; Estelle v. McGuire (1991) 502 U.S. 62, 71-72 [whereit is reasonably likely that jurors would apply law in a manner inconsistent with federal Constitution, error has occurred under federal Constitution]; accord, e.g., People v. Roder (1983) 33 Cal.3d 491, 503-504, and fn. 13; Belmontes v. Woodford (9th Cir. 2003) 350 F.3d 861, 900-907.) It is true that at the close of Mr. Mai’s testimony,the trial court admonished,“the jury is instructed thatit is obligated to decide foritself, based upon the statutory factors, whether death is appropriate.” (8 RT 270 1410.) But this instruction did nothing to ameliorate the prejudice in this case. The harm from Mr. Mai’s statement wasnotthat it removed the penalty decision from the jurors. Rather, the harm wasthat the jurors were permitted, indeed encouraged, to consider and weigh Mr. Mai’s constitutionally irrelevant and extraordinarily inflammatory testimony as appropriate aggravating evidence in support of a death verdict. Because respondent cannot prove beyond a reasonable doubtthat none of the 12 jurors weighed Mr. Mai’s testimony on death’s side ofthe scale and based his or her death verdict at least in part uponit, respondent cannot prove beyonda reasonable doubtthat its admission did not render the ensuing death judgmentconstitutionally invalid. (Brown v. Sanders, supra, 546 U.S. at pp. 220-221; Johnson v. Mississippi, supra, 486 U.S. at pp. 585- 586; Zant v. Stephens, supra, 462 U.S. 862, 885.) Hence, the death judgment mustbe reversed. H // 27) VI THE SEATING OF A BIASED JUROR VIOLATED MR. MAI’S STATE AND FEDERAL CONSTITUTIONAL RIGHTSTO A FAIR AND RELIABLE PENALTY TRIAL BY AN IMPARTIAL JURY AND DEMANDS REVERSAL OF THE DEATH JUDGMENT A. Introduction Onher questionnaire, Juror Number 12 reported that a family member wasa fireman who hadtried to save Officer Burt’s life at the crime scene.” (5 CT 1413.) In addition, she had followed the case against Mr. Mai through newspaperand television coverage. (5 CT 1413.) Asked if she had formed any opinions aboutthe case based uponthat information, Juror Number 12 admitted that she had already formed the opinion that Mr. Mai should receive a death sentence. (5 CT 1413.) In contrast to her unequivocal“yes” answers to other questions(see, e.g., 5 CT 1414 [question 4 regarding willingness to set aside prior knowledge; question 6 regarding willingness not to follow media coverage or discuss case with others; question 7 regarding willingness to inform court if accidentally exposed to media coverage]), when askedif she would be willing or able to set aside that pre- formed opinion and decide the case based upon the evidence andthe law, Juror Number 12 wrote only, “I think so.” (5 CT 1414.) Later in the questionnaire, the jurors were informed that, underthe law,“in orderto fix the penalty of death, [you] must be persuaded that the aggravating factors are so substantial in comparison with the mitigating factors, that death is warranted instead oflife imprisonment without the possibility ofparole.” (5 CT 1418.) Whenaskedif she could set aside her * The record doesnot reflect Juror Number 12’s gender. For ease of reference only, the feminine pronoun will be used to refer to Juror Number12. 272 personal feelings and follow that law, Juror Number 12 checked the box marked “yes,” but qualified that answer by explaining, “I’m for the death penalty but if court proved to me that defendant should be spared death — I might not vote death.” (5 CT 1420, italics added.) Onvoir dire, the court inquired into Juror Number 12’s failure to unequivocally promise on her questionnaire that she could set aside herpre- formed opinion that Mr. Mai should be executed. (5 RT 886.) The court asked, “Can you assure counsel and I that you canset aside any preconceived opinion and decide this case —,” at which point Juror Number 12 interjected and simply reiterated her questionnaire answerthat, “I think I can ifthey can give me goodreason that somebody shouldn’t be put to death, I believe I would vote in that direction.” (5 RT 887,italics added.) Juror Number 12 agreed with the court that her “position is that they have to prove why someoneshould not be put to death.” (5 RT 887.) The court simply responded, “well, J am sure when weget to counsel they will have some further questions in that area” and it terminated the voir dire. (5 RT 887.) However, neither the prosecutor nor defense counsel questioned Juror Number 12 about these remarks. Instead, lead defense counsel Mr. Peters simply inquired into a statement Juror Number 12 had made on her questionnaire that the death penalty was used too seldom becausethere are “too many appeals that take too long.” (5 CT 1420; 5 RT 914.) Mr. Peters asked, “is that going to leak overinto the facts of this case, the law involvedin this case?” (5 RT 914.) Juror Number 12 replied, “I don’t think so.” (5 RT 914.) Mr. Peters further inquired if she could “weigh the aggravating and mitigating, whatever those turn out to be, and rendera fair verdict?” (5 RT 914-915.) Juror Number12 replied, “I think so.” (5 RT 931.) 273 Thereafter, the prosecutor asked Juror Number12 only, “from what you have heard about this case, what it is about, a police officer victim, do you think you can sit and be that kind ofjuror we were talking about who can consider both, who can accept the death penalty and vote or impose either one,” Juror Number 12 replied in the affirmative. (5 RT 931.) Juror Number 12 was sworn and seated on the jury that voted to execute Mr. Mai. As will be demonstrated below, Juror Number 12’s statements demonstrated her actual bias in favor of execution in this case, thus establishing her disqualification as a juror. The seating of this biased juror violated Mr. Mai’s state and federal constitutional rights to an impartial jury, a fair trial, and a reliable death verdict — a structural defect that disentitles the State from executing the death judgment. (U.S. Const., Amends. V, VI, VII, XIV; Cal. Const., art. I, §§ 16, 17.) B. The Seating of a Juror Actually Biased in Favor of Execution Violates the Sixth, Eighth and Fourteenth Amendments to the United States Constitution, Article I, Section 16 of the California Constitution, and Disentitles the State from Executing any Ensuing Death Judgment The Eighth Amendmentto the United States Constitutions demands a heightened degree ofreliability in death verdicts. (See, e.g., Caldwell v. Mississippi (1985) 472 U.S. 320, 340; Beck v. Alabama (1980) 447 U.S. 625, 637-638; Lockett v. Ohio (1978) 438 U.S. 586, 604.) Moreover,all criminal defendants are entitled to an impartial jury under the Sixth and Fourteenth Amendments to the United States Constitution andarticleI, section 16 of the California Constitution. (See, e.g. Morgan v.Illinois (1992) 504 U.S. 719, 727, and authorities cited therein; People v. Wheeler (1978) 22 Cal.3d 258, 272.) These guarantees apply equally to the guilt and 274 penalty phases of a capitaltrial. (See, e.g., Morgan v. Illinois, supra, at p. 729; People v. Earp (1999) 20 Cal.4th 826, 852.) These guarantees forbid the seating of an actually biased juror. Indeed, “quite apart from offending the Sixth Amendment, trying an accused before a jury that is actually biased violates even the most minimal standards of due process.” (United States v. Nelson ( 2nd Cir. 2002) 277 F.3d 164, 206.) Under both California and federal law, actual bias, sometimes referred to as “bias in fact,” is defined as “the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party.” (Code of Civ. Proc., § 225, subd. (B)(1)(c); see, e.g., United States v. Torres (2nd Cir. 1997) 128 F.3d 38, 43, citing United States v. Wood (1936) 299 U.S. 123, 133 [“Actual bias is ‘bias in fact’ — the existence of a state of mind that leads to an inference that the person will not act with entire partiality”].) “The label ‘biased’ is applied to two sorts ofjurors. In the usual sense, a biased juror is one who has a predisposition against or in favor of the defendant. In a more limited sense, a biased juror is one who cannot‘conscientiously apply the law and find the facts.” Wainwright v. Witt, 469 U.S. 412, 423, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).” (Franklin v. Anderson (6th Cir. 2006) 434 F.3d 412, 422, cert. denied, Houk v. Franklin (2007) 549 U.S. 1156.) Impartiality demandsthat a potential juror swear that he or she can “can lay aside his impression or opinion and render a verdict based upon the evidence presented in court.” (Urvin v. Dowd (1961) 366U.S. 717, 723; accord Patton v. Yount (1984) 467 U.S. 1025, 1036 [juror must “swear that he could set aside any opinion he might hold and decide the case based on 275 the evidence”].) The juror’s promise must be “unequivocal.” (Wolfe v. Brigano(6th Cir. 2000) 232 F.3d 499, 503, italics added; accord, e.g., White v. Mitchell (6th Cir. 2005) 431 F.3d 517, 540; Miller v. Webb (6th Cir. 2004) 385 F.3d 666, 675; Thompson v. Altheimer & Gray (7th Cir. 2001) 248 F.3d 621, 624, 626 [juror must give “unwavering assurances”that he or she can set aside pre-formed opinion and decide the case based on the evidence and the law as stated in the court’s instructions]; United States v. Sithongtham (8th Cir. 1999) 192 F.3d 1119, 1121.) “If the juror does not make such an unequivocal statement, then a trial court cannot believe [any] protestation of impartiality.” (Miller v. Webb, supra, at p. 675.) Hence, a juror’s tentative statements that he or she will “try” to be impartial and decide the case fairly is insufficient: the federal Constitution guarantees a defendant“the rightto a jury that will hear his case impartially, not one that tentatively promises to try.” (Wolfe v. Brigano, supra, 232 F.3d at p. 503; accord, e.g., White v. Mitchell 431 F.3d 517, 540; Thompson v. Altheimer & Gray, supra, 248 F.3d at pp. 624, 626 [juror who simply stated that she would “ry to be fair, but . . expressed no confidence in being able to succeed in that attempt” and gave no “unwavering assurances” of impartiality was not impartial]; United States v. Sithongtham (8th Cir. 1999) 192 F.3d 1119, 1121 [prospective juror’s statement that he could “probably” be fair and impartial was insufficient to demonstrate impartiality; “* v. Avila (2006) 38 Cal.4th 491, 532-533 & fn. 26 [juror whose questionnaire probably’ is not good enough”]; see also People answers expressed strong pro-life views and who twice answered that he did not know if he could set those views aside and follow the law, was sufficiently, unambiguously biased to permit dismissal for cause based on questionnaire alone, without need for voir dire]; People v. Green (1956) 47 Cal.2d 209, 215-216, overruled on another ground in People v. Morse (1964) 276 60 Cal.2d 631 [juror whostated that she did not “think” she could befair to the prosecution if she had “any doubt” about defendant’s guilt established bias and good cause for her removal after jury was sworn].) In capital casesin particular, a potential juror is sufficiently impartial and qualified to serve if she can set aside her personal feelings about the death penalty, decide the case based upon the evidence and the law asstated in the court’s instructions, and in a fair and impartial manner. (See,e.g., Lockhart v. McCree (1986) 476 U.S. 162, 176; accord Adamsv. Texas, supra,448U.S. 38, 50 Wainwright v. Witt (1985) 469 U.S. 412, 420-421, 425-426.) However,if a potential juror’s questionnaire and voir dire answersindicate that his views regarding the case or the death penalty “would ‘prevent or substantially impair’ the performanceofhis duties as a juror in accordance with his instructions and his oath,” he is actually biased, disqualified to serve as a juror, and must be removedfor cause. (Wainwright v. Witt, supra, at p. 424, adopting test applied in Adams v. Texas (1980) 448 US. 38, 45; see also People v. Ghent (1987) 43 Cal.3d 739, 767 [adopting Witt standard]; accord, e.g., People v. Heard (2003) 31 Cal.4th 946, 963; People v. Crittenden (1994) 9 Cal.4th 83, 121; People v. Mincey (1992) 2 Cal.4th 408, 456.) For instance, if a potential juror’s “views about capital punishment would prevent or impair the juror's ability to return a verdict of life without parole in the case before the juror’” he or she must be excluded. (People v. Heard, supra, 31 Cal.4th at p. 959.) Similarly, a juror whostates that he would “probably have to be convinced”to vote forlife and “would be more inclined to go with the death penalty” would apply a “higher standard to a life sentence . . . than to one of death,” which is inconsistent with the law, must be excluded. (People v. Boyette (2002) 29 Cal.4th 318, 418; see also, 277 e.g., People v. Prieto (2003) 30 Cal.4th 226, 263 [juror may return death verdict only if aggravating circumstances “substantially outweigh” mitigating]; CALJIC No.8.88 [pattern instruction directing, “to return a judgmentof death, each of you must be persuaded that the aggravating circumstancesare so substantial in comparison to the mitigating circumstancesthat it warrants death instead of life without parole”’].) “Becausethis juror’s views would have ‘prevent(ed) or substantially impair(ed) the performance ofhis duties as a juror in accordance with his instructions andhis oath,’ (Wainwright v. Witt, supra, 469 U.S. at p. 424),” he is actually biased and must be removed for cause. (People v. Boyette, supra, at p. 419.) Whena prospective juror admits that she has a pre-formed opinion aboutthe case or abouta principle that is inconsistent with the law, the federal Constitution demands that she be examined individually in order to obtain her explicit, unequivocal or “unwavering assurances”that she can set that opinion aside and decide the case based upon the evidence and the law as stated in the court’s instructions. (See, e.g., White v. Mitchell, supra, 431 F.3d at p. 540; Miller v. Webb, supra, 385 F.3d at p. 675; Hughes v. United States (6th Cir. 2001) 258 F.3d 453, 456-460; Thompson v. Altheimer & Gray, supra, 248 F.3d at p. 627; United States v. Sithongtham, supra, 192 F.3d at p. 1121; Johnson v. Armontrout (8th Cir. 1992) 961 F.2d 748, 750, 753-754.) Voir dire directed to the prospective jurors en masse is insufficient to rehabilitate such a juror. (Hughes v. United States, supra, 258 F.3d at p. 461, and authorities cited therein.) Absent such follow up and unequivocal assurances of impartiality, the juror must be dismissed. (White v. Mitchell, supra, 431 F.3d at p. 540; Miller v. Webb, supra, 385 F.3d atp. 675; Hughes v. United States, supra, 258 F.3d at pp. 456-460; Thompson v. 278 Altheimer & Gray, supra, 248 F.3dat p. 627; United States v. Sithongtham, supra, 192 F.3d at p. 1121; Johnson v. Armontrout, supra, 961 F.2datpp. 750, 753-754.) In Hughes v. United States, supra, 258 F.3d 453, for instance, a prospective juror admitted that because of close personalties to law enforcement, she did not think she couldbe fair to the defendant. (Id.at p. 456.) Neither the trial court nor the attorneys attempted to rehabilitate her on individual voir dire, but rather posed general questionsto the potential Jurors en masse regardingtheir ability to be impartial. (Jbid.) The defense did not challenge the prospective juror for cause or with a peremptory strike and she waseventually sworn as a juror. The Sixth Circuit Court of Appeals held that the record demonstrated that the juror was actually biased and thus her seating on the jury violated the defendant’s Sixth and Fourteenth Amendmentrights to an impartial jury: [W]hat distinguishes Petitioner’s case from [other cases] is the conspicuous lack of response, by both counsel andthetrial judge, to [the biased juror’s] clear declaration that she did not think she could be a fair juror. The district court’s reliance on unrelated group questioning of potential jurors on voir dire does not address the simple fact that neither counsel nor the court offered any responseto [the biased juror’s] declaration or follow-up questions directed to [her]. Although the precedent of the Supreme Court and this Court makes us circumspect about finding actual juror bias, such precedent does not prevent us from examining the compelling circumstances presented by the facts of this case — where both the district court and counsel failed to conduct the most rudimentary inquiry of the potential juror to inquire further into her statement that she could notbe fair. The [previously cited] precedent included key elements ofjuror rehabilitation and juror assurances of impartiality which are absenthere.. . [B]ecause [the juror’s] declaration [of her inability to be fair] 279 wasnot followed by any attempt atclarification or rehabilitation, there is no ambiguity in the record asto herbias. [The juror’s] express admission is the only evidence available to review. (Hughes v. United States, supra, 258 F.3d at pp. 458-460,italics added.) Based uponher express admission of bias, and the fact that “she never said that she would be able to rendera fair an impartial verdict,” the court found that the juror wasactually biased. (/d.at p. 460.) In other words, just as a juror’s partiality, and thus disqualification, cannotbe established if she is never asked if she can set aside her personal feelings and follow the law (see, e.g.; People v. Stewart (2004) 33 Cal.4th 425, 447, 449-459 [removal ofjuror personally opposedto death or life for cause on groundsofbias is improperifthe “critical question” of whether he or she can subordinate those opinions and follow the law is never put to him or her]), so too a juror’s impartiality, and thus qualification, cannot be established if she has expressed a pre-formed opinion aboutthe case or the penalty, but is never directly asked if she can set aside that opinion and decide the case based upon the evidence and the court’s instructions on the law. Asthis Court has observed,“[a] defendant is entitled to be tried by 12, not 11, impartial and unprejudiced jurors.” (People v. Harris (2008) 43 Cal.4th 1269, 1303, and authorities cited therein.) Hence, under both the state and federal Constitutions, empaneling even a single penalty phase juror whois actually biased in favor of execution under these standards violates the Sixth, Eighth and Fourteenth Amendments and precludes executing any ensuing death sentence. (Morganv. Illinois, supra, 504 U.S. at p. 729; People v. Boyette, supra, 29 Cal.4th at p. 416; People v. Weaver (2001) 26 Cal.4th 876, 910; see also Jn re Carpenter (1995) 9 Cal.4th 634, 654 [the 280 seating of a biased juror violates right to impartial jury andis structural error demanding reversal without any showing of prejudice]; accord, e.g., Gomez v. United States (1989) 490 U.S. 858, 876, and authorities cited and quoted cecetherein [“Amongthosebasicfair trial rights that ‘“can never be treated as harmless”is a defendant’s ‘right to an impartial adjudicator, be it judge or jury’”’]; Standen v. Whitley (9th Cir. 1993) 994 F.2d 1417, 1422.) Thisis just such a case. C. Juror Number 12 was Actually Biased in Favorof Executing Mr. Mai Asnoted in the Introduction, Juror Number 12 had a family member who attempted to save Officer Burt’s life after Mr. Mai shot him. (5 CT 1413.) Based uponthat fact, as well as media reports of the case against Mr. Mai, she candidly admitted that she had already formed the opinion that Mr. Maishould be executed. (5 CT 1413; 5 RT 886-887.) The questionnaire clearly informed the jurors that, under the law, “in order to fix the penalty of death, [you] must be persuadedthat the aggravating factors are so substantial in comparison with the mitigating factors, that death is warranted instead of life imprisonment without the possibility of parole.” (5 CT 1418.) Nevertheless, Juror Number 12 never unequivocally swore that she could set aside her pre-formed opinion and decide the case based on the evidence and the law. To the contrary, the only way in which she could conceive that she “might?” be able to set aside her pre-formed opinion, and subordinate her personal feelings to the law, would be if the defense “proved to me that defendant should be spared death”or “can give me good reason why somebody shouldn’t be put to death, I believe I would vote in that direction.” (5 CT 1413-1414, 1420; 5 RT 886-887.) When the court inquired into this answer, she simply confirmedthat her “position is that they 281 have to prove why someoneshould not be put to death.” (5 RT 887.) This was, of course, inconsistent with California law. (See, e.g., People v. Boyette, supra, 29 Cal.4th at pp. 417-419 [juror’s statement that he would “probably have to be convinced”to vote forlife and “would be more inclined to go with the death penalty . . . . indicated he would apply a higher standard . . . to a life sentence than to one of death,” and unequivocally demonstrated his disqualification under Witt standard]; People v. Prieto, supra, 30 Cal.4th at p. 263 [juror may return death verdict only if aggravating circumstances “substantially outweigh” mitigating].) The court clearly seemed to appreciate the problem in her answers by pointedly observing that the attorneys would undoubtedly examine her about these answers. (5 RT 887.) However, neither the attorneys nor the court followed up on these answers and obtained Juror Number 12’s “unwavering assurance”that she would set aside her pre-formed opinion and follow the law. Instead, on subsequentvoir dire, when defense counsel simply asked Juror Number 12 whether she could “weigh the aggravating and mitigating, whatever those turn out to be, and rendera fair verdict?” she replied, “I think so.” (5 RT 914-915.) Similarly, when the prosecutor asked her generally, “from what you have heard about this case, what it is about, a police officer victim, do you think you can sit and be that kind ofjuror we weretalking about who can consider both, who can accept the death penalty and vote or imposeeither one,” Juror Number 12 replied “yes.” (5 RT 931.) However, there is nothing inconsistent between these answers and those establishing her bias. Juror Number 12 had quite clearly explained the circumstances under which she “thought” she could “weigh the aggravating and mitigating, whatever those turn out to be” and “consider both . . . accept the death 282 penalty and vote or impose either one” — death was the presumptive penalty in her mind and she would considerlife without parole only if the defense “proved”to her that Mr. Mai’s life should be spared. (5 CT 1413-1414, 1420; 5 RT 886-887.) Asin Hughes v. United States, supra, 258 F.3d 453, discussed in part B, above, Juror Number 12 repeatedly and unequivocally stated that she had a pre-formed opinion that Mr. Mai should be executed. As in Hughes, there wasnoeffort to rehabilitate her by obtaining her unwavering assurancesthat she could subordinate that pre-formed opinion to follow the Jaw, which does not place the burden on the defendant to rebut a presumption of execution and provethat his life should be spared. (/d. at p. 456.) To the contrary, whenthe court did follow up on her questionnaire answers that she could only conceive ofpossibly setting aside her pre-formed opinionifthe defendant provedto her that she should not vote for execution, , she simply confirmed them. As in Hughes, any group questioning of the panel ofjurors as a whole wasinsufficient to rehabilitate Juror Number 12. Hence, as in Hughes, supra, “ because [Juror Number 12’s] declaration [of her pre- formed opinion that she could not set aside in a manner consistent with the law] wasnot followed by any attemptat clarification or rehabilitation, there is no ambiguity in the recordas to her bias. [Juror Number 12’s] express admission is the only evidence available to review.” (/d. at pp. 458-460, emphasis added.) That evidence demonstrates her actual bias. (Accord, e.g., Miller v. Webb, supra, 385 F.3d at p. 675 [where juror stated that she thought she would be “kind ofpartial” to witness and, upon the court’s follow-up stated that, “I think I can be fair, but I do have somefeelings about” the witness, further questioning regarding specific statement of partiality and promise to set aside that opinion and decide case based on 283 evidence and law was necessary to demonstrate impartiality; absent such questioning and promise, juror was actually biased and should have been dismissed]; Thompson v. Altheimer & Gray, supra, 248 F.3d at pp. 624-626 [where juror expressed pre-formed opinion about nature of case stated that she would “try to be fair, but [who] expressed no confidence in being able to succeed,”trial judge had duty to ask her individually if she could set aside that opinion and follow the law, which wasnotfulfilled by posing that question to the jurors en masse whoall respondedin the affirmative; absent such individual follow-up and unwavering assurances from the juror that she could set aside her opinion and decide case fairly and based on the law, actual bias was established and verdict was reversed]; Johnsonv. Armontrout, supra, 961 F.2d at pp. 750, 753-754 [despite silence in face of group voir dire questions regarding ability to be impartial or set aside pre- formed opinions,in the absence of any explicit promises of impartiality, fact two jurors had already formed opinion that defendant was guilty established actual bias].) Certainly, it is true that juror credibility is an issue for the trial court to resolve andits resolution of that issue is entitled to deference on appeal. (See, e.g., Uttecht v. Brown (2007) 551 US. 1, 127 S.Ct. 2218, 2222-2223; Wainwright v. Witt, supra, 469 U.S. at p. 429.) Hence, where a claim of bias rests on the premise that a juror’s assurance of impartiality should not have been believedor that the juror provided equivocal, ambiguous,or conflicting statements regarding bias, the trial judge should determine the juror’s credibility in the first instance and its determinationis entitled to deference. (Uttecht v. Brown, supra, at pp. 2222-2223, and authorities cited therein.) However, where — as here — a prospective juror has unequivocally admitted a pre-formed opinion and has not promisedto set it aside and decide the case 284 based on the evidence and the court’s instructions on the law, she has made no protestations of impartiality and there is no ambiguity in the record. As the Court of Appeals explained in Hughes, supra, “because [the juror’s] declaration [of her partiality] was not followed by any attempt at clarification or rehabilitation, there [was] no ambiguity in the record as to her bias.” (Hughes v. United States, supra, 258 F.3d [needs volumecite because Hughesnotcited previously in this paragraph] at pp. 458-460, italics added.) Thus, there is simply no issue of credibility for the judge to resolve and no finding to which to defer on review. The jurors’s “express admission is the only evidence available to review.” (Ibid.) The issue is one ofpure law: based upon the undisputed and unambiguousfacts in the record, was the juror actually biased? Forall of these reasons, the record demonstrates that Juror Number 12 wasactually biased in favor of execution in this case. Her empanelment on the jury that voted to execute Mr. Maiviolated his state and federal constitutional rights to trial by a fair and impartialjury, to a reliable death verdict, and demandsthat the death judgment be reversed. (Morganv. Illinois, supra, 504 U.S. at p. 729; People v. Weaver, supra, 26 Cal.4th at p. 910.) D. Because Juror Number 12 Was Actually Biased, the Death Judgment Cannot be Executed Notwithstanding Defense Counsel’s Failure to Move to Exclude her For Cause It is true, but irrelevant to the outcomethe constitution demandshere, that defense counsel did not move to exclude Juror Number12 for cause. Whena biased juror has been seated, the defendant has been deprived ofhis fundamentalright to trial by a fair and impartial jury. (See, e.g., Morgan v. Illinois, supra, 504 U.S.at p. 729; People v. Weaver, supra, 26 Cal.4th at p. 910; United States v. Gonzalez (9th Cir. 2000) 214 F.3d 1109, 1111; United 285 States v. Eubanks (9th Cir. 1979) 591 F.2d 513, 517.) Without qualification, the United States Supreme Court has unambiguously declared that where such a violation has occurred and “the death sentence is imposed,the State is disentitled to execute the sentence.” (Morganv.Illinois, supra, 504 U.S.at p. 729; see also United States v. Martinez-Salazar (2000) 528 U.S. 304, 316 [“‘the seating of any juror who should have been dismissed for cause . . would require reversal”’].) Indeed, courts consistently hold that the seating of a biased juror demandsreversal regardless of defense counsel’s inaction, albeit sometimes by wayof different analyses. Some courts haveheld that, if it can be waived at all, a defendant’s right to an impartial jury cannot be waived byhis counsel’s failure to act. It is beyond dispute that any waiver of the Sixth Amendmentright to jury trial requires the defendant’s express andpersonal waiver. (See, e.g., Patton v. United States (1930) 281 U.S. 276, 308-312 [express personal waiver required under federal Constitution]; see also Fed. Rules of Crim. Proc. Rule 23 [express, written waiver required under federal rules]; People v. Collins (2001) 26 Cal.4th 297, 304-305 & fn. 2 [express waiver in open court required under both state and federal law]; Calif. Const., art. I, § 16.) According to the very text of the Sixth Amendment, trial by jury meanstrial by an “impartial jury” and thus the right to an impartial jury “’”is an inseparable and inalienable part of the right to trial by jury guaranteed by the Constitution.” [Citations].” (mn re Hitchings (1993) 6 Cal.4th 97, 110; see also People v. Wheeler, supra, 22 Cal.3d at pp. 265- 266 [although right to impartial jury is not explicitly stated in California Constitution, it is implied].) Hence, these courts reason that “if counsel cannot waive a criminal defendant's basic Sixth Amendmentrightto trial by jury ‘without the fully informed and publicly acknowledged consent of the 286 client’ [Citation], then counsel cannot so waive a criminal defendant's basic Sixth Amendmentright to trial by an impartial jury.” (Hughes v. United States, supra, 258 F.3d at p. 463; accord, e.g., Franklin v. Anderson, supra, 434 F.3d at pp. 427-428 [defense counsel cannot waive client’s right to impartial jury by failing to object, or attempting to remove,biased juror]; Johnson v. Armontrout, supra, 961 F.2d at p. 754 [rejecting state’s argument that counsel’s failure to object to seating of biased juror waived claim for review: “When a defendant fails to object to the qualifications of a juror, he is without remedy only if he fails to prove actual bias. (Citations.) Ifa defendant provesthat jurors were actually biased, the conviction must be set aside (Citations)”]; United States v. Nelson (2d Cir. 2002) 277 F.3d 164, 204-213 [questioning whether seating of biased juror , and thus right to be tried by an impartial tribunal, is waivable atall, but in any event holding defendant’s express waiver wasinvalid and thustrial court’s failure to removebiased juror for cause was reviewable on appeal].) Other courts have held that: (1) an attorney’s failure to remove a biased juror falls below an objective standard of reasonably competent assistance that can neverbejustified by any conceivable, reasonabletrial tactic or strategy; and (2) the seating of a biased juror necessarily establishes the prejudice prong necessary to establish that counsel was constitutionally ineffective. (Virgil v. Dretke (5th Cir. 2006) 446 F.3d 598, 609-613; Franklin v. Anderson, supra, 434 F.3d at pp. 427-428; Miller v. Webb, supra, 385 F.3d at pp. 675-676; Hughes v. United States, supra, 258 F.3d at pp. 463-464; Johnson v. Armontrout, supra, 961 F.2d at pp. 754-755.) In other words, establishing the bias of a deliberating juror necessarily establishes that counsel wasineffective, in violation of the Sixth Amendment, for failing to remove (or attempt to remove) that juror with a 287 challenge for cause or peremptory challenge. (Virgil v. Dretke, supra, 446 F.3d at pp. 609-613; Franklin v. Anderson, supra, 434 F.3d at pp. 427-428; Miller v. Webb, supra, 385 F.3d at pp. 675-676; Hughes v. United States, supra, 258 F.3d at pp. 463-464; Johnson v. Armontrout, supra, 961 F.2d at pp. 754-755; see also Strickland v. Washington (1984) 466 U.S. 668, 694.) This Court is in accord. As it observed in People v. Weaver, supra, “because the presence of even a single juror compromising the impartiality of the jury requires reversal, counsel would be constitutionally ineffective if he had failed to” attempt to remove or removethat juror if he had the powerto do so. (26 Cal.4th at p. 411.) Other courts have held that trial courts have a sua sponte duty to removeactually biased jurors and potential jurors. (Miller v. Webb, supra, 385 F.3d at p. 675; United States v. Torres (2d Cir. 1997) 128 F.3d 38, 43; Hughes v. United States, supra, 258 F.3d at p. 463 [trial court and counsel ultimately share responsibility for removing biased jurors].) This view rests on the fundamental principle that trial courts are vested with the final authority for ensuring that a criminal defendant receivesa fair trial before an impartial jury and a biased tribunalis a structural defect in the constitution of the trial mechanism. (See, e.g., United States v. Frazier (1948) 335 U.S. 497, 511, emphasis added [“duty reside[s] in the court to see that the jury as finally selected is subject to no solid basis of objection on the score of impartiality”]; Dennis v. United States (1950) 339 U.S. 162, 168 [thetrial court has a serious duty to determine the question of actual bias’’]; Jn re Carpenter (1995) 9 Cal.4th 634, 654 [violation of right to impartial jury is structural error]; accord, e.g., Gomez v. United States (1989) 490 U.S. 858, 876; Morgan v. Illinois, supra, 504 U.S. at p. 729; Standen v. Whitley (9th Cir. 1993) 994 F.2d 1417, 1422; Johnson v. Armantrout, supra, 961 F.2d 288 748, 755.) California law certainly supports this view. | As this Court has observed, under California law,“the duty to examine prospective jurors and to select a fair and impartial jury is a duty imposed upon the court ....” (People v. Mattson (1990) 50 Cal.3d 826, 845.) Consistent with this duty, this Court has heldthat the trial court has the powerto dismiss jurors for cause even whenthe parties pass or object to removalofthe jurors. (See, e.g., People v. Cunningham (2001) 25 Cal.4th 926, 981-982.) Indeed, “[t]he trial judge’s duty to select a fair and impartial jury impliedly includes the duty to excuse a juror for cause whenvoir dire indicates the juror cannotbe fair and impartial. Thetrial court’s duty to excuse suchjurors is not obviated by the absence of an objection bya party.” (People v. Jiminez (1992) 11 Cal.App.4th 1611, 1620, and authorities cited therein, disapproved on other grounds in People v. Kobrin (1995) 11 Cal.4th 416, 419.) In other words, the ultimate responsibility for removing | disqualified or biased jurors lies with the trial judge. (Code ofCiv. Proc., § 225, subd. (b)(1)(c); see also Code of Civ. Proc., §§ 230 [trial judge decides all issues related to challenges of prospective jurors] and 1089 [trial judge has authority, at any time during the proceedings and before verdict is reached, to removejuror on its own motion whois “unable to perform his or her duty”’].) Finally, some courts have held that defense counsel’s failure to attempt to removean actually biased potential juror does not “waive”the defendant’s right to challenge the ensuingviolation ofhis right to an impartial jury based on a combinationofthe above-described analyses. (See, e.g., Franklin v. Anderson, supra, 434 F.3d at pp. 427-428; Johnson v. Armontrout, supra, 961 F.2d at pp. 754-755; Miller v. Webb, supra, 385 F.3d at pp. 375-376.) In Franklin v. Anderson, supra, for instance, the Court of 289 Appeals held that a potential juror’s inability to follow the law, as required by Wainwright v. Witt, supra, demonstrated her actual bias and demanded her removal for cause. The fair and impartial jury violation that arose from seating that biased juror was cognizable on appeal, and demandedreversal of the judgment, despite the fact that trial counsel made no attempt to remove that juror in the proceedings below. (Franklin v. Anderson, supra, 434 F.3d at pp. 427-428.) And for these reasons, appellate counsel’s failure to challenge the violation on appeal amountedto ineffective assistance of appellate counsel. (/d. at pp. 426-431.) In so holding, the court rejected any argumentthattrial counsel’s failure to move to removethe biased juror waivedhis client’s right to challenge the violation of his right to an impartial jury on appeal: “The seating of a biased juror who should have been dismissed for cause requires reversal of the conviction.” Hughesv. United States, 258 F.3d 453, 463 (6th Cir.2001) (citing United States v. Martinez-Salazar, 528 U.S. 304, 316, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000)). “‘Failure to remove biased jurors taints the entire trial, and therefore . . . [the resulting] conviction must be overturned.’ ” Jbid. (quoting Wolfe v. Brigano, 232 F.3d 499, 503 (6th Cir.2000)). There is no situation under which the impaneling of a biased juror can be excused. “The impaneling of a biased juror warrants a newtrial.... The “presence of a biased juror cannot be harmless; the error requires a newtrial without a showing ofactual prejudice.’ [bid. (quoting United States v. Gonzalez, 214 F.3d 1109, 1111 (9th Cir.2000)). Accordingly, the State can make no argumentthat . . . trial counsel acted strategically in keeping [the biased juror] on the panel because she was,like [petitioner], African-American. To permit this would beto allow trial counsel to waive the defendant's right to an impartial jury. (Id. at pp. 427-428, cert. denied, Houk v. Franklin (2007) 549 U.S. 1156.) Similarly, in Hughes v. United States, supra, 258 F.3d 453, discussed in part C, above, defense counsel did not challenge a biased juror for cause 290 or with a peremptory challenge. The Court of Appeals held that, because the juror wasbiased, the ensuing violation of the defendant’s right to an impartial jury demanded a new trial notwithstandinghis trial counsel’s inaction for two reasons. First, defense counsel’s failure to remove the juror amounted to ineffective assistance as a matter of law. Second, counsel’s inaction cannot functionally “waive” a defendant’s Sixth Amendmentright to trial by impartial jury: The question of whetherto seat a biased juror is not a discretionary or strategic decision. The seating of a biased juror who should have been dismissed for cause requires reversal of the conviction. United States v. Martinez-Salazar, 528 U.S. 304, 316, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000). “Failure to remove biased jurors taints the entire trial, and therefore . . . [the resulting] conviction must be overturned.” [Citation.] “A court must excuse a prospective juror if actual bias is discovered during voir dire.” [Citation.].... If counsel’s decision not to challenge a biased venireperson could constitute soundtrial strategy, then soundtrial strategy would include counsel’s decision to waive, in effect, a criminal defendant's right to an impartial jury. However, if counsel cannot waive a criminal defendant's basic Sixth Amendment right to trial by jury “without the fully informed and publicly acknowledged consentofthe client,” Taylorv. Illinois, 484 US. 400, 417 n. 24, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988), then counsel cannot so waive a criminal defendant's basic Sixth Amendmentright to trial by an impartial jury. Indeed, given that the presence of a biased juror, like the presence of a biased judge, is a “structural defect in the constitution of the trial mechanism”that defies harmlesserror analysis, [citations], to argue soundtrial strategy in support of creating such a structural defect seems brazen at best. We find that no soundtrial strategy could support counsel’s effective waiver of Petitioner's basic Sixth Amendmentright to trial by impartial jury. The impaneling of a biased juror warrants a newtrial. If an 291 impaneled juror wasactually biased, the conviction mustbe set aside. [Citations.] The “presence of a biased juror cannot be harmless; the error requires a new trial without a showing of actual prejudice.” [Citations.]. Accordingly, given that a biased juror was impaneled in this case, prejudice under Strickland is presumed, and a newtrial is required. (Id. at p. 463.) It is true that this Court has held that a defendant must attempt to removea biased juror — if he or she has the powerto do so — in order to challenge his or her empanelment on appeal. (See, e.g., People v. Hillhouse (2002) 27 Cal.4th 469, 487 [defendant must exhaust peremptory challenges in order to preserve for appealthe trial court’s denial of for cause challenges]; People v. Staten (2000) 24 Cal.4th 434, 454; People v. Bolin (1998) 18 Cal.4th 297, 316; People v. Kipp (1998) 18 Cal.4th 349, 365.) However, this Court has never held that a juror was biased, but also that the defendant “waived”his right to challenge the ensuing violation of his right to an impartial jury on appeal becausehis attorney failed to attempt to removethat juror. Indeed, for all of the reasons discussed above, any such holding would be inconsistent with the federal Constitution. Here, Juror Number 12 was actually biased. Pursuant to the foregoing authorities, defense counsel could not waive Mr. Mai’s right to an impartial jury by failing to object to the empanelmentof, or failing to attempt to remove, Juror Number12. If that right could be waivedatall, it required Mr. Mai’s personal and express waiver on the record. In the alternative, defense counsel’s failure to remove or attempt to remove the biased juror deprived Mr. Mai of his state and federal constitutional rights to the effective assistance of counsel as a matter of law. (U.S. Const., Amend. VI; Calif. Const., art. I, § 15.) In any event, the trial court had a sua sponte duty to removeher. 292 Furthermore, as discussed in the preceding section, whilea trial court’s resolution ofjuror credibility is entitled to deference whenthe juror’s answersare conflicting or ambiguous,there is no credibility determination to whichto defer where, as here, the juror’s answers are unambiguous. (See, e.g., Uttecht v. Brown, supra, 551 U.S. 1, 127 S.Ct. 2218, 2222-2223; Wainwright v. Witt, supra, 469 U.S. at p. 429.) The jurors’s “express admission is the only evidence available to review.” (bid.) Hence, the issue is one ofpure law: based upon the undisputed and unambiguousfacts in the record, was the juror actually biased? (See, e.g., People v. Yeoman (2003) 31 Cal.4th 93, 118 [and authorities cited therein — reviewing court may consider claim raised for first time on appealif it involves a pure question of law based on undisputed facts].) Because this Court can determine that question in the first instance, it should do so given the fundamental nature of the right at stake here. (See, e.g., Johnson v. United States (1997) 520 U.S. 461, 467, citing United States v. Young (1985) 470 U.S. 1, 15 and United States v. Atkinson (1936) 297 U.S. at 157, 160 [reviewing court should invokeits remedial discretion to notice a forfeited error if that error “seriously affect[s] the fairness, integrity or public reputation ofjudicial proceedings”].) At the very least, because the question of whether defense counsel’s inaction could waive Mr. Mai’s fundamentalright to an impartial jury is a “close and difficult” one, it must be resolved in favor of preservation. (People v. Champion (1995) 9 Cal.4th 879, 908 & n. 6.) For all of these reasons, regardless of the analytical approach and whether the blame for the constitutional violation is placed on the shoulders of the trial court,trial counsel, or both, the end result is that Mr. Mai was deprived of his right to an impartial jury. “The direction of the blow is less important than the woundinflicted.” (People v. Estrada (1998) 63 293 Cal.App.4th 1090, 1096.) Here, the wound wasfatal, resulting in a structural defect undermining the integrity of the trial mechanism itself, akin to providing Mr. Mai with no penalty trial at all. (Arizona v. Fulminante (1991) 499 U.S. 279, 309-310; Johnson v. Armontrout, supra, 961 F.2d 755.) The empanelmentof Juror Number 12 violated Mr. Mai’s state and federal constitutional rights to an impartial jury, a fair penalty trial, a reliable penalty verdict, and demandsreversal of the death judgment. (See Morgan v. Illinois, supra, 504 U.S.at p. 729.) H /} 294 vil THE TRIAL COURT’S DENIAL OF MR. MAI’S WHEELER/BATSON MOTION VIOLATED STATE LAW AND THE SIXTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION AND DEMANDS REVERSAL OF THE DEATH JUDGMENT A. Introduction Thetrial court used whatit termed an “eight-pack” procedure for penalty phase jury voir dire, a modification of what is commonly knownas a “six-pack” procedure. (2 RT 284;see, e.g., People v. Reynoso (2003) 31 Cal.4th 903, 942, fn. 6, dis. opn of Moreno, J.) That is, after the pools of jurors were time-qualified and completed questionnaires, groups of 20 were called — 12 in the jury box, eight outside of the jury box — subjected to voir dire, for-cause challenges, and any additional hardship excuses. (See, e.g., 4 RT 599-732.) Once a panel of 20 so qualified, a total of nine peremptory challenges were exercised against the 12 jurors in the box. (4 RT 599-732.) Aseach potential juror in the box was dismissed, one of the eight jurors outside of the box took his or her place. (See, e.g., 4 RT 732.) Atthis juncture, more jurors were called and the procedure began anew. Bythe third round ofperemptory challenges, the prosecutor had exercised challenges to the only three African-Americansin the pool. (4 RT 788-789; 5 RT 936; see also 5 RT 938-939.) Immediately after the prosecutor’s challenge to the last remaining African-American venireperson, defense counsel moved for a mistrial under People v. Wheeler (1978) 22 Cal.3d 258 and Batson v. Kentucky (1986) 476 U.S. 79.% (5 RT 937.) The °° At the time he objected to the prosecutor’s peremptory challenges, defense counsel cited only this Court’s decision in People v. Wheeler, supra. Nevertheless, an objection under People v. Wheeler, supra, to (continued...) 295 court reluctantly found a prima facie showingthat the challenges had been based on race and ordered the prosecutor to explain his challenges. (5 RT 940-942.) The prosecutor then offeredfacially race-neutral reasons for his challenges. (5 RT 942-943.) Thetrial court, however, made no inquiry into those reasons, and refused to hear defense counsel’s attempt to rebut them. Instead, the court denied the Wheeler/Batson motion simply stating, “the Court finds that no discriminatory intent is inherent in the explanations, and the reasons appearto be race neutral, and on those grounds, the Court will deny the Wheeler motion.” (5 RT 943-944,italics added.) Aswill be demonstrated below,the trial court violated the Sixth and Fourteenth Amendments to the United States Constitution, and article I, section 16 of the California Constitution in denying the Wheeler/Batson motion by terminating the analysis of that motion at step two ofthe constitutionally-mandated inquiry — i.e., determining that the prosecutor had offered facially race-neutral reasons for dismissing the minority jurors — and failing to undertake step three of the mandated inquiry —i.e., making a sincere and reasoned attempt to evaluate those reasons and determine whetherthey were bonafide or pretexts for discrimination. The death judgment must be reversed. Alternatively, the case should be remandedwith directions to the trial court to conduct the third step of the Wheeler/Batson analysis. *6(...continued) peremptory strike of a potential juror based on his or her race or gender encompasses the same objection under Batson v. Kentucky, supra. (See, e.g., People v. Lenix (2008) 44 Cal.4th 602, 610 & fn. 5, and authorities cited therein.) 296 B. The Controlling Law The United States Supreme Court has long held that the Equal Protection and Due Processclauses of the Fourteenth Amendmentprohibit prosecutors from discriminating in the exercise of their peremptory challenges on the basis of a juror's race or membership in a cognizable group. (See, e.g., Miller-El v. Dretke (2005) 545 U.S. 231, 238, and authorities cited therein (“Miller-ElIT’); Batson v. Kentucky (1986) 476 U.S. 79, 84-87.) The prohibition against a prosecutor's discriminatory use of peremptory challengesalso rests on the defendant’s state and federal constitutional rights to an impartial jury drawn from a representative cross section of the community. (Batson v. Kentucky, supra, 476 U.S. at p. 89; People v. Wheeler, supra, 22 Cal.3d at p. 265-273; accord, e.g., People v. Lenix (2008) 44 Cal.4th 602, 612, and authorities cited therein; Calif. Const., art. I, § 16; U.S. Const., Amend. VI.) Under both the state and federal constitutional standards, the discriminatory striking of even a single memberof a cognizable group, such as African-Americans,is prohibited. (Snyder v. Louisiana (2008) 552 U.S.472,___, 128 S.Ct. 1203, 1208; Batson v. Kentucky, supra, 476 U.S.at p. 100; People v. Silva (2001) 25 Cal.4th 346, 386; People v. Montiel (1993) 5 Cal.4th 877, 909.) Thus a constitutional violation may arise even if others in the group are ultimately seated as jurors or were excluded for genuine race-neutral reasons. (See, e.g., Snyder v. Louisiana, supra, at p. 1208 [declining to resolve whether prosecutor’s dismissals of other black jurors were legitimately race-neutral because its determination that prosecutor’s explanations for excusing one black juror were pretextual was sufficient to make out constitutional violation and warrant relief]; United States v. Battle (10th Cir. 1987) 836 F.2d 1094, 1086 [“under Batson,the striking of a single 297 black juror for racial reasons violates the equal protection clause, even though other black jurors are seated, and even whenthereare valid reasons for the striking of some black members”]; People v. Montiel, supra, 5 Cal.4th at p. 909.) Challenging a prosecutor's dismissal of a potential juror for racial reasons under both the state and federal Constitution involves a well- established three-step process. (See, e.g., Snyder v. Louisiana, supra, 128 S.Ct. at p. 1207, and authorities cited therein; Johnson v. California (2005) 542 U.S. 162, 168; Purkett v. Elem (1995) 514 U.S. 765, 767-768 (per curium); People v. Bonilla (2007) 41 Cal.4th 313, 341 [state and federal constitutional standards incorporate the same three-step procedure]; People v. Lenix, supra, 44 Cal.4th at p. 612, and authorities cited therein; People v. Wheeler, supra, 22 Cal.3d at pp. 280-283.) First, the defendant hasthe initial burden of establishing a prima facie case of discrimination by showingthat the facts give rise to an inference that the peremptory challenges are being exercised for discriminatory reasons (step one). (See, e.g., Johnson v. California, supra, 542 U.S. at p. 168; Batson v. Kentucky, supra, 476 U.S.at pp. 93-97; People v. Bell (2007) 40 Cal.4th 582, 596-597; People v. Wheeler, supra, 22 Cal.3d at pp. 280-281.) The threshold for establishing a primafacie case is “quite low.” (Boydv. Newland(9th Cir. 2006) 467 F.3d 1139, 1145.)”” There are several factors that should be considered in determining 7 While California law formerly required a “strong likelihood” of discrimination in order to make out a prima facie case — cited by thetrial court (5 RT 940-941) — that more stringent standard has since been disapproved in favor of an “inference” of discrimination. (Johnson v. California, supra, 542 U.S. at p. 168; People v. Bell, supra, 40 Cal.4th at pp. 596-597.) 298 whethera prima facie case of discrimination has been shown. Forinstance, striking most or all of the membersofthe identifiable group from the panel (see, e.g., People v. Wheeler, supra, 22 Cal.3d at p. 280; Harris v. Kuhlmann (2nd Cir. 2003) 346 F.3d 330, 345), the prosecution’s use of a “disproportionate numberofperemptories against the group” (People v. Wheeler, supra, at p. 280), or a “pattern”of strikes against the group, raises an inference of bias (Batson v. Kentucky, supra, 476 U.S.at p. 96). Oncethetrial court finds that a prima facie case has been shown,the burden shifts to the prosecutorto justify the challenges with facially race- neutral explanations related to the facts of the case (step two). (Purkett v. Elem, supra, 514 U.S. at pp. 767-768; Batson v. Kentucky, supra, 476 U.S. at p. 96-98; People v. Fuentes (1991) 54 Cal.3d 707, 715; People v. Wheeler, supra, 22 Cal.3d at p. 281-282.) At step two,“the issue is thefacial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race-neutral” and the analysis proceedsto step three. (Purkett v. Elem, supra, 514 U.S.at pp. 767-768,italics added, quoting Hernandez v. New York (1991) 500 U.S. 352, 360.) Thethird and final step of the analysis requires the trial court to make a “sincere and reasoned attempt to evaluate the prosecutor’s”facially race- neutral explanations and decide whether they are bonafide or pretextual (step three). (Purkett v. Elem, supra, 514 U.S.at pp. 767-768; accord,e.g., Batson v. Kentucky, supra, 476 U.S.at p. 98, fn. 20; People v. Lewis (2008) 43 Cal.4th 415, 471; People v. Hall (1983) 35 Cal.3d 161, 167-168.) The third step of the Wheeler/Batson analysis is the mostcritical. (See, e.g., Miller-El v. Cockrell (2003) 537 U.S. 322, 338-339 (“Miller-El I’) [step three embodies the “critical question”]; Hernandez v. New York, supra, 500 299 U.S. 352, 365 [third step embodies the “decisive question”]; Lewis v. Lewis (9th Cir. 2003) 321 F.3d 824, 830 [third step is “the real meat of a Batson challenge”]; People v. Hall, supra, at pp. 167-168 [“if the constitutional guarantee is to have real meaning. . . [it] demandsofthe trial judge a sincere and reasoned attempt to evaluate the prosecutor’s explanation... .”].) In undertaking step three of the analysis, the trial court may not simply accept the prosecutor’s explanation at face value. (See, e.g., People v. Fuentes (1991) 54 Cal.3d 707, 720; People v. Turner (1986) 42 Cal.3d 711, 723, 725, 727-728; People v. Hall, supra, 35 Cal.3d at pp. 168-169; Miller-El I, supra, 545 U.S.at p. 248; Purkett v. Elem, supra, 514 U.S.at p. 768; Williams v. Rhoades (9th Cir. 2004) 354 F.3d 1101, 1108, and authorities cited therein.) To the contrary,“the trial court must determine not only that a valid reason existed but also that the reason actually prompted the prosecutor’s exercise of the particular peremptory challenge.” (People v. Fuentes, supra, 54 Cal.3d at p. 720, italics added; accord,e.g., Purkett v. Elem, supra, 514 U.S.at p. 767 [once “a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponentofthe strike has proved purposeful discrimination” by determining whetherthe facially race-neutral reason is bonafide or a pretext for discrimination]; Williams v. Rhoades (9th Cir. 2004) 354 F.3d 1101, 1108 [at step three, “the trial court must not simply accept the proffered reasonsat face value; it has a duty to ‘evaluate meaningfully the prosecutor’s [race]- neutral explanations’ to discern whetherit is a mere pretext for discrimination”]; United States v. Alanis (9th Cir. 2003) 335 F.3d 965, 969 (“It is not enoughthat the [trial] court considered the government’s [race]-neutral explanations ‘plausible.’ Instead, it is necessary that the district court make a deliberate decision whether purposeful discrimination 300 occurred”].) In making this determination, “all of the circumstancesthat bear upon the issue of racial animosity must be consulted.” (Snyder v. Louisiana, supra, 128 S.Ct. at p. 1208.) For instance, thetrial court must evaluate the prosecutor’s credibility (Snyder v. Louisiana, supra, 128 S.Ct. at p. 1208, and authorities cited therein), by assessing “among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whetherthe proffered rationale has somebasis in acceptedtrial strategy” (Miller-El I, supra, 537 U.S.at p. 339). Further, whenthe proffered reasons are unsupported, logically or otherwise implausible, or apply equally to non-minority venirepersons whom the prosecutor has not challenged, “that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.” (Miller-ElII, supra, 545 USS.at p. 241; accord, e.g., Purkett v. Elem, supra, 514 US.at p. 768; People v. Silva, supra, 25 Cal.4th at p. 385; Ali v. Hickman (9th Cir. 2009) 584 F.3d 1174, 1181-1191, and authorities cited therein; Lewis v. Lewis, supra, 321 F.3d at pp. 830-831, and authorities cited therein.) Discriminatory intent may be established if one or more of the prosecutor’s explanations do not withstand scrutiny. (Lewis v. Lewis, supra, 321 F.3d at p. 830 [“The proffer of various faulty reasons and only one or two otherwise adequate reasons, may underminethe prosecutor’s credibility to such an extent that a court should sustain a Batson challenge”; accord, e.g., Snyder v. Louisiana, supra, at p. 1212; Ali v. Hickman, supra, 584 F.3d at pp. 1181- 1191; Kesser v. Cambra (9th Cir. 2006) 465 F.3d 351, 360 (en banc); McClain v. Prunty, supra, 217 F.3d at p. 1221.) Finally, wherea trial court engagesin the third step ofthe analysis, rules on the ultimate question of whether the prosecutor’s exercise of 301 peremptory challenges against minority venirepersons were actually motivated by a discriminatory intent, and thus makesfactual findings susceptible of review, those findings are entitled to deference. (See,e.g., Snyder v. Louisiana, supra, 128 S.Ct. at p. 1208, and authorities cited therein; People v. Silva (2001) 25 Cal.4th 345, 385-386.) But wherethetrial court has failed to engagein the third step of the analysis, and thus made no determination on the ultimate question in denying a Wheeler/Batson motion, it has made nofactual findings that are entitled to deference. (See,e.g., People v. Silva, supra, 25 Cal.4th at pp. 385-385, and authorities cited therein.) Similarly, where the prosecutor proffers an explanation that cannot be reviewed based on the cold record — such as a juror’s demeanor — and the trial court simply “allow[s] the challenge without explanation,” a reviewing court cannot presumethat the trial court credited the explanation and,thus, there is no factual finding to which to defer. (Snyder v. Louisiana, supra, 128 S.Ct. at pp. 1208-1209 [where prosecutor offered one subjective, demeanor-based reason for challenging juror and a second, objective reason for challenging him,buttrial court “simply allowed the challenge without explanation,” Supreme Court refused to presumethat trial court credited demeanor-based reason and, thus, presumed no factual finding to which deference was due]; People v. Silva, supra, 25 Cal.4th at pp. 285-386 [where prosecutor proffered demeanor-based reason for challenging juror that had no support in the record andtrial court denied motion without making factual findings, ruling denying motion entitled to no deference].) 302 C. The Record Affirmatively Demonstrates that the Trial Court Terminated the Constitutionally- Mandated Wheeler/Batson Analysis at Step Twoof the Inquiry And Failed Entirely to Engage In the Critical Third Step, and Thereby Violated The Sixth And Fourteenth Amendments and Article I, section 16 whenit Denied the Motion 1. The Trial Court Correctly Found That a Prima Facie Case of Discrimination Had Been Shown under Step One In support of the Wheeler/Batson motion, defense counsel pointed out that the prosecutor “whom I havethe greatest respect for, has excused all the black jurors. I can’t perceive on its face a reason for doing that.... The three black jurors we have had are gone.” (5 RT 937, italics added.) Thetrial judge responded,“I would like for [defense counsel] to show the court, to demonstrate the strong likelihood that the juror was challenged solely because of their group association” and “not for a genuine non-discriminatory purpose.” (5 RT 940.) In addition to the grounds already stated, defense counsel pointed out that the excluded black venirepersons were all educated, had college degrees and “responsible jobs,” there was nothing to distinguish them from the other potential jurors in the venire apart from race, and there were no patent reasons for excusing them apart from race. (5 RT 940.) The court replied, “Well, it is my understanding that an allegation that the juror belongs to an identifiable group in andofitself is insufficient. I meanit is basically, that’s whatyouare telling me because they wereall three of the same racial group.” (5 RT 940.) Defense counsel responded, “Well, that is a piece of circumstantial evidence, and whenthereis nothingelse differentiating them from other jurors... .” (5 RT 940.) The court repeated that a prima facie showing under Batson and Wheeler requires more: “You haveto prove or 303 demonstrate that there is a strong likelihood that the juror was challenged solely because of their group association. .... It is important you make a complete record of the circumstances; is there anything other than the fact —” (5 RT 941.) Defense counsel repeated that, in addition to the other factors he had cited, there were very few black jurors in pool and the only “three that we have had have been challenged with a peremptory by the People.” (5 RT 941.) The court demanded,“soit is simply a pattern, then?” When counsel agreed that there was, indeed, “a pattern,” the court again insisted that the law requires more. (5 RT 941.) Defense counsel reiterated that there was a “pattern” plus nothing to distinguish the excluded black venirepersons from the non-black venirepersons the prosecutor had not challenged. (5 RT 941.) Finally, the court ruled, “well, I think it is marginal, but I am going to ask the People to step forward and give their reason for excluding the jurors.” (5 RT 942.) Thus,the trial court correctly found that the prosecutor’s exclusion ofall three African-Americans from the pool established a prima facie showing of discriminatory intent (step one) and ordered the prosecutor to offer explanations for the challenges (step two). (5 RT 942; see Johnsonv. California, supra, 545 U.S. at pp. 165-166 [prosecutor’s exclusion ofall three African-Americans from venire was sufficient to raise inference of discrimination and thereby establish primafacie case]; see also People v. Jackson (1993) 13 Cal.4th 1164, 1196 [where court directed prosecutor to state reasons for challenges, it implicitly found primafacie case]; People v Fuentes, supra, 54 Cal.3d at p. 716 [same].) 304 While the court ultimately made the correct ruling in this regard, its remarksin reaching that ruling —1.e., showing a “pattern”ofstrikes against black jurors, showing that all black jurors have beenstricken, and an offered showing that nothing differentiated the minority jurors from the non-minority jurors who had not been struck, wasinsufficient or even “marginal” (5 RT 940-942) — betrayed an alarming misunderstanding ofthe basic and long standing legal principles guiding its evaluation of Mr. Mai’s motion. (See, e.g., Batson v. Kentucky, supra, 476 U.S.at p. 96 [showing a “pattern” of strikes against the group makesout prima facie case]; People v. Wheeler, supra, 22 Cal.3d at p. 280 [showing that “opponent has struck mostorall of the membersofthe identifiable group” makes out prima facie case]; see also Harris v. Kuhlmann, supra, 346 F.3d at p. 345 [“where every black juror was subject to a peremptory strike, a ‘pattern’ plainly exists” under Batson,clearly establishing a prima facie case].) That misunderstanding informs Mr. Mai’s contention that the trial court failed entirely to engagein thecritical third step of the analysis becauseit erroneously believed that the prosecutor’s mere proffer of facially race-neutral explanations at step two wassufficient to defeat the motion. 2. The Prosecutor’s Stated Reasonsfor the Challenges under Step Two andthe Trial Court’s Denial of the Motion The prosecutor explained that one of the black jurors he had excluded, Michelle Howard, was unmarried with no children,“she is younger than the juror I prefer[,] [s]he is in her 30s,” and her “attitude about the death penalty waspersonal and emotional, not philosophical. She’s the one whotalked about, if it’s my family I could understandit.” (5 RT 942.) “But primarily, the reason she is young, single and no children. There is no other jurors on 305 the jury presently whofit that pattern.” (5 RT 942.)” The second black juror the prosecutor excluded was Penny Franklin. While Ms. Franklin was married with two children (4 RT 676-677), the prosecutor explained that she “is also younger than I want, in her 30s.” (5 RT 942.) In addition, she stated in her questionnaire that the death penalty was “appropriate only where there wasa pattern of violent conduct, which is not the law.” (5 RT 942.) Finally, she “had a very casual attitude and dress.” (5 RT 942.) She “didn’t seem particularly interested in the proceedings,” and “seemed rather bored with” the questions. (5 RT 942-943.) The third and final black person the prosecutor excluded from the jury was Linda Polk. The prosecutor explained that he had challenged her for two reasons. First, she was a social worker, whom heusuallytried to keep off of his juries. (5 RT 943.) Second, “she said she couldn’t vote for the death penalty unless the facts were proved beyond a shadow ofa doubt, which is not the law, either.” (5 RT 943.) Thus, according to the prosecutor, he feared that she would hold the otherjurors to a higher standard than the law required. (5 RT 943.) Thus, the explanations offered by the prosecutor for his challenges of the three black jurors were facially race-neutral, and therefore satisfied step two of the analysis. Put another way, the prosecutor did not admit that his challenges were race-based. Defense counsel attempted to rebut those explanations and persuade the court that, whilefacially race-neutral, they were not bona fide because they applied equally to other jurors who hadnot been challenged(step three). *8 While the prosecutorreferred to “jurors .. . on the jury,” he presumably meantpotential jurors on the panel of 20 venirepersons subject to voir dire at that time, since the jury had not yet been selected or sworn. 306 Although the prosecutor had explicitly represented that“no other jurors on the Jury presently” were unmarried, without children, and “in [their] thirties,” like Ms. Howard (5 RT 942), defense counsel pointed out that Juror Number 12 wasalso unmarried, but the court immediately dismissed the point. (5 RT 943-944.) When defense counsel attempted to continue, “I am finding everything, I am a lawyer, I am finding every — ,” the court cut him off and asked the prosecutor, “anything further?” (5 RT 944.) Whenthe prosecutor replied in the negative, the court denied the motion, stating: “Well, the Court finds that no discriminatory intent is inherent in the explanations, and the reasons appearto be race neutral, and on those grounds, the Court will deny the Wheeler motion.” (5 RT 944, italics added.) 3. The Trial Court’s Statements in Denying the Motion Affirmatively Establish That it Terminated the Analysis at Step Two andFailed to Engage in Step Three The court’s stated reason for denying the motion — that “no discriminatory intent is inherent in the explanations, and the reasons appear to be race neutral” — was simply another wayofstating that the prosecutor hadsatisfied step two of the Wheeler/Batson analysis. As the United States Supreme Court hasclearly explained, it is only “‘at th[e] second step of the inquiry [that] the issue is thefacial validity of the prosecutor’s explanation. Unless a discriminatory intentis inherentin the prosecutor’s explanation, the reason will be deemedrace-neutral’” and the analysis proceeds to step three. (Purkett v. Elem, supra, 514 U.S. at pp. 767-768, quoting Hernandez v. New York (1991) 500 U.S. 352, 360,italics added; accord, e.g., Lewis v. Lewis, supra, 321 F.3d at p. 830, and authorities cited therein [“‘unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race-neutral,’” at second step, at which point the court 307 must undertake third step of the analysis and evaluate whetherthe “facially race-neutral reasons are a pretext for discrimination’’].) As discussedin part B, above, at step three of the analysis, the trial court may not simply accept the prosecutor’s explanations at face value, but rather must make a “sincere and reasoned attempt to evaluate” thosefacially race-neutral explanations and determine whether they are bonafide or pretextual (step three). (Purkett v. Elem, supra, 514 U.S. at pp. 767-768; Batson v. Kentucky, supra, 476 U.S.at p. 98, fn. 20; Williams v. Rhoades, supra, 354 F.3d at p. 1108; United States v. Alanis, supra, 335 F.3d at p. 969; Lewis v. Lewis, supra, 321 F.3d at p. 830; People v. Fuentes, supra, 54 Cal.3d at p. 720.) In United States v. Alanis, supra, for instance, after the prosecutor offered facially gender-neutral reasonsat step two for his challenges to women, thetrial judge denied the defendant’s Batson motion, stating: “it appears to the court that the governmenthas offered a plausible explanation based upon each ofthe challenges discussed that is grounded other than in the fact of gender of the person struck. The Batson challenge is denied.” (335 F.3d at pp. 968-969.) The Court of Appeals held that these remarks madeit clear that the trial judge had failed to engage in step three of the Batson analysis. In so holding, the Court explained: The government arguesthat the [trial judge] in fact conducted step three of the Batson process by deeming the prosecutor’s [race]-neutral explanations “plausible.” But under Batson it is not sufficient for equal protection purposesthat a trial court deem a prosecutor’s [race]-neutral explanations facially ‘plausible. Rather, in determining whether a challenger has met his or her burden of showing intentional discrimination, the 308 district court must conducta sensitive inquiry into such circumstantial and direct evidence of intent as may be, as we noted above. Batson, 476 U.S.at 93, 106 S.Ct. 1712. The district court’s deeming the prosecutor’s explanation “plausible” was not the required “sensitive inquiry.” (United States v. Alanis, supra, 335 F.3d at p. 969, fn. 3; accord, e.g., People v. Hall, supra, 35 Cal.3d at pp. 165-166, 168-169 [trial court’s statements that Wheeler motion must be denied unless prosecutor’s explanation admits intent to exclude jurors based on race, even if prosecutor’s seemingly race-neutral explanations might appear to be disingenuous, demonstratedthattrial court erroneously failed to undertakethird step of Wheeler analysis]; Dolphy v. Mantello (2nd Cir. 2009) 552 F.3d 236, 239 [trial court’s denial of motion with statement, “I’m satisfied that is a race-neutral explanation, so thestrike stands,” demonstrated that court erroneously terminated the analysis at step two andfailed to engage in step three]; Riley v. Taylor (3d Cir. 2001) 277 F.3d 261, 286, 291 [trial court’s denial ofBatson motion with “terse” and 39 66 “abrupt” “commentthat the prosecutor has satisfied Batson” demonstrated that it failed to perform “the crucial [third] step of evaluating the State’s proffered explanationsin light ofall the evidence”); Jordan v. Lefevre (2nd Cir. 2000) 206 F.3d 196, 200 [trial court’s denial ofBatson motion with “conclusory statements”that there “is a basis for the challenge” and “there is somerational basis for the exercise of the challenge,” simply indicated that prosecutor’s explanations were facially race-neutral and, thus, that court did not engage in third step ofBatson analysis by determining credibility and validity of those explanations]; Lewis v. Lewis, supra, 321 F.3d at pp. 831- 832[trial court’s denial ofBatson motion with statementthat the prosecutor’ s proffered reason was “probably . . . reasonable” was “more like the analysis required in Batson step two than in step three” and thus indicated that court 309 terminated the analysis at step two and failed to engage in step three]; McCain v. Prunty (9th Cir. 2000) 217 F.3d 1209, 1223 [court’s denial of Batson motion with statements that prosecutor had “articulated a basis which I find to be a goodfaith articulation of [her] reasons” and, in response to defense counsel’s effort to rebut those reasons, “I’m not here to second-guess [the prosecutor’s’] reasons” demonstrated that the “trial court abdicatedits duty to make the ultimate determination on the issue of discriminatory intent”’].) Here, just as in the foregoing cases, the trial court’s stated reason for denying the motion — “no discriminatory intent is inherent in the explanations, and the reasons appearto be race neutral” (5 RT 944) — affirmatively demonstrates that it terminated the analysis at step two and failed to engage in thecritical third step by evaluating whether the prosecutor’s “apparently” race-neutral reasons were bonafide or pretextual. In so doing, the court clearly erred in violation of the state and federal Constitutions. (See, e.g., People v. Fuentes, supra, 54 Cal.3d at pp. 720-721; People v. Turner, supra, 42 Cal.3d at pp. 715, 727-728; People v. Hall, supra, 35 Cal.3d at pp. 168-169; People v. Tapia (1994) 25 Cal.App.4th 984, 1015-1020; People v. Jackson (1992) 10 Cal.App.4th 13, 23.) 4. Other Evidence in the Record, and the Lack Thereof, Bolsters the Affirmative Evidence That the Trial Court Failed Entirely to Engagein the Critical Third Step of the Analysis Thatthe trial judge here terminated the analysis at step two and did not engage in the third step is further demonstrated by his refusal to hear or permit defense counsel’s argument rebutting the legitimacy of the prosecutor’s reasons. (5 RT 943-944;see, e.g., Lewis v. Lewis, supra, 321 F.3d at pp. 831-832 [court’s denial of motion with statement that prosecutor’s 310 explanation was “probably reasonable,” along with its refusal to hear defense counsel’s arguments regarding validity of those reasons, demonstrated that trial court failed to engage in third step of analysis] Jordan v. Lefevre, supra, 206 F.3d at p. 200 [court’s denial ofBatson motion with conclusory statements indicating only that prosecutor had proffered facially race-neutral reasons for challenges, along with refusal to hear defendant’s arguments regarding validity of those reasons, demonstrated thattrial court failed to engagein third step ofBatson analysis]; see also United States v. Alcantar (9th Cir. 1990) 897 F.2d 436, 438 [defense counsel must be given opportunity to point out that prosecutor’s explanationsare false, irrational, or apply equally to non-minority jurors]; accord People v. Ayala (2000) 24 Cal.4th 243, 293-294.) The court’s refusal to hear or permit defense counsel’s arguments against the legitimacy of the prosecutor’s explanations, coupled with its stated reason for denying the motion, clearly demonstrate that it did not evaluate the legitimacy ofthose explanations,either. Further bolstering the affirmative evidencethat the trial court failed to engagein the third step of the analysis is the fact that some ofthe prosecutor’s stated reasons were simply incorrect, implausible, or otherwise demanded further inquiry as part of the step three analysis, yet the trial court made none. In this regard, and as this Court has held, “when the prosecutor’s stated reasons are either unsupported, inherently implausible, or both, more is required ofthetrial court[’s step three analysis] than a global finding that the reasons appear sufficient.” (People v. Silva, supra, 25 Cal.4th at p. 386.) A sincere and reasoned effort to determine whetherthe prosecutor’s facially race-neutral reasons were bonafide or prextual required thetrial court to point out the inconsistencies between the prosecutor’s explanations and the true facts and further inquire into his unsupported or implausible 311 explanations. (/bid.; accord, e.g., People v. Turner, supra, 42 Cal.3dat p. 728.) For instance, the prosecutor explained that his “primar[ly” reason for removing Ms. Howard wasthat she was “youngerthan the jurors I prefer,” being in her“thirties,” and was single with no children, while there were “no other jurors on the jury presently whofit that pattern.” (5 RT 942,italics added.) In fact, Ms. Howard was40 years old. (4 RT 674, 8 CT 2416.) The prosecutor’s representation that no other “jurors” were “young,” like Ms. Howard, unmarried and childless, was also incorrect. As defense counsel attempted to point out before the court cut him off, contrary to the prosecutor’s representation, there were other venirepersons who were unmarried, such as Juror Number 12. (5 RT 908, 943.) Indeed, like Ms. Howard, Juror Number 12 (whoultimately sat on the jury that voted to execute Mr. Mai), was not only unmarried, she had no children and was only three years older than Ms. Howard. (5 RT 908-909.)” Had thetrial court understood and correctly applied the law and actually engaged in the third step of the Wheeler/Batson analysis, it would have pointed out the inconsistencies between the prosecutor’s justifications and the evidence and probed further. (See, e.g., People v. Silva, supra, 25 Cal.4th at p. 385, and authorities cited therein [“when the prosecutor gave reasonsthat *° The jury questionnaire did not ask the potential jurors if they had children. However, from the answersofthe potential jurors on live voir dire, it was clear that they answered several questions on the board, including whether they had children and,if so, their gender, ages and employment. (See, e.g., RT 907-909.) Since Juror Number 12 did not answerany ofthe questions regarding children, and since neither the prosecutor nor anyone else posed that question to her, it clearly appears that she, like Ms. Howard, had no children. (RT 909.) 312 misrepresented the record,thetrial court erred in failing to point out inconsistencies and ask probing questions”].) The fact that the court did not further demonstratesthat it did not engage in thethird step of the analysis. Also incorrect was the prosecutor’s representation that Ms. Howard’s “attitude about the death penalty was personal and emotional, not philosophical[,] [s]he’s the one whotalked about,if its my family I could understand it.” (5 RT 942.) On her questionnaire, Ms. Howardstated: “I am for the death penalty” and “I feel the death penalty has been used appropriately. Especially given that some of the defendants have spent years on death row.” (8 CT 2420-2421.) On defense counsel’s voir dire, he asked Ms. Howardifher support for the death penalty were based on somepersonal experience she had had. (4 RT 695.) Ms. Howardreplied, “Oh, no, no, not personally. But I figure if someone came to my house and blew myfamily away, I would flip the switch. But that’s personal, that’s why I believeinit. But I don’t —I wouldn’tsit here andtell this young man, okay, you needit because you killed somebody. I think there is also circumstances. But I know if it was my family, I couldn’t honestly say that I wouldn’t be emotional aboutit.” (4 RT 695-696.) Defense counsel explained, “But in our system | the families are not the prosecutors.” Ms. Howardreplied, “Oh, I agree with that.” Defense counsel continued, “they are not the executors [sic]” to which Ms. Howardreplied, “That’s what I’m saying, in my personal experience,I haven’t had any, but if it was me personally and my family,that’s totally different for me.” (4 RT 696.) Defense counsel pointed out, “you would expect most everybody would have that samereaction,” to which Ms. Howard agreed, “oh yes.” (4 RT 696.) When defense counsel askedif costs or a belief in deterrence also factored into her support for the death penalty, she answered no. (4 RT 696.) The prosecutor did not subject Ms. Howard to 313 any voir dire at all. (See, e.g., Miller-El II, supra, 545 U.S. at p. 246 [prosecutor’s failure engage in any meaningful voir dire examination on subject he asserts he is concerned about suggests that stated concern is pretextual].) Thus, Ms. Howard’s support for the death penalty wasnot“personal and emotional,” in the sense of being grounded on some personal experience. And she was “emotional” about it only in the sense that she would be “emotional” about wanting the murderer of her own family to be executed, as opposedto looking at the “circumstances,” which is the way in which she believed the death penalty should be applied. (5 RT 695-696.) At most, her answers as a whole demonstrated that her support for the death penalty was based uponprinciples of retribution. Retribution is, of course, one ofthe two societal interests that the United States Supreme Court has held is both legitimate and served by the death penalty. (See, e.g., Gregg v. Georgia (1976) 428 U.S. 153, 183.) Indeed,“retribution is the most commonbasis of support for the death penalty” among death penalty advocates. (Baze v. Rees (2008) 553 U.S. 35,_, 128 S.Ct. 1520, 1547, fn. 14, conc. opn. by Stevens, J., and authorities cited therein].) Cost and deterrenceare cited far less frequently as bases of support for the death penalty. (/bid.) Moreover, the purpose of criminal punishmentis a “philosophical” question and retribution is a “philosophical”justification for it — a justification argued, perhaps most famously, by the philosopher Immanuel Kant. (See, e.g., Kant, Immanuel, Metaphysical Elements ofJustice (1797); Furman v. Georgia (1972) 408 U.S. 238, 394-395 & fn. 20; Dolinko, D., “Three Mistakes ofRetributivism” (1992) 39 UCLA Law Review 1623, [retribution “is the leading philosophical justification of the institution of criminal punishment”].) 314 In other words, Ms. Howard’s support for the death penalty based on retributivist principles was “philosophical” — a philosophical justification on whichthe death penalty is based and one shared by most death penalty supporters. The prosecutor’s explanation that he challenged Ms. Howard because her support for the death penalty was “personal and emotional and not philosophical” was thus without factual support. (See, e.g., Miller-ElI, supra, 545 U.S. at p. 247 [juror’s answers as a whole must be considered in determining whether prosecutor’s explanation is supported, plausible, and, thus, bona fide or pretextual]; Reed v. Quarterman (5th Cir. 2009) 555 F.3d 364, 377-378 [prosecutor’s explanation that he had challenged juror because she had indicated that the state would haveto prove a “strong possibility” of future dangerousness wasprextual given,inter alia, her answers as a whole qualifying that isolated statement].) And, because it exceeds the bounds of reason to believe that a prosecutor seeking the death penalty would wantto exclude jurors whose support for the death penalty was grounded on retributivist principles — which would exclude most death penalty supporters — it wasalso fantastic and implausible. (Purkett v. Elem, supra, 514 U.S.at p. 768 [“implausible or fantastic justifications may (and probably will) be foundto be pretexts for purposeful discrimination”]; accord Miller-ElI, supra, 537 U.S.at p. 339; Ali v. Hickman, supra, 584 F.3d at pp. 1181-1188 [prosecutor’s explanation that he had challenged black juror because her daughter had been molested was implausible because, if anything, this fact would biasher in favor of prosecution].) Certainly, step three of the Wheeler/Batson analysis clearly demanded probing questioning ofthe prosecutor regarding this explanation, such as just what distinction the prosecutor drew between a “personal” and a “philosophical” view regarding the death penalty, how Ms. Howard’s answers manifested that distinction, 315 and why that distinction was important in this particular case. (See, e.g., Batson v. Kentucky, supra, 476 U.S.at p. 98 [proffered race-neutral reasons must be “related to the particular case to be tried”; Green v. LaMarque (9th Cir. 2008) 532 F.3d 1028, 1030 [at the third step, trial court must decide whetherthe facially race-neutral reasons “are relevant to the case” and “genuine” rather than “pretexts”]; Dolphy v. Mantello, supra, 552 F.3d at p. 239 [even if prosecutor’s facially race-neutral characterization of excluded jurors as overweight were correct, third step of the analysis demandedthat trial court probe into correlation between obesity and undesirability as juror]; Kesser v. Cambra, supra, 465 F.3d at p. 364 [even if prosecutor’s characterizations ofjurors as “unusually pretentious about her work”and “emotional” because she “teared up” were accurate, he did not explain why those impressions were relevant, which would be expected if they weretruly bona fide reasons for challenges].) The fact that the trial court did not probe into this explanation further bolsters the affirmative record evidencethatit did not engage in the third step of the analysis, but rather terminated it at step two by accepting the prosecutor’s explanations at face value. (See, e.g., Dolphy v. Mantello, supra, at pp. 238-239 [trial court’s denial of motion with bare statement, “I’m satisfied this is a race-neutral explanation,” along with its failure to probe into prosecutor’s stated explanation that he excluded jurors because they were overweight, demonstrated that court erroneously failed to engagein third step ofBatson analysis].)'” 100 Indeed, Ms. Howard appearedto be an ideal juror for a prosecutor seeking a death verdict. In addition to her strong support for the death penalty, she had a college degree, had been employed by the same company as a computer consultant for 15 years, and had sat on three juries, one of which wasa criminal case, and all of which resulted in verdicts. (4 (continued...) 316 Asto Ms.Polk, the prosecutor’s explanation that he excused her because “she said she couldn’t vote for the death penalty unless the facts were proved “beyond a shadow of a doubt, whichis not the law, either” (5 RT 943), was flatly contradicted by the record. Ms. Polk never suggested that she would not vote to impose the death penalty unless the facts were proved beyond a shadow of a doubt. Instead, on the questionnaire simply asking the potential jurors about their personalor “‘generalfeelings regarding the death penalty,” Ms. Polk wrote, “My general feelings are that it is important when inflicting it to make sure that the person is guilty beyond a shadow ofa doubt before imposingit.” (8 CT 2394.) She further stated that she could set aside her personalfeelings and follow the law, adding “as a county employee, I do that often (following the law).” (8 CT 2395; see, e.g., Miller-El IT, supra, 545 U.S.at pp. 243-244 [prosecutor’s statement that he challenged black juror because juror stated that he would not vote for death if rehabilitation was possible mischaracterized juror’s actual statements regarding his personalbeliefs, beliefs he stated would not stand in the wayofhis voting for death, a mischaracterization that tended to show that prosecutor’s facially race neutral explanation was pretextual]; accord, Ali v. Hickman, supra, 584 F.3d at pp.1181-1189.) Furthermore, on voir dire Ms. Polk clarified what her personalfeelings — feelings she agreed she could set aside as a juror — were: “I wanted to make sure the people were convicted beyond a shadow of a doubt.” (4 RT 778,italics added.) This concern waslegitimate in this case since these jurors were asked to accept that Mr. Mai had been convicted of first-degree murder with special circumstances and only determine the '(,..continued) RT 641-642, 644, 674.) 317 penalty. Thus, her concern that she wantedto be certain that Mr. Mai had actually been convicted of first degree murder before sentencing him to death was, in fact, entirely consistent with the law that limits death eligibility to people convicted offirst degree murder with special circumstances. (Pen. Code, §, 190.4.) Once again, had the court understood and correctly applied the law andactually engagedin the third step of the analysis, it would have realizedthe inconsistency between the prosecutor’s explanation and the true facts and — at the very least — probed further. (People v. Silva, supra, 25 Cal.4th at pp. 385-386, and authorities cited therein; cf. Miller-El I, supra, 545 U.S.at pp. 265-266 [state trial and appellate courts’ findings that prosecutor’s explanation for dismissing juror was credible were unreasonable and erroneoussince, inter alia, explanation mischaracterized juror’s actual statements].)'°! Similarly, as to Ms. Franklin, nothing in the voir dire or her questionnaire answers suggested that she “had a very casual attitude and dress,” “didn’t seem particularly interested in the proceedings,”or “seemed rather bored with” their questions, as the prosecutor represented. (5 RT 942- 943.) Ms. Franklin was a 911 operator with the police department who identified herself as a “strong” proponent of the death penalty — thus a seemingly ideal juror for a prosecutor seeking the death penalty. (8 CT 2404; 4 RT 662, 710-711; see Miller-El IT, supra, 545 U.S. at p. 242 [fact excluded black juror supported the death penalty and otherwise seemed ideal juror for '0! Ms.Polk, too, seemed an ideal juror for the prosecutor. In addition to her general support for the death penalty, she had a graduate degree, a son in college and, while the prosecutor was correct that she worked as a social worker, she had also worked as a probation officer and a parole officer. (4 RT 748-749.) 318 prosecutor seeking death important factors considered in concluding explanations pretextual]; Reed v. Quarterman, supra, 555 F.3d at p. 376 [fact that challenged juror supported death penalty and would have been an “ideal Juror for the State” was important consideration in determining prosecutor’s challenge was race-based].) She had sat on a jury before and reached a verdict. (4 RT 645-646.) She answered all of the questions on the questionnaire and on voir dire, providing thorough and thoughtful responses. (8 CT 2400-2411; 4 RT 618, 645-646, 651, 662, 676-677, 710-711, 731.) For instance, asked on the questionnaire about her “general feelings regarding the death penalty,” she wrote, “the death penalty is a very serious consequence for committing a serious offense (murder). In order for someoneto receive this punishment, I believe the person must have maliciously set out to destroy the life of someoneelse (and their loved ones) and havea history of such violent behavior w/o remorse.” (8 CT 2407.) Asked if she believed it was used too often or too seldom, she expounded,“in my opinion the death penalty is not used often enough in cases where convicted felons have a repeated behavior pattern for committing violent crimes against others, such as murder.” (8 CT 2408.) Given the absenceof any indication in her questionnaire or voir dire answers suggestive of a person “uninterested”in the proceedings or “bored” with the questions put to her, a sincere and reasoned attempt to evaluate the prosecutor’s explanation demanded further inquiry. (See, e.g., People v. Silva, supra, 25 Cal.4th at p. 385 [since nothing in potential juror’s voir dire or questionnaire answers supported prosecutor’s explanation that he was an “extremely aggressive” person,trial court erred by not further inquiring into that explanation].) Moreover, the prosecutor’s statement that Ms. Franklin believed the death penalty was “appropriate only where there wasa pattern of violent 319 conduct, whichis not the law” misrepresented her answers as a whole. (5 RT 942, italics added;see, e.g., Miller-El II, supra, 545 U.S. at p. 247 [juror’s answers as a whole must be considered in determining whether prosecutor’s explanation is supported, plausible, and, thus, bona fide or pretextual].) As noted above, she did state on her questionnaire that “in order for someone to receive [the death penalty], I believe the person must have maliciously set out to destroy the life of someoneelse (and their loved ones) and havea history of such violent behavior w/o remorse”andthat “the death penalty is not used often enough in cases where convicted felons have a repeated behavior pattern for committing violent crimes against others, such as murder.” (8 CT 2407-2408.) However, she also stated that she could set aside her personal feelings and follow the law. (8 CT 2408.) More importantly,she clarified her questionnaire answers on voir dire, explaining that while she believed that the death penalty was appropriate when “the person just had a pattern of no regard forlife,” a pattern of violent conduct was not “something exclusive,” or the only factor she would consider in determining whether the death penalty was appropriate, but simply a “strong consideration.” (4 RT 731, italics added; see, e.g., Reed v. Quarterman, supra, 555 F.3d at pp. 377-378 [prosecutor’s explanation that he had challenged juror because she had indicated that the state would haveto prove a “strong possibility” of future dangerousness wasprextual given, inter alia, her answers as a whole qualifying that isolated remark].) Once again, had the court engagedin step three of the analysis, it would have noted these inconsistencies and probed further. The fact that the court did not provides yet more evidence that the court failed entirely to engage in the third step of the Wheeler/Batson analysis. 320 Forall of these reasons, the record affirmatively demonstrates that the trial court terminated the Wheeler/Batson analysis at step two, denying the motion simply because the prosecutor had offeredfacially race-neutral reasons for his challenges, without engaging in the mostcritical third step of the analysis. In so doing, the court violated the Sixth and Fourteenth Amendments to the United States Constitution andarticle I, section 16 of the California Constitution. D. The Death Judgment Must Be Reversed Havingestablished error, the question becomes one of remedy. As will be demonstrated below, the death judgment must be reversed. In the alternative, the case should be remanded with directionsto thetrial court to conductthe third step of the Wheeler/Batson analysis. 1. Under This Court’s Precedent Consistently Holding That Wheeler Error is Prejudicial Per Se, the Death Judgment Must be Reversed This Court has repeatedly held that Wheelererroris “prejudicial per se” and demandsreversal of the ensuing judgment. (Cal. Const., art. I, § 16; People v. Wheeler, supra, 22 Cal.3d at p. 283, [Wheeler error“prejudicial per se”]; see also People v. Johnson (2006) 38 Cal.4th 1096, 1105, fn. 2, conc. opn. of Werdegar, J. [same — collecting cases]; People v. Snow (1987) 44 Cal.3d 216, 226-227 [reversal per se applied to first step Wheeler error]; People v. Allen (1979) 23 Cal.3d 286, 295, fn. 6 [same, refusing “limited remand”].) And this Court has consistently applied the rule ofper se reversal to a trial court’s erroneousfailure to engage in the third step of the Wheeler analysis. (See, e.g., People v. Fuentes, supra, 54 Cal.3d at p. 721 [trial court’s failure to engagein third step of Wheeler inquiry “compelled” reversal]; People v. Turner, supra, 42 Cal.3d at p. 728 [trial court’s failure to engage in third step of Wheeler/Batson was“reversal per se” understate law 321 and, as structural defect, under federal Constitution]; People v. Hall, supra, 35 Cal.3d at pp. 170-171 [failure to engagein third step required reversal per se].) Hence, pursuant to this long and well-settled line of authority, the Wheelererror in this case demands reversal of Mr. Mai’s death judgment. 2. Because the Error Cannot Realistically be Remedied By a Remand Underthe Circumstances of this Case, the Death Judgment Must be Reversed; Alternatively, the Court Should Remandthe Case to the Trial Court with Directions Batsonerroris also structural, not subject to harmless error review, and hence requires reversal without any showing ofprejudice. (United States v. McFerron(6th Cir. 1998) 164 F.3d 952, 955 [Batson erroris structural and thus application of harmless-error analysis in the Batson context “has been resoundingly rejected by every circuit court that has considered the issue”’]; accord, e.g., United States v. v. Serino (1st Cir. 1998) 163 F.3d 91, 93; Tankleffv. Senkowski (2nd Cir. 1998) 135 F.3d 235, 240, 248; Ramseurv. Beyer (3rd Cir. 1992) 983 F.2d 1215, 1225, fn. 6; United States v. Broussard (5th Cir. 1993) 987 F.2d 215, 221; Rosa v. Peters (7th Cir. 1994) 36 F.3d 625, 634, fn. 17; Ford v. Norris (8th Cir. 1995) 67 F.3d 162, 171; Kesser v. Cambra (9th Cir. 2006) 465 F.3d 351, 371; Davis v. Sec'yfor the Dep’t of Corr. (11th Cir. 2003) 341 F.3d 1310, 1316.) Where, for instance, a complete Batson hearing was conducted, butthe trial court’s ultimate finding that the prosecutor’s explanations were genuinely race neutral is unsupported by substantial evidence orits denial of the motion was otherwise erroneous, the ensuing judgment will be reversed without any inquiry into prejudice. (See, e.g., Miller-El I, supra, 545 U.S.at p. 266.) However, wheretheerrorlies in the trial court’s failure to engage in the third step of the Batson analysis, federal courts ordinarily remand for the 322 trial court to do so, so long as the passageoftime or other factors have not made a meaningfulorreliable retrospective third step analysis impossible. (See, e.g., Dolphy v. Mantello, supra, 552 F.3d at p. 240 [remanding fortrial court to conduct third step ofBatson inquiry]; see also People v. Johnson, supra, 38 Cal.4th at pp. 1103-1105, and authorities cited therein [finding limited remandfortrial court to conduct secondandthird steps ofBatson analysis, seven to eight years after voir dire, appropriate underfederal Constitution].) Some California appellate courts have followed suit for Wheeler error. (See, e.g., People v. Garcia (2000) 77 Cal.App.4th 1269, 1281-1283; People v. Tapia, supra, 25 Cal.App.4th at pp. 1031-1032; see also, People v. Williams (2000) 78 Cal.App.4th 1118, 1125-1126 & fn.3; Pen. Code, § 1260 [appellate court “may, if proper, remandthe causeto the trial court for such further proceedings as may be just under the circumstances”].) A remand underthese circumstances — as opposedto the reviewing court’s harmlesserror analysis based on the cold record — is ordinarily the appropriate remedy because “the trial court is in the best position to determine whether a given explanation is genuine or a sham.” (People v. Fuentes, supra, 54 Cal.3d at pp. 720-721; accord, e.g., Snyder v. Louisiana, supra, 128 S.Ct. at p. 1208; Hernandez vy. New York (1991) 500 U.S. 352, 365.) “Batson’s third step . . . presents factual questionsthat hinge on ring- side credibility determinations that no appellate court can fairly make on the basis of a non-sentient record.” (United States v. Kimbrell (6th Cir. 2008) 532 F.3d 461, 468-469, and authorities cited therein [refusing to engage in harmlesserror analysis oftrial court’s erroneousfailure to conduct, or application of wrong legal standard to, third step ofBatson analysis]; accord, e.g., Lewis v. Lewis, supra, 321 F.3d at p. 830, citing Batson, supra [at the 323 third step of the Batson analysis, the trial “court’s own observations are of paramount importance... . Unlike a trial court, a court of appeal is not in an ideal position to conduct a step three evaluation”’].) As the United States Supreme Court has recently explained with regard to the trial judge’s role at the third step of the Batson (and Wheeler) inquiry: Thetrial court has a pivotal role in evaluating Batson claims. Step three of the Batson inquiry involves an evaluation ofthe prosecutor's credibility, see [Batson] 476 U.S., at 98, n. 21, 106 S.Ct. 1712, and “the best evidence [of discriminatory intent] often will be the demeanorofthe attorney whoexercises the challenge,” Hernandez, 500 U.S., at 365, 111 S.Ct. 1859 (plurality opinion). In addition, race-neutral reasons for peremptory challenges often invoke a juror's demeanor( e.g., nervousness, inattention), makingthetrial court’s first-hand observations of even greater importance. In this situation, the trial court must evaluate not only whether the prosecutor’s demeanorbelies a discriminatory intent, but also whether the juror’s demeanorcan credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor. Wehave recognized that these determinations of credibility and demeanorlie “ ‘peculiarly within a trial judge’s province,’ ” ibid. (quoting Wainwright v. Witt, 469 U.S. 412, 428, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)).... (Snyder v. Louisiana, supra, 128 S.Ct. at p. 1208.) Thus, when a prosecutor proffered subjective reasons for a challenge — for instance, based on the potential juror’s demeanor — andthetrial court did notassess the validity of those reasons, a reviewing court cannot assess the validity of those explanations on a cold record. (See, e.g., Snyder v. Louisiana, supra, 128 S.Ct. at p. 1209 [meaningful review ofproffered reason based on juror demeanor is impossible when “the record does not show that thetrial judge actually made a determination concerning [the juror’s] demeanor’’}; accord, e.g., McCurdy v. Montgomery County, Ohio (6th 324 Cir. 2001) 240 F.3d 512, 521 [need for “explicit on-the-record analysis” and trial court findingsare critical “when purported race-neutral explanation is predicated on subjective explanations, such as body language or demeanor”].) Even when a prosecutor offers objective reasons, or reasons based on the record, for a challenge, a reviewing court cannotfully assess the prosecutor’s credibility on a cold record. (Snyder v. Louisiana, supra, 128 S.Ct.at p. 1208; Miller-El I, supra, 537 U.S.at p. 339, and authorities cited therein [courts assess prosecutor’s credibility “by, among other factors, the prosecutor’s demeanor”); Hernandez v. New York, supra, 500 U.S.at p. 365 [“the best evidence of [discriminatory intent] often will be the demeanor of the attorney exercising the challenge”]; Lewis v. Lewis, supra, 321 F.3d at p 830, and authorities cited therein; People v. Lenix (2008) 44 Cal.4th 602, 613.) To be sure, when a prosecutor’s objective explanations are contradicted by the record or otherwise implausible, a reviewing court may conclude that the prosecutor’s credibility is suspect or destroyed based on the cold record. (See, e.g., Snyder v. Louisiana, supra, 128 S.Ct. at pp. 1211- 1212; Miller-El I, supra, 537 U.S.at p. 339; Lewis v. Lewis, supra, 321.F.3d at p. 830.) And where the prosecutor offered objective explanations and the trial court did engagein the third step of the analysis (thereby making factual findings) and the claim oferror is that substantial evidence does not support the trial court’s findings, an appellate court can review the court’s ruling based on the cold record. (See, e.g., Miller-El IT, supra, 545 U.S.at pp. 236, 241-266 [where prosecutor offered objective explanations only andtrial court did undertake step three of analysis and specifically found the prosecutor’s explanations “credible,” Supreme Court concludedtrial court’s findings, along with appellate court’s affirmance, were unreasonable and incorrect 325 based on its review of record evidence]; Lewis v. Lewis, supra, 321 F.3d at p. 832 [“unlikea trial court, a court of appealis not in an ideal position to conductstep three of the evaluation. It can, however, use the trial court’s findings and the evidence on the record to evaluate the support of the record for the prosecutor’s reasons and credibility and to comparethe struck and empaneled jurors”].) However, whenthetrial court has completelyfailed to engage in the third step of the analysis, the cold record simply does not provide sufficient information for a reviewing court to remedy or deem harmlessthetrial court’s error by itself engaging in the third step of the analysis, particularly where — as here — the prosecutor’s explanations are based in part on a potential juror’s demeanor. (See, e.g., United States v. Kimbrell, supra, 532 F.3d at pp. 468-469, and authorities cited therein [“Batson’s third step ... presents factual questions that hinge on ring-side credibility determinations that no appellate court can fairly make on the basis of a non-sentient record”J; Lewis v. Lewis, supra, 321 F.3d at pp. 833-834 [where trial court made no factual findings and did not state whetherit credited prosecutor’s explanation and characterization ofjuror as a “loner,” appellate court could not substitute its judgment for the trial court’s and determine whether characterization was accurate or, thus, whether explanation was genuinely race-neutral]; cf. Snyder y. Louisiana, supra, 128 S.Ct. at p. 1208 [where prosecutor offered one demeanor-based reason andtrial court made no explicit factual findings, Supreme Court refused to presumethat trial court credited that explanation or made an implicit finding deserving of any deference because it was impossible to review and, thus, impossible to affirm trial court’s denial of motion on that basis].) Indeed, this case provides compelling examples of the kinds of facially race-neutral explanations that a reviewing court simply 326 cannot deem bonafide (and thereby deem harmlessthetrial court’s erroneous failure to engage in the third step of the Wheeler/Batson analysis) based solely on the appellate record. Aspreviously discussed, the prosecutor explained that he had excluded Ms.Franklin because she “had a very casualattitude and dress” (5 RT 942) and “didn’t seem particularly interested in the proceedings,” but rather “seemed rather bored with” the questions. (5 RT 943.) As discussed at length in part C-2, above, nothing in the cold record supportsthis representation; in fact, the record contradicts it. Under these circumstances, a reviewing court — which had no opportunity to observe Ms. Franklin and her demeanor — simply cannot makingthe factual finding that, despite her seeming engagementin the proceedingsreflected on the record, Ms. Franklin was “casual,” “bored,”or “uninterested” in the proceedings and, thus, that this explanation was genuine or bonafide. (See Snyder v. Louisiana, supra, 128 S.Ct. at pp. 1208-1209 [where prosecutor offered one explanation based on potential juror’s demeanorandtrial court denied motion without making any explicit factual findings, Supreme Court refused to presumethattrial court credited that explanation or made an implicit finding deserving of any deference because it was impossible to review and, thus, refused to affirm trial court’s denial of motion on that basis]; People v. Silva, supra, 25 Cal.4th at p. 385 [where prosecutor offered one demeanor-based reason that found no support on cold record and wheretrial court madenofindings, court refused to assumethat court credited explanation and, thus, refused to affirm on that basis].) Similarly, and as further discussed in part C-2, above, a numberofthe prosecutor’s explanations demanded probing because they were unsupported by the record or otherwise implausible. (See, e.g., People v. Silva, supra, 25 327 Cal.4th at pp. 385-386.) Thus, without further explanation or testimony from the prosecutor — evidence dehors the appellate record — a reviewing court simply cannot conclude that those explanations were bonafide rather than pretextual. (See, e.g., ibid. [court’s erroneousfailure to further inquire of explanations that were unsupported by the record or otherwise implausible demandedreversal].)'” Unfortunately, while a remand forthe trial judge to engage in such analysis may arguably be appropriate in some cases, it would not be appropriate in this case. A meaningful andreliable third step Wheeler/Batson hearing in this case would demandthatat least three different parties have 102 On occasion, when faced with trial court’s failure to engage in the third step of the analysis after the prosecutor offered objective reasons for the challenges, federal courts will decline to remand whenthe appellate record is sufficient for the reviewing court to conclude that the prosecutor’s explanations are pretextual and, thus, the defendantis entitled to relief. (See, e.g., Green v. LeMarque (9th Cir. 2008) 532 F.3d 1028, 1031 [where state courts did not engagein third step of the analysis, appellate court reviewed prosecutor’s proffered objective explanations, concluded they were pretextual, and ordered newtrial on that basis]; United States v. Alanis, supra, 335 F.3d at pp. 969-970 [“had the court properly proceeded to step three, it would have concludedthat the prosecutor’s [objective] gender-neutral explanations were pretextual,” based uponcomparative analysis].) However, the converse is not true. Dueto the structural nature of the error and the inability of a reviewing court to makethe credibility determinations necessary for a step three analysis, reviewing courts may not remedya trial court’s erroneousfailure to engage in the third step of the analysis by itself engaging in the third step and concludingthatthetrial court’s error is harmless, particularly when the prosecutor has offered demeanor-based explanations. (See, e.g., United States v. Kimbrell (6th Cir. 2008) 532 F.3d 461, 468-469, and authorities cited therein [becauseit is impossible for appellate court to make credibility determinations required at third step of the analysis, reviewing court refused to apply harmless error analysis to trial court’s failure to engage in, or its application of wrong legal standard to, third step ofBatson analysis and instead ordered newtrial].) 328 full recall of the voir dire, the potential jurors, their demeanor, their answers, and the prosecutor’s demeanor: (1) thetrial judge; (2) the prosecutor, who would haveto provide further explanations regarding someof his stated reasonsfor challenging the black jurors in orderforthetrial judge to concludeat the third step that those reasons were bonafide,rather than pretextual, as discussed in part C-2, above; and (3) defense counsel, who must be given the opportunity that he was deniedat the original Wheeler/Batson hearing to rebut the prosecutor’s explanations, as further discussed in part C-2 above(see, e.g., United States v. Alcantar, supra, 897 F.2d at p. 438; People v. Ayala, supra, 24 Cal.4th at pp. 293-294). However,as of this writing, nearly 10 years have passed since the voir dire in this case. More years will pass before the final resolution ofthis appeal and any remand maybe ordered. Thisis a far greater passage of time betweenthe voir dire and a retrospective Wheeler/Batson hearing than those in which a remandhas been ordered in other cases. (People v. Garcia, supra, 77 Cal.App.4th 1269, 1281-1283 [expressing skepticism overtrial court’s ability to intelligently evaluate prosecutor’s explanations based on memory of voir dire that occurred only two and a half years earlier, but remanding for the trial court to attempt to do so out of abundance ofcaution]; People v. Johnson, supra, 38 Cal.4th at p. 1101 [seven to eight years]; People v. Tapia, supra, 25 Cal.App.4th at pp. 1031-1032 [three yearsor less];' Peoplev. Williams, supra, 78 Cal.App.4th at pp. 1125-1126 & fn. 3 [approximately one '3 While the Tapia decision doesnot reflect the date on which the motion was made or even whenthetrial occurred, it does refer to witness testimony describing a 1991 event. (People v. Tapia, supra, 25 Cal.App.4th at p. 1006.) Hence, the trial and motion must have occurred sometime after that 1991 event, or at most three years before the appellate court’s 1994 decision. 329 year and no defense objection to remand].) Indeed, as the United States Supreme Court recently observed in reversing for a third step Batson error that had occurred a decadeearlier: there is no “realistic possibility that [the prosecutor’s proffered explanations] could be profitably explored further on remandat this late date, more than a decadeafter petitioner’s trial.” (Snyder v. Louisiana, supra, 128 S.Ct.at p. 1212; see also People v. Carrassi (2008) 44 Cal.4th 1263, 1333, fn. 8, conc. & dis. opn. of Werdegar, J., joined by Kennard J [observing that remand procedure approved in People v. Johnson, supra, 38 Cal.4th at p 1011 has been “called into question in Snyder”].) So, too, in this case, there is no realistic possibility that the trial judge, the prosecutor, and defense counsel will ail have sufficient recall of the proceedings, the demeanorofthe potential jurors, and the credibility of the prosecutor in offering his explanations, for a meaningful andreliable retrospective third-step Wheeler/Batson hearing. (See, e.g., People v. Snow, supra, 44 Cal].3d atp. 226-227 [reversing rather than remanding wheresix years had passed since the original Wheeler/Batson motion]; People v. Hall (1983) 35 Cal.3d 161, 170-171 [same — three years]; People v. Allen (1979) 23 Cal.3d 286, 295, fn. 4 [same]; Riley v. Taylor (3rd Cir. 2001) 277 F.3d 261, 293-294 [declining to remand and instead ordering newtrial for Batson error given 13-year passage of time, making a meaningful hearing “highly unlikely”]; see also People v. Alcantar (9th Cir. 1990) 897 F.2d 436, 438-440 [Batson hearing on remand two years after erroneous denial of motion was inadequate becausetrial judge could not recall excluded jurors; new trial ordered]; Paulino v. Harrison (9th Cir. 2008) 542 F.3d 692, 696-697, 700-703 [upon remand for Batson hearing held eight years after erroneous denial of motion, prosecutor had no independentrecollection of voir dire or reasons for challenges and transcript 330 did not refresh her recollection, trial judge’s memory wassimilarly flawed, and prosecutor could only explain challenges based on her personalethics and practice; held: conjecture, rather than recollection of actual reasons, made reliable retrospective analysis impossible and newtrial ordered]; Peoplev. Johnson, supra, 38 Cal.4th 1096, 1103-1104 [taking judicial notice that, on remand ordered in Fernandez v. Roe (9th Cir. 2002) 286 F.3d 1073, 1080, seven years after erroneous denial ofBatson motion,trial judge’s lack of recollection due to passage of time maderetrospective analysis impossible and therefore new trial ordered].) Hence, this Court should find that a remandis unfeasible in this case and reverse the death judgment. In the alternative, this Court should order a remand with directions to the trial judge to attempt to evaluate the legitimacy of the prosecutor’s explanations. “If the court finds that, due to the passage of time or any other reason,it cannot adequately addressthe issuesat this stage, or it determines that the prosecutor exercised his peremptory challenges improperly,”the judgment must be reversed. (See, e.g., People v. Johnson, supra, 38 Cal.4th at pp. 1103-1104; accord, e.g., Dolphy v. Mantello, supra, 552 F.3d 239-240.) Only if the judge determines that the prosecutor’s explanations can be adequately assessed and are bonafide or genuine,and,thus, that a preponderance of the evidence does not demonstrate that discrimination prompted the removal of the only three black potential jurors from the pool, may the judgment be reinstated. (/bid.) 33] Vill THE DEATH ELIGIBILITY FINDING AND DEATH VERDICT IN THIS CASE ARE UNRELIABLEIN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION AND ARTICLE I AND SECTION17 OF THE CALIFORNIA CONSTITUTION AND MUSTBE SET ASIDE Asdiscussed in the preceding arguments, Mr. Mai professed a desire to be executed andthetrial court, trial counsel, the prosecutor, and the jurors expressed no hesitation in deferring to his wish, even at the cost of the court and counsel’s independent, constitutionally-mandated duties to Mr. Mai and the trial process itself. The result was a capital murder “trial” that was an empty charade — nothing more than the instrumentof a questionably competent defendant’s professed desire to die. Even if no single event discussed in the preceding arguments requires reversal, the trial as a whole, and the death verdict that resulted, fell far short of meeting the state’s independentinterest in the fairness and integrity of its proceedings and the heightened degree ofreliability demanded of death verdicts. (U.S. Const., Amends. V, VIII & XIV; Cal. Const., art. I, §§ 15, 16 & 17.) The death eligibility finding and death verdict mustbeset aside. A. Constitutional Bases for Society’s IndependentInterest in the Fairness and Accuracy of Criminal Proceedings and the Reliability of Death Judgments The federal Constitution demandsthatall criminaltrials be fair. (U.S. Const., Amends. V, XIV.) “Further, proceedings must not only be fair, they must ‘appearfair to all who observe them.’” (indiana v. Edwards (2008) US., 128 S.Ct. 2379, 2387.) In capitaltrials, the United States Supreme Court has repeatedly emphasized that given the “irremediable and unfathomable”nature of the death penalty, the Eighth Amendment demandsa heightened degree of 332 reliability in all stages of a capital proceeding. (Ford v. Wainwright, supra, 477 U.S. at p. 411; Oregon v. Guzek (2006) 546 U.S. 517, 525 [Eighth Amendment demands heightened degreeofreliability in penalty determination]; Beck v. Alabama (1980) 447 U.S. 625, 637 [Eighth Amendment demandfor heightenedreliability applies to both guilt and penalty determinations in capital cases]; accord, e.g., Deck v. Missouri (2005) 544 U.S. 622, 632, and authorities cited therein; Gardner v. Florida (1977) 430 U.S. 349, 357-358, plur. opn.; Lockett v. Ohio, supra, 438 U.S.at p. 605, plur. opn.; Zant v. Stephens (1983) 462 U.S. 862, 884-885.) Asdiscussed in Argument V, ante, the federal constitutional guaranteesto fair criminal proceedings andreliable death eligibility and penalty determinations do not belong to the defendant alone. “[T]he Government has a concomitant, constitutionally essential interest in assuring that the defendant’s trial is a fair one.’” US., 128 S.Ct. 2379, 2387, quoting Sell v. United States (2003) 539 U.S. 166, 180, and authorities cited therein.) (Indiana vy. Edwards, supra, ___ Moreover, society has a legitimate, vital, and independentinterest in ensuring that verdicts in capital cases are just, based on reason, andreliable. Asthe United States Supreme Court has emphasizedin this regard, “[f]rom the point of view of the defendant, [death] is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one ofits citizens also differs dramatically from any legitimate state action. It is of vital importance to the defendant andto the community that any decision to impose the death sentence be, and appearto be, based on reason[,] rather than caprice or emotion,” and reliable. (Gardner v. Florida (1977) 430 U.S. 349 357-358, italics added; accord, e.g., Beck v. Alabama, supra, 447 U.S. at pp. 637-638; People v. Alfaro (2007) 41 Cal.4th 333 1277, 1300, and authorities cited therein [recognizing state’s independent and “strong interest in reducing the risk of mistaken judgments in capital cases and thereby maintaining the accuracy and fairness ofits criminal proceedings”); People v. Guzman (1988) 45 Cal.3d 915, 962; People v. Deere (1985) 41 Cal.3d 353, 362-364; People v. Chadd (1981) 28 Cal.3d 739, 747- 750.) There are occasions in which these interests may be at odds with a particular defendant’s desires. When the defendant’s wishes — if followed — will subvert society’s independentinterest in the fairness of its proceedings and thereliability of death verdicts, the state’s interests win out. (See, e.g., Indiana v. Edwards, supra, 128 S.Ct. 2379, 2387, and authorities cited therein [state’s independentinterest in the fairness of its proceedings permits it to impose a higher competency requirement for a defendant who wishesto control histrial through self-representation than that applied to a defendant’s ability to standtrial]; Martinez v. Court ofAppeal ofCalifornia, Fourth Appellate Dist. (2000) 528 U.S. 152, 162 [“the government’s interest in assuring the integrity and efficiency ofthetrial at times outweighs the defendant’s interest in acting as his own lawyer”); Wheat v. United States (1988) 486 U.S. 153, 160, 162 [state’s “independentinterest in ensuring criminaltrials are conducted within the ethical standards of the profession and that legal proceedings appearto be fair to all who observe them” may override defendant’s right to counsel of choice and willingness to waive conflict]; Pate v. Robinson (1966) 383 U.S. 375, 384 [defendant cannot waive due process prohibition against being tried if incompetent to stand trial]; Sell v. United States, supra, 539 U.S. at pp. 179-182 [government’s interest in “assuring a defendant fair trial” and trying defendants while competent may, under certain circumstances, outweigh defendant’s 334 constitutionally protected liberty interest in avoiding involuntary medication]; People v. Richardson (2006) 43 Cal.4th 959, 1169-1171, and authorities cited therein [state’s independentinterest in fairness and appearanceoffairness permitstrial court to substitute counsel over defendant’s objection]; People v. Breverman (1998) 19 Cal.4th 142, 153 [court’s duty to provide lesser included offense instruction even over defendant’s objection is grounded on policy concerns “not only for the rights of the accused, but also for the overall administration ofjustice”]; People v. Stanley (1995) 10 Cal.4th 764, 804-805 [in the face of substantial evidence of incompetence, due process demands competency hearing and “attorney representing the defendant is required to ‘advocate the position counsel perceivesto be in the client’s best interests even whenthat interest conflicts with the client’s stated position’”].) Indeed, California law has long provided that while criminal defendants may waive rights and procedures that exist for their own benefit, they may not waive rights or procedures that exist for the public’s benefit. (See, e.g., Cowanv. Superior Court (1996) 14 Cal.4th 367, 371, and authorities cited therein [criminal defendants may not waiverights in which the public has an interest or when waiver would be against public policy]; Civ. Code, § 3513 [“anyone may waive the advantage of a law intendedsolely for his benefit. But a law established for a public reason cannot be contravened by a private agreement”’].) This principle applies with equal force when the defendant’s desire to be executed will subvert society’s independent interest in the fairnessofits proceedings andthereliability of death judgments. Certainly,this is true under California’s death penalty scheme, which prohibits particular defendants from unilaterally waiving “rights” that exist not only for their own benefit but also to protect California’s independentinterest in the fairness of 335 its proceedingsandthereliability of its death judgments. (See, e.g., Peoplev. Alfaro, supra, 41 Cal.4th at p. 1301 [California’s death penalty legislation “thas its roots in the state’s strong interest in reducing the risk of mistaken judgments in capital cases and thereby maintaining the accuracy and fairness of its criminal proceedings”]; People v. Chadd (1981) 28 Cal.3d 739, 750, 753; People v. Deere, supra, 41 Cal.3d at pp. 362-364; People v. Stanworth (1969) 71 Cal.2d 820, 834, and authorities cited therein.) B. California’s Death Penalty Scheme Reflects Society’s Paramount, Independent Interest in the Fairnessofits Criminal Proceedings and the Reliability of Death Judgments Four features of California’s death penalty schemereflect the fundamental principle that under state law society has an independentinterest in the fairness andreliability of capital trials. First, Penal Code section 1018 explicitly provides in relevant part that no guilty plea to a capital offense “shall be received from a defendant who does not appear with counsel, nor shall any such plea be received without the consent of the defendant’s counsel.” This statute, read together with the constitutional guarantee to the effective assistance of counsel, requires counsel to exercise his “independent,” objectively reasonable and disinterested “professional judgment” in determining whether the defendant should enter a guilty plea to a capital case. (People v. Massie (1985) 40 Cal.3d 620, 625.) Counsel’s duty to exercise his independent judgmentin this regard overrides the defendant’s own wishes. (/bid. [trial court erred in accepting guilty pleato capital offense, and counsel erred in formally consenting to the plea, where it was clearly made against counsel’s advice, but counsel felt pressured into “going along simply becausehis client was ‘adamant’ in his decision to plead guilty”].) Further, a particular defendant cannot avoid the statute’s 336 restrictions by discharging his attorney in order to represent himself and thus enter a plea without the consent of counsel, even if he or she is found legally competentto do so. (People v. Massie, supra, 40 Cal.3d at p. 625 [defendant could not avoid requirement of counsel consent under section 1018 by discharging counsel and entering guilty plea in propia persona]; Peoplev. Chadd, supra, 28 Cal.3d at pp. 745, 751; see also, People v. Alfaro, supra, 41 Cal.4th at p. 1302.) Second, consistent with California’s “independent interest in the accuracy of the special circumstance and penalty determinations, [California does] not .. . permit a defendantto stipulate to the death penalty ...” (People v. Teron (1979) 23 Cal.3d 103, 115,fn. 7, citing People v. Stanworth, supra, 71 Cal.2d at pp. 833-834, overruled on other grounds in People v. Chadd, supra, 28 Cal.3d at p. 750 & fn. 7.) Rather, a penalty hearing is required in which trier offact, guided bystrict constitutional and statutory guidelines intendedto assure reliable death judgments, determines the appropriate penalty. (Pen. Code, §§ 190.3, 190.4, subd. (a).) Third, if the trier of fact determines that death is appropriate, California law mandates an automatic motion beforethetrial judge to modify the death verdict. (Pen. Code, § 190.4, subd. (e) [“in every case in which the trier of fact has returned a verdictor finding imposing the death penalty, the defendant shall be deemed to have made an applicationfor modification of such verdict orfinding ....”].) (Italics added.) In other words, the motionis madeirrespective ofwhether a particular defendant seeks or even desires modification. Finally, Penal Code section 1239, subdivision (b), provides for an automatic appealin capital cases, which a defendant has no powerto waive. Asthis Court has explained,“it is manifest that the state in its solicitude for a 337 defendant under sentence of death has not only invoked on his behalf a right to review the conviction by meansof an automatic appeal but has imposed a duty upon this court to make such review. We cannot avoid or abdicate this duty merely because defendant desires to waive the right provided for him.” (People v. Stanworth, supra, 71 Cal.2d at p. 834; accord, e.g., People v. Massie (Massie IT) (1998) 19 Cal.4th 550, 566, 570-572 [whether to appeal capital conviction is not one of few fundamental rights over which defendant has control; section 1239, subd. (b) does not violate defendant’s constitutional right to “control his defense” or create an unconstitutional conflict of interest between client’s wishes and state’s independent interest in reliability of death judgments].) Thus, California’s death penalty scheme as a whole makesclear that capital trials may not be used as mere instruments for particular defendants to achieve their own desires. To the contrary, “we are concerned with a principle of fundamental public policy.” (People v. Stanworth, supra, 71 Cal.2d at p. 834; see also, e.g., Cowan v. Superior Court, supra, 14 Cal.4th at p. 371 [while criminal defendants may waiverights that exist for their own benefit, they may not waive rights in which the public has an interest or when waiver would be against public policy].) Three of this Court’s decisions are illustrative. In People v. Chadd, supra, 28 Cal.3d 739, the defendant sought to enter a guilty plea to a capital offense in order to receive the death penalty, but his counsel refused to consent on the groundthat “the defendant’s basic desire is to commit suicide, and he’s asking for the cooperation of the State in that endeavor.” (/d. at pp. 744-745.) Thetrial court recognized Penal Code section 1018’s requirement of counsel consent in guilty pleas to capital offenses, but ruled that if the defendant wassufficiently competent to 338 discharge counseland act as his own attorney under Faretta v. California (1975) 422 U.S. 806, then the defendant could enter his plea without the consent of counsel. (/bid.) The trial court initiated competency proceedings, found the defendant competent, and accepted the defendant’s plea of guilty without the consent of counsel. (/d. at pp. 745-746.) The defendant appealed his conviction and the ensuing death judgment on the ground,interalia, that the trial court violated Penal Code section 1018 by accepting his guilty plea without the consent of counsel. (People v. Chadd, supra, 28 Cal.3d at p. 746.) Defending the judgment,the state argued that Penal Codesection 1018 is unconstitutional because it “disturbs the ‘uniquely personal’ nature of the defendant’s right to plead guilty, denies him his ‘fundamental right’ to control the ultimate courseofthe prosecution, and destroys the constitutionally established relationship of counsel as the defendant’s ‘assistant’ rather than his master.” (/d. at p. 747.) This Court flatly rejected the state’s reasoning becauseit “fails to recognize the larger public interest at stake in pleas of guilty to capital offenses.” (People v. Chadd, supra, 28 Cal.3d at p. 747.) Althoughit is true that, under California law, the decision to plead is ordinarily personal to the defendant, “it is no less true that the Legislature has the powerto regulate,in the public interest, the manner in which that choice is exercised.” (Id. at pp. 747-748.) The 1973 amendmentto section 1018, prohibiting a guilty plea to a capital offense without the consent of counsel, was part of an extensive revision of California’s death penalty law meantto satisfy the Eighth Amendmentand avoid arbitrary and capricious imposition of the death penalty and thus was “intended. . . to serve as a further independent safeguard against erroneous imposition of a death sentence.” (People v. 339 Chadd, supra, 28 Cal.3d at p. 750.) Considering the interplay between that interest and a defendant’s rights under Faretta, supra, the Court reasoned that while the Faretta decision recognized that the Sixth Amendment“grants to the accused personally ‘the right to make his defense’... ,” it does not necessarily follow that he also has the “right to make no such defense and to have no suchtrial, even whenhislife is at stake.” (Ud. at p. 751, italics added.) To the contrary, “in capital cases, as noted above, the state has a strong interest in reducing the risk of mistaken judgments.” (People v. Chadd, supra, 28 Cal.3d at p. 751.) This strong interest is reflected in California’s entire death penalty scheme — from plea through appeal. Ud. at pp. 751-752, citing People v. Stanworth, supra, 71 Cal.2d 820, 833, and quoting Massie v. Sumner (9th Cir. 1980) 624 F.2d 72, 74 [“While Massie is correct in that he enjoys a constitutionalright to self-representation, this right is limited and a court may appoint counsel over an accused's objection in order to protect the public interest in the fairness and integrity of the proceedings”].) Consistent with the intent of California’s statutory death penalty scheme,section 1018 furthers the state’s independentinterest in the reliability of death judgments and reducing the risk of mistaken death judgments by “serv[ing] inter alia as afilter to separate capital cases in which the defendant might reasonably gain some benefit by a guilty pleafrom capital cases in which the defendant, as here, simply wants the state to help him commit suicide.” (Id. at p. 753, italics added.) This strong interest outweighs any possible “minor infringement” on a defendant’s rights under Faretta. (Id. at pp. 751-752; accord Massie, supra, 40 Cal.3d at p. 625 [Faretta right to self-representation does not trump society’s independentinterest in the reliability of death judgments so as to allow defendant to discharge counsel and enter guilty plea 340 to capital offense against counsel’s advice].) Four years after Chadd, in People v. Deere, supra, 41 Cal.3d 353, this Court again had occasion to consider the tension between society’s interest in the reliability of death judgments and particular defendant’s desire for execution. This Court recognized, as it had in Chadd and Stanworth, supra, that “‘“[a]lthough a defendant may waive rights that exist for his own benefit, he may not waive those which also belongto the public generally.””” (People v. Deere, supra, at p. 363, quoting from People v. Stanworth, supra, 71 Cal.2d at p. 834.) In this regard, and as it had in Chadd, supra,this Court recognized that California has an independent, constitutionally compelled interest in the reliability of death judgments and “reducingtherisk of mistaken judgments,” as well as “a fundamental public policy against misusing the judicial system.” (/d. at pp. 362-364.) The Legislature has legitimately determined that these interests override a defendant’s contrary wishes throughoutcapital proceedings, from the entry of plea through appeal. (/bid.) A capitaltrial that amounts to nothing more than an instrument by which the defendant commitsstate- assisted suicide violates public policy, defeats state and federal constitutionalinterests in the reliability of death judgments, and thus the death verdict it produces cannot stand. (/bid.) In Deere, this Court applied these principles to hold that where defense counsel accededto the defendant’s wish not to present available mitigating evidence and the defendant made a statementto the factfinder in whichhe asked for the death penalty, the resulting death verdict was unreliable. (People v. Deere, supra, 41 Cal.3d at pp. 361, 364; accord People v. Burgener (1986) 41 Cal.3d 505, 541-543.) This Court has since disapproved of Deere to the extent that it held that “failure to present mitigating evidence,in andofitself, is sufficient to make a death judgment 34] unreliable.” (People v. Bloom (1989) 48 Cal.3d 1194, 1228, fn. 9; accord, e.g., People v. Bradford (1997) 15 Cal.4th 1229, 1372, and authorities cited therein; People v. Sanders (1991) 51 Cal.3d 471, 524-527.)'™ Butitstill adheres to the fundamental principles that the state has an independent interest in fair and reliable capitaltrials. Accordingto this Court’s post-Deere decisions, a death verdict is not rendered unreliable simply because disinterested counsel accedesin his competent client’s knowing, voluntary, and intelligent decision to present no penalty phase defense. (People v. Sanders, supra, 51 Cal.3d at pp. 524-527 [“in the absence of evidence showing counselfailed to investigate mitigating evidence or advise the defendant ofits significance,” death verdict was not rendered unreliable where presumably competent defendant made “knowing and voluntary” decision not to present penalty phase defense, where failure to present defense “did not amount to an admission that he believed death was the appropriate penalty,” and where jurors heard mitigating evidence from guilt phase]; People v. Bloom, supra, 48 Cal.3d at p. 1228 [a death verdictis not necessarily unreliable simply due to competent, self-represented defendant’s decision not to present mitigating evidence at the penalty phase; so long as a death verdict is returned under“proper instructions and procedures”the reliability requirementis satisfied].) Nevertheless, the essential premise ofDeere — that society has an independentand constitutionally guaranteed interest in the fairness andreliability ofits capital '04 In addition, this Court held that the failure to present available mitigating evidence necessarily amounts to ineffective assistance of counsel. (People v. Deere, supra, 41 Cal.3d at pp. 364.) This aspect of Deere has also been disapproved. (See, e.g., People v. Lang (1989) 49 Cal.3d 991, 1031.) 342 proceedings and judgments, which maybe violated when a capital murder trial becomes nothing more than an instrumentfor a particular defendant’s self-defeating desires — remains the law today. (See People v. Sanders, supra, 51 Cal.3d at p. 526, fn. 23 [while competent defendant’s decision not to present mitigating evidence or closing argumentdoesnot itself render death verdict unreliable, the “state’s interest in a reliable penalty verdict may be compromised when,in addition to the defendant’s failure to present mitigating evidence, the jury wasalso given misleading instructions and heard misleading argument”’]; accord People v. Williams (1988) 48 Cal.3d 1127, 1152 [in absence of misleading instructions or argument, or defendant’s request to factfinder to return death verdict as in Deere and Burgener, supra,failure to present available mitigation does not, in and of itself, render death verdict unreliable]; People v. Bloom, supra, 48 Cal.3d at p. 1228 & fn. 9.)' Indeed, this Court recently reaffirmed California’s paramount, independentinterest in the reliability of death judgments, in People v. Alfaro (2007) 41 Cal.4th 1277. There, defense counsel refused to consentto the defendant’s unconditional guilty plea to a capital offense because “I know she’s pleading guilty for all intents and purposes to a death sentence.” (Jd. at p. 1297.) Pursuantto section 1018,the trial court refused to accept '° This Court has also held that a defendant who exercises his Sixth Amendmentright to self-representation may present no defense. (See,e.g., People v. Koontz (2002) 27 Cal,.4th 1041, 1074.) As Mr. Mai did not formally moveto represent himself and thetrial court did not undertake the necessary steps to grant such a motion, and as Mr. Mai never even suggested that he would moveto represent himself if his counsel refused to acquiesce in his purported death wish, the tension between a defendant’s Sixth Amendmentrightto self-representation and the state’s interest in the reliability of death judgmentsis not at issue here. 343 defendant’s plea or to removeor substitute counsel. (/d. at pp. 1296-1298, 1319.) Defendant was convicted of murder and sentenced to death. (/d.at p. 1297.) On appeal, defendant argued both that her counsel unreasonably withheld his consent to her guilty plea and that she had a fundamentalright to enter a guilty plea, and make fundamental decisions about her defense, even against the advice of counsel, whichthetrial court violated whenit refused to allow her to do so. (People v. Alfaro, supra, 41 Cal.4th at p. 1298.) Defendant attempted to distinguish Chadd, supra, on the ground that Chadd had sought to enter a plea in order to commit state-assisted suicide, whereas she had soughtto enter a guilty plea in order to gain an advantageat the penalty phase by urging her remorse and acknowledgment of wrongdoing. (id. at p. 1300.) She thus urged this Court to limit its holding in Chadd to those facts and arguedits application to her case violated her rights to the assistance of counsel, to control over her own defense, and to a fair trial. (Ud. at pp. 1295, 1300.) This Court rejected each of her arguments. Central to the Court’s rejection of her arguments wasits finding that she did not seek to enter her plea in order to gain tactical advantage in her penalty phase defense. (People v. Alfaro, supra, at pp. 1299-1300.) Instead, she wanted to enter an unconditional plea in order to prevent or avoid her counsel’s intended strategy of implicating a third party as an accomplice in the charged murder. (/bid.) Thus, like counsel’s refusal to consent to a plea made “in order to effectuate state-assisted suicide” in Chadd, counsel’s refusal to consent to an unconditional plea that was not intendedto benefit his client’s defense served the function that section 1018 and the extensive revision of the California’s death penalty legislation of which it was a part were intended to serve: as a 344 “safeguard against the erroneous imposition of a death sentence”and in furtherance of “the state’s strong interest in reducing the risk of mistaken judgmentsin capital cases and thereby maintaining the accuracy and fairness ofits criminal proceedings. (Chadd, supra, at pp. 750, 753.)” (Id.at pp. 1300-1301.) A death judgment may be erroneously imposed whenthetrier of fact has not determined,in accord with constitutionally and statutorily compelled procedures intended to ensure reliable death judgments, that the death penalty is warranted. In this regard, “had defense counsel capitulated to defendant’s desire to plead guilty unconditionally despite the information she had conveyed to him implicating another person in the murder, defendant’s plea would havecast doubt on potentially critical mitigating evidence. A guilty plea entered undersuch circumstances might very well lead to the erroneous imposition of the death penalty — precisely the outcome section 1018 is intended to prevent.” (Id. at p. 1301.) Moreover, while a defendant may havea right to control a fundamentalaspectofhis or her defense and theright to counselto assist in his or her defense, those rights were not implicated or violated in that case because the defendant did not seek to enter the plea in orderto benefit her penalty phase defense. (People v. Alfaro, supra, 41 Cal.4th at p. 1302.) Hence, defendant’s dispute with her counsel “did not implicate a constitutionally protected fundamentalinterest that might overridethe plain terms of section 1018” or — it necessarily follows — society’s independent interest in the reliability of death judgments that section 1018 and California’s death penalty schemeis intendedto serve. (Ibid.)' '© In this regard, this Court distinguished situations wherein a defendanthasa personal, constitutionally protected right to accept orreject (continued...) 345 In other words, this Court implicitly, but undeniably, held that although a defendant enjoys the rights to present, control fundamental aspects of, and to the assistance of counsel in presenting, a defense, she enjoys no concomitant right to present no defense that will override the state’s independent interestin the reliability of death judgments. This holdingis entirely consistent with Chadd, with the fundamental premise ofDeere, supra, and indeed with the very text of the Sixth Amendment, which “requires not merely the provision of counsel to the accused, but ‘Assistance’ whichis to be ‘for his defence.’ .. . If no actual ‘Assistance’ ‘for’ the accused’s ‘defence’ is provided, then the constitutional guarantee has been violated.” (United States v. Cronic (1984) 466 U.S. 648, 654, quoting text of Sixth Amendment,italics added.) To be sure, as mentioned above,this Court has held that a death judgmentis not rendered unreliable simply because disinterested counsel accedesin his or her competent client’s knowing,intelligent and voluntary decision not to present a penalty phase defense. (See, e.g., People v. Sanders, supra, 51 Cal.3d at pp. 524-527 & fns. 22-23, and authorities cited therein.) However, this Court has “left open the possibility that the state’s interest in a reliable penalty verdict may be compromised when,in addition to the defendant’s failure to present mitigating evidence, the jury was also given misleading instructions and heard misleading argument” (People v. Sanders, supra, 51 Cal.3d at p. 526, fn. 23), and the factfinder hears the defendant’s 106(_ continued) a plea bargain offer in which the defendantis offered some benefit in exchangefor the plea. (People v. Alfaro, supra, at p. 1302 & fn. 5, citing In re Alvernez (1992) 2 Cal.4th 924.) There is no correspondingright to enter an unconditional plea. (/bid.) 346 testimony requesting a death verdict (People v. Williams, supra, 48 Cal.3d at p. 1152). That possibility was realized in this case. C. The Death Judgment Must be Set Aside Because the Penalty Phase Trial Was an Empty Charade That Did Not Produce A Reliable Death Verdict Here, Mr. Mai’s counsel was not disinterested, but rather labored undera conflict of interest in which their personal interests were served by acceding in, and even encouraging,his desire to enter an unconditional plea to the capital murder charge and effectively stipulate to a death sentence. (See ArgumentI, ante, and authorities cited therein.) Thetrial court not only failed in its duty to inquire into that conflict; the record reveals that Mr. Mai was not informedregarding that conflict and its implications in his case and his counsel affirmatively and actively misrepresented the true nature of the conflict to the trial court. (See ArgumentI-D, ante, and authorities cited therein.) Furthermore, there was a plethora of evidencecalling into grave doubt Mr. Mai’s competencyto standtrial, including defense counsel’s repeated admissions that Mr. Mai’s mental state had deteriorated to the point that they believed that he was incapable of makingrationallife and death decisions, yet neither the court nor his conflicted counsel fulfilled their duties to ensure that he wasnottried — and did not decideto effectively stipulate to a death sentence — while incompetent. (See Arguments J-F, ante, and authorities cited therein; see also Summerlin v. Shriro (9th Cir. 2005) 427 F.3d 623, 639 [court and counsel must be assured that capital defendant’s decision not to present penalty phase defense is competent]; compare People v. Sanders, supra, 51 Cal.3d at pp. 524-527 & fns. 22-23 [death verdict not rendered unreliable where,inter alia, defendant made “knowing and voluntary” decision not to present mitigating evidence or closing argument, counsel 347 stated that he believed decision was “rational,” and both counsel and the court stated that they “did not perceive defendant to be suffering from any mental aberration”’].) Even if Mr. Mai were competentto standtrial, the evidence was compelling that he was not competentto take control of the proceedings and make a rational decision to waiveall rights and effectively stipulate to a death sentence. (See Indiana v. Edwards, supra, 128 S.Ct. at p. 2386 [standard for competencyto standtrial “assumes representation by counsel and emphasize the importance of counsel,” whereas defendant’s ability to controlhis trial through self-representation “presents a very different set of circumstances, which in our view,calls for a different standard”].) Yet this is precisely what the court and counsel permitted him to do when counsel ceded control of the trial to their irrational client and abandonedtheirroles as advocatesfor his best interests. Nor does the record in any way demonstrate that Mr. Mai’s decision to effectively stipulate to a death sentence was “knowing and voluntary.” (People v. Sanders 51 Cal.3d at pp. 524-527 & fn. 23; see also, e.g., Wilkins v. Bowersox (8th Cir. 1998) 145 F.3d 1006, 1012-1016.) To the contrary, there were deeply troubling questions regarding the knowing,voluntary, and intelligent nature of Mr. Mai’s decision, including: (1) whetherhis irrational mental state precluded a knowing, voluntary, and intelligent decision (see, e.g., ArgumentsI, parts F and G andIV,ante; see also, e.g., Wilkins v. Bowersox, supra, at pp. 1012-1016 [defendant’s emotional and mental problems,inter alia, precluded knowing,voluntary, and intelligent waiver of right to present mitigation in effort to obtain a death verdict]); (2) whether the decision was coerced and involuntary due to the onerous conditions ofhis federal confinement (See ArgumentsI, parts F and G and IV, ante; see also, e.g., Comer v. Stewart, supra, 215 F.3d at pp. 917-918, and authorities cited 348 therein [defendant’s decision to waive rights and not challenge imposition of the death penalty must not only be competent, but also voluntary; harsh confinement conditions may coerce decision and thus renderit involuntary]); (3) whether his decision wasa fully informed andintelligent one because the face of the record reveals that defense counsel failed to investigate at least one piece of potentially critical mitigating evidence — the possible brain injury suggested by his head trauma and subsequent, marked changein his behavior (See ArgumentI-G-4, ante; see also, e.g., Douglas v. Woodford (9th Cir. 2003) 316 F.3d 1079, 1089-1090 [defense counsel has duty to investigate potential mitigation, despite client’s expressed opposition to presenting such evidence,in order, inter alia, to ensure that client’s decision is a fully informed one]; compare People v. Sanders, supra, 51 Cal.3d at pp. 524-527 [“in the absence of evidence showing counsel failed to investigate mitigating evidence or advise the defendantofits significance,” death verdict was not rendered unreliable where presumably competent defendant made “knowing and voluntary” decision not to present mitigation or closing argument]); and (4) whetherhis decision wasthe result of affirmative disinformation based on defense counsel’s misrepresentations regarding the hopelessness of the case or their encouragementofthat decision by expressing their agreementwithit on moral grounds (See Argument I-G-2-c, ante, and authorities cited therein). Furthermore, Mr. Mai and his counsel took the “extraordinary” and “troubling” course of presenting no opening statement, failing to submit the prosecution’s case to meaningful adversarial testing, calling no witnesses, and presenting no available mitigation and no closing argument. (People v. Snow, supra, 30 Cal.4th at p. 109-111.) Indeed, Mr. Mai and his counsel took additional, affirmative steps to ensure his execution by entering an unconditional plea to the murder charge and death qualifying special 349 circumstanceallegation despite extremely weak evidenceat best, and legally insufficient evidence at worst, to prove a critical element of the sole special circumstance allegation. (See ArgumentsI-E andII; see People v. Alfaro, supra, 41 Cal.4th at pp. 1300-1301 [counsel refused to consentto unconditional guilty plea to capital offense on the ground that “I can’t turn around andsay I consentto allow myclient to plead guilty when I know she’s pleading guilty for all intents and purposes to a death sentence”andtrial court in refusing the plea “expressed doubt that any attorney in Orange County ‘would consent to somebody pleading guilty to a capital offense”’]; People v. Chadd, supra, 28 Cal.3d at pp. 744, 747-850 [defense counsel refused to consent to unconditional guilty plea on the groundthat the “defendant’s basic desire is to commit suicide, and he’s asking for the cooperation of the State in that endeavor”].)'”’ Moreover, Mr. Mai and his counsel selected a jury which included a member whose family memberhadtried to save Officer Burt’s life after the charged shooting. Based uponthat relationship and her knowledge ofthe case from mediareports, that juror candidly admitted that she had already decided that Mr. Mai should be executed and could only conceive ofpossibly changing her mindifhe “proved”to herthat his life should be spared. (5 CT 1413-1414, 1420; 5 RT 886-887; Argument VI, ante.) In addition, the court permitted Mr. Mai’s constitutionally irrelevant, 107 Furthermore, the jurors here did not receive any instructions or evidence informing them that Mr. Mai’s guilt had been established by plea, which they could conceivably consider mitigating. Rather, they were only instructed that “the defendantin this case has been found guilty of murder ofthe first degree. The allegation that the murder was committed under a special circumstance has been found true.” (3 CT 723; 8 RT 1424;see also 3 CT 734-735; 8 RT 1431-1432.) 350 inflammatory, and inadmissible testimony that the jury should return a death verdict. (See Argument V, ante, and authorities cited therein; compare People v. Sanders, supra, 51 Cal.3d at pp. 524-527 [competent defendant’s “knowing and voluntary” decision not to present mitigation did not render death verdict unreliable, or effectively amount to guilty plea to death sentence, in part becauseit did “not amount to an admission that he believed death wasthe appropriate penalty”]; People v. Williams (1988) 48 Cal.3d 1127, 1152 [defendant’s failure to present available mitigation did not in itself render death verdict unreliable in part because, unlike Deere and Burgener, supra, the defendantdid nottestify or make statement to factfinder requesting death verdict].) And the prosecutor, without objection, urged the jurors to consider that testimony as basis for their death verdict in the only closing argument they heard. (See ArgumentV, ante, and authorities cited therein; compare People v. Guzman, supra, 45 Cal.3d at pp. 959-960, 962- 963 [defendant’s death preference testimony did not render death verdict unreliable because, interalia, the defendanttestified to compelling mitigating evidence and the prosecutor did not mention the death preference testimony in closing argument]; People v. Grant, supra, 45 Cal.3d at pp. 848-849 [same].) Furthermore, the court’s jury instructions only confirmed that the jurors could and should do what the prosecutor urged them to do: consider | Mr. Mai’s testimony and weigh it on death’s side of the scale. (See Argument V-E, ante, and authorities cited therein.) As mentioned above, this Court has “left open the possibility that the state’s interest in a reliable penalty verdict may be compromised when,in addition to the defendant’s failure to present mitigating evidence,the jury wasalso given misleading instructions and heard misleading argument” (People v. Sanders, supra, 51 Cal.3d at p. 526, fn. 23), the factfinder hears 351 the defendant’s testimony requesting a death verdict (People v. Williams, supra, 48 Cal.3d at p. 1152), or defense counsel presents no opening statement, no challengeto the state’s aggravating evidence, no mitigating evidence, or closing argument (People v. Snow, supra, 30 Cal.4th at pp. 122- 123). That possibility was realized in this case. In a case suchasthis, the trial process and the ensuing death qualification finding and death verdict run afoulofthe state’s “strong” independentinterest in the fairness and integrity of its proceedings, in avoiding the erroneous imposition of death sentences, and in a heightened degree ofreliability in death judgments. (Cf. United States v. Cronic, supra, 466 U.S.at pp. 656-659 [when counsel “entirely fails to subject the prosecution’s case to meaningful adversarial testing”and thetrial process “loses its character as a confrontation between adversaries,” the “trial process”itself becomes “unreliable” and producesan unreliable result].) A death qualification finding and death verdict which is the result of such an empty charadeis both constitutionally and morally intolerable. The special circumstance finding and death verdict mustbesetaside. // // 352 1,4 CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT MR. MAI’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION Manyfeatures of California’s capital-sentencing schemeviolate the United States Constitution. This Court consistently has rejected a number of arguments pointing out these deficiencies. In People v. Schmeck (2005) 37 Cal.4th 240, this Court held that what it considered to be “routine” challenges to California’s punishment scheme will be deemed “fairly presented”for purposes of federal review “even when the defendant does no morethan(i) 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(iii) 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, Mr. Maibriefly presents the following challenges to urge their reconsideration and to preserve these claims for federal review. Should the Court decide to reconsider any ofthese claims, Mr. Mai requests the right to present supplementalbriefing.’ 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 which the 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 '8 These claimsof error are cognizable on appeal undersection 1259, even when Mr. Maidid not seek the specific instruction or raise the precise claim asserted here. 353 genuinely narrow,by rational and objective criteria, the class of murderers eligible for the death penalty. (Zant v. Stephens (1983) 462 U.S. 862, 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 Mr. Mai, Penal Code section 190.2 contained nineteen special circumstances. Given the large numberof 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.) This Court should reconsider Stanley and strike down Penal Code section 190.2 and the current statutory schemeassoall-inclusive as to guarantee the arbitrary imposition of the death penalty in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution. B. The Broad Application Of Section 190.3, Factor(a), Violated Mr. Mai’s Constitutional Rights Penal Code Section 190.3, factor (a), directs the jury to consider in ageravation the “circumstances of the crime.” (See CALJIC No.8.85; 3 CT 725-726; 8 RT 1426.) Prosecutors throughout California have argued that the jury could weigh in aggravation almost every conceivable circumstance of the crime, even those that, from caseto case, reflect starkly opposite circumstances. Of equal importanceis the use of factor (a) to embracefacts which coverthe entire spectrum of circumstances inevitably present in every homicide; facts such as the age of the victim, the age of the defendant, the method ofkilling, the motive for the killing, the time of the killing, and the 354 location ofthe killing. This Court never has applied any limiting constructionto factor(a). (People v. Blair (2005) 36 Cal.4th 686, 7494 [circumstances of crime”not required to have spatial or temporal connection to crime].) Instead, the concept of “aggravating factors” has been applied in such a wanton and _ freakish manneralmostall features of every murdercan be and have been characterized by prosecutors as “aggravating.” As a result, California’s capital sentencing schemeviolates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution because it permits the jury to assess death upon nobasis other than that the particular set of circumstances surrounding the instant murder weresufficient, by themselves and without some narrowingprinciple, to warrant the imposition of death. (See Maynard v. Cartwright (1988) 486 U.S. 356, 363; but see Tuilaepa v. California (1994) 512 U.S. 967, 987-988 [factor (a) survived facial challenge at time of decision].) Mr. Mai is aware that the Court has repeatedly rejected the claim that permitting the jury to consider the “circumstancesof the 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; People v. Brown (2004) 33 Cal.4th 382, 401.) He urges the Court to reconsiderthis holding. C. The Death Penalty Statute And Accompanying Jury Instructions Fail To Set Forth The Appropriate Burden Of Proof 1. Mr. Mai’s Death Sentence is Unconstitutional Becauseit 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 ofthe penalty phase, except as to proofofprior 355 criminality. (CALJIC Nos. 8.86, 8.87; see People v. Anderson (2001) 25 Cal.4th 543, 590; People v. Fairbank (1997) 16 Cal.4th 1223, 1255; 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, Mr. Mai’s jury wasnot 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 imposea death sentence. (CALJIC No. 8.85; 3 CT 725-726; CALJIC No. 8.88; 3 CT 787.) Apprendi v. New Jersey (2000) 530 U.S. 466, 478, Blakely v. Washington (2004) 542 U.S. 296, 303-305, Ring v. Arizona (2002) 536 U.S. 584, 604, and Cunningham v. California (2007) 549 U.S. 270, 127 S.Ct.856, 864-865, 871, 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 doubt. In order to impose the death penalty in this case, Mr. Mai’s jury hadto 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; 3 CT 787; 7 RT 1468.) 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’s failure to so instruct the jury and thusfailed to explain the general principles of law “necessary for the jury’s understanding of the case.” (People v. Sedeno (1974) 10 Cal.3d 703, 715; see Carter v. Kentucky (1981) 450 U.S. 288, 302.) Mr. Maiis mindful that this Court has held that the imposition of the death penalty does not constitute an increased sentence within the meaning of 356 Apprendi (People v. Anderson (2001) 25 Cal.4th 543, 589, fn. 14), and does not require factual findings (People v. Griffin (2004) 33 Cal.4th 536, 595). This Court has rejected the argument that Apprendi, Blakely, and Ring impose a reasonable doubt standard on California’s capital penalty phase proceedings. (People v. Prieto (2003) 30 Cal.4th 226, 263.) Mr. Mai urges this Court to reconsider its 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 Amendment to California’s penalty phase proceedings, Mr. Mai contendsthat the sentencer of a person facing the death penalty is required by due process andthe 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 the Fourteenth Amendmentdue processor the Eighth Amendment requires that the jury be instructed that it must decide beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors and that death is the appropriate penalty. (People v. Blair (2005) 36 Cal.4th 686, 753.) Mr. Mai requests that the Court reconsiderthis holding. 2. Some Burdenof Proof is Required, or the Jury Should Have Been Instructed That There Was No Burden of Proof State law provides that the prosecution always bears the burden of proofin a criminal case. (Evid. Code, § 520.) Evidence Codesection 520 creates a legitimate state expectation as to the way a criminal prosecution will be decided, and therefore Mr. Mai is constitutionally entitled under the Fourteenth Amendmentto the burden ofproofprovided by that statute. (Cf. Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [defendant constitutionally 357 entitled to procedural protections afforded by state law].) Accordingly, Mr. Mai’s jury should have been instructed that the prosecution had the burden of persuasion regarding the existence of any factor in aggravation, whether aggravating factors outweighed mitigating factors, and the appropriateness of the death penalty, and that it was presumedthat life without parole was an appropriate sentence. CALJIC Nos.8.85 and 8.88, the instructions given here (3 CT 725, 787; 8 RT 1425-1426, 1468), fail to provide the jury with the guidance legally required for administration of the 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 ofproof or persuasion becausethe taskis largely moral and normative, and thus is unlike other sentencing. (People v. Lenart (2004) 32 Cal.4th 1107, 1136-1137.) This Court also has rejected any instruction on the presumption oflife. (People v. Arias (1996) 13 Cal.4th 92, 190.) Mr. Maiis entitled to jury instructions that comport with the federal Constitution and thus urges the court to reconsiderits decisions in Lenart and ~ Arias. Even presumingit were permissible not to have any burden of proof, the trial court erred prejudicially by failing to articulate that fact to the jury. (Cf. People v. Williams (1988) 44 Cal.3d 883, 960 [upholding jury instruction that prosecution had no burden ofproof in penalty phase under 1977 death penalty law].) Absent such an instruction,there is the possibility that a juror would vote for the death penalty because of a misallocation of a nonexistent burden ofproof. 358 3. Mr. Mai’s Death Verdict was Not Premised on Unanimous Jury Findings Imposing a death sentence violates the 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 (1978) 435 U.S. 223, 232-234; Woodson v. North Carolina (1976) 428 U.S. 280, 305.) This Court “has held that unanimity with respect to aggravating factors is not required by statute 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 People v. Prieto, supra, 30 Cal.4thatp. 275.) Mr. Maiasserts that Prieto was incorrectly decided, and that application ofRing’s reasoning mandates jury unanimity under the overlapping principles of the Sixth, Eighth, and Fourteenth Amendments. “Jury unanimity . . . is an accepted, vital mechanism to ensure that real and 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.).) The failure 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 her sentence, the jury must render a separate, unanimousverdict on the truth of such allegations. (See, e.g., § 1158a.) Since capital defendants are entitled to more rigorous protections than those afforded noncapital defendants (see Mongev. 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 359 a capital defendant violates the equal protection clause of the Fourteenth Amendment(see, e.g., Myers v. Y1st (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 enhancement finding 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 (1995) 11 Cal.4th 694, 763-764), would by its inequity violate the equal protection clause of the federal Constitution andby its irrationality violate both the due process and cruel and unusual punishmentclauses of the federal Constitution, as well as the Sixth Amendment’s guarantee ofa trial by jury. Mr. Mai asks the Court to reconsider Taylor and Prieto and require jury unanimity as mandated by the federal Constitution. 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 Mr. Mai hinged on whetherthe jurors were “persuadedthat the aggravating circumstancesare so substantial in comparison with the mitigating circumstancesthat it warrants death instead of life without parole.” (CALJIC No. 8.88; 3 CT 787.) The phrase “so substantial” is an impermissibly broad phrase that does not channelor limit the sentencer’s discretion in a manner sufficient to minimize the risk of arbitrary and capricious sentencing. Consequently, this instruction violates the Eighth and Fourteenth Amendments becauseit creates a standard that is vague and directionless. (See Maynard v. Cartwright (1988) 486 U.S. 356, 362.) This Court has found that the use of this phrase does not render the instruction constitutionally deficient. (People v. Breaux (1991) 1 Cal.4th 360 281, 316, fn. 14.) Mr. Mai asks this Court to reconsider that opinion. 5. The Instructions Failed to Inform the Jury that the Central Determination is Whether Deathis the Appropriate Punishment The ultimate question in the penalty phase of a capital case is whether death is the appropriate penalty. (Woodson v. North Carolina, supra, 428 US. at p. 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. These determinations are not the same. To satisfy the Eighth Amendment“requirement of individualized sentencing in capital cases” (Blystone v. Pennsylvania (1990) 494 U.S. 299, 307), the punishment must fit 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, jurors find death to be “warranted” whenthey find the existence of a special circumstance that authorizes death. (See People v. Bacigalupo (1993) 6 Cal.4th 457, 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.) Mr. Mai urges this Court to reconsiderthatruling. 6. The Penalty Jury Should be Instructed on the Presumption of Life The presumption of innocenceis a core constitutional and adjudicative value that is essential to protect the accused in a criminal case. (See Estelle v. Williams (1976) 425 U.S. 501, 503.) In the penalty phaseofa capital case, the presumption oflife is the correlate of the presumption of innocence. Paradoxically, however, although the stakes are muchhigherat the penalty 361 phase, there is no statutory requirement that the jury be instructed as to the presumptionoflife. (See Note, The Presumption ofLife: A Starting Point for Due Process Analysis ofCapital Sentencing (1984) 94 Yale L.J. 351; cf. Delo v. Lashley (1983) 507 U.S. 272.) Thetrial court’s failure to instruct the jury that the law favors life and presumes life imprisonment without parole to be the appropriate sentence violated Mr. Mai’s right to due process of law (U.S. Const., Amend. XIV), his right to be free from cruel and unusual punishment and to havehis sentence determined in a reliable manner (U.S. Const., Amends. VIII, XIV), and his right to the equal protection of the laws. (U.S. Const., Amend, XIV.) 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 cases, in part because the United States Supreme Court hasheld that “the state may otherwise structure the penalty determination asit seesfit,” 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 andreliable imposition of capital punishment. Therefore, a presumptionoflife instruction is constitutionally required in all cases. The need for such an instruction, and the prejudice from its omission, wasparticularly acute in this case. As discussed in Argument V, above, Juror Number12 readily admitted that death was the presumptively appropriate penalty in this case, and the defense would bear the burden of “proving”to her that Mr. Mai’s life should be spared. (5 CT 1413-1414, 1418, 1420; 5 RT 886-887.) Given these remarks, a presumptionoflife instruction wasvital and its omission violated Mr. Mai’s Eighth and Fourteenth Amendment rights. 362 D. Failing to Require That The Jury Make Written Findings Violates Mr. Mai’s Right To Meaningful Appellate Review Consistent with state law (People v. Fauber (1992) 2 Cal.4th 792, 859), Mr. Mai’s jury was not required to make any written findings during the penalty phaseofthe trial. The failure to require written or otherspecific findings by the jury deprived Mr. Maiofhis rights under the Sixth, Eighth, and Fourteenth Amendmentsto 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 (1976) 428 U.S. 153, 195.) This Court has rejected these contentions. (People v. Cook (2006) 39 Cal.4th 566, 619.) Mr. Mai urges the court to reconsiderits decisions on the necessity of written findings. E. The Instructions To The Jury On Mitigating And Aggravating Factors Violated Mr. Mai’s Constitutional Rights Manyofthe sentencing factors set forth in CALJIC No.8.85 were inapplicable to Mr. Mai’s case. Thetrial court failed to omit those factors from the jury instructions (3 CT 725; 8 RT 1425-1426),likely confusing the Jury and preventing the jurors from making anyreliable determination of the appropriate penalty, in violation of defendant’s constitutional rights. Mr. Mai asks the Court to reconsider its decision in People v. Cook, supra, 39 Cal.4th at p. 618, and holdthat the trial court must delete any inapplicable sentencing factors from the jury’s instructions. F. The Prohibition Against Inter-Case Proportionality Review Guarantees Arbitrary And Disproportionate Impositions Of The Death Penalty The California capital sentencing scheme doesnot require thateither the trial court or this Court undertake a comparison betweenthis and other 363 similar cases regarding the relative proportionality of the sentence imposed, i.e., inter-case proportionality review. (See People v. Fierro (1991) 1 Cal.4th 173, 253.) The failure to conduct inter-case proportionality review violates the Fifth, Sixth, Eighth, and Fourteenth Amendmentprohibitions against proceedings conducted in a constitutionally arbitrary, unreviewable manner or that violate equal protection or due process. For this reason, Mr. Mai 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 schemeprovides 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 unanimous and beyond a reasonable doubt, aggravating and mitigating factors must be established by a preponderanceofthe evidence, and the sentencer mustset forth written reasons justifying the defendant’s sentence. (People v. Sengpadychith (2001) 26 Cal.4th 316, 325; Cal. Rules of Court, rule 4.42, (b) & (e).) In a capital case, there is no burden ofproofat all, and the jurors need not agree on what aggravating circumstances apply nor provide any written findings to justify the defendant’s sentence. Mr. Mai acknowledgesthat this Court has rejected these equal protection arguments (People v. Manriquez (2005) 37 Cal.4th 547, 590), but he asks the Court to reconsiderits ruling. 364 H. California’s Use Of The Death Penalty As A Regular Form Of PunishmentFalls 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).” (People v. Cook, supra, 39 Cal.4th at pp. 618-619; People v. Snow (2003) 30 Cal.4th 43, 127; People v. Ghent (1987) 43 Cal.3d 739, 778-779.) In light of 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 punishment against defendants who committed their crimes as juveniles (Roper v. Simmons (2005) 543 U.S. 551, 554), Mr. Mai urgesthis Court to reconsider its previous decisions. H/ // 365 CONCLUSION Forall of the foregoing reasons, the judgment must be reversed. DATED: March 30, 2010 Respectfully submitted, MICHAEL J. HERSEK State Public Defender Deputy State Public Defender Attorneys for Appellant 366 CERTIFICATE OF COUNSEL Cal. Rules of Court, rule 8.630 I, C. Delaine Renard, am the Deputy State Public Defender assigned to represent appellant, Hung Thanh Mai, in this automatic appeal. On August 25, 2009, this Court granted my motionto file appellant’s opening brief in excess of the 102,000-word limit specified in Rule 8.630, subd. (b)(1)(A) of the California Rules of Court up to 112,000 words. I directed a memberof our staff to conduct a word countofthis brief using our office’s computer software. Onthe basis of that computer-generated word count, I certify that this brief is 110,013 wordsin length. —_--~.. : a ww aT Dated: March 30, 2010 IBSa \ \ NN ‘ C. DELAINE RENARD Attorney for Appellant 367 DECLARATION OF SERVICE Re: People v. Hung Thanh Mai Cal. Supreme Ct. No. S089478 Orange Co. Superior Ct. No. 96NF1961 I, Kecia Bailey, declare that I am over 18 years of age, and not a party to the within cause; my business address is 221 Main Street, 10" Floor, San Francisco, California, 94105, that I served a true copy ofthe attached: APPELLANT’S OPENING BRIEF on each ofthe following, by placing the same in an envelope addressed (respectively) as follows: Adrienne Denault, D.A.G. Hon.Francisco P. Briseno Office of the Attorney General Orange County Superior Court P. O. Box 85266 P. O. Box 22024 110 West “A” St., Ste. 1100 700 Civic Center Dr. W. Dept. C-45 San Diego, CA 92186-2024 Santa Ana, CA 92702-2024 Verna Wefald Attorney at Law Hung Thanh Mai 65 N. Raymond Ave., # 320 (Appellant) Pasadena, CA 91103 Each said envelope was then, on March 30, 2010, sealed and deposited in the United States Mail at San Francisco, California, the county in which I am employed, with the postage thereon fully prepaid. I declare under penalty of perjury that the foregoingis true and correct. Executed on March 30, 2010, at San Francisco, California. Yih Fil DECLARANT
