PEOPLE v. MAI (HUNG T.)

Appellant’s Reply Brief

Cal.June 28, 2012

SUPREME COURT COPY COPY IN THE SUPREME COURT FOR THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, No. $089478 = (Orange County Sup.Ct. HUNG THANH MAI, No. 96NF1961) Defendant and Appellant. SUPREME COURT FILED APPELLANT’S REPLY BRIEF JUN 28 2012 Frederick K. Ohirion Grar Appeal from the Judgment of the Superior Court of HeFiGk K. Ohiirion Clerk the State of California for the County of Orange = Bega HONORABLE RICHARD WEATHERSPOON MICHAEL J. HERSEK State Public Defender C. DELAINE RENARD State Bar No. 1699893 Senior Deputy State Public Defender 1111 Broadway, 10" Floor Oakland, California 94607 Telephone: (510) 267-3300 Renard@ospd.ca.gov Attorneys for Appellant TABLE OF CONTENTS Page THE JUDGMENT MUST BE REVERSED BECAUSE MR. MAI’S COUNSEL LABORED UNDER AN ACTUAL CONFLICT OF INTEREST IN VIOLATION OF HIS RIGHTS UNDER ARTICLEI, SECTION 15 AND THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS 2.0...ccceee ] A. Introduction .. 0.0... 0...ee eee eee enn nes ] B. The Record Demonstrates the Existence of Potential Conflicts of Interest That Posed a Grave Dangerof Improperly Influencing Counsel’s Representationof Mr. Mai...eeeee en een eens 3 l. An Actual Conflict is Shown by the Effect a Potential Conflict Actually Had on Counsel’s Performance 1... 0... ceeceeee 3 2. Defense Investigator Daniel Watkins’s Indictment, Allegations Against Defense Counsel, andOther Evidence of Their Wrongdoing Related to Mr. Mai’s Crimes Created A Conflict of Interest that Carried a Grave Potential to Adversely Affect Counsel’s Representation ....... 0.0... c eee ee 4 a. Respondent Erroneously Contends That There Was No Conflict Because Watkins Neither Admitted His Own Culpability Nor AllegedThat Defense Counsel Were Culpable in the Alleged Conspiracy to Kill the State Witness ..............0000. 7 TABLE OF CONTENTS Page b. Respondent Erroneously Contends That There Was NoPotential Conflict Because Defense Counsel “Denied Any Knowledge of Watkins Conspiring with Mai” and Were Not Charged or Indicted for Any Wrongdoing Relating toMr. Mai’s Crim€S 2...eee ees 13 c. Respondent’s Erroneously Contends That Watkins’s Statements and Allegations Against Defense Counsel, Made in Writing Through His Own Attorney, Were Insufficient to Create a Potential Conflict Because They Amounted to “Multiple Layers of Hearsay for Which There Is No Exception” 2.0... 0... cee eee ees 17 3. Defense Counsel’s Simultaneous Representation of One of Mr. Mai’s Indicted Co-Conspirators, Ms. Pham, In Her Substantially Related Federal Sentencing Proceedings In Which They Actively Represented an Interest Adverse to Mr. Mai’s Best Interests in This Case Added to And Compoundedthe Conflicts Defense Counsel Faced...ce ees 19 The Trial Court Failed Adequately to Inquire into the Conflicts and the Record Fails to Demonstrate that Mr. Mai Knowingly andIntelligently Waived His Right to Representation By Counsel Uninfluenced by the Conflicts Raised on this Appeal ........ 0.0.00. 0a eee 23 ii TABLE OF CONTENTS Page Respondent Fails to Dispute That the Court’s Inquiry Was Limited to the Witness/Advocate Conflict and thus Fails to Dispute that the Court Failed to Discharge Its Duty to Inquire Into the Related Attorney Wrongdoing And Other Conflicts Created By the Related Federal Conspiracy Prosecution .. 0.0... cece cee eee 24 Respondent’s Contention That Mr. Mai Knowingly and Intelligently Waived His Right to the Effective Assistance of Counsel Unencumberedby the Conflicts Raised on this AppealIs Belied by the Record and the Law ............. cece eee aes 32 Respondent Misconstrues the Showing Necessary To Demonstrate that a Potential Conflict Ripened into An Actual One By Influencing, and Thus Adversely Affecting, Counsel’s Performance ...............-... 36 The Potential Conflicts Ripened into Actual Ones by Adversely Influencing Defense Counsel’s Decisions During the Pre-Plea and Plea Proceedings ............. 44 The Conflicts of Interest Influenced, and Thus Adversely Affected, Defense Counsel’s Decision to Insist that No Competency Proceedingsbe Initiated Despite Their Repeatedly Expressed Belief that Mr. Mai was Not Capable of Rationally Assisting in His Own Defense ..... 51 The Conflict of Interests Influenced, And Thus Adversely Affected, Defense Counsel’s Penalty Phase Performance ....... ceeeteees 55 1. Respondent Ignores, and Thus Does Not Dispute, Counsel’s Compelling Personal Interests to Avoid an Adversarial Penalty Trial At the Cost of Mr. Mai’s Life 26... 2eceee eee 55 ili TABLE OF CONTENTS Page 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 Obtain a Death Verdict ..cceeee59 a. Counsel Failed to Ensure that Mr. Mai’s Decisions Were Rational and Competent ... 61 b. CounselFailed to Investigate Critical “Red- Flagged” Evidence and Ensure That Mr. Mai’s Decisions Were Fully Informed ..... 62 C. Counsel Failed to Make Any Meaningful Effort to Dissuade Mr. Mai From Stipulating to the Death Penalty And Instead Effectively Encouraged That Wish ..............05. 65 There Were Plausible Alternatives to Defense Counsel’s Own Decision to Forgo Any Penalty Phase Defense and Effectively Stipulate to the Death Penalty ....... 0... cece ene 68 The “Actual Conflict” Here Warrants Application ~ of the Sullivan Limited Presumption of Prejudice........ 74 1. Application of the Sullivan Limited Presumption Turns on Its Purpose .. 1... eeeeee 74 The Sullivan Presumption is Necessary Here to Assure the Vindication of Mr. Mai’s State and Federal Constitutional Rights to Counsel ......... 80 Alternatively, Even if the Strickland Standard of Prejudice Applies, The Actual Conflicts Undermine Confidence in the Outcomeof the Proceedings and Demand Reversal ......... 0.0 cece eens 82 iv I Ul TABLE OF CONTENTS Page THE TRIAL COURT’S TRUE FINDING ON THE SOLE SPECIAL CIRCUMSTANCE UNDER PENAL CODE SECTION 190.2, 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........ 84 A. ‘“TQjuestions of the Sufficiency of the Evidence Are Not Subject to Forfeiture” ................ene 85 B. The Official Duty Presumption Does Not Apply, and Indeed Cannot Constitutionally be Applied, to Relieve the Prosecution of its Burden of Proving Beyond a Reasonable Doubt The “Lawful Performance of Duties” Element of Section 190.2, subdivision (a)(7) ..... 87 C. The Absence of Evidence to Prove the Reasonfor, and Thus Lawfulnessof, the Detention During Which the Officer Was Killed .... 0.0... ce eee ee eee 91 D. Evenif the Officer Did Detain Mr. Mai for Driving Without Illuminated Headlights, The Prosecution Presented No Evidence to Prove that the Detention was Lawful...c ete ee 96 DEFENSE COUNSEL’S CONSENT TO MR. MAI’S SLOW PLEA TO THE SOLE SPECIAL CIRCUMSTANCE ALLEGATION AND FAILURE TO ARGUE OR PRESENT EVIDENCE IN SUPPORT OF A REASONABLE DOUBT DEFENSE VIOLATED MR. MAI’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL AND DEMANDS THAT THE SPECIAL CIRCUMSTANCEBE SET ASIDE AND THE DEATH JUDGMENT REVERSED .................. 101 IV THE DEATH JUDGMENT MUST BE REVERSED BECAUSE TABLE OF CONTENTS Defense Counsel’s Consent to the Slow Plea Without Arguing that the Preliminary Hearing Evidence Left Reasonable Doubt Regarding the Truth of the Sole Special Circumstance Allegation Deprived Mr. Mai of His State and Federal Constitutional Rights to the Effective Assistance of Counsel ............. 00 ce eee 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 ...........00000 0 eee THE TRIAL COURT VIOLATED MR. MAI’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A RELIABLE DEATH VERDICT BY FAILING TO A. B. Introduction .... 0... ccc eee ee eee ee eee The Evidence Before the Court Was Sufficient to Raise Reasonable Doubt that Mr. Mai was Able to Rationally “Consult with Counsel and to Assist in Preparing His Defense” oo.eeeeee nee eee 1. Dr. Thomas’s Professional Opinion That Mr. Mai Was Unable to Assist Counsel in the Preparation of His Defense Was Substantial Evidence Triggering the Trial Court’s Sua Sponte Duty to Initiate Competency Proceedings 2. The Totality of the Evidence Before the Trial Court Triggered Its Sua Sponte Duty to Initiate Competency Proceedings ....... 0.60.00 eevee vi Page 102 110 JTNITIATE COMPETENCYPROCEEDINGSSUA SPONTE.. 117 117 118 . 120 128 TABLE OF CONTENTS Page Neither the Trial Court’s Subjective Impressions of Mr. Mai’s Demeanor During a Short Portion ofTrial nor Defense Counsel’s Nonsensical Insistence that Competency Proceedings were Unnecessary Relieved the Trial Court of its Independent Duty to Initiate Competency Proceedings .... 0.0... 0.00. eee ee eee 138 Respondent Does Not Dispute that if the Trial Court Violated State Law and the Federal Constitution By Failing to Initiate Competency Proceedings, Remand for a Retrospective Competency Hearing is Inappropriate and Reversal Per Se of the Death Judgmentis Required .... 0.0...eectee ens 140 THE DEATH JUDGMENT MUST BE REVERSED BECAUSE THE TRIAL COURT VIOLATED STATE LAW AND THE EIGHTH AND FOURTEENTH AMENDMENTS BY PERMITTING MR. MAI TO PRESENT AN IRRELEVANT AND INFLAMMATORY STATEMENT TO THE JURORS THAT DEATH WAS THE APPROPRIATE PENALTY IN THIS CASE ...... 0.2 ccc eee nee 142 A. Introduction 2... 0... cee eee ee ete eee ees 142 B. A Defendant Has No Right to Testify to Irrelevant Opinion Evidence that Death is the Appropriate Penalty 2.0...ecteee eens 144 Mr. Mai’s Opinion Testimony that Death Was the Appropriate Penalty Was Offered and Utilized as Aggravating Evidence Weighing in Favor of Death In Violation of State Law and the Federal Constitution .... 150 vil VI TABLE OF CONTENTS D. The Trial Court Violated Its Independent Duty to Deny Mr. Mai’s Request and Exclude His Testimonythat Death Was the Appropriate Penalty, Which was Not Relieved by Or Invited by the Actions of Mr. Mai or his Counsel... 0.0... 00. cece eee eee teen eee 154 E, The Death Judgment Must be Reversed .............. 158 THE SEATING OF A BIASED JUROR VIOLATED MR. MAI’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR AND RELIABLE PENALTY TRIAL BY AN IMPARTIAL JURY AND DEMANDS REVERSAL OF THE DEATH JUDGMENT .. 0.0... 6ceee 159 A. Introduction .... 0... cece eee eee ees 159 B. Respondent’s Contention that Juror Number 12 Was Not Actually Biased Misconstrues Mr. Mai’s Challenge on Appeal, Ignores or Distorts the Facts and the Law on Which that Challenge is Based, and is Unsupported by Any Meaningful Legal Analysis ...............0.05. 160 1. Mr. Mai’s Claim on Appeal and the Governing Legal Principles ... 0.0.0.0... ccc ee eee 160 2. Respondent’s Contention That Juror Number 12 Was Not Actually Biased Is Based a Recitation of the Facts That Is Incomplete, Inaccurate, Misleading, or Irrelevant, Is Unsupported by Any Meaningful Legal Analysis, and Must Be Rejected 2...cee 165 C. Because Juror Number 12 Was Actually Biased, the Death Judgment Cannot be Executed Notwithstanding Defense Counsel’s Failure to Move to Exclude Him For Cause ... 175 Vili Vu TABLE OF CONTENTS Page THE TRIAL COURT’S DENIAL OF MR. MAI’S WHEELER/BATSON MOTION VIOLATED STATE LAW AND THE SIXTH AND FOURTEENTH AMENDMENTS AND DEMANDSREVERSAL OF THE DEATH JUDGMENT..... 0.000ceeeee ees 184 A. B. Introduction ......... 0. c eee eee ee eee ee ees 184 The Trial Court Violated State Law and the Federal Constitution By Denying the Wheeler/Batson Without Conducting the Constitutionally Mandated Third Step And Ruling on the Issue of Discriminatory Intent....... 186 I. Respondent Begs the Fundamental Question of Whether the Trial Court Erroneously Terminated The Wheeler/Batson Analysis at Step Two and Failed to Conduct the Third Step .............. 186 Given the Affirmative Record Evidence That the Trial Court Failed to Conduct the Third Step of the Wheeler/Batson Analysis, No Contrary Presumption May be Drawnfrom its Mere Denial of the Motion ....................005 188 The Prosecutor’s Facially Race-Neutral Explanations Were Contradicted or Unsupported by the Record, Raised Credibility Questions or Otherwise DemandedInquiry and Findings By the Trial Court, the Absence of Which Further Demonstrates that the Court Failed to Conduct the Third Step of the Wheeler/Batson Analysis ... 193 a. Prospective Juror M.H. .............05, 195 b. Prospective JurorP.F. wo... 2. eee ee. 199 C. Prospective JurorL.P.... eee 204 TABLE OF CONTENTS Page C. Respondent Does Not Dispute That If the Trial Court Failed to Conduct the Third Step of the Wheeler/Batson Analysis, the Death Judgment Must Be Reversed Without Remand ........ 0.0.0...eee 206 VU THE DEATH ELIGIBILITY FINDING AND DEATH VERDICT VIOLATE THE STATE’S INDEPENDENT INTERESTS IN THE FAIRNESS AND RELIABILITY OF ITS CAPITAL PROCEEDINGS AND VERDICTS UNDER STATE LAW AND THE EIGHTH AND FOURTEENTH AMENDMENTS AND MUSTBE SET ASIDE00.netees 208 IX CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT MR. MAI’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION 2.0.0.0...eee216 CONCLUSION 2.0...cccteen tenes 217 TABLE OF AUTHORITIES Page(s) FEDERAL CASES” Adams v. Texas 448 US. 38 ooeeeeee e eee eee e ene 162 Alberni v. McDaniel (9th Cir. 2006) 458 F.3d 860 «0.0...eee5,78 Batson v. Kentucky (1986) 476 U.S. 79 2... eeeDente ere eee ees 184 Baze v. Rees (2008) 553 U.S.35, fn.14teed 198 Beck v. Alabama (1980) 447 US. 625-0.ettene e eens 146 Bell v. 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Mantello (2nd Cir. 2009) 552 F.3d 236.0... eccee passim Douglas v. Woodford (9th Cir. 2003) 316 F.3d 1079 2...eee passim Drope v. Missouri (1975) 420 U.S. 162...cettenee passim xii TABLE OF AUTHORITIES Page(s) Estelle v. McGuire (1991) 502 U.S.62.eeetenet e eens 89 Faretta v. California (1975) 422 U.S. 806 0.cecene eens 212 Florida v. JL. (2000) 529 U.S. 266 0.ceeee een eens 9] Florida v. Royer (1983) 460 U.S. 4910.tenet e teens 92 Franklin v. Anderson (6th Cir..2006) 434 F.3d 412 .......eee e neve ees 162, 179, 181, 182 Freund v: Butterworth (11th Cir. 1999) 165 F.3d 839 0.0...ceeees 41 Furman v. Georgia (1972) 408 U.S. 238 & fn. 20 2.eee 198 Garcia v. Bunnell (9th Cir. 1994) 33 F.3d 1193 2...ete23 Gardnerv. Florida (1977) 430 U.S. 349 occeee tenet een ees 208 Glasser v. United States (1942) 315 U.S. 602.eeeeens passim Gomez v. United States (1989) 490 US. 858 20eeeeee ene 175, 178 Gray v. Mississippi (1987) 481 U.S. 648 20cetteteens 178 Hall v. United States (7th Cir. 2004) 371 F.3d 969ee79 Xi TABLE OF AUTHORITIES Page(s) Hernandez v. New York (1991) 500 U.S. 352 .eee185, 191 Herring v. New York (1975) 422 U.S. 853 teeens 210 Holloway v. Arkansas (1978) 435 U.S.475 20eeeas 19, 26, 47 Houk v. Franklin (2007) 549 U.S. 11562.eae182 Hovey v. Ayers (9th Cir. 2006) 458 F.3d 892 22...ees39, 43 Hughes v. United States (6th Cir. 2001) 258 F.3d 453 2...eee passim Hummel v. Rosemeyer (3d Cir. 2009) 564 F.3d 290.0...eeene 55 Illinois v. Allen (1970) 397 U.S.3372.eenteens 72 Illinois v. Rodriguez (1990) 497 U.S. 177oeeens 91 In re Murchison (1955) 349 U.S. 133 20.ceeee eens 178 Indiana v. Edwards (2008) 554 U.S. 164 26.eeees 146, 208, 211, 212 Irvin v. Dowd (1961) 366 U.S. 717oeeens 163, 166 Jackson v. Virginia (1979) 443 U.S. 307 20.eens92,95, 101 Xiv TABLE OF AUTHORITIES Page(s) Jermyn v. Horn (3d Cir. 2001) 266 F.3d 257.0.ceeeen eee 53 Johnson v. Armontrout (8th Cir. 1992) 961 F.2d 748 0...eee 163, 167, 174 Johnson v. California (2005) 545 U.S. 162 00.cceee eee nen ans 199 Johnson v. Mississippi (1988) 486 U.S.578oottneee een nas 143 Johnson v. Zerbst (1938) 304 U.S. 458 00.ceeeen ener as 24, 32 Jones v. Barnes (1983) 463 ULS. 745 ooteeee eet ens 68, 211 Jordan v, Lefevre (2nd Cir. 2000) 206 F.3d 196...... 0... ccc eee tenes 189 Kesser v. Cambra (9th Cir. 2006) 465 F.3d 351 2.0...ceeen 204 Lewis v. Lewis (9th Cir. 2003) 321 F.3d 824 2.0... eee ee eee 188, 189, 193 Lewis v. Mayle (9th Cir. 2004) 391 F.3d 989 0...eee nee 42 Lockett v. Ohio (1978) 438 U.S. 586 00cceee eee eee eens 210 Lockhart v. Fretwell (1993) 506 U.S. 364 00.cc ce eee tee eee e nee 83 Lockhart v. McCree (1986) 476 U.S. 162.eeeeee ees 164, 167 XV TABLE OF AUTHORITIES Page(s) Lockhart v. Terhune (9th Cir. 2001) 250 F.3d 1223 0...ee33, 35 MacKennav. Ellis (Sth Cir. 1960) 280 F.2d 592 20.eee 182 Madrid v. Gomez (N.D. Cal. 1995) 889 F.Supp. 1146 0.0...eee 135 Mannhalt v. Reed (9th Cir. 1988) 847 F.2d 576 oo.ceeees 47, 57 Massaro v. United States (2003) 538 U.S. 500 .eeeens 115 Massie v. Sumner (9th Cir. 1980) 624 F.2d 72 2.eenee 211 Maxwell v. Roe (9th Cir. 2010) 606 F.3d 561 2...eeeeee passim McCain v. Prunty (9th Cir. 2000) 217 F.3d 1209 2...nee 189 McCurdy v. Montgomery County, Ohio (6th Cir. 2001) 240 F.3d 512 2...eeeeee 201 McGregor v. Gibson (10th Cir. 2001) 248 F.3d 946 20...eeeeee passim Medinav. California (1992) 505 U.S. 437ooees119 Mickens v. Taylor (2002) 535 U.S. 162occeee eee eee nas passim Mickens v. Taylor (4th Cir. 2001) 240 F.3d 348 ....ceeee4l xvi TABLE OF AUTHORITIES Page(s) Miller ex. rel. Jones v. Stewart (9th Cir. 2000) 231 F.3d 1248 0...eceee 118 Miller v. Webb (6th Cir. 2004) 385 F.3d 666 ........ 0.0... eee 163, 167, 176, 181 Miller-El v. Cockrell [‘““Miller-El I”] (2003) 537 U.S. 3220.tettet eenes 194 Miller-El vy. Dretke [“Miller-El II] (2005) 545 US. 231 ooceeee eens passim Moore v. United States (9th Cir. 1972) 464 F.2d 663 0...ceeeens 129 Morgany.Illinois (1992) 504 U.S. 719 occete eee e eee es 164, 17 Moss v. United States (6th Cir. 2003) 323 F.3d 445 0...cee4] New York v. Hill (2000) S28 U.S. L10eee211 Nix v. Whiteside (1986) 475 U.S.157cetteeet eens 82 Odle v. Woodford (9th Cir. 2001) 238 F.3d 1084 20...eee61, 64 Osborn v. Shillinger (10th Cir, 1988) 861 F.2d 612 2...ceenee 66 Pate v. Robinson (1966) 383 U.S.375 2...eens 64, 117, 119; 133 Patton v. United States (1930) 281 U.S. 276 0... ccccette teens 178 XVil TABLE OF AUTHORITIES Page(s) Patton v. Yount (1984) 467 U.S. 10252.ceteens 167 Paulino v. Castro (9th Cir. 2004) 371 F.3d 1083 2...cceee 199 Payne v. Tennessee (1991) 501 ULS. 808 2.ces142, 148, 149 Perillo v. Johnson (5th Cir. 2000) 205 F.3d 775...eens41 Porter v. McCollum (2009) 558 U.S.130 S.Ct.447eeeee 60 Portundo v. Agard (2000) 529 U.S. 61 0.eesSeen ees 147 Purkett v. Elem (1995) 514 US. 765oes184, 191 Reyes-Vejarano v. United States (Ist Cir. 2002) 276 F.3d 94 2...eens41 Riley v. Taylor (3d Cir. 2001) 277 F.3d 261 2...eens 187, 189 Ring v. Arizona (2002) 536 U.S. 584ooeeeeres 87 Rock v. Arkansas (1987) 483 U.S. 4400cceee 145, 146, 147 Rompilla v. Beard (2005) 545 U.S.374ooeeee eee 63, 64 Rose v. Clark (1986) 478 U.S.5700.ceeeee nes 89 XViii TABLE OF AUTHORITIES Page(s) Rubin v. Gee (4th Cir. 2002) 292 F.3d 396 0...ecees passim Sanders v. Ratelle (9th Cir. 1994) 21 F.3d 1446 0...cccea 39 Sears v. Upton (2010). US. 130 S.Ct. 3259 Loeee60 Selsor v. Kaiser (10th Cir. 1996) 81 F.3d 1492 2...eee24 Simmons v. South Carolina (1994) 512 U.S. 1540.cenceae 151 Skipper v. South Carolina (1986) 476 U.S. Lone eceees 152 Snyder v. Louisiana (2008) 552 U.S. 4720.eens passim Speedy v. Wyrick (8th Cir. 1983) 702 F.2d 723 0...teeee 129 Strickland v. Washington (1984) 466 U.S. 668 2...eteeee ees passim Thomasv. Folz (6th Cir. 1987) 818 F.2d 476 00.eee39, 41 Thompkins v. Cohen (7th Cir. 1992) 965 F.2d 330 2...cecetenes 7 Thompson v. Altheimer & Gray (7th Cir. 2001) 248 F.3d 621 1... eeeeee 163, 167, 174 Thompson v. Wainwright (11th Cir. 1986) 787 F.2d 1447 0...eee 60, 63, 64 XIX TABLE OF AUTHORITIES Page(s) Torres v. Prunty (9th Cir. 2000) 223 F.3d 1103 2...eee passim Tueros v. Greiner (2nd Cir. 2003) 343 F.3d 587.0...ceeens 78 Turrentine v. Mullen (10th Cir. 2004) 390 F.3d 1181 0...ceeees 80 United States v. Alanis (2003) 335 F.3d 965 2...eeeeee tenes 189 United States v. Atkinson (1936) 297 U.S. IST ooeeeeee eens 176 United States v. Boigegrain (10th Cir. 1998) 155 F.3d L181]oeeee 53, 60 United States v. Bowie (10th Cir. 1990) 892 F.2d 1494 2...ccee ees 41 United States v. Byrd (11th Cir. 2005) 403 F.3d 1278 0...ee147 United States v. Cancilla (2nd Cir. 1984) 725 F.2d 867 2...eeees 67 United States v. Christakis (9th Cir. 2001) 238 F.3d 1164 2.0...eee46, 47 United States v. Cirrincione (7th Cir. 1985) 780 F.2d 620 2...ees4} United States v. Cronic (1984) 466 U.S. 648 2... eee eecece nee ene eee eees 210 United States v. DeFalco (3d Cir. 1979) 644 F.2d 132.0...eee42,73 XX TABLE OF AUTHORITIES | Page(s) United States v. Dunnigan (1993) 507 U.S. 870.netteens 147 United States v. ex rel. Darcy v. Handy (3d Cir. 1953) 203 F.2d 4072.eee 140, 157 United States v. Fulton (2nd Cir. 1993) 5 F.3d 605 2...eens passim United States v. Gambino (3rd Cir. 1988) 864 F.2d 1064 1...eeeeee 4] United States v. Greig (5th Cir. 1992) 967 F.2d1018 0.0... eee eaeeee eens 7 United States v. Hall (7thCir. 2004) 371 F.3d 969 0.0...ieee4] United States v. Hobson (11th Cir. 1982) 672 F.2d 825 2...ees 19, 57 United States v. Infante (Sth Cir. 2005) 404 F.3d 376 0... eceee een ee 79 United States v. John (7th Cir. 1984) 728 F.2d 953 1.teens 139 United States v. Jones (2nd Cir. 1990) 900 F.2d 512... 0... ceeeee 14 United States v. Leon (1984) 468 U.S. 897 eene tees 99 United States v. Levy (2nd Cir. 1994) 25 F.3d 146.0...oeeens 7, 12, 45, 57 United States v. Lopez-Soto (9th Cir.2000) 205 F.3d 1101 2... eee eee ee eee 99, 100 XX] TABLE OF AUTHORITIES Page(s) United States v. Loyola-Dominguez (9th Cir. 1997) 125 F.3d 1315 2...ccccena 119 United States v. Malpiedi (2nd Cir. 1995) 62 F.3d 465 0.0...eeeeee passim United States v. Mason (4th Cir. 1995) 52 F.3d 1286 2.0...eee 129 United States v. Merlino (3rd Cir. 2003) 349 F.3d 144 0...eens7,31 United States v. Moreno (9th Cir. 1996) 102 F.3d 994 22.eee 146, 147 United States v. Mota-Santana- (ist Cir. 2004) 391 F.3d42 0...etnies 78 United States v. Nelson (2nd Cir. 2002) 277 F.3d 164.0... 00.ceeeee 178, 179 United States v. Nicholson [‘‘Nicholson I’’] (4th Cir. 2007) 475 F.3d 241 2...eas37 (United States v. Nicholson [“‘Nicholson I?’] (4th Cir. 2010) 611 F.3d 191 0...eee 40, 41, 42, 78 United States v. Perez (2nd Cir. 2003) 325 F.3d 115 2...eens78 United States v. Pierce (Sth Cir. 1992) 959 F.2d 1297 0...cee70 United States v. Register (11th Cir. 1999) 182 F.3d 820 2...eeeee 7 United States v. Ross (1876) 92 U.S. 2810eeeete 89 XXii TABLE OF AUTHORITIES Page(s) United States v. Rutledge (7th Cir. 2011) 648 F.3d 555 2...eee passim United States v. Shwayder (9th Cir. 2002) 312 F.3d 1109 0...ee21,57, 74 United States v. Sithongtham (8th Cir. 1999) 192 F.3d 1119 2...eee 163, 167 United States v. Swanson (9th Cir. 1991) 943 F.2d 1070 2...ee66 United States v. Torres (2nd Cir. 1997) 128 F.3d 38 ......0.02 162, 176, 181 United States v. Twilley (9th Cir. 2000) 222 F.3d 1092 2...eee99 United States v. Washington (8th Cir. 2006) 455 F.3d 824 2...ceeeee 99, 100 United States v. Wells (9th Cir. 2005) 394 F.3d 725 2... ceetes40 United States v. White (5th Cir. 1983) 706 F.2d 506 2...eens 34 United States v. Williams (10th Cir. 1997) 113 F.3d 1155 2...ceeeee 134 United States v. Williams (2nd Cir. 2004) 372 F.3d 96 0...ceceeee 46, 47 United States v. Wood (1936) 299 U.S. 123 20.teens 162 United States v. Young (1985) 470 U.S. 1cctenets 143, 155 XX1li TABLE OF AUTHORITIES Page(s) Virgil v. Dretke (Sth Cir. 2006) 446 F.3d 598 2.ceeeens 182 Wainwright v. Witt (1985) 469 ULS. 4120ee160, 162, 164 Wheat v. United States (1988) 486 U.S. 1530ees22, 30, 31, 39 White v. Mitchell (6th Cir. 2005) 431 F.3d S17 2.eee167 Whren v. United States (1996) 517 U.S. 806 .ees50, 91, 99 Wiggins v. Smith (2003) 539 U.S. 5102.eeees 63, 64 Williams v. Florida (1970) 399 U.S. 780.tenes 178 Williams v. Taylor (2000) 529 U.S. 362 2...tenes 83 _ Williams v. Woodford (9th Cir. 2004) 384 F.3d 567 2...eeeeae 63, 64 Winfield v. Roper (8th Cir. 2006) 460 F.3d 1026 2...ceeene 4] Winkler v. Keane (2d Cir. 1993) 7 F.3d 304...........beet eee eee 41,47 Witherspoonv.Illinois (1968) 391 U.S. 510...........eee e nett eens 160, 164 Wolfe v. Brigano (6th Cir. 2000) 232 F.3d 499 .0.eee 167 XXIV TABLE OF AUTHORITIES Page(s) Wood v. Georgia (1981) 450 U.S. 2610.eneees passim Zant v. Stephens (1983) 462 U.S. 8620.eteeas 143, 153 STATE CASES Acosta v. State (Tex.Crim.App. 2007) 233 S.W.3d 349.0...ee78 Air Couriers Inter. v. Employment Development Dept. (2007) 150 Cal.App.4th 923 2...eeenes 17] Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, fn. 12 2eees 115 Badillo v. Superior Court (1956) 46 Cal.2d 269 0...eetenna 88 Bunnell y. Superior Court (1975) 13 Cal.3d 592 2...ccteens passim California Advocatesfor Nursing Home Reform v. Bont (2003) 106 Cal.App.4th 498 20...eee89 Commonwealth v. McKenna (PA 1978) 383 A.2d 174 0...eeete ee 157 In re Barnett (2000) 31 Cal.4th 466 0.0... eeeeee ee ene 68 In re Carpenter (1995) 9 Cal.4th 634 oo...ceeeee tenes 175 In re Gay (1998) 19 Cal.4th 771 0.eeeeee ee 7, 26, 66 XXV TABLE OF AUTHORITIES Page(s) Inre Gregory A. (2005) 126 Cal.App.4th 1554 2.eens 86 In re Harris (1993) 5 Cal.4th 813 2...eeees 83, 115 In re Hitchings (1993) 6 Cal.4th 97 ootte178 In re Manuel G. (1997) 16 Cal.4th 805 2.0...eeeee 49,91 In re Tommy E. (1992) 7 Cal.App.4th 1234 2...eeeeee 86, 102 In the Matter ofJones (Review Dept. 1993) 2 Cal. St. Bar Ct. Rptr. 411] 2.eeeee 6.2 13 Norgart v. Upjohn Co. (1999) 21 Cal.4th 383 oo.cee156, 157 People v. Alfaro (2007) 41 Cal.4th 1277 2...eee passim People v. Avila (2006) 38 Cal.4th 49) 22.ceeee 145, 167 People v. Bloom (1989) 48 Cal.3d 1194 2...eee210, 212 People v. Bonin (1989) 47 Cal.3d 808 2...ceneens 19 People v. Boyd (1985) 38 Cal.3d 762 2.eens 153 People v. Boyette (2002) 29 Cal.4th 318 2...cceens 168, 169 XXVI1 TABLE OF AUTHORITIES Page(s) People v. Brendlin (2008) 45 Cal.4th 262 .......eenete tent eeeeenes 98 People v. Burgener (1986) 41 Cal.3d 505 2...ceeteenies 213 People v. Burgos (2004) 117 Cal.App.4th 1209 0...eens 112 People v. Butler (2003) 31 Cal.4th 1119 2...ccceee eee eens 85 People v. Carlussi (1979) 23 Cal.3d 249 2.eens 143, 155 People v. Chadd (1981) 28 Cal.3d 739 0... ce ccc cette eens passim People v. Champion (1995) 9 Cal.4th 879 0cetteteens 176 People v. Clair (1992) 2 Cal.4th 629oeeee nee eres 17, 155 People v. Clark (1992) 3 Cal4th 41 occetn e een ene 33, 154 People v. Collins (2001) 26 Cal.4th 297.0...ccceee ns 178 People v. Cox (2008) 168 Cal.App.4th 702 2.0...ceceeee eee 99 People v. Cox (1991) 53 Cal.3d 618 oo.ccette eee eens 177 People v. Curtis (1969) 70 Cal.2d 347 0...ccctener teens 91 XXV11 TABLE OF AUTHORITIES Page(s) People v. Danielson (1992) 3 Cal.4th 691 2.eeeeee passim People v. Deere (1985) 41 Cal.3d 353 2.0eee210, 213, 215 People v. Doolin (2009) 45 Cal.4th 390 2...eeeete passim People v. Dunkle (2005) 36 Cal.4th 861 2...eeete 156 People v. Easley (1988) 46 Cal.3d 712 0...eeeteens passim People v. Edelbacher (1989) 47 Cal.3d 983 0...ecceeee 153 People v. Ernst (1994) 8 Cal4th 441 0.eens180 People v. Ervin (2000) 22 Cal.4th 48 0.eens 148 People v. Fauber (1992) 2 Cal.4th 792 2.eteeens 16 People v. Friend (2009) 47 Cal.4th Loo.eens75, 76 People v. Fudge (1994) 7 Cal.4th 1075S 2... ccceeeees 147 People v. Fuentes (1991) 54 Cal.3d 707 2...ees204 People v. Gonzalez (1990) 51 Cal. 3d 1179 Loiceee87,91 XXVili TABLE OF AUTHORITIES Page(s) People v. Grant (1988) 45 Cal.3d 829 2...ccceeeneas 154 People v. Gutierrez (2009) 45 Cal.4th 789 2...eeeee eens 147 People v. Guzman (1988) 45 Cal.3d915 2...eeeee 146, 154, 213 People v. Hall (1983) 35 Cal.3d 161 0.0...ceeee teens passim People v. Halvorsen (2007) 42 Cal.4th 379 2...cectteens 117 People v. Hardy (1992) 2 Cal.4th 86 2...eeetenes 113, 114 People v. Hernandez (2003) 30 Cal.4th 835 2...eeeet eee ens 140 People v. Hernandez (2008) 45 Cal.4th 295 2...ceeeee 91, 92,99 People v. Hernandez (Ill. 2008) 238 Ill.2d 134 2...eeeee,eee ee eee 78 People v. Hill (1992) 3 Cal.4th 959 oo.cccteen ene ] People v. Hill (1998) 17 Cal.4th 800 2...eeeeens 136 People v. Hillhouse (2002) 27 Cal.4th 469oeteens 175 People v. Howard (1992) 1 Cal.4th 1132 2...cettenee 33 XX1X TABLE OF AUTHORITIES Page(s) People v. Johnson (2012) 53 Cal.4th 519 2.eee212 People v. Jones (1991) 53 Cal.Bd L115 2.eens 128, 129, 138 People v. Jones (2004) 33 Cal.4th 234 2...ceeee 22, 30, 31 People v. Jones (2011) 51 Cal.4th 346 2...eens 189 People v. Kaplan (2007) 149 Cal.App.4th 372 1... ccceee 127 People v. Knoller (2007) 41 Cal.4th 139 oeeeeeee ee 177 People v. Klvana (1993) 41 Cal.App.4th 1679 2.0ceeeee es 71 People v. Lancaster (2007) 41 Cal.4th 50 2...eeeeee 145, 147, 150 People v. Lang (1989) 49 Cal.3d 991 20.eens69, 210 People v. Lenix (2004) 44 Cal.4th 602 2...eee186, 199 People v. Leonard (2007) 40 Cal.4th 1370 2...132 People v. Long (2010) 189 Cal.App.4th 826 2...ccees201 People v. Majors (1998) 18 Cal.4th 385 ooeens73 XXX TABLE OF AUTHORITIES Page(s) People v. Marlow (2004) 34 Cal.4th 13] 2...eeeee 112,114 People v. Marshall (1999) 15 Cal.4th ] oo...cenceete 92 People v. Martin (1973) 9 Cal.3d 687 0...ceeens passim People v. Massie (1985) 40 Cal.3d 620 0...teetet ee 211 People v. Massie [Massie II"'] (1998) 19 Cal.4th 550 oo.teens 211 People v. Mayfield (1997) 14 Cal.4th 668 2.2...ceeee 87, 91 People v. McClary (1977) 20 Cal.3d 218 0...ceceeee ees 10 People v. McDermott (2002) 28 Cal.4th 946 2...eeeae 186, 187, 194 People v. McKenzie (1983) 34 Cal.3d 616 2...eee139, 155, 157, 182 People v. McKinnon (2011) 52 Cal.4th 610 ..........cece eee nee e eee es passim People v. McNeil (2002) 96 Cal.App.4th 1302 2...eeeee 99 People v. McRae (1947) 31 Cal.2d 184 2...ceeteen es 15 People v. Melton (1988) 44 Cal.3d 713 2...eeeeee ees 56 XXXi TABLE OF AUTHORITIES Page(s) People v. Miera (Colo. App. 2008) 183 P.3d 672 20... cccee78 People v. Mills (2010) 48 Cal.4th 158 2...eeeees 186, 194 People v. Mroczko (1983) 35 Cal.3d 86 0...eeeeenes passim People v. Mullens (2004) 119 Cal.App.4th 648 .........eee eee eee eee 17 People v. Murdoch (2011) 194 Cal.App.4th 230 2...eee140 People v. Nakahara (2003) 30 Cal.4th 705 2...eeeeee 144, 145, 154 People v. Nesler (1997) 16 Cal.4th 561 6.eeeens 162 People v. Pennington (1967) 66 Cal.2d 508 2...eee passim People v. Pope (1979) 23 Cal.3d 412 0...eee114, 115, 116 People v. Ramos (2004) 34 Cal.4th 494 200.ceeeee eee 131 People v. Richardson (2008) 43 Cal.4th 959 oo.eeeeee 177 People v. Roder . (1983) 33 Cal.3d 491 oo.ceeeee eens 89 People v. Rogers (2006) 39 Cal.4th 826 2.0... cececee eens 131 XXXii TABLE OF AUTHORITIES Page(s) People v. Roldan (2005) 35 Cal.4th 646 2... eeeetneee 211 People vy. Rundle (2008) 43 Cal.4th 76 2...eeeee ene passim People v. Sanchez (1995) 12 Cal.4th 1 oo.ceeeee eens 32, 33, 34 People v. Sanders (1991) 51 Cal.3d 471 0.0.ceeens 212, 213, 214 People v. Shelley (1984) 156 Cal.App.3d 521 0. icceteeens 157 People y. Silva (2001) 25 Cal.4th 345 0...cccee ee passim People v. Smith (2003) 30 Cal.4th 581 1.0...eeeee 143, 148, 149, 150 People v. Snow (2003) 30 Cal.4th 43 0.eects209, 211 People v. Stankewitz (1982) 32 Cal.3d 80 2...eecteee 130, 137 People v. Stanley (1995) 10 Cal.4th 764 2...erent ee passim People v. Stanworth (1969) 71 Cal.2d 820 2...cette nes 209, 212 People v. Sturm (2006) 37 Cal.4th 1218 0...cctenets 155 People v. Tafoya (2007) 42 Cal.4th 147 2.0eeeene 114 XXX1li TABLE OF AUTHORITIES Page(s) People v. Tereskinski (1982) 30 Cal.3d 822 & f0. 6 2.cceeetne 99 People v. Teron (1979) 23 Cal.3d 103, fn. 7 eeeee211 People v. Traugott (2010) 184 Cal.App.4th 492 2.eee179 People v. Turner (1986) 42 Cal.3d 2...eeees 190, 194, 205 People v. Vineberg (1981) 125 Cal.App.3d 127 2...eee1] People v. Viray (2005) 134 CalApp-4th 1186 2...eens86 People v. Weaver (2001) 26 Cal.4th 876 2...eeeeens 182 People v. Webb (1993) 6 Cal.4th 494 2...ceee 144, 145, 154 People v. Wheeler (1978) 22 Cal.3d 258 2...eens 178, 184 People v. White (2003) 107 Cal.App.4th 636 20...ceeeee ee 99 People v. Wiley (1995) 9 Cal.4th 580 2...ceeens 115 People v. Williams (1988) 44 Cal.3d 1127 2...eens213 People v. Williams (1997) 16 Cal.4th 635 2...ceees 178 XXXIV TABLE OF AUTHORITIES Page(s) People v. Yeoman (2003) 31 Cal.4th 93 ......eeetent eet nes 175, 176 People v. Young (2005) 34 Cal.4th 1149 2...eeeeae 129 Price v. Superior Court (2001) 25 Cal.4th 1046 2...eeee eens l Richardson v. Superior Court (2008) 43 Cal.4th 1040 20... . cececeed 82 Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94... ..eceee eee 187 State v. Holland ( Utah 1994) 876 P.2d 357 2.eeeee 67 State v. Morton (N.J. 1998) 715 A.2d 228...ceeeee ees 73 Thompsonv. Superior Court (2001) 91 Cal.App.4th 144 2...ee109 Vaughn v. State Bar (1972) 6 Cal.3d 847 2...cert e eee e nee 13 FEDERAL RULES Fed. Rules of Crim. Proc. rule 35 1.eeeee 56 CONSTITUTIONS U.S. Const., Amends TVooeeeees 92 A160, 162 XXXV Cal. Const., art. I, § Bus. & Prof. Code, §§ Code of Civ. Proc., § Evid. Code, §§ Pen. Code, §§ TABLE OF AUTHORITIES Page(s) VIeeeees passim VILL oocee eee... passim MIV woo cece ee eeeleeeee passim LOcee78 STATE STATUTES 6068 2... cecetees 13 6103 Lo.tees3 225 Loc cette eee 162 Cn110, 111, 113 e113 M59 Loeeeeas 113 GOLocees 88 664Loeee 84, 87, 88, 106 1200 2.eeees 18 1220 0.eeeeee 93 os10 136.b oecee10 L604 ees10 LB7tetne eee 10 190.2 eeeeee 49, 84, 88, 96 190.3... ceceeee ee passim 190.4 .o iceee eee 87, 203, 211 686.1 oieeee 212 LOL... eee, 48, 103, 105, 210 1044 2...eee ee 143, 155, 157 1054.2 2.eee 12 1239 ooceeeens 211 1367 2.ceeee 53, 117, 123 1368 0... eeeee ees 117, 137 XXXVI TABLE OF AUTHORITIES Page(s) Veh. Code, §§ 280 iceteens 50, 97, 110 24400 0... eee ee eee 50, 97, 110 38335 Loeeeee 50, 97, 110 STATE RULES Cal. Rules of Court, rules 8.204, subd.(a)(1)(c) .............00005 172 8.630, subd.(a) ... 6...eee 172 Cal. Rules of Prof. Conduct, rule - 3-700, subd. (C)(1)(b) & (c) .. 13 3-700, subd. (B\(2) ......... 27 OTHER AUTHORITIES 5 WayneR. Lafave, Criminai Procedure § 22.3(c) (2d ed. 1999) ..... 163 6 Witkin Cal. Proc. 4th (2008) PWT, § 23 0.2... cee eee 126 ABACriminal Justice Mental Health Standards (1989) .............. 59 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. 2003), 31 Hofstra L.Rev.913 oo...cccee eee 58, 60 ABAGuidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (1989) ......... 59, 105 Arrigo & Bullock, The Psychological Effects ofSolitary Confinement on Prisoners in Supermax Units: Reviewing What We Know and Recommending What Should Change, (2008) 52 Int'l J. Offender Therapy & Comp. Criminology 137 Beaudreau, Due Process or “Some Process’? Restoring Pate v. Robinson’s Guarantee ofAdequate Competency Procedures (Spring 2011) 47 Cal. West. L. Rev. 369 ........ 0.0.0.0 008. 142 XXXVH TABLE OF AUTHORITIES Page(s) The Correctional Association of New York, Mental Health in the House ofCorrections: A Study ofMental Health Care in New York State Prisons by The Correctional Association ofNew York (2004) fas of June 28, 2012]...eeeeee 137 The Old Farmer’s Almanac, [as of June 28, 2012] 0...eee111 Poulin, Conflicts ofInterest in Criminal Cases: Should the Prosecution Have a Duty to Disclose? (Summer 2010) 47 American Criminal Law Review 1135 .............0005- 78 XXXVIli IN THE SUPREME COURT FOR THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, No. 8089478 Plaintiff and Respondent, Vv. (Orange County Sup.Ct. No. 96NF1961) HUNG THANHMAI, Defendant and Appellant. APPELLANT’S REPLY BRIEF INTRODUCTION In this brief, appellant does not reply to respondent’s arguments which are adequately addressed in appellant’s opening brief. Unless expressly noted to the contrary, the absence of a responseto anyparticular argumentor allegation made by respondent,or to reassert any particular point made in the opening brief, does not constitute a concession, abandonmentor waiverof the point by appellant (see People v. Hill (1992) 3 Cal.4th 959, 995, fn. 3, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13), but reflects appellant’s view that the issue has been adequately presented and the positions of the parties fully joined. For the convenience of the Court, the arguments in this reply are numbered to correspond to the argument numbers in appellant’s opening brief. // ARGUMENT I THE JUDGMENT MUST BE REVERSED BECAUSE MR. MAPS COUNSEL LABORED UNDER AN ACTUAL CONFLICT OF INTEREST IN VIOLATION OF HIS RIGHTS UNDER ARTICLE I, SECTION 15 AND THESIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS A. Introduction © In his opening brief, Mr. Mai arguedthat his attorneys labored under severe conflicts of interest in violation of his state and federal constitutional rights to the effective assistance of counsel uninfluenced by conflicting interests, a fair and reliable trial, and a reliability death verdict. (AOB 19- 166.)' Although the trial court was awareoffacts creating the potential for fatally divided interests, the court violated its constitutional duty to inquire into those conflicts and the potential they had to adversely affect their representation of Mr. Mai. (AOB 40-62, 108-110, and authorities cited therein.)’ Furthermore, defense counsel and the state prosecutor violated their duties by affirmatively misleading the court and Mr. Mai’s conflict attorney aboutfactscritical to the likelihood that the conflicts would adversely influence defense counsel’s trial decisions. (AOB 40-62.) Asa result, the record fails to establish that Mr. Mai made a knowing and intelligent waiver of his right to the effective assistance of counsel ' In this brief, the following abbreviations are used: “AOB”refers to appellant’s opening brief, “RB”refers to respondent’s brief, and “RT” and “CT”refer to the reporter’s and clerk’s transcripts, respectively. Finally, all statutory references are to the Penal Code unless otherwise noted. * For ease of reference,all future references to Mr. Mai’s opening brief also incorporate by referenceall legal authorities cited therein. 2 unencumbered by conflicting interest. (AOB 40-62, 108-110.) In the end, the conflicts’ potential to influence counsel’s performance wasrealized through their self-serving advice and decisions which guaranteed a death sentence despite the strong likelihood that Mr. Mai wasnot even eligible for the death penalty. In other words, the conflicts ripened into an “actual conflict” within the meaning of the state and federal Constitutions. (AOB 25-27, 63- 141.) While defense counsel themselves violated their basic constitutional and ethical duties, the state court and prosecutor were equally responsible for the resulting miscarriage of justice because they failed to comply with their own constitutional and ethical duties. (AOB 40-62, 108-110.) Thus, because the actual conflict wasattributable at least in part to the state and 299 created “‘“circumstances of th[e] magnitude’”’ of the denial of counsel entirely or during a critical stage of the proceeding,” the limited presumption of prejudice under Cuyler v. Sullivan (1980) 446 U.S. 335, 348-349 (hereafter “Sullivan presumption’) must “be applied in orderto safeguard the defendant’s fundamental right to the effective assistance of counsel under the Sixth Amendment”andthe state Constitution. (People v. Rundle (2008) 43 Cal.4th 76, 169, 173, quoting Mickens v. Taylor (2002) 535 U.S. 162, 166, 175 [hereafter “Mickens”]; AOB 142-166.) Respondentcounters that there was no actual conflict of interest. (RB 23-27.) Respondentrelies on the very limited waiver colloquy to contend that Mr. Mai knowingly andintelligently waived any andall potential conflicts. (RB 21-24.) Alternatively, respondent contends that Mr. Mai has failed to demonstrate adverse effect under the Strickland test (Strickland v. Washington (1984) 466 U.S. 668 (hereafter “Strickland’) for 3 ineffective assistance because some hypothetical unconflicted attorney could have made the same decisions as Mr. Mai’s counsel. (RB 27, 29, 32, 36-37.) Finally, respondent contendsthat the Sullivan “presumption of prejudice” standard does not apply to the conflicts in this case, as there was no “prejudice”as defined in Strickland, and therefore the judgment must be affirmed. (RB 37-40.) Respondent’s contentions are without supportin either the facts or the law. B. The Record Demonstrates the Existence of Potential Conflicts of Interest That Posed a Grave Danger of Improperly Influencing Counsel’s Representation of Mr. Mai 1. An Actual Conflict is Shown by the Effect a Potential Conflict Actually Had on Defense Counsel’s Performance At the outset, respondent misconstrues the meaning of, and showing necessary to demonstrate, an unconstitutional conflict of interest. According to respondent, a defendant mustfirst prove the existence of an “actual conflict” separate and apart from its adverse effect on counsel’s representation. (RB 14-15, 26-27.)? Respondentis wrong. Asdiscussed in the opening brief, the United States Supreme Court has unequivocally explained that an “actual conflict [is not] something separate and apartfrom adverseeffect.” (Mickens, supra, 535 U.S. at pp. 171-172 & fn. 5, italics added; accord, e.g., People v. Doolin (2009) 45 3 For instance, as respondentputsit, “there was no actual conflict .. .” but “even assuming arguendo an actual conflict,” Mr. Mai has failed to “demonstrate deficient performance based on that actual conflict affecting counsel’s performance.” (See RB 26-27.) 4 Cal.4th 390, 418.) By definition, “{a]n ‘actual conflict,’ for Sixth Amendmentpurposes,is a conflict of interest that [actually] adversely affects counsel’s performance,” as opposed to a mere “theoretical division of loyalties.” (Mickens, supra, at pp. 171-172 & fn. 5; accord,e.g., Cuyler vy. Sullivan, supra, 446 U.S. at pp. 348-349; Wood v. Georgia (1981) 450 U.S. 261, 272-273; People v. Doolin, supra, 45 Cal.4th at pp. 421, 428 [adopting same standard under state Constitution].) In other words, under Mickens, “an ‘actual conflict’ is defined by the effect [i.e., adverse effect] a potential conflict had on counsel’s performance.” (Alberni v. McDaniel (9th Cir. 2006) 458 F.3d 860, 870; AOB 26, 64.)* 2. Defense Investigator Daniel Watkins’s Indictment, Allegations Against Defense Counsel, and Other Evidence of Their Wrongdoing Related to Mr. Mai’s Crimes Created A Conflict of Interest that Carried a Grave Potential to Adversely Affect Defense Counsel’s Representation Asdiscussed in detail in the opening brief, Daniel Watkins was defense counsel’s court-appointed investigator in this case. During the pre- trial, investigatory stage of this case, the federal governmentindicted Watkins, Mr. Mai, Mr. Mai’s girlfriend, Vickie Pham, and a fourth person as co-conspirators in a plot to kill Alex Nguyen,the state’s prosecution witness in this case. (AOB 19-22, 31-32.) According to the federal government’s allegations and record evidence detailing his investigation in “ It is true that before the United State Supreme Court’s 20002 decision in Mickens, a numberof courts articulated the standard as the two pronged test respondentidentifies, being whether an (1) “actual conflict” (2) “adversely affected” counsel’s performance. However, that articulation of the standard has been incorrect for a decade. (See, e.g., People v. Doolin, supra, 45 Cal.4th at p. 418.) this case, Watkins was indicted for activities he undertookin his role as defense counsel’s agent and investigator. (/bid.) Further, through a document his own counsel submitted to the Assistant United States _ Attorney (AUSA)prosecuting Watkins and Mr. Mai — and later submitted to the trial court in this case — Watkins admitted and alleged that he and defense counsel knew that Mr. Mai plannedto kill Nguyen, that “plan... - was well known amonghis defense team,” Watkins simply “took [defense counsel’s] directions” and “all his activities were blessed by [defense counsel] Peters... and O’Connell.” (1-CT 156; AOB 19-22, 31-32.) Watkins’s allegation against defense counsel effectively accused them of being unindicted co-conspirators or otherwise criminally liable for their own and his conduct in connection to the related conspiracy to kill the state prosecution witness. (AOB 28-40.) This plausible allegation and other evidence detailed in the opening brief and below were more than sufficient to provoke defense counsel’s fear of investigation, criminal and/or disciplinary charges soas to trigger the instinctive desire to protect their ownliberty, livelihood and reputation. (AOB 28-40.) As such, defense counsel had powerful personal interests to curry favor with the state and federal prosecuting authorities and to avoid an adversarialtrial and a vigorous defense which could open the door to evidenceof their alleged wrongdoing and antagonize the state and federal prosecuting authorities. Hence,their instinctive interest in self-preservation carried a grave danger to conflict with Mr. Mai’s best interests and influence defense counsel’s choice of strategies in representing him. (AOB 28-40.) Respondentdoes notdispute that a plausible allegation that counsel has engaged in criminal activity or other wrongdoingrelated to the crimes for which his or her? client is charged creates a conflicting personal interest that could potentially influence, or “adversely affect,” counsel’s performance. (See AOB 28-31, citing inter alia, United States v. Merlino (3rd Cir. 2003) 349 F.3d 144, 151-152, United States v. Fulton (2nd Cir. 1993) 5 F.3d 605, 610, 613, and United States v. Register (11th Cir. 1999) 182 F.3d 820, 823-834.) Nor does respondent dispute that this potential is particularly acute when the allegation is made to the sameentity prosecuting the client. (See AOB 29-30,citing, inter alia, Jn re Gay (1998) 19 Cal.4th 771, 828, Thompkins v. Cohen (7th Cir. 1992) 965 F.2d 330, 332, United States v. Greig (5th Cir. 1992) 967 F.2d 1018, 1020-1022, and United States v. Levy (2nd Cir. 1994) 25 F.3d 146, 153, 145.) Finally, respondent doesnot dispute that such a conflict ripens into an unconstitutional, “actual” one if it actually affects or influences counsel’s performance. (See AOB 28-31, 63-69.)° Respondent’s only dispute is with the inferences to be drawn from the facts. According to respondent, Watkins’s conduct andallegations did not create any conflicting interests that could even potentially impact defense counsel’s representation of Mr. Mai in this case. (RB 23-27.)’ > For ease of reference, and since both defense attorneys and Mr. Maiwere all male, Mr. Mai shall hereafter use to the male pronoun in discussing the law. ° For ease of reference, Mr. Mai shall refer to conflicts that arise from plausible evidence or allegations of an attorney’s criminal or unethical conductrelated to his client’s crimes that are madeto the entities prosecuting his client (see AOB 27-31) as “related attorney wrongdoing conflicts.” 7 Although respondentuses the term “‘actual conflict” in making (continued...) Respondent offers a number of reasons in supportof its contention. All are without merit. a. Respondent Erroneously Contends That There Was No Conflict Because Watkins Neither Admitted His Own Culpability Nor Alleged That Defense Counsel Were Culpable in the Alleged Conspiracy to Kill the State Witness ~Respondentdoes not dispute that thememo written by Watkins’s attorney to, among others, the AUSA prosecuting him and Mr. Mai “‘says Mai told Watkins about Mai’s plan to kill witness Nguyen. However,it also says Watkins deniesall the allegations in the federal complaint and denies any wrongdoing. (1-CT 156.)” (RB 27.)* From this, respondent contendsthat “there is no ‘admission’ by Watkins to any criminal conduct in the Waltz Memo. (1-CT 156.)” (RB 24.) Further, respondent contends, “[nJeither defense counsel Peters nor O’Connell risked criminal liability because of their employing Watkins as a defense investigator in this case.... [T]he 987.9 records Mairelies on containalist of legitimate investigative work for Mai’s defense performed by Watkins in this case.” (RB 24 & fn. 12.) Therefore, respondent 7(...continued) these contentions under the argument headings that Mr. Mai knowingly and intelligently waived any conflict (RB 21), and that the conflict did not adversely affect counsel’s performance(RB24), it is clear that the substance of respondent’s contentions go to the initial question of whether there existed a conflict of interest that could potentially influence counsel’s representation of Mr. Mai,or a “potential conflict.” Hence, Mr. Mai shall use the correct term, “potential conflict,” under the correct analysis in replying to respondent’s contentionsin this regard. ® Respondentrefers to this document as the “Waltz memo.” (RB 16- 17, 23-24, 27, 31, 39.) concludes, Watkins’s statements “are easily reconciled with an interpretation that Mai’s counsel were kept informed of Watkins’ lawful activities in assisting the defense in this case, and approved of, and directed those activities. (See 987.9 CT dated Jan. 9, 2009,at p. 30; 987.9-CT 21-168.) (RB 27.) Respondent’s interpretation of the evidenceis unreasonable. The section 987.9 materials contain Watkins’s billing records in which he documented various activities he undertookin his role as defense counsel’s investigator and agent, including, amongotherthings:(1) traveling to Nguyen’s home town of Houston, Texas, and investigating and obtaining information about Nguyen and his family members, including all relevant addresses connected to them (987.9-CT 64-83); (2) providing “legal materials” toMr. Mai in unredacted form and regularly conferring with him, as well as their other co-conspirator, Vickie Pham, in person and — upon defense counsel’s motion — by way of unmonitored telephonecalls (1-CT 54, 79; 987.9-CT 43-83, 67-75); and (3) personally obtaining all discovery directly from the District Attorney’s office and providing it to Mr. Mai in unredacted form (1-RT 111-112; 987.9-CT 30-31, 54-63, 67-75). (AOB 34-35.) Indeed, respondent concedes that Watkins furnished Mr. Mai with the information Mr. Mai allegedly used in an attemptto kill state prosecution witness Nguyen: “Mai provided the undercoverofficer [posing as a hitman] with extensive personal information about Nguyen... . Defense investigator Watkins had provided Mai with Nguyen's address, phone number, and photograph. The photograph and information was obtained by Watkins from the discovery provided by the Orange County District Attorney’s office in this case.” (RB 15.) The federal government alleged that these very ‘“‘activities” documented by Watkins comprised many of the overt acts committed in furtherance of the conspiracy to kill Nguyen. (AOB 34-35; 1-CT 138-144 [federal search and arrest warrant affidavit submitted to state trial court when issue of possible conflict arose]; see also 2-CT 392, 396-397, 512, 532.) Although respondent contendsthat these “activities” — all performed in Watkins’s capacity as defense investigator — were “legitimate” and “legal” (RB 24, fn. 12 & 27), the federal government obviously disagreed. If Watkins committed those acts knowing that they would assist Mr. Mai in his alleged plan to kill Nguyen, then they were neither “legitimate” nor “legal” but rather criminal. From Watkins’s admission that he knew of Mr. Mai’s plan to kill Nguyen (1-CT 156), it was more than reasonable to infer that he knew that the information he provided to Mr. Mai about Nguyen, including Nguyen’s photograph, personal information, and all relevant addresses connected to Nguyen andhis family, would further Mr. Mai’s alleged plan to kill him. An “admission”is a statement tending to prove guilt along with other evidence. (See, e.g., People v. McClary (1977) 20 Cal.3d 218, 230, and authorities cited therein.) Despite Watkins’s protestation that he engaged in no “wrongdoing,” he effectively admitted his criminal liability — whetherfor conspiring to kill Nguyen, as the federal governmentalleged, and/or aiding and abetting other related crimes (Pen. Code, § 31) such as Mr. Mai’s (alleged) attempt to kill Nguyen (Pen. Code, § 164, 187) or to preventhis trial testimony (Penal Codesection 136.1, subd. (c)(1).)” ° There is one possible explanation for Watkins’s inconsistent denial of any wrongdoing despite his admissions (through his counsel as well as (continued...) 10 Moreover, through his own counsel andto the very entity prosecuting Mr. Mai, Watkins alleged that defense counsel directed his “activities” (1-CT 156) with knowledge of Mr. Mai’s plan to kill Nguyen. Defense counsel effectively admitted theydirected the activities for which Watkins had been indicted; the section 987.9 materials include defense counsel’s own signed statements that Watkins’s activities were “performed under my direction and at my-request ... .” (987.9-CT 43-53, 54-63, 67, 71-75, 80-83.) Hence, for the same reasons that Watkins’s statements regarding his own knowledge and conducteffectively amounted to admissions of criminal liability, his allegations regarding defense counsel’s knowledge and conducteffectively amounted to accusations of their criminal liability. Furthermore, as respondent otherwise recognizes, one of the overt ~ acts alleged in furtherance of the conspiracy was Watkins’s provision of Nguyen’s photograph and other personal information to Mr. Mai, which had obtainedin discovery in his role asdefense counsel’s agent. (RB 15, citing *(...continued) his billing recordsin this case) that he engaged in manyofthe overt acts the federal government alleged with knowledge of Mr. Mai’s alleged plan to have Nguyen killed. Although Watkins’s counsel did notarticulate it or allege that defense counsel had advised Watkins that his conduct was lawful, he may have been attempting to lay the groundwork for an “advice of counsel” defense. That defenseis essentially a mistake of law defense premised on the reliance on the advice of counsel that the chargedact is not unlawful. (See, e.g., People v. Vineberg (1981) 125 Cal.App.3d 127, 137- 138.) While the advice of counsel defenseis available to the person who relies inon counsel’s incorrect legal advice,it is not available to the advising attorney. 11 2-CT 392, 396-397; see also AOB 34-36,citing 1-CT 138-144 [federal affidavits submitted to trial court], 2-CT 396-397 [federal change of plea proceedings] and 2-CT 512, 532 [affidavit for wiretap, exhibit in support of prosecution’s motion to shackle Mr. Mai].) But respondent ignores that defense counsel Peters admitted-that they had directed Watkins to obtain all discovery from the prosecutor and provide it to Mr. Mai when they knew or reasonably should have knownthat it was in unredacted form.'® (See AOB 34-36 & fn. 19.) Respondent no doubtignores this evidence becauseit demonstrates — or at least constitutes “plausible” evidence — that defense counsel thereby committed a crime connected to those for which their client was being prosecuted. (AOB 34-36, citing Pen. Code, § 1054.2.) Furthermore, respondent’s sole focus on the evidence of counsel’s ‘potential criminalliability ignores the ethical violations raised by the evidence. (AOB 30-31, 37, citing, inter alia, United States v. Levy, supra, 25 F.3d at p. 156 [“many courts have found an actual conflict of interest when a defendant’s lawyer faces possible . . . significant disciplinary consequences as a result of questionable behaviorrelated to his representation of defendant’’].) Certainly, if Watkins’s allegations that defense counsel knew of Mr. Mai’s alleged plot to kill Nguyen and notonly 'O As discussed in the openingbrief, the only reasonable inference from defense counsel’s representations (10-RT 111-112; 987.9-CT 30-31, 54-63, 67-75, 150-142) and the billing records of both Watkins (987.9-CT 21-28, 43-63, 67-83) and the new investigator appointed after Watkins’s arrest and indictment (987.9-CT 226)is that defense counsel never instructed Watkins to redact Nguyen’s personal information from the discovery before providing it to Mr. Mai. (AOB 34-35 & fn. 19.) Significantly, respondent does not dispute as much. Hence, respondent tacitly concedesthat defense counsel thereby committed a crime under Penal Codesection 1054.2. 12 did nothing to stop it but directed Watkins ownactivities that furthered it, defense counsel wereatleast ethically liable. (See, e.g., Bus. & Prof. Code, §§ 6068, subds. (e)(2), 6103; Cal. Rules of Prof. Conduct, Rule 3-700, subd. (C)(1)(b) & (c).) Even if Watkins’s allegations were untrue and defense counsel were completely ignorantof the plot and their agent’s actions to further it (which is contradicted by the record), defense counsel werestill ethically responsible for the-wrongdoing of their non-lawyer employeeflowing from their failure to supervise him. (AOB 33-34,citing, inter alia, In the Matter ofJones (Review Dept. 1993) 2 Cal. St. Bar Ct. Rptr. 411 and Vaughn v. State Bar (1972) 6 Cal.3d 847, 857.) Hence,all of this plausible evidence of defense counsel’s wrongdoing related to the crimes charged against their client was more than sufficient to threaten, and thereby trigger defense counsel’s interest in protecting their ownliberty, livelihood and reputation. (AOB 34-36.) Pursuantto the authorities cited in the opening brief, these powerful personal interests carried a grave danger of conflicting with Mr. Mai’s best interests and influencing defense counsel’s choice of strategies in representing him. (AOB 27-40.) b. Respondent Erroneously Contends That There Was No Potential Conflict Because Defense Counsel “Denied Any Knowledge of Watkins Conspiring with Mai” and Were Not Charged or Indicted for Any Wrongdoing Relating to Mr. Mai’s Crimes Respondent next contends that there existed no potential for conflicting interests because “both Peters and O’Connell denied any knowledge of Watkins conspiring with Mai” and neither was ever charged or indicted for any wrongdoing related to Mr. Mai’s crimes. (RB 26-27.) 13 Thefirst flaw in respondent’s contention is that it seems to rest on the incorrect premisethat allegations of related attorney wrongdoing only create potentially conflicting self interests if the allegations are true. As discussed in the openingbrief, it is well recognized that “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 aspectof his or her representation of the defendant.” (United States v. Fulton, supra, 5 F.3d at p. 613, italics added; AOB 28-29.) And where — as here — allegations of related attorney wrongdoing “are supported by some credible evidence, disciplinary or criminal charges become more than mere threats, and the attorney has ‘reason to fear that vigorous advocacy on behalf of his client would expose him to criminalliability or any other sanction.’ [Citation.]” (United States v. Jones (2nd Cir. 1990) 900 F.2d 512, 519.) Furthermore, it is simply untrue that defense counsel “denied any knowledge of Watkins conspiring with Mai” during the “hearing” into the possible conflicts Watkins’sindictment mayhave created. (RB 26-27, citing 1-RT 80-82.) Watkins’s allegations were never discussed at the hearing. Instead, as discussed in the openingbrief, the only time defense counsel ever responded to Watkins’s accusations was long after the death verdict had been rendered against Mr. Mai, in a confidentialletter written to the judge presiding over section 987.9 matters. (AOB 36-37.) Mr. Peters represented, “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 14 counsel because of the possibility of a legal conflict where I might be a witness. This difficult accusation dissolved some days later when it became obvious there was a difference in knowing that Mr. Mai hated the turncoat witness and knowingofa specific plot to murder this witness.” (987.3-CT 30.) Thus, Mr. Peters did not deny that he had directed Watkins to investigate the-whereabouts of Nguyen and his family, obtain discovery containing Nguyen’s personal information, and provideall of that information to Mr. Mai while knowingatthe veryleast his client’s history of violence and his extreme hatred for that witness. The only allegation that Mr.Peters disputed was that he had done so with the precise knowledgethat Mr. Mai would use the information to have Nguyenkilled. Thus defense counsel’s own admissionslent credibility or further “plausibility” to Watkins’s allegation to the contrary given Watkins’s allegation that he aided Mr. Mai in locating the targeted witness under counsel’s direction and with counsel’s knowledge that Mr. Mai was allegedly a high-ranking member of a powerful Vietnamese gang,that Nguyen claimed to be a protected witness with a “contract” out on hislife, and that Mr. Mai “hated”the “turncoat witness,” whose whereabouts and other vital information their agent had provided to Mr. Mai. (AOB 36-37, citing 2-Muni RT 268, 320-321; 987.3-CT 30.) In sum, Watkins’s allegation that defense counsel were implicated in Mr. Mai’s plan to kill Nguyen werecertainly “plausible” enough to provoke counsel’s fear that the state would investigate and pursue charges against them, just as the federal governmenthad against their agent. (See People v. McRae (1947) 31 Cal.2d 184, 187 [even uncorroborated testimony of accomplice is sufficient to establish probable cause to hold a defendant to answerto 15 criminal charges]; People v. Fauber (1992) 2 Cal.4th 792, 834-835 [only slight corroboration required for accomplice testimony to prove guilt beyond a reasonable doubt].) - Equally without merit is respondent’scontention that since “no charges were everfiled against Mai’s counsel relating to the matter,” defense counsel had no conflicting interests that could even potentially affect their representation of Mr. Mai. (RB-26.) .To the contrary, the fact that chargeshad not beenfiled against defense counsel when Watkins was indicted and madehis allegations against them only heightened their compelling personal interest to ensure that no charges would befiled against them by currying favor with the prosecution and avoiding an adversarial trial. (See AOB 28-30, 103-110.) Nor does respondent’s assertion that defense counsel were never charged with any wrongdoing connected to Mr. Mai’s crimes (an assertion of fact that does not appear in the record, but which Mr. Mai shall assume for sake of argument) demonstrate that they had no conflicting interests during the course of their representation ofMr. Mai. (RB 26-27.) Respondent reverses cause and effect. The fact that defense counsel were never charged is readily susceptible of a reasonable explanation: defense counsel’s self-interested trial strategy worked. They did the prosecutor’s job for him, consented to an unconditional plea to capital murder despite a dearth of evidence to prove the sole special circumstance allegation and effectively stipulated to the death penalty. This “strategy” undoubtedly curried great favor with the prosecution. Its decision not to pursue charges against them based onthe evidence of their wrongdoing could reasonably be interpreted as their “reward.” 16 Cc. Respondent’s Erroneously Contends That Watkins’s Statements and Allegations Against Defense Counsel, Made in Writing Through His Own Attorney, Were Insufficient to Create a Potential Conflict Because They Were Hearsay Next, respondentasserts for the first time on appeal that Watkins’s allegations were made in a writing by his own counsel, which “contains multiple layers of hearsay for which there is no exception.” (RB 27.) As respondent does not expandonthis assertion with any argument or authority, this Court should decline to consider it. (See, e.g., People v. Stanley (1995) 10 Cal.4th 764, 793; People v. Clair (1992) 2 Cal.4th 629, 653, fn. 2.) To the extent this Court addresses this contention, it must be rejected. Virtually all of the evidence goingto the potential conflicts in this case was in written form (the documentwritten by Watkins’s counsel which containedhis allegations, together with the federal search and arrest warrants and supporting affidavits), submitted to the trial court to determine what, if any, potential conflicts they created, and madepartofthetrial record. (1-RT 83-84; 1-CT 125-156.) The prosecutor waspresent when those documents were submitted to the court and had ample opportunity to make any objections to the court’s consideration of them but declined to do so. Having chosen not to object below, respondent cannot be heard to make a hearsay objection for the first time on appeal. (See, e.g., Peoplev. Mullens (2004) 119 Cal.App.4th 648, 669, and fn. 9.) In any event, respondent’s belated hearsay objection is without merit. Although respondentdoes not elaborate onits assertion, no conceivable 17 hearsay objection would have been sustained. Simply put, Mr. Mai does not have to provethe truth of an allegation of related attorney wrongdoing in order to demonstrate that a conflict existed. (Evid. Code, § 1200 {evidence of a statement that was madeotherthan by a witness while testifying at the hearing and that is offered to prove the truth of the matter asserted” is inadmissible to prove its truth absent statutory exception]; AOB 28-29.)'! Moreover, any representations made on Watkins’s behalf by his attorney-representative were effectively made by Watkins himself. Indeed, there was never any dispute that Watkins had madethe statementshis attorney represented he had made. To the contrary, as discussed in Part 2, ante, Mr. Peters acknowledgedhis allegations — and the potential conflict of interest they posed — in his confidential post-judgment letter. (987.3-CT 30.) Finally, whenevera trial court is made aware of facts giving rise to a potential conflict of interest, the court has a sua sponte duty to investigate those facts, determine whetherthey create a possible conflict and, if so, how it might potentially impact upon counsel’s representation. (Woodv. '! Respondent characterizes Mr. Mai’s essential claim as follows:“[flor the first time on appeal, based solely on the contentsof the Waltz Memo, Mai contends defense attorneys Peters and O’Connell were aware of, and authorized defense investigator Watkins’ actions as Watkins participated in the conspiracy with Maito kill prosecution witness Nguyen, and therefore his attorneys in this case were unindicted co-conspirators in the plot to kill Nguyen.” (RB 23.) This is not Mr. Mai’s claim. Among other things, Mr. Mai does not argue that the evidence conclusively established that “his attorneys in this case were unindicted co-conspirators in the plot to kill Nguyen” nor — as discussed in the above text andthe opening brief — does he need to conclusively establish that fact in order to demonstrate that counsel labored underan actual conflict. 18 Georgia, supra, 450 U.S. at p. 272; Holloway y. Arkansas (1978) 435 U.S. 475, 485; Glasser v. United States (1942) 315 U.S. 60, 76; People v. Bonin (1989) 47 Cal.3d 808, 836.) Respondentcites no authority for its implicit proposition that the duty of inquiry is triggered only by admissible evidence or live testimony. Noris there such authority. To the contrary, as this Court has explicitly held: “Jt is immaterial how the court learns, or is put on notice, of the possible conflict. ...” (People v. Bonin, supra, at p. 836, italics added; cf. United States v. Hobson (11th Cir. 1982) 672 F.2d 825, 827-829 [disqualifying attorney due to conflict based on written allegations of related attorney wrongdoing].) In sum,as the trial court, defense counsel, and the prosecution implicitly recognized by withholding a hearsay or any other objection below,the trial court was required to consider the written evidence of defense counsel’s wrongdoings — including Watkins’s written allegations - made through his counsel — in assessing the existence and potential impact of any conflicts of interest. Just as the trial court was required to consider that evidence and did so without objection from the parties below, so too must this Court consider that evidence in assessing whether, in thefirst instance, a potential conflict existed. 3. Mr. Mai’s Defense Counsel’s Simultaneous Representation of One of Mr. Mai’s Indicted Co- Conspirators, Vickie Pham, In Her Substantially Related Federal Sentencing Proceedings Added to And Compoundedthe Conflicts Face By Defense Counsel Rather than mitigating the conflict resulting from the federal indictment, lead defense counsel Peters compounded the problem by twice injecting himself into the federal proceedings — the first time in representing 19 Mr. Mai(see Part E, post; AOB 69-73) and the second in representing Ms. Pham (AOB 108-110). On March 5, 1999, Mr. Mai pleaded guilty to the federal conspiracy and related charges. (2-CT 400-413, 500-501; 1-RT 191-192.) On July 23, 1999, he entered his unconditional slow plea to the state capital murder charge in state court with defense counsel’s consent. (2-CT 491; 1-RT 180-198.) On July 30, 1999,the state trial court adjudged Mr. Mai guilty. (2-CT 503.) On the samedate, lead counselPetersfiled a motion in the state court to continue the penalty phase. (2-CT 497.) Amongthe reasons for which a continuance was necessary, Mr. Peters explained to the state court, was that he had been simultaneously representing Mr. Mai’s indicted co-conspirator, Vickie Pham,for nearly four months. (2-CT 500-501; see also 1-RT 158, 170, 202-203; 2-RT 223.) As Mr. Peters explained in that motion, from the date of Mr. Mai’s March5, 1999, guilty pleas in federal court (and while he was representing Mr. Mai in this case), Mr. Peters’s “exclusive priority has been the June 30, 1999 sentencing of Vickie Pham. I coordinated meetings between Mr. Mai’s and Ms. Pham’s counsel, Kenny Reed, in which we organized a strategy for a presentation at Ms. Pham’s sentencing. I arrangedfor Dr. Veronica Thomas, Ph.D. to present testimony at the sentencing to the affect that Ms. Pham had acted under Mr. Mai’s duress caused by physical and mental abuse,” which caused “battered women ’s syndrome.” (2-CT 500- 501, italics added.) Mr. Peters also explained that Dr. Thomas was Mr. Mai’s state court appointed psychological expert. (2-CT 500; seealso 1- RT 170, 202-203; 3 RT 403-407; AOB 108-110.) '2 Mr. Peters’s referencé to “Mr. Mai’s counsel” appears to be a typographical error, as “Kenny Reed” was not “Mr. Mai’s counsel,” but (continued...) 20 These admissions established that Mr. Peters had simultaneously represented and advanced an interest adverse to Mr. Mai’s best interests by using Mr. Mai’s ownstate-court appointed psychologist. (AOB 108-110.) Certainly, that conflict carrieda gravepotentialof influencing counsel’s choice of strategies in this case. As discussed in the opening brief and Part C, post, the state prosecutor and defense counsel had an understanding that if defense counsel were to mount a penalty phase defense on Mr. Mai’s behalf and “put on some penalty evidence” (3/16/07 2-SCT 132-133), the state prosecutor could (and undoubtedly would) introduce the evidence of _theconspiracy to kill Nguyen on rebuttal. (AOB 40-62, 104-110.) If so, Ms. Pham would have been a likely prosecution witness to the conspiracy, but defense counsel would have been precluded from effectively cross- examining her given that she wasa client in a related case to whom they owed a duty of loyalty. (AOB 108-110,citing, inter alia, United Statesv. Shwayder (9th Cir. 2002) 312 F.3d 1109, 1118-1119, as amended by (9th Cir. 2003) 320 F.3d 889, United States v. Malpiedi (2nd Cir. 1995) 62 F.3d 465, 469, and People v. Easley (1988) 46 Cal.3d 712, 722-725.) And the damning evidence defense counsel developed and presented on her behalf — using Mr. Mai’s ownstate-appointed psychologist — would be very likely aggravating evidence. (AOB 109,citing People v. Easley, supra,at pp. '2C...continued) rather Ms. Pham’s counsel. As discussed in the opening brief and Part E, post, Neisen Marks was Mr. Mai’s appointed federal counsel. (2-CT 377- 379; AOB 69-72.) However, on the date that Mr. Mai entered his guilty pleas in federal court, the federal court granted Mr. Peters’s request to appear with “coequal powers with Mr. Marksfor the plea and sentencing purposes.” (2-CT 409.) Mr. Marks refused to concur in Mr. Peters’s machinations in federal court. (2-CT 409-412; AOB 69-72.) 21 722-725 [finding actual conflict in violation of federal Constitution 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].) These possibilities created serious potential conflicts of interest in this case. (See, e.g., Wheat v. United States (1988) 486-U.S. 153, 159-163 [potential conflict based on possibility — disputed by defendant— that counsel’s former client might be called as a witness if defendant’s case wentto trial]; People v. Jones (2004) 33 Cal.4th 234, 237-238, 241-242 [same based onpossibility that former client might be viable alternative suspect despite defendant’s protestationsthat he did not wish to pursue strategy implicating counsel’s former client].) Absent defense counsel’s conductin representing Ms. Pham, she might otherwise have been logical penalty phase defense witness given her long relationship with Mr. Mai and her evidencethat his violent behavior increased dramatically after suffering near fatal injuries in a car accident. (2-CT 501; 1-RT 170-171; 2-RT 231-232; see AOB 114-118; Part 2, post.) But defense counsel destroyed any value she could have had as a witness in mitigation. Defense counsel similarly destroyed or severely diminished the value that Mr. Mai’s court-appointed psychologist might otherwise have had as a mitigation witness. Forall of these reasons, this conflict only increased counsel’s incentive to discard the strategy of engaging in an adversarial penalty trial with mitigating evidence and thereby “paper[] over the conflict that would have arisen.” (People v. Mroczko (1983) 35 Cal.3d 86, 107-108 [adverse effect under federal Constitution established where, “[b]y discarding” viable alternative strategy, counsel “papered over the conflict that would have arisen” had he 22 pursuedit and thus his “very choice of strategies was colored by the conflict he faced”]; AOB 108-110.) Respondent does not addressthis conflict of interest atall. C. The Trial Court Failed Adequately to Inquire into the Conflicts and the Record Fails to Demonstrate that Mr. Mai Knowingly and Intelligently Waived His Rightto Representation By Counsel Uninfluenced by the Conflicts Raised on this Appeal In his opening brief, Mr. Mai argued that the evidence before the trial court at the only conflict hearing in August 1998, which included (1) the undisputed representations that the federal governmenthad indicted defense counsel’s agent and investigator, Watkins, and Mr. Maias co- conspirators in the alleged plotto kill the state’s prosecution witnessin this case, Nguyen; (2) the federal search and arrest warrants and supporting affidavits, which demonstrated that manyof the overtacts alleged in furtherance of the conspiracy were committed in Watkins’s role as defense counsel’s investigator and agentin this case; and (3) the admission and allegations against defense counsel by Watkins through his own counsel, triggered the trial court’s constitutional duty to inquire into the related attorney wrongdoing conflicts. (AOB 19-20, 50-62,citing, inter alia, Wood v. Georgia, supra, 450 U.S. at pp. 267, 272). Indeed, in the document containing Watkins's allegations, Watkins’s counsel urged that defense counsel “should be disqualified from further representing Maiin state court .... If not disqualified, the state will otherwise easily convict Mai in both cases and give the defense a great appellate issue which now can be so easily avoided.” (1-CT 156.) Given this evidence, the federal Constitution demanded a “searching” (Garcia v. Bunnell (9th Cir. 1994) 33 F.3d 1193, 1197) and 23 “targeted” (Selsor v. Kaiser (10th Cir. 1996) 81 F.3d 1492, 1501) inquiry by the court into the evidenceof related attorney wrongdoing, as well as defense counsel’s “forthright[] and honest[]” response (People v. Mroczko, _supra,35. Cal.3d. at p. 112), and Mr. Mai’sknowing and intelligent waiver ~made with “sufficient awareness of the relevant circumstancesandlikely consequences”(Id. at p. 110; accord, 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 (1938) 304 U.S. 458, 464; AOB 50). Noneofthese requirements weresatisfied. (AOB 50-62.) Nordid the court inquire at all into the later evidence revealing the additional conflict arising from defense counsel’s simultaneous representation of Ms. Pham. (AOB 108-110.) This conflict was never directly addressed on the record and hencethe record alsofails to demonstrate Mr. Mai’s knowing and intelligent waiver of his right to the effective assistance of counsel in these proceedings, uninfluenced bythat conflict. (Ibid.) 1. RespondentFails to Dispute That the Court’s Inquiry Was Limited to the Witness/Advocate Conflict and thus Fails to Dispute that the Court Failed to Discharge Its Duty to Inquire Into the Related Attorney Wrongdoing And Other Conflicts Created By the Related Federal Conspiracy Prosecution Respondentdoesnot dispute that “the ‘only possible’ conflict discussed on the record was the potential that [Mr. Mai’s] two attorneys could be called as witnesses in [Watkins’s] federal conspiracytrial.” (RB 21-22; see also AOB 43-60; 1-RT 74-88.) Moreover, respondent does not even address the fact that defense counsel and the state prosecutor affirmatively misled the state trial court at that hearing to minimize the 24 potential the alleged conspiracy had to adversely affect their representation of Mr. Mai. (See AOB 53-55; see also AOB 103-110.) Both the state prosecutor and defense counsel assured the state court that the prosecution would not introduce evidence of the conspiracy to kill its witness in Mr. Mai’s state trial, which “reduces the conflict to about zero.” (1-RT 80-81; AOB 53-60.) Thetrial court accepted this representation without reservation. (1-RT 85-87.) Federal District Court Judge Carter was not so accepting. When the same representation was madeto him in later federal court proceedings, he expressed skepticism and pressedthe state prosecutor and defense counsel for further explanation. (3/16/07 2-SCT 132-133.) It was only then that they confessedto the true nature of their agreement: the state prosecutor had simply agreed not to_present evidence of the threats or conspiracyto kill Nguyenin his case-in-chief; the prosecution and defense counsel understood that if defense counsel were to mount a penalty defense and “put on some penalty evidence,” the prosecution reservedits right to introduce the conspiracy evidence on rebuttal. (3/16/07 2-SCT 132-133.)" As discussed at length in the opening brief, far from “reduc[ing] the conflict to about zero,” the true nature of the agreementcreated a powerful incentive for defense counsel to avoid an adversarialtrial and the presentation of mitigating evidence. (AOB 53-55, 103-110.) If they attempted to save Mr. Mai’s life with mitigating evidence, the state would '? Asthis discussion occurred after Mr. Mai had already entered his slow plea, the parties discussed the possibility of the evidence being presented only at the penalty phase. (AOB 53-54,citing 3/16/07 2 SCT 132-133.) However, the true nature of the agreement ~ that the state simply would not introduce the evidence in its case-in-chief, but reserved the right to present it on rebuttal — may have applied to the guilt phase, as well. 25 present evidence about the conspiracy to kill Nguyen in rebuttal — a prospect that posed grave threats counsel’s liberty, livelihood and reputation and would have created even more insurmountable ethical dilemmas. (Ibid.) Thus, defense counsel (and the state prosecutor) violated their legal and ethical duties by seriously misleading the trial court regarding the true nature of the agreementandits potential to adversely influencetheirtrial decisions. (See, e.g., Holloway v. Arkansas, supra, 435 U.S. at pp. 485- 486; People v. Mroczko, supra, 35 Cal.3d at p. 112; Bus. & Prof. Code., § 6068, subd. (d) [attorney had duty “never to seek to mislead the judge... by an artifice or false statement of fact or law’’].) Indeed, defense counsel’s efforts to conceal or minimize the most serious of the potential conflicts were themselves evidence of their inability to place loyalty to Mr. Mai above their own self-interest. (AOB 54-60, citing inter alia, People v. Mroczko, supra, 35 Cal.3d at pp. 110-113; cf. In re Gay, supra, 19 Cal.4th at p. 795 fcounsel’s fraudulent and unethical representations in obtaining appointment were highly relevant to “assessing his commitment to act as a zealous advocate”].) Their behavior certainly reveals that they were determined to act as Mr. Mai’s counsel in both his state and federal cases, which served their personal interests in concealing evidence of their wrongdoing and currying favor with the federal andstate authorities prosecuting Mr. Mai. (Cf. Rubin v. Gee (4th Cir. 2002) 292 F.3d 396, 398, 402-405 [“actual conflict” in violation of federal Constitution where attorneys and their investigator assisted defendant in concealing evidence then “took coveras part of the defense team’”’].) Given the legal and ethical ramifications of their position and the seriousness of the capital murder charge against their client, being honest with the court about the potential conflict and moving to withdraw as counsel was — atthe very least 26 — an “objectively reasonable”or plausible alternative. (Part D, ante; see also, e.g., Cal. Rules of Prof. Conduct, rule 3-700, subd. (B)(2).) But that alternative inherently conflicted with their personal interests. ([bid.) Hence, the record demonstratesthat the conflict influenced, and their misrepresentationsto the state court surely “‘adversely affected,” their performanceas early as the conflict hearingitself. Respondentalso does not address Mr. Mai’s arguments that subsequent evidencetriggered the trial court’s duty to inquire further into the conflicts created by the federal conspiracy prosecution and circumstances surrounding it. (AOB 53-56 & fn. 24, 108-110.) First, as discussed above, on July 30, 1999 — nearly a year after the August 1998 conflict hearing and a week after Mr. Mai tendered his slowpleato capital murder in state court — defense counselfiled a motion to continue the penalty phase in which he informed the courtthat he had simultaneously represented Mr. Mai’s indicted co-conspirator, Ms. Pham,in federal court. (2-CT 497, 501; see also 1-RT 158, 170, 202-203; 2-RT 223.) Worseyet, he had had utilized Mr. Mai’s ownstate-court appointed psychologist to develop and present evidence on her behalf that she “chad acted under Mr. Mai’s duress caused by physical and mental abuse,” from whichshealso suffered “battered women’s syndrome.” (2-CT 500-501; see also 1-RT 170, 202-203; 3-RT403-407.) These representations by Mr. Peters, demonstrating sharply divided loyalties, should,at the very least, have prompted further inquiry by thetrial court. (AOB 108-110.) The trial court was already aware that defense counsel gave his highly unusual consent to Mr. Mai’s unconditional slow plea to the state capital murder charge. (See, e.g., People v. Alfaro (2007) 41 Cal.4th 1277, 1300-1301 [Orange County Superior Court judge 27 “expressed doubtthat any attorney in Orange County ‘would consent to somebody pleading guilty to a capital offense’”].) And, as discussed in the opening brief and ArgumentsIII and IV, post, counsel’s consent was given under circumstances that should have alerted the court that something was amiss. (AOB 78-79, 231-232; 1-RT 189-198, 207-210.) All of this evidence, together with the other evidence of which the trial court was already aware from the conflict hearing,triggered the court’s constitutional duty to inquire into this conflict and its potential to influence defense counsel’s choice of strategies in this case. (People v. Easley, supra, at pp. 722-725; Wood v. Georgia, supra, 450 U.S. at pp. 267, 272.) But the court did nothing. Furthermore, defense counsel later submitted evidence that contradicted key representations made by them andthe prosecutor during the August 1998 conflict hearing. (AOB 53-56 & fn. 24, 109-110.) On March 30, 2000, lead counsel Peters filed a pleading in federal court, which he served onthestate trial court. (3/16/07 2-SCT 28-156.) Attached as an exhibit to that pleadingwasthe transcript of the federal proceeding (cited and discussed above) in which it was revealed that the prosecutor reserved the right to introduce the conspiracy evidence in this trial if defense counsel presented a penalty phasedefense,or “puton some penalty evidence.” (3/16/07 2-SCT 132-133.) On April 11, 2000, the state trial judge noted that it had received and reviewedthat pleading. (5-RT 1075.) Thus, the court should have beenalerted that defense counsel and the state prosecutor had misled the court at the conflict hearing and that the federal conspiracy evidence — which implicated counsel in Watkins’s wrongdoing — could and likely would be introducedinthis trial if counsel presented a defense on Mr. Mai’s behalf, which created a powerful incentive for counsel to discard the 28 strategy of presenting a penalty phase defense. Bythis time (April 11, 2000) the trial court was also aware that defense counsel had already made a numberof unusualtrial decisions. Prominent among these was counsel’s brokering the federal plea agreement ‘that included Mr. Mai’s promise to plead guilty to the state capital murder charge overhis federal counsel’s objection and then consenting to Mr. Mai’s unconditional slow plea to that charge in state court. (AOB 69-77; Part E, post.) The court was also aware that Peters represented Mr. Mai’s indicted co-conspirator, Ms. Pham, in her federal sentencing proceedings while representing Mr. Mai in these proceeding, and had used Mr. Mai’s appointed psychological expert, Dr. Thomas, to develop and present evidence adverse to Mr. Mai on her behalf. Bythis time, the court was also aware that defense counsel (as well as Dr. Thomas) believed that Mr. Mai was suffering from a mental condition that precluded his ability to make rational decisionsor assist in the preparation of his case, yet inexplicably insisted that no competency proceedingsbeinitiated. (AOB 200-216; Part F, post.) Also by this time, the court was aware that defense counsel and Mr. Mai had “for some time talked about putting no penalty evidence on” (3-RT 449), and should have been aware that defense counsel had advised Mr. Maithat the nature of the special circumstance alone made a death verdict virtually a foregone conclusion no matter what mitigating evidence they might unearth and offer (AOB 118-126; Part G-2,post.) This mountain of evidence should havealerted thetrial court that something wasterribly amiss: defense counsel hadlied to the court, their otherwise highly irregular and seemingly inexplicable performanceto that point could be explained bytheir conflicting interests; and those interests carried a substantialrisk of influencing defense counsel’s decision about 29 whetherto present a penalty phase defenseat all. (AOB 53-56 & fn. 24, 109-110; Wood v. Georgia, supra, 450 U.S. at pp. 268, 272-273 [evidence that defense counsel’s fees were paid by third party and that counsel pursued somestrategies that did not appear to serve defendant’s best interests was sufficientto alerttrial court to possibility of conflict and trigger its constitutional duty of inquiry].) The court’s failure to make any inquiry in the face of this evidence violated its constitutional duties. (/bid.) Once again, Mr. Mai takes respondent’s failure to dispute that this additional, post- hearing evidencetriggeredthe trial court’s duty to reopen its inquiry into the potential conflicts defense counsel faced as anothertacit concession. Respondent’s concessions are fatal. As discussed in the opening brief, the court’s duty of inquiry is intended not simply to obtain a defendant’s knowing andintelligent waiver — the only issue respondent addresses. (RB 21-24.) It is intended to discharge the court’s independent obligation to ensurethat “criminal defendants receivea trial that is fair and does not contravene the Sixth Amendment”andthat “legal proceedings appearfair to all who observe them.” (Wheat v. United States, supra, 486 USS. at p. 160; accord, People v. Jones, supra, 33 Cal.4th at pp. 240-241.) In discharging this obligation, the court may determinethat a potential conflict is waivable and obtain the defendant’s knowing andintelligent waiver. However, the court may also determine that a potential conflict is so severe that the defendant cannot waive it at all and disqualify counsel even over the defendant’s objection. (Wheat, supra, at pp. 160-163; Jones, supra, 33 Cal.4th at pp. 240-242.) Hadthestate court satisfied its duty to inquire in this case and the state prosecutor been forthcoming about introducing the conspiracy 30 evidence if Mr. Mai presented a penalty phase defense, the state could have prevented the potential conflicts from ripening into actual ones by disqualifying Messrs. Peters and O’Conneil. (See, e.g., Wheat v. United States, supra, 486 U.S. 153, 159-163 [trial court properly disqualified retained counsel of choice over defendant’s objection based on possibility — disputed by defendant — that counsel’s former client might be called as a witness if defendant’s case wentto trial]; accord, People v. Jones, supra, 33 Cal.4th at pp. 237-238, 241-242; United States v. Merlino, supra, 349 F.3d at pp. 151-152 [suggestion of (attorney’s) potential criminal liability” related to client’s crimes created potential conflict sufficient to permit disqualification of counsel over client’s objections and constitutionalright to counsel of choice]; United States v. Fulton, supra, 5 F.3d at pp. 611-613 (disqualification mandatory and conflict unwaivable where co- defendant/government witness alleged that defense counsel “engaged in criminal conductrelated to the charges for which the defendantis on trial’’].) Indeed, as Watkins’s counsel urgedin thefirst place, defense counsel “‘should:be disqualified from further representing Maiin state court Lan . If not disqualified, the state will otherwise easily convict Mai in both cases and give the defense a great appellate issue which now can be so easily avoided.” (1-CT 156, italics added.) Certainly, the court and counsel’s errors prevented Mr. Mai’s knowing andintelligent waiver of his right to the effective assistance of counsel unencumbered bythe conflicts raised on this appeal. (People v. Mroczko, supra, 35 Cal.3d 86, 98-105; People v. Easley, supra, 46 Cal.3d at pp. 730-732.) 31 2. Respondent’s Contention That Mr. Mai Knowingly and Intelligently Waived His Right to the Effective Assistance of Counsel Unencumberedby the Conflicts Raised on this Appeal Is Belied by the Record and the Law Aspreviously noted, respondentdoes not dispute that those conflicts were not addressed on the record or that “the ‘only possible’ conflict discussed on the record wasthe potential that his two attorneys could be called as witnesses in [Watkins’s] federal conspiracy trial.” (RB 21-22.) Nevertheless, relying on isolates passages from this Court’s decisions that ‘‘a defendant’s waiver of conflict is not limited to merely matters discussed on the record” and it is unnecessary for every “conceivable ramification” to be explained to him (RB 22,citing People v. Sanchez (1995) 12 Cal.4th 1, 48), respondent contends: (1) this Court may presumethat independent counsel, Mr. Pohlson, adequately explained the existence and potential drawbacksofthe related attorney wrongdoing conflicts notwithstanding the absence of record evidence demonstrating as much; and (2) the record reflecting that Mr. Mai knowingly andintelligently waived one potential conflict — the potential witness/advocate conflict — is sufficient to establish his knowingandintelligent waiverof the attorney related wrongdoing conflict. (RB 21-22.) Respondent is wrong on both counts. It is, of course, well settled that courts must “indulge every reasonable presumption against the waiver” of the fundamentalright to the effective assistance of conflict-free counsel. (People v. Mroczko, supra, 35 Cal.3d at pp. 109-110; accord Glasser, supra, 315 U.S. at p. 71, citing Johnson vy. Zerbst, supra, 304 U.S. at p. 464.) That presumption may only be rebutted by an affirmative record showing that the waiver was a “knowing,intelligent act[] done with sufficient awarenessof the relevant 32 circumstances and likely consequences.” (People v. Mroczko, supra, at p. 110; accord Glasser, supra.; AOB 42-43) Contrary to respondent’s reading, Sanchez is consistent with these fundamental principles. It merely observed and applied the general rule that a reviewing courtis not limited to considering “matters discussed on the record” of the waiver colloquy, but rather may “look[] at the whole record [in] determin[ing] whether defendant was awareof the potential drawbacks and possible consequencesof retaining [counsel], and whether he understood his right to conflict-free counsel and knowingly waived that right.” (Sanchez, supra, 12 Cal.4th at p. 48; accord, e.g., People v. Howard (1992) 1 Cal.4th 1132 [while federal Constitution demandsthat “record affirmatively shows” the knowing andintelligent nature of admission and accompanying waivers, determination may be based on “totality of circumstances” by “reviewing the whole record instead of just the record of the plea colloquy”’].) Furthermore, although the validity of a waiver does not require record evidence that the defendantis advised of every conceivable consequenceof a particular conflict, no matter how remote (People v. Sanchez, supra, 12 Cal.4th at p. 48; accord, e.g., People v. Clark (1992) 3 Cal.4th 41, 140), it does require affirmative record evidencereflecting that the defendantis “advised of the basic problem” (Clark, supra) and its most significant, “full range of dangers” (People v. Easley, supra, 46 Cal.3d at pp. 730-731) or “likely consequences” (People v. Morczko, supra, 35 Cal.3d at pp. 110-113; accord Lockhart v. Terhune (9th Cir. 2001) 250 F.3d 1223, 1232-1233). (AOB 56-61 & fn. 25.) In Sanchez, the defendant was advised of the “basic problem”of a potential conflict wholly unrelated to the defendant’s case and its reasonably foreseeable consequences. 33 (Sanchez, supra, 12 Cal.4th at p. 38 {impending disbarment proceedings based on the attorney’s mishandling ofother client funds].) The matters undiscussed were simply additional, more remote potential ramifications. ([bid.) Here, there were several distinct potential conflicts arising from the parallel related federal prosecution. The record reflects that only one of them — the least serious potential witness/advocate conflict — was explained to Mr. Mai. There is no indication anywhere in the record — nor does respondentcite to any record evidence — that any one, including Mr. Pohlson, explained to Mr. Mai the far more serious related attorney wrongdoing conflict and its well-recognized and reasonably foreseeable risks — i.e., how the facts created a self-interest on the part of Mr. Mai’s counsel that could potentially conflict with his best interests, or any of the ways in which that conflict could potentially impact or affect their representation of him in these proceedings (See, e.g., United States v. White (Sth Cir. 1983) 706 F.2d 506, 507-510 & fns. 2 & 4 [knowing and intelligent waiver of this kind of conflict was not established by record that failed to include discussion of its unique potential ramifications, despite record evidence that defendant was advised that potential conflict existed and non-specific testimony that counsel explained the “difficulties” of their representation under the circumstances]; AOB 27-31, 103-110; Parts B & C, ante.) To the contrary, the record affirmatively demonstrates the opposite. Mr. Pohlson carefully detailed on the record the advice he had provided to Mr. Maioff the record. (AOB 45-48.) As discussed in greater detail in the opening brief, Mr. Pohlson’s careful and thoroughrecitation of that advice was merely that there was the “appearance”of a conflict based 34 on the likelihood that defense counsel would be called as witnesses in Watkins’s federal trial, but that it had absolutely no potential to impact defense counsel’s representation of Mr. Mai in this case. (/bid., citing 1-RT 75-79, 83.) In advising Mr. Mai ontherecord, thetrial court simply “repeated Mr. Pohlson’s opinionin this regard and confirmed with Mr. Mai that Mr. Pohlson had advised him of the “same possibilities.” (1-RT 85- 87:) In short, the record affirmatively establishes that. Mr. Mai was not advised — either on or off the record — about even the existence of the distinct and far more serious related attorney wrongdoing conflict, much less any of its well recognized dangers. (AOB 45-53, 59-60.) To the contrary, Mr. Mai was misinformed that there was no conflict at all, much less one that had any potential to impact counsel’s performancein this case. (Ibid.) Furthermore, respondentignores that defense counsel andthestate prosecutor affirmatively misrepresented that the evidence of the conspiracy to kill Nguyen (which would presumably include any evidence of their own roles in it) had “zero”:potential to impact Mr. Mai’s state case because the prosecutor had agreed notto present it. (1-RT 80-81.) As discussed at length in the opening brief, defense counsel’s misrepresentations, the trial court’s inquiry, the record advice given to Mr. Mai, and Mr. Mai’sown responseis nearly identical to that in People v. Easley, supra, 46 Cal.3d at pp. 730-731, and People v. Mroczko, supra, 35 Cal.3d at p. 110-113. (AOB 56-61.) In both of those cases, this Court held that the record failed to demonstrate the defendants’ knowing andintelligent waivers largely due to defense counsel’s denials of the existence of potential conflicts and misrepresentations. (/bid.; accord, e.g., Lockhart v. Terhune, supra, 250 F.3d at p. 1232.) Respondent does not even address, much less refute, 35 Easley and Mroczkoin this regard. The omission speaksforitself. In sum, contrary to respondent’s contentions, this Court must presume every reasonable presumption against the waiver of Mr. Mai’s fundamental rightto the effective assistance of counsel uninfluenced by the related attorney wrongdoingconflict. (See, e.g., Glasser, supra, 315 U.S.at p. 71; People v. Mroczko, supra, 35 Cal.3d at p. 110.) In the absence of record evidence affirmatively demonstrating as much, this Court may not presumethat Mr. Mai wasadvised ofthe existence and well recognized dangers of the attorney related wrongdoing conflict and made a knowing and intelligent waiver thereof. (Ibid.) In any event, for these andall of the other reasons discussed in the opening brief, the record here belies such a presumption. (AOB 40-62.) Finally, respondent does not address or dispute Mr. Mai’s argument that the record is completely silent with regard to whether he knowingly and intelligently waivedhis right to the effective assistance of counsel uninfluenced by the conflict created by his counsel’s simultaneous representation of Ms. Pham in federal court. (AOB 108-110.) As this Court cannot presume a waiver on silent record, no further reply is necessary. D. Respondent Misconstrues the Showing Necessary To Demonstrate that a Potential Conflict Ripened into An Actual One ByInfluencing, and Thus Adversely Affecting, Counsel’s Performance According to respondent, Mr. Mai hasfailed to prove that the conflict resulted in counsel’s “deficient performance” because “reasonable and unconflicted” counsel could have made the sametrial decisions as defense counsel made and “the record does not demonstrate the absence of any [reasonable] tactical” basis for counsel’s. (RB 27, 29, 32, 36-37.) 36 Therefore, respondent concludes, Mr. Mai has failed to prove that the conflicts ripened into actual ones by adversely affecting counsel’s performance within the meaningofthe state and federal Constitutions. (RB 27-37.) Respondent’s conclusion does not follow from its premise. Respondent’s analysis is consistent withthe first, “deficient performance”prongof the traditional Strickland analysis, which requires a showing that defense counsel committedtrial errors so serious that theyfell below objective standards of reasonableness under prevailing professional norms, unjustified by any reasonabletrial “tactic” or “strategy.” (Strickland, supra, 466 U.S. 668, 688.) However, respondent’s analysis is inconsistent with the showing necessary to demonstrate a conflict’s “adverse affect” on counsel’s performance under the appropriate analysis governing such claims. (See AOB 25-31, 63-68.) It is well-settled that ““[w]hen a[n appellant] premises his ineffective assistance claim on the existence of a conflictof interest, the claim is subjected to the specific standard spelled out in Cuyler v. Sullivan, 446 U.S. 335... instead of that articulated in Strickland.” (United States v. Nicholson [“Nicholson P’} (4th Cir. 2007) 475 F.3d 241, 249; see also AOB 25-27.) Indeed,as the high court explicitly recognized in Strickland,its two-prongedtest to establish ineffective assistance of counsel presupposes the absence ofa conflict of interest. Ineffective assistance of counsel claims premised on conflicts of interest are subject to a different analysis: under Cuyler v. Sullivan, supra, 446 U.S. at pp. at pp. 345-350, the defendant must demonstrate that his lawyer labored under a conflict of interest that adversely affected his performance. (Strickland, supra, 466 U.S. at pp. 687-688, 690-693.) The high court explained why the two standards are different as to both the performance and prejudice inquiries. 37 In the case of actual conflicts, “counsel breaches the dutyofloyalty, perhaps the most basic of counsel’s duties.” (Strickland, supra, 466 U.S. at p. 692.) Counsel have clearly delineated obligations “to avoid conflicts of interest” and trial courts must make “early inquiry in certain situations likely to give rise to conflicts [Citation] ....” (/bid.) When an “actual conflict” is shown, prejudice is presumed because“it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests.” ([bid.) Furthermore, “given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry.. . it is reasonable for the criminal justice system to maintain fairly rigidrule of presumedprejudice for [actual] conflicts of interest.” ([bid.) In contrast, other “[a]ttorney errors comein an infinite variety . . [which, unlike conflicts, cannot] be defined with sufficient precision to inform defense attorneys correctly just what conduct to avoid.” (Strickland, supra, 466 U.S. at p. 693.) “They cannotbeclassified according to likelihood of causing prejudice. . . and are as likely to be utterly harmless in a particular case as they are to be prejudicial.” (/bid.) Furthermore, unlike conflicts of interest that can be prevented bythetrial court’s duty to make early inquiry, the state is not “able to prevent [other] attorney errors that will result in reversal of a conviction or sentence.” (Ibid.) Underthe appropriate conflict of interest analysis, respondent’s focus on what unconflicted counsel could have done without violating prevailing professional norms is misplaced. When an unconflicted attorney makes a choice betweenstrategies, there is no question that his choice was impelled only by his independent professional judgmentand not any improper outside influences; therefore, the relevant question for Sixth Amendment purposesis whether that independentprofessional judgment 38 was objectively reasonable underthe traditional Strickland analysis. (See, e.g., People v. Mroczko, supra, 35 Cal.3d at p. 107-108.) But where,as here, an attorney with conflicting interests makes a choice between strategies, the issue of whether that choice wasinfluenced by a conflicting interest is very much in question; indeed,it is the very focus of “adverse effect” analysis. (AOB 65-68; see, e.g., Hovey v. Ayers (9th Cir. 2006) 458 F.3d 892, 907-909 [under Stricklana’s first prong, question is whetheract Or omission was due to “incompetence,” while under conflict analysis, question is whether act or omission wasinfluenced byconflict].) Asthe United States Supreme Court has held, a conflict’s “adverse effect” is demonstrated whenit appears likely that counsel was “influenced in his basic strategic decisions by” the conflict. (Wood v. Georgia, supra, 450 U.S. at pp. 272-273;"* accord, e.g., Mickens v. Taylor (2002) 535 U.S. 162, 170-172 [citing Wood as appropriately describing “adverse effect” requirement]; People v. Mroczko, supra, 35 Cal.3d at pp. 107-108; United States v. Malpiedi, supra, 62 F.3d at p. 469; Sanders v. Ratelle (9th Cir. 1994) 21 F.3d 1446, 1452; Thomas v. Folz (6th Cir. 1987) 818 F.2d 476, 483.) Unlike Strickland’s first prong, this showing maybesatisfied whenit > 6éappears that counsel’s “representation . . . was [simply] not as effective asit '* In his opening brief, Mr. Mai misattributed the quotation that adverse effect is established if it appears that counsel “was influencedin his basic strategic decisions” by the conflict to Wheat v. United States (1988) 486 U.S. 153, 160, and cited the Supreme Court’s decision in Wood vy. Georgia, supra, 450 U.S. at pp. 272-273 in accord. (AOB 65.) In fact, the quoted languageis found in Wood v. Georgia, supra, 450 U.S. at pp. 272- 273, not Wheat. In Mickens, supra, the Supreme Court held that the quoted language in Woodis a correct statementof the “adverse effect” showing necessary to establish an “actual conflict” in violation of the Sixth Amendment. (Mickens, supra, 535 U.S. at pp. 169-172.) 39 might have been”absent the conflict. (Glasser, supra, 325 U.S. at p. 76, italics added; accord, Cuyler v. Sullivan, supra, 446 U.S at pp. 348-350; People v. Rundle, supra, 43 Cal.4th at p. 169, and authorities cited therein [adverse effect if record shows counsel “‘pulled his punches’” — i.e., failed to represent defendantas vigorously as he might have had there been no conflict’”’].) | _ Underthe federalcircuit courts’ application of the high court’s precedents and “longstanding and widely utilized standard” for determining whether a conflict improperly influenced counsel’s performance (United States v. Nicholson [‘‘Nicholson IT’] (4th Cir. 2010) 611 F.3d 191, 212 & fn. 19), adverse-effect is established when there was some “objectively reasonable”or “plausible alternative defense strategy or tactic that might have been pursued but wasnotandthat the alternative strategy was inherently in conflict with . . . the attorney’s other loyalties or interests.’” (AOB 66-68, quoting United States v. Wells (9th Cir. 2005) 394 F.3d 725, 733, and authorities cited therein.) As similarly stated by this Court in Peoplev.Mroczko, supra, 36 Cal.3d86, when defense counselrejects a reasonable strategy that would conflict with an interest other than his client’s in favor of pursuing a strategy that seemingly serves both interests and “paper[s] over the conflicts that would have arisen” by the discarded strategy, the record demonstrates that counsel’s “very choice ofstrategies was coloredby the conflict he faced”in violation of the federal Constitution. (/d. at pp. 107-108, AOB 67, 110.) This circumstantial showing is sufficient to compel the inference that defense counsel discarded the “plausible”or “objectively” reasonable strategy in whole orin part because of the conflict and hence that the conflict influenced and adversely affected counsel’s performance. (See, e.g., People v. Mroczko, supra, 35 40 Cal.3d at pp. 107-108; United States v. Malpiedi, supra, 62 F.3d at p. 469; Nicholson I, supra, 611 F.3d at p. 213; cf. People v. Easley (1988) 46 Cal.3d 712, 727 [under United States Supreme Court jurisprudence, adverse ee effect does not demand “‘affirmative evidence’ in the record,” but rather is determined by inferences drawn from the record as whole].)'° Upon a showing that counsel wasinfluencedin his basic strategies by a conflicting interest under this standard, it is of no momentif unconflicted, objectively reasonable counsel “might have madeprecisely the sametactical decisions.” (People v. Mroczko, supra, 35 Cal.3d atp. 107; accord, e.g., United States v. Malpiedi, supra, 62 F.3d at p. 469; Thomas v. Folz (6th Cir. 1987) 818 F.2d 476, 483; United States v. Hall 'S All of the federal circuits endorse and apply this test with minor variations. (Reyes-Vejarano v. United States (1st Cir. 2002) 276 F.3d 94, 97; Winkler v. Keane (2d Cir. 1993) 7 F.3d 304, 309; United States v. Gambino (3rd Cir. 1988) 864 F.2d 1064, 1070; Nicholson II, supra, 611 F.3d at p. 212 & fn. 19; Mickens v. Taylor (4th Cir. 2001) 240 F.3d 348, 361, aff'd by Mickens v. Taylor, supra, 535 U.S. at p. 176; Perillo v. Johnson (5" Cir. 2000) 205 F.3d 775, 807; Moss v. United States (6th Cir. 2003) 323 F.3d 445, 465-466; United States v. Cirrincione (7th Cir. 1985) 780 F.2d 620, 629; Winfield v. Roper (8th Cir. 2006) 460 F.3d 1026, 1039; United States vy. Bowie (10th Cir. 1990) 892 F.2d 1494, 1500; Freund v. Butterworth (11th Cir. 1999) 165 F.3d 839, 860.) Somecircuit courts state this test in terms of a “plausible”alternative strategy inherently in conflict with the attorney’s other interests. (Nicholson I, supra, 611 F.3d at p. 212 & fn. 19 [collecting cases].) Others state the test in terms of an “objectively reasonable”alternative strategy. (Ibid.) This Court need not resolve whether there is any meaningful difference between the two formulations and,if so, which is the more appropriatetest, since the discarded alternative strategies inherently in conflict with defense counsel’s interests in this case were both “objectively reasonable” and “plausible.” Hence, Mr. Mai’s referencesto “plausible alternatives” encompass both formulationsof thetests. 41 (7th Cir. 2004) 371 F.3d 969, 974.) “The pointis, of course, that if that had happened, it would have happened because [unconflicted counsel] decided that it should, thinking only of his own client’s interests and not those of” anyone else. (Mroczko, supra, at pp. 107-108.) Similarly, it is unnecessary to prove that counsel could have had no legitimate tactical reasons — uninfluenced by the conflict — for his or her acts or omissions. To the contrary, a showing that counsel discarded a plausible or reasonable alternative strategy that inherently conflicts with his other interests establishes adverse effect and makes “it is unnecessary — and even inappropriate — to accept and consider evidence of any benign motives for the lawyer’s tactics.” (Nicholson II, supra, 611 F.3d at p. 213,italics added; accord, e.g., United States v. Malpiedi, supra, 62 F.3d at p. 470; Lewis v. Mayle (9th Cir. 2004) 391 F.3d 989, 998-999, and authorities cited therein; United States v. DeFalco (3d Cir. 1979) 644 F.2d 132, 137.) To be sure, this does not mean that a comparative inquiry into what a reasonable, unconflicted attorney would have done under the same circumstancesis irrelevant. (See, e.g., Glasser v. United States, supra, 315 U.S. at pp. 172-175 [adverse effect demonstrated where it appear[ed] that counsel’s performance wasnot“as effectiveasit might have been” absent conflict]; People v. Rundle, supra, 43 Cal.4th at pp. 169-170.) For instance, adverse effect may be established if unconflicted counsel would not have chosenthe strategy conflicted counsel chose or would have pursued a strategy conflicted counsel discarded. (See, e.g., People v. Rundle, supra, at pp. 170-171; People v. Easley, supra, 46 Cal.3d at pp. 726-728.) Similarly, if the strategy conflicted counsel discarded was an objectively unreasonable one and therefore would necessarily have been discarded by a reasonable, unconflicted attorney, then adverse effect cannot be established. 42 (See, e.g., United States v. Malpiedi, supra, 62 F.3d at p. 469.) However, irrespective of what unconflicted counsel could reasonably have done within prevailing professional norms, when conflicted counsel discards a reasonable strategy that inherently conflicts withan interest other than the best interests of his client, adverse effect is demonstrated. (Woodv. Georgia, supra, 450 U.S. at pp. 272-273.)"° - Finally, once it is demonstrated that a conflict influenced counsel’s performance,Strickland’s first prong is necessarily satisfied. Because counsel have “basic duties” to avoid actual conflicts, no reasonable attorney would permit a conflict to influencehistrial decisions. (Strickland, supra, 466 U.S. at p. 693; see, e.g., United States v. Malpiedi, supra, 62 F.3dat p. 469 [counsel’s failure or inability to make a “conflict-free decisionisitself a lapse in representation”’.) As demonstrated below and in the opening brief, the record amply demonstrates that the conflicts adversely influenced defense counsel’s choices of strategy from beginning to end. Therefore, defense counsel’s performancein fact did fall below objectivestandards of reasonableness '© Indeed, any contrary rule would be inconsistent with the high court’s precedents and nonsensical. As discussed above, the United States Supreme Court has recognized compelling reasons to demand a lower burden of proof to establish unconstitutional conflicts of interest than that required to prove other formsof ineffective assistance of counsel. (Strickland, supra, 466 U.S. at p. 692, and authorities cited therein.) But respondent’s formulation would turn the law on its head and impose a greater burden on defendants to prove an unconstitutional conflict: a defendant would not only be required to prove ineffective assistance under the traditional two-pronged Strickland test. (See also RB 37-40.) In addition, the defendant would haveto prove that the conflict (and not merely incompetence) caused counsel’s ineffective assistance. (See,e.g., Hovey v. Ayers (9th Cir. 2006) 458 F.3d 892, 907-909.) 43 even within the meaning of Strickland. Hence, even under respondent’s analysis, the conflicts adversely affected counsel’s performance."’ E. The Potential Conflicts Ripened into Actual Ones by Adversely Influencing Defense Counsel’s Decisions During the Pre-Plea and Plea Proceedings Mr. Maiargued in the opening brief that the potential conflicts ripened into actual ones, influencing defense counsel’s performance during the pre-plea and plea proceedings in fourdistinct but related ways. (AOB 63-92 [Argument I-E-2 through I-E-5].) First, the related attorney wrongdoing conflict adversely influenced lead counsel Peters’s decision to insinuate himself into the federal proceedings in which Mr. Maiwasalready represented by unconflicted federal counsel and broker a plea agreement whereby Mr. Mainot only pled guilty to all federal charges and received the maxim sentence but also andagreedto plead guilty to the state capital murder charge, all in exchange for no return of any benefit to himself. (AOB69-72 [ArgumentI-E-2].) Respondent counter-argumentis that: (1) there is no evidence that “defense counsel Peters and O’Connellforced Maito plead guilty”; (2) no evidence“that Mai’s plea in federal court was other than voluntary, knowing andintelligent”; and (3) “Mai cannotsatisfy the deficient performanceprong [of Strickland] becausethe record does not demonstrate an absence of any tactical reason for the entry of his federal plea” (RB 28- 29, italics added). To the extent these contentions have notalready been refuted, they are irrelevant to the issue at hand. '’ In any event, even under respondent’s analysis, Mr. Mai has established that no reasonable, unconflicted attorney would have performed as defense counseldid in this case. 44 As this Court has held, adverse effect is established if counsel chose a course that served a conflicting interest that an unconflicted attorney would not have pursued. (See, e.g., People v. Rundle, supra, 43 Cal.4th at p. 170.) Thisshowingis readily satisfied in this case. ~ As to respondent’s first point, Mr. Mai does not argue, nor must he show,that his attorneys “forced” him to do anythingorthat heis entitled to relief-from his-federal guilty pleas. A conflict of interest is far more insidious than “forcing” a client to take an action that will harm him or avoid taking an action that would benefit him. The essential vice in representation by counsel with conflicting personalinterests of the unique kind presented hereis that counsel is in a position of trust with the client and will manipulate that position to their own ends. In this case, defense counsel had compelling personal reasonsto avoid an adversarial trial and curry favor with the federal government— the very entity that was investigating and prosecuting their client and agent/investigator for conspiring to kill Nguyen and the very entity to whom their agent/investigator alleged that they were also complicit. (AOB 28-40.) These interests were served by Mr. Peters’s orchestration of the federal plea agreement, which included a promise that Mr. Mai would plead guilty to the state capital murder charge without any actual or reasonably anticipated return benefit for himself. (AOB 69-72; see also AOB 103-110, citing, inter alia, United States v. Fulton, supra, 5 F.3d at p. 610; United States v. Levy, supra, 25 F.3d at p. 156.) Itis mosttelling that Mr. Mai’s unconflicted federal counsel refused to concur in, and objected to, the plea agreement conflicted counsel arranged. (AOB 69-72; 2-CT 408-413.) These conflicts in turn influenced defense counsel’s decision to commit Mr. Mai to a slow plea to capital murderin state court independent 45 of the federal plea.'* (AOB 73-78 [ArgumentI-E-3.) Althoughthestate court and state and federal prosecutors ultimately recognized that defense counsel’s promise to the federal government was not bindingin state court, defense counsel nevertheless consented to Mr. Mai’s slow plea to capital murder without making any attempt to negotiate a return benefit from the state by, for instance, offering his cooperation in addition to his plea. (AOB 73-78.) Respondent’s contention that Mr. Mai would never have agreed to cooperate and the prosecution would never have agreed to a return benefit is without merit for two reasons. (RB 29-30.) First, it is pure speculation: respondent points to no record evidence to support these contentions, but rather bases them on “commonsense.” (RB 29-30.) More importantly, respondent’s focus on the likely outcome of attempts at plea negotiationsis irrelevant under the law. “Adverse effect” focuses on counsel’s performance, not on the outcome of the proceedings. (See Part D, ante.) Therefore, when a defendantclaimsthat a conflict influenced his attorney’s performancein the plea negotiation stage, he need only show that counsel did not pursue the alternative of attempting to negotiate a favorable plea bargain that would inherently conflict with counsel’s other interests. (United States v. Williams (2nd Cir. 2004) 372 F.3d 96, 106-107; United States v. Christakis (9th Cir. 18 That is, defense counsel submitted the issue of Mr. Mai’s guilt and death eligibility to the trial court based solely on the preliminary hearing transcript, without argumentor the presentation of additional evidence. Respondent does not dispute the submission wasa “slow plea,” which was “tantamount,that is the same as”a guilty plea that made a guilty verdict a “foregone conclusion.” (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 602; see AOB 73.) 46 2001) 238 F.3d 1164, 1170; Winkler v. Keane (2d Cir. 1993) 7 F.3d 304, 307-309.) 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, supra, at p. 1170; accord, United States v. Williams, supra, at pp. 106-107; Winkler v. Keane, supra, at pp. 307-309; see also ‘Holloway v. Arkansas, supra, 435 U.S. at p. 491 [“assess[ing] the impact of a conflict of interest on the attorney’s . . . decisionsin plea negotiations would be virtually impossible’’].) Consequently, where, as here, Mr. Mai may well have possessed credible evidence of related attorney wrongdoing, counsel’s failure to “make any significant effort to negotiate a... cooperation agreementonhis [client’s] behalf” is a plausible alternative inherently in conflict with counsel’s personal interests that adversely affected counsel’s performance. (United States v. Williams, supra, atp. 106; accord, e.g., Mannhalt v. Reed (9th Cir. 1988) 847 F.2d 576, 583.) In any event, even if attempting to negotiate for a promised benefit from the state in return for Mr.-Mai’s plea wasnota plausible alternative, refusing to consent to the plea was. (AOB 78-85 [ArgumentI-E-4].) Indeed, it was the far more reasonable alternative in this case for at least two reasons. First, defense counsel knew that Mr. Mai entered the slow plea in order to obtain a death verdict and believedthat it was highly likely to result in that verdict. (AOB 78-85 [Argument I-E-4.) Second, defense counsel should have knownthat the preliminary hearing evidence raised compelling reasonable doubt that Mr. Mai waseveneligible for the death penalty based on the sole special circumstanceallegation. (AOB 85-91 [ArgumentI-E-5].) Respondentdoes not dispute that Mr. Mai entered a slow plea to 47 capital murder or that defense counsel had the powerto preventit under Penal Code section 1018. (See RB 29-31; AOB 73, 80-81.) Hence, under the appropriate conflict analysis, respondent tacitly concedesthatrefusing to consent to the plea was a plausible-alternative.. (AOB 78-91; Part D, ante.) Respondent does not address Mr. Mai’s argumentthat refusing to consent to the unconditional slow plea on the groundthat it was intended to result, and was highly likely to result, in a death verdict was not only a plausible alternative. It is the very “alternative” that Penal Code section 1018 was enacted to achieve (People v. Chadd (1981) 28 Cal.3d 739, 750- 751, 753) and that prevailing professional norms demand (ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (1989) [1989 ABA Guidelines”], Guidelines 11.6.2 and 11.6.3 and Commentaries). (AOB 78-85.) Under the circumstances, defense counsel’s consent to the plea served no interests but their own at the expense of Mr. Mai’s life. (AOB 78-75.) Furthermore, counsel’s submission to a court trial based on the evidencein the preliminary hearing did not relieve the prosecutionofits burden of proof on every element, preclude counsel from arguing against the sufficiency of the preliminary hearing evidence to meet that burden,or relieve the court of its duty to acquit if that evidence wereinsufficient to prove the charged murder and special circumstance. (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 603; People v. Martin (1973) 9 Cal.3d 687, 695.) As discussed in the openingbrief, the preliminary hearing transcript manifestly supported a challenge to the sufficiency of the evidence that Mr. Maikilled the victim while he was lawfully engaged in the performance of his duties as a police officer, an element of the sole special circumstance 48 allegation. (AOB 85-91, citing, inter alia, Pen. Code, § 190.2, subd. (a)(7) and In re Manuel G. (1997) 16 Cal.4th 805, 815 [crimes and special circumstancesthat incorporate a performanceof duties element require proof beyond a reasonable doubtthat officer was lawfully engaged in performance of duties].) Hence, refusing to consent to the slow plea and arguing that defense wasa plausible, highly reasonable alternative. Respondent counters defense counsel’s performancein this regard was “reasonable” and “strategic” under Strickland’s first prong because there was no “viable defense.” (RB 29-31.) Even assuming contrary toall precedentthat Stricklana’s first prong applies here, respondent’s contention is without merit. Its “argument” in this regard is perfunctory and misleading: Mai contends that defense counsel should have asserted the officer was not acting lawfully because he stopped Mai for not having his headlights illuminated and [prosecution] witness Beniece Sarthou testified she was wearing her prescription sunglasses at about 8:30 p.m. whenshe saw that Mai had been stopped bythe officer. (AOB 85-91.) Ms. Sarthou’s perceived need for sunglasses is not a sufficient basis for concluding that defense counsel were affected by an actual conflict in their representation of Mai. (RB 30-31.) Respondent’ s summarybears norelation, and provides no meaningful response, to Mr. Mai’s actual challenges to the preliminary hearing evidence to prove the lawful performance of duties element of the sole special circumstance allegation. (AOB 85-91 [ArgumentI-E-F], 168- 178 [ArgumentII] 179-191 [Argument Ill); see also ArgumentsIT andIII, post.) First, the preliminary hearing contained no competent evidenceto explain the reason for the officer’s traffic stop. (AOB 86-89.) Second, 49 even assuming arguendothat the officer stopped and detained Mr. Mai for driving withoutilluminated headlights, the prosecution failed to present any evidenceat the hearing to prove that Mr. Mai was thereby committing a traffic violation for which the peace officer could awfully stop and detain him. (AOB 85-91, citing, Veh. Code, §§ 38335 [requiring illumination of headlights “from one-half hour after sunset to one-half hour before sunrise”], 24400 [same — “during darkness”’], and 280 [defining darkness as “any time from one-half hour after sunset to one-half hour before sunrise’”’].) Rather, prosecution witness Berneice Sarthou’s uncontradicted testimony established that Mr. Mai was not committing traffic violation and therefore Officer Burt’s detention was unlawful. (AOB 85-91.) Contrary to respondent’s purported summary of the evidence, prosecution witness Sarthou did not simply testify that she was wearing her sunglasses when she observed the officer and Mr. Mai. (RB 30-31.) She explicitly testified that “it was still daylight[,] [i]t wasn’t sunset yet.” (1 Muni RT 190, emphasis supplied.) Based on this evidence Mr. Mai wasnot committing a traffic violation by driving withoutilluminated headlights before sunset; therefore the officer’s stop and detention of him for that reason was not lawful. (AOB 85-91, citing, inter alia, Veh. Code, $§ 280, 24400, 38335, Whren v. United States (1996) 517 U.S. 806, 809-810 and Delaware vy. Prouse (1979) 440 U.S. 648, 653.) The preliminary hearing evidence thus supported a powerful argumentthat the officer was notkilled while engaged in the lawful performanceof his duties, a necessary element of the sole special circumstanceallegation. Therefore, refusing to consent to Mr. Mai’s slow plea and arguing that the special circumstance has not been proved beyond a reasonable doubt werenot only “plausible” or objectively reasonable alternatives to 50 defense counsel’s “strategy” of conceding Mr. Mai’s guilt and death eligibility under circumstances in which a death verdict was virtually inevitable. Even under respondent’s first-prong Strickland analysis, counsel’s expressedtactical reason for discarding those alternatives — that there was no guilt phase defense — was objectively unreasonable. (See ArgumentIII, post; AOB 179-199.) Because the discarded, superior strategies inherently conflicted with defensecounsel’s powerful personal interests to avoid an adversarialtrial and curry favor with the state and federal prosecuting authorities, the record compels the inference that the conflicts adversely affected their performance. (AOB 85-91, 103-110; Parts D, ante, and G-1, post.) F. The Conflicts of Interest Influenced, and Thus Adversely Affected, Defense Counsel’s Decision to Insist that No Competency Proceedings be Initiated Despite Their Repeatedly Expressed Belief that Mr. Maiwas Not Capable of Rationally Assisting in His Own Defense As discussed in the opening brief, defense counsel’s personal interests alsoinfluenced their insistence that competencyproceedings were unnecessary. (AOB 92-103.) Respondent mischaracterizes Mr. Mai’s argument. According to respondent, Mr. Mai arguesthat his counsel’s failure to “rel[y] on the filings that were made in the Ninth Circuit challenging his conditions of confinementin federal custody to support a request for a mental competency hearing” demonstrates that their personal interests adversely affected their performance, or establishes an actual conflict. (RB 31-32.) Having built up this straw man, respondent proceeds to knock it down on the groundthat the trial court was “aware of those Ninth Circuit filings,” yet necessarily found that they did not contain substantial evidence warranting a competency hearing byfailing to order 51 one. (RB 31-32.) This is not Mr. Mai’s argument. Asdiscussed in the openingbrief, lead defense counsel Peters repeatedly represented to thetrial court that Mr. Mai’s mental condition had so deteriorated under the extraordinarily harsh conditions of his federal solitary confinement that he was no longerable to rationally consult with counsel, participate in the preparation of his penalty phase defense,or indeed to decide to whether to present a defenseatall. (AOB 93-99.) Defense counsel’s representations were based on the expert opinion of Mr. Mai’s appointed psychologist, Dr. Thomas, who had regular contact with Mr. Mai before and throughouthis solitary confinement, as well as the defense team’s own-observations and interactions with Mr. Mai. (AOB 93-99; see also AOB 200-247.) Defense counsel’s representations were madeto the court orally, through Dr. Thomas’s state court testimony, and through federal and state appellate court pleadings that they served on the state court and that court reviewed. (AOB 93-99.) In other words,as . Mr. Mai made abundantlyclear in the opening brief, defense counsel did presentthetrial court with “the filings that were madein the Ninth Circuit” (RB 31), those “filings” detailed evidence that Mr. Mai was unable to rationally consult with counselor participate in his defense, andthetrial court was aware of thosefilings and the evidence they contained. (AOB 95-96; see also AOB 208-214.) Thus, the problem is not that defense counsel failed to present certain evidence of Mr. Mai’s incompetencyto the trial court, as respondent suggests. (RB 31.) To the contrary, defense counsel presented a substantial amountof such evidence and represented in effect that Mr. Mai was not competentto stand trial within the meaning of state law andthe federal Constitution. (AOB 92, 99, citing, inter alia Drope v. Missouri (1975) 420 52 U.S. 162, 171 and Pen. Code, § 1367.) In other words,“although defense counsel did not formally” declare doubt as to Mr. Mai’s competency, they “did on numerousoccasions express concern that [Mr. Mai] was unable to aid in his own defense .:. . was deteriorating, not communicating with defense counsel,” and thereby effectively and “clearly expressed concern about [his] competence.” (Maxwell v. Roe (9th Cir. 2010) 606 F.3d 561, 574-575.) The problem is that despite defense counsel’s representations that Mr. Mai wasunableto rationally consult with counsel and participate in his defense — which by definition meant that they believed he was incompetent — they nonsensically insisted that he was not “1368,” meaning that competency proceedings were unnecessary. (AOB 93-99; 5-RT 1077; see also 2-RT 396, 3-RT 452; 5-RT 1077; 6-RT 1081.) Given defense counsel’s evidence and good causeto believe that their client was incompetent, requesting the initiation of competency proceedings was clearly a “plausible” or reasonable alternative under the appropriate conflict analysis. (AOB 93-103.) Even under respondent’s Strickland analysis, defense counsel’s failure to request the initiation of competency proceedings under these circumstancesfell below objective standards of reasonable competence. (AOB 99-101, citing, inter alia, ABA Criminal Justice Mental Health Standards (1989) Standard 7-4.2, subd. (c), Jermyn v. Horn (3d Cir..2001) 266 F.3d 257, 283,301, United States vy. Boigegrain (10th Cir. 1998) 155 F.3d 1181, 1188, and authorities cited therein, and People v. Stanley (1995) 10 Cal.4th 764, 804-805.) Because that discarded alternative inherently conflicted with counsel’s personalinterests, the record compels the inference that the conflicts adversely affected counsel’s performance. (AOB 101-103.) 53 Respondentcontendsthat “[dJefense counsel did not seek a mental competencyhearing due to a conflict or fear of possibility of facing criminal charges, there was no request simply because there was not substantial evidence upon which to doubt Mr. Mai’s competency.” (RB 31- 32.) In supportofits contention, respondent simply incorporates by referenceits later argumentthat the evidence wasinsufficient to trigger the trial court’s sua sponte duty to declare a doubt as to Mr. Mai’s competency and initiate competency proceedings. (RB 32; see also RB 53-62 {Argument IV].) Respondentconflates two distinct legal standards. The focus of actual conflict analysis, as well as Strickland’s first prong, is on defense counsel’ s performance. Where,as here, defense counsel has good reason to believe that his client is incompetent, his failure to requestthe initiation of competency proceedingsfalls below an objective standard of reasonableness within the meaning of Stricklana’s first prong. (AOB 99- 101.) If a conflict of interest influenced counsel’s failure to make a -plausible or objectively reasonable request for competency proceedings, the conflict “adversely affected” counsel’s performance within the meaning of Woodv. Georgia, supra, 450 U.S.at pp. 272-273, Mickens, supra, 535 U.S. at pp. 171-172, and Cuylerv. Sullivan, supra, 446 U.S. at pp. 348-349. (Part D, ante.) Whetherthe evidence of incompetenceis sufficient to demand the trial court’s sua sponte initiation of competency proceedings is an entirely different question. In determining whether defense counsel’s failure to request competency proceedingssatisfies Strickland’s first prong, the reviewing court “need not decide whether the trial court was required”to initiate competency proceedings. “The issue before [the reviewing court] is 54 not the trial court’s decisions but whether [defense counsel’s] actions — or inactions — show his ineffectiveness. The focus of the ineffectiveness claim is that [defense counsel] never even asked for” competency proceedings. (Hummel v. Rosemeyer (3d Cir. 2009) 564 F.3d 290, 302-303.) Hence, respondent’s muddled response to Mr. Mai’s argument must be rejected. For all of the reasons discussed aboveandin the openingbrief, the record compels the inference that defense counsel’s conflicting interests in self-preservation adversely affected their inexcusable performance in insisting that competency proceedings were unnecessary despite their compelling cause to believe (and Dr. Thomas’s expert opinion) that Mr. Mai was,by definition, not competent. (AOB 92-103.) G. The Conflict of Interests Influenced, And Thus Adversely Affected, Defense Counsel’s Penalty Phase Performance 1. Respondent Ignores, and Thus Does Not Dispute, Counsel’s Compelling PersonalInterests to Avoid an Adversarial Penalty Trial At the Cost of Mr. Mai’sLife Asdiscussed in Part C-1, ante, and in the opening brief, contrary to defense counsel’s representation to the trial court, the state prosecutor did not promise to withhold evidence of the alleged conspiracyto kill prosecution witness Nguyenin this trial. (AOB 51-55, 103-110; 1-RT 80- 81.) Instead, defense counsel understoodthat the state prosecutor reserved the right to introduce that evidence on rebuttal if Mr. Mai presented a penalty phase defense, or “put on some penalty evidence.” (3/16/07 2-SCT 132-133.) '° As previously noted (footnote 13, ante), the true nature of the prosecutor’s promise only revealed to thefederal court, after Mr. Mai had (continued...) 55 A prior felony conviction involving violence or threat of violence can be consideredfor its relevance under both factor (b) and factor (c) of Penal Code section 190.3. (See, e.g., People v. Melton (1988) 44 Cal.3d 713, 764.) Because the bare face of the judgmentin the federal case would not apprise the jury ofall the damaging details of the scheme, defense counsel knew thatif they presented a penalty phase defense, the prosecution _ would likelyintroduce live testimony concerning the conspiracyto kill Neuyen. Daniel Watkins and Vickie Pham would be logical witnesses since they possessed direct, personal knowledgeof certain of Mr. Mai’s activities that the prosecutor would wish to present to jury but which he could not elicit from other witnesses.”” Thus, were counsel to mount any penalty phase defense, insurmountable ethical dilemmas would ensue. (AOB 105-110.) | Given Watkins’s allegations that he wasat all times acting as defensecounsel’sagent in aidingand abetting the scheme to kill Nguyen, defense counsel faced the risk that he would repeat these allegations were '°(,..continued) -alreadyentered his slow plea in state court and been found guilty. Thus, the true nature of the agreement may also have beenthat the prosecutor reserved the right to introduce the evidence in rebuttal at the guilt phase, as well. Due to the court’s failure to conduct a more searching inquiry and defense counsel’s misrepresentation to the trial court that the prosecutor had promised notto present the evidenceat all, the extent of the true nature of the agreementis not revealed by the record. 0 Watkins and Pham would have had a strong incentiveto testify against Mr. Mai in light of Rule 35, Federal Rules of Criminal Procedure, which provides for a post-judgment reduction of a federal sentence on the government’s motion based on a defendant’s “substantial assistance” in investigating or prosecuting another person. (Fed.Rules Crim.Proc., rule 35(b).) 56 he to take the stand. As such, counsel would havea strong incentive to avoid presenting a penalty phase defense so as to keep Watkins from testifying. (AOB 106-107, citing, inter alia, United States v. Levy, supra, 25 F.3d at pp. 156-158 [where counsel had been accused of wrongdoing connectedto client’s crimes and pursuedstrategy that avoided possibility of his being called as a witness, court concluded that the conflict influenced that strategy and demonstrated adverse effect]; accord, Rubin v. Gee, supra, 292 F.3d at pp. 398, 402-405.) Further, if Watkins were called as a witness, defense counsel would then have a strong disincentive from subjecting him to any vigorous.and searching cross-examination. (AOB 106,citing inter alia, Mannhalt v. Reed, supra, 847 F.2d at pp. 582-583 [when government witness makes accusation that defense counsel engaged in criminal conduct 6%relating to client’s crimes, counsel’s “personal interest in his own reputation and avoiding criminal prosecution” may make effective cross-examination impossible], United States v. Fulton, supra, 5 F.3d at pp. 610, 613, and United States v. Hobson, supra, 672 F.2d at pp. 828-829.) Furthermore, as discussed in Parts B-3 and C-1, ante, given counsel’s representation of Ms. Pham in her federal sentencing proceedings arising from the conspiracy charge, defense counsel would have been precluded from effectively cross-examining their former client. (AOB 108- 110, citing, inter alia, United States v. Shwayder, supra, 312 F.3d atpp. 118-119, United States vy. Malpiedi, supra, 62 F.3d at p. 469, and People v. Easley, supra, 46 Cal.3d at pp. 730-732.) Moreover, the evidence defense counsel themselves developed and presented on Ms. Pham’s behalf through Mr. Mai’s own state-appointed psychologist, “to the affect [sic] that Ms. Pham had acted under Mr. Mai’s duress caused by physical and mental abuse,” from whichshesuffered “battered women’s syndrome” (2-CT 501), 57 would certainly have been likely aggravating evidence in rebuttal to a penalty phase defense. (AOB 108-110, citing People v. Easley, supra, 46 Cal.3d at pp. 722-725.) Given their representation of Ms. Pham, counsel should have been disqualified in light of these fatally conflicting interests. (Part C, ante.) In short, engaging in an adversarial penalty trial with the presentation of a penalty phase defense would likely result in the prosecution’s introduction of evidence relating to the conspiracy to kill Nguyen, which posedsevererisks to defense counsel’s liberty, livelihood, and reputation, as well as creating other, insurmountable ethical dilemmas. (AOB 103-110 [Argument I-G-1].) Consequently, defense counsel had compelling personalinterests to avoid opening that door. Asdiscussed in the opening brief and further below,fighting for Mr. Mai’s life in an adversarial proceeding wascertainly a plausible alternative to counsel’s “strategy” of conceding death, but one that inherently conflicted with their personal interests and those they owed to Ms. Pham. (AOB 111-141.) Hence, the record establishes that defense counsel’s conflicting interests influenced and adversely affected their penalty phase representation of Mr. Mai. (Part D, ante.) Respondent ignores, and thereby does not dispute, the evidence that defense counsel’s personal interests and those they owed to Ms. Pham created a powerful incentive to avoid an adversarial penalty trial. Nor does respondent dispute that counsel’s highly irregular strategy of effectively stipulating to the death penalty served thoseinterests at the expense of Mr. Mai’s verylife. Nevertheless, respondent disagrees that counsel’s other interests influenced their choice of “strategy” and thereby adversely affected their performance. Respondentis wrong. 58 2. There Were SeveralPlausible Alternatives to Defense Counsel’s Response And Counsel to Mr. Mai With Regard to his Expressed Desire to Forgo a Penalty Phase Defense and Obtain a Death Verdict While Mr. Mai’s professed desire for execution was not unusual, his conflicted counsel’s response to that wish certainly was. (AOB 111-126.) Underprevailing professionalstandards, “it is ineffective assistance for counsel to simply acquiescein [a client’s wishes for execution], which usually reflect the distorting effects of overwhelmingfeelings of guilt and despair rather than a rational decision in favor of a state-assisted suicide.” (AOB 111-112, quoting 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 “2003 ABA Guidelines”], Guideline 10.9.2, History of Guideline and citing in accord, e.g., 1989 ABA Guidelines, supra, Guidelines 11.4.1, 11.4.2, 11.6.3 and Commentary.) At a minimum,an attorney confronted with such a client should: (1) assure himself that the client’s instructions are rational, by ensuring that the client is competent; and (2) informed, by conducting necessary investigation andfully and accurately advising the client of his options based uponthe results of such investigation; and (3) even then, attempt to persuade the client to change his mind and avoid overstating the strength of the prosecution’s case or understating the strength ofa potential defense. (AOB 111-112, 118). Here, defense counselfailed to pursue anyof these plausible, objectively reasonable alternatives. Despite good cause to doubt Mr. Mai’s competency to make such a decision, defense counsel acquiescedin his death wish without requesting competency proceedings. (AOB 112-114 59 [Argument I-G-2-a], citing, inter alia, Comer v. Stewart (9th Cir. 2000) 215 F.3d 910, 914,fn. 2.)”" Moreover, despite the “red flag” that Mr. Mai may have suffered brain trauma contributing, among other things, to his violent behavior and his court-appointed psychologist’s recommendation that this potentially critical evidence be investigated by way of neuropsychologicaltesting and, _potentially, an M.R.I. or C.T. scan, defense counsel ignored it. (AOB 114- 118 [Argument I-G-2-b], citing, inter alia, Blanco v. Singletary (11th Ctr. 1991) 943 F.2d 1477, 1501-1502.)” Finally, rather than attempting to . ” See also 2003 ABA Guidelines, supra,31 Hoftra L.Rev.at pp. 923, 1009-1010, Commentaries to Guidelines 1.1 and 10.5; 1989 ABA Guidelines, supra, Guidelines 1.1, 11.4.1, 11.4.2, 11.6.2 and Commentary; ABACriminal Justice Mental Health Standards (1989) Standard 7-4.2, subd. (c); ABA Criminal Justice Mental Health Standards (1989)Standard 7-4.2, subd. (c); 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 professional standard,it is improper for counselto blindly rely on the statement of a criminal client whose reasoning abilities are highly suspect’); Blanco v. 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 defendantis “noticeably morose andirrational’) 2 See also, e.g., Porter v. McCollum (2009) 558 U.S. __, 130 S.Ct. 447, 454-455 [brain trauma significant mitigating evidence]; Sears v. Upton (2010)__—s U.S. ____ 130 S.Ct. 3259, 3624 [brain injury or trauma evidence (continued...) 60 dissuade their questionably competentclient from effectively stipulating to the death penalty, defense counsel fostered Mr. Mai’s belief that a death verdict was inevitable. (AOB 118-126 [ArgumentI-F-2-c], citing, inter alia, 1989 ABA Guidelines, supra; Guidelines 11.4.1, 11.4.2, 11.6.2 11.6.3, and Commentary and in accord, e.g., 2003 ABA Guidelines, supra, 31 Hofstra L. Rev. at p. 1009, Guidelines 10.9.2 and Commentary.) The plausible alternatives defense counsel discarded inherently conflicted with their competing personal interests in avoiding an adversarial penaltytrial, thus demonstrating that their choice of “strategies”to effectively stipulate to a death verdict was influenced and adversely affected by the conflict in violation of the federal and state constitutions. (See AOB 104-110; Part D, ante.) a. Counsel Failed to Ensure that Mr. Mai’s Decisions Were Rational and Competent Respondent does not address Mr. Mai’s claim that defense counsel failed in their duty to ensure that Mr. Mai’s purported desire for execution was a rational one before acquiescing in it. (AOB 112-114 [ArgumentI-G- 2-a]; see RB 32-37 [ArgumentI-C-4].) Respondent’s previous contention that the evidence was insufficient to demandthetrial court’s sua sponte duty to initiate competency proceedings has no bearing onthis issue, for the “__.continued) can “turn someof the adverse evidence into the positive — perhapsin support of a cognitive deficiency mitigation theory”]; Odle v. Woodford (9th Cir. 2001) 238 F.3d 1084, 1087-1089 [brain injury or trauma factor that can raise reasonable doubt as to competence]; Douglas v. Woodford (9th Cir. 2003) 316 F.3d 1079, 1089-1090 [before acceding in even competentclient’s expressed desire to forgo presentation of mitigation, defense counsel must investigatemitigation that could be presented]; AOB 114-118. 61 reasons already discussed in Part F, ante. (RB 31-32 [Argument I-C-3].) Moreover, it is one thing for an attorney who harbors doubts about his client’s competenceto fail to ensure thathis client is not tried while incompetent — an issue to which Part F, ante, and respondent’s contention (RB 31-32) are directed. (See also AOB 93-103 [ArgumentI-F].) It is quite another for an attorney who doesor should harbor doubts abouthis _client’s competenceto fail to ensure that his client’s death wish is a competentor rational one before acquiescing in it. (AOB 112-114 & fn. 74.) For the reasons discussed in the opening brief but ignored by respondent, requesting the initiation of competency proceedings to ensure that Mr. Mai’s decision tobeexecuted wasa rational one and/orrefusing to acquiesce in his decision given their grave doubts over his competency to make it were plausible, objectively reasonable, alternatives. (AOB 112- 114.) Even under respondent’s first-prong Strickland analysis, defense counsel’s failure to pursue those alternatives fell below objective standards of reasonable competence demandedof counselin capital cases. ([bid.; Part F, ante.) b. Counsel Failed to Investigate Critical Evidence and Ensure That Mr. Mai’s Decisions Were Fully Informed As to counsel’s failure to ensure that Mr. Mai’s decision wasa fully informed one by following Dr. Thomas’s adviceto investigate the evidence suggestive of brain trauma (AOB 114-118 [Argument I-G-2-b]), respondent does not dispute that counsel failed to investigate this evidence, but nevertheless contends that Mr. Mai made an informed decision not to present any mitigating evidence. (RB 36-37.) Notso. Whencapital defense counselis on notice that “powerful mitigating 62 evidence” such as brain trauma or cognitive impairment mayexist, prevailing professional norms demandthat counsel follow up on such “red flags.” (See, e.g., Rompilla v. Beard (2005) 545 U.S. 374, 389-393 [duty to follow up on “red flags pointing up a needto test further” into possible cognitive impairmentin mitigation]; Wiggins v. Smith (2003) 539 U.S. 510, 525.) This duty is not relieved bythe client’s insistence that no mitigating evidence be presented; to the contrary, where, as here, counsel believes that his client has a mental condition that prevents him from exercising proper judgment, he has “expanded duties” to investigate and make informed decisions. (Thompson v. Wainwright (11th Cir. 1986) 787 F.2d 1447, 1451; accord, e.g., Williams v. Woodford (9th Cir. 2004) 384 F.3d 567, 622; Rompilla v. Beard, supra, at pp. 390-391 [even when defendantis “actively obstructive,” defense counsel mustinvestigate obvious leads relevantto penalty determination]; AOB 114-118.) Neither Mr. Mai nor defense counsel could make an informed decision about whether to present such mitigating evidence withoutfirst investigating it. (See, e.g., Williamsv. Woodford, supra, at p. 622; Thompson v. Wainwright, supra, at p. 1451.) Mr. Mai’s decision to forgo mitigating evidence could not have been informed where counselfirst failed to investigate a “red flagged”factor in mitigation and thenasserted,for all to hear, that any penalty jury would disregard “psychological” evidence, such as brain trauma andits impact on behavior. (AOB 119,citing 2-RT 263.) Mr. Peters’s ill-informed belief did not relieve him of the duty to investigate that evidence, but did mislead Mr. Mai about the weight such evidence could carry, and thereby further undermined the “informed” nature of Mr. Mai’s decision-makingin the penalty phase. (AOB 119, 126.) Furthermore, investigating whether Mr. Mai had suffered brain 63 trauma and cognitive impairment wasnecessary not only for defense counsel and Mr. Mai to make an informeddecision about to whether to presentit in mitigation. It was critical to the fundamental question of whether Mr. Mai’s purportedwish forexecution was a competent and rational one that defense counsel could even consider honoring. (See,e.g., Pate v. Robinson (1966) 383 U.S. 375, 378; Odle v. Woodford, supra, 238 F.3d1084 at p. 1087; Torres v. Prunty(9th Cir.2000) 223 F.3d 1103, 1106 & fn. 2.) For all of these reasons, following up on Dr. Thomas’s red-flag and investigating whether Mr. Mai had suffered brain trauma wasclearly a “plausible” and “objectively reasonable”alternative to defense counsel’s inexcusable decision to ignore it. Even under respondent’s first-prong Strickland analysis, counsel’s failure to investigate this evidence fell below an objective standard of reasonable competence. (Rompilla v. Beard, supra, 545 U.S. at pp. 389-393; Wiggins v. Smith, supra, 539 U.S. at p. 525; Williams v. Woodford, supra, 384 F.3d at p. 622; Thompson v. Wainwright, supra, 787 F.2d at p. 1451.)”° 3 Curiously, although respondent does not dispute in this argument that defense counsel did not have Mr. Maitested for brain trauma as Dr. Thomasadvised, respondent summarily asserts in a later argumentthat defense counsel had Dr. Thomas “conduct[] neuropsychologicaltesting of Mr. Mai” and “explored the possibility with Dr. Thomas of having and M.R.L. or C.T. Scan performed on Mr. Mai.” (RB 85 [Argument VIII].) Not surprisingly, respondentfails to support its contention that Dr. Thomas “conducted neuropsychological testing of Mr. Mai” with any record citation. (RB 85.) As Mr. Mai discussedin the opening brief but ignored by respondent, the records detailing Dr. Thomas’s work and counsel’s investigation in this case omits any mention of such testing, indicating that none wasperformed. (RB 85; AOB 116-117, citing 987.9 CT 117-118, 129-133, 153-188.) 64 c. Counsel Failed to Make Any Meaningful Effort to Dissuade Mr. Mai From Stipulating to the Death Penalty And Instead Effectively Encouraged That Wish As to defense counsel’s conduct in promoting rather than dissuading Mr. Mai’s expressed desire for execution (AOB 118-126 [ArgumentI-F-2- c]), respondent contendsthat the colloquy between Mr. Mai, the court, and defense counsel regarding their decision to effectively stipulate to thedeath penalty reveals that defense counsel did attempt to dissuade Mr. Mai and encourage him to present mitigating evidence in his defense “to no avail.” (RB 32-36, citing 8-RT 1399-1403.) Again, respondentis mistaken. : The quoted exchange does not demonstrate that counsel made a reasonable effort to change Mr. Mai’s mind. Tothe contrary, the colloquy only reflects defense counsel Peters’s representation that he had acquiesced in Mr. Mai’s wishes to present neither the mitigating evidence he had unearthed nor even any argumentpleading forhislife largely because any attempt to save Mr. Mai’s life would be futile: “I am exercising my judgmentthat since the nature ofthis case, that the odds of me convincing somebody with words, since I have almost no evidence that the mitigation outweighs, you know,is so substantial in order to Keep the aggravation from causing a death penaltyis very, very slight.” (8-RT 1399-1400.) These statements — along with defense counsel’s statements throughout the trial about the hopelessness of the case and futility of presenting any guilt or penalty defense could only foster what they represented as Mr. Mai’s “fatalistic” belief that a death verdict wasvirtually a foregone conclusion — 65 demonstrate that Mr. Mai was “saddled with an attorney who abandoned hope before any attempt to craft a penalty defense was undertaken .. . on the [indefensible basis] that the penalty decision was a foregone conclusion because [Mr. Mai] . . had killed a... police officer.” (In re Gay, supra, 19 Cal.4th at p. 828; see AOB 118-120, 122-126.) Respondent similarly ignores defense counsel’s statements throughout the public trial, including, inter alia, that “there is no question that” Mr. Mai deserved the death penalty just as Mr. Mai hadtestified to the jurors, and that Mr. Mai’s decision to “look[] into the eyes of the jurors” o> 66and tell them that he deserved the death penalty was a “mature,” “morally valid,” just, and admirable one. (AOB 120-122, citing, inter alia, Osborn v. Shillinger (10th Cir. 1988) 861 F.2d 612, 626, State v. Holland ( Utah 1994) 876 P.2d 357, 358-361 & fn. 3, and United States v. Swanson (9th Cir. 1991) 943 F.2d 1070, 1074.) As the Utah Supreme Court has forcefully said in condemning similar conduct by defense counsel: “[W]e cannot countenance or condonerepresentation of a defendant by an attorney who has stated in a public [forum] thathis 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 that penalty imposed.” (State v. Holland, supra, 876 P.2d at pp. 358-361 & fn.3, italics added.) From defense counsel’s negative statements throughoutthe proceedings,it is clear that, contrary to their duty to discouragetheir client’s death wish, counsel improperly supported Mr. Mai’s fatal decision based on 66 self-fulfilling preconceptions and inappropriate moral judgments.”* “It is difficult to see how an attorney conflicted” by plausible evidence of his own related wrongdoing “could impartially [give] advice”to his client about ‘whether and how to present a defense, when “a vigorous defense might uncoverevidence or prompt testimony” about counsel’s wrongdoing. (United States v. Cancilla (2nd Cir. 1984) 725 F.2d 867, 870 [finding actual conflict arising from related attorney wrongdoing where, inter alia, the defendant“on the advice of counsel, chose not to present a defense”’].) This case presents a striking example of such difficulty. On this record, this Court cannot be confident that Peters and O’Connell’s advice and counsel to Mr. Mai in response to his expressed wish to forgo any penalty defense and effectively stipulate to the death penalty was impartial and uninfluenced by their compelling personal interests to accomplish just that. | In totality, the roads not taken by defense counsel were “plausible” ones that might have changed Mr. Mai’s mind, but would have conflicted withtheir personal interests in avoiding a contested proceeding. (See Part D, ante.) Even under Strickland’s first prong, the advice counsel gave to Mr. Mai wasobjectively unreasonable. Hence, the record compels the inference that the conflict influenced and adversely affected defense counsel’s performancein violation of the federal and state constitution. (Part D, ante.) ** Ina later argument (Argument VIII), respondent repeats its assertion that defense counsel attempted to dissuade Mr. Mai’s decision but adds additional “supporting” record citations that are not cited here. (RB 85, citing 3-RT 448-449, 5-RT 861, 8-RT 1488.) The additional record citations do not support respondent’s assertion,either. 67 3. There Were Plausible Alternatives to Defense Counsel’s Own Decision to Forgo Any Penalty Phase Defense and Effectively Stipulate to the Death Penalty As “captain of the ship,” defense counsel had the power to mount a penalty phase defense over Mr. Mai’s objections by presenting mitigating evidence, challenging the prosecution’s case for death, refusing to assent to Mr. Mai’s opinion that death was the appropriate penalty, preventing the prosecution and the jurors from relying on that opinion as a basis for a death verdict, and presenting a closing argumentpleading for Mr. Mai’s life. (AOB 127-142,citing, inter alia, In re Barnett (2000) 31 Cal.4th 466, 472 and Jones v. Barnes (1983) 463 U.S. 745, 751-752.) Indeed, defense counsel Peters not only acknowledged that he had such power. (2-RT 241; 8 RT 1399-1400). He has-exercised that powerin at least one othercase. (AOB 128-129, citing Douglas v. Woodford (9th Cir. 2003) 316 F.3d 1079, 1087-1089 [Mr. Peters “disregarded his client’s wishes and did put on what mitigating evidence he had unearthed”and disregardedhis client’s instructions not to présent closing argument despite fear that client would physically attack him if he did so].) In other words, while in one case lead defense counsel Peters pursuedthe “plausible alternative” of disregarding a client’s wishes and presenting a penalty phase defense, in this case, he discarded that same plausible alternative. The difference between the two casesis that in Mr. Mai’s casethat plausible alternative inherently conflicted with defense counsel’s own interests in avoiding an adversarial penalty trial. (AOB 128- 141.) Respondent doesnot dispute that defense attorneys have the power to present a penalty phase defense with mitigating evidence over their 68 client’s objections, nor does it address the availability of plausible or objectively reasonable alternatives to defense counsel’s submission to Mr. Mai’s fatal decisions. (RB 32-37; AOB 129-135 [Arguments I-G-3-a & 1- G-3-b.) Instead, respondent contends that defense counsel’s choices to forgo the presentation of mitigating evidence or argument and present Mr. Mai’s testimony that death was the appropriate penalty were not objectively unreasonable under Strickland’s first prong because they were only following Mr. Mai’s wishes. (Jbid.) Since an unconflicted attorney could reasonably have made the same choices under Strickland, respondent reasonsthat the conflict did not adversely affect counsel’s performance. (Ibid.) As already discussed, respondent’s analysis is inapt. (Part D, ante.) As Mr. Mai acknowledgedin the openingbrief, it is true that this Court has held that objective standards of reasonableness do not demand an attorney to override a competentclient’s fully informed decision to forgo the presentation of a penalty phase defense. (See, e.g., People v. Lang (1989) 49 Cal.3d 991, 1031.) But even assuming for purposes of argument that an unconflicted attorney could reasonably (within the meaning of Strickland) have acquiesced in Mr. Mai’s wishes and madeprecisely the same choices that conflicted counsel madein this case,that is not the question before this Court. (See Part D, ante.) Again, the question is whether there was a “plausible” or objectively reasonable alternative to that choice and, if so, whether that discarded alternative inherently conflicted with counsel’s competing interests. (Part D, ante.) Here, defense counsel were fully aware of the plausible alternatives, ratified by the courts, to total submission to Mr. Mai’s effective stipulation to a death sentence. Since those plausible alternatives inherently conflicted with defense counsel’s competing personalinterests to avoid an 69 adversarial penalty trial, the record demandsthe inference that the conflict influenced and adversely affected their performance. (Part D, ante.) This is so even if, as respondent contends, an unconflicted attorney could have reasonably have pursued precisely the same strategy. “The pointis, of course,that if that had happened, it would have happened because [unconflicted counsel] decided that it should, thinking only of his own client’s interests and not-those of” anyone else. (People v. Mroczko, supra, 35 Cal.3d at pp. 107-108.) Respondentfurther appears to argue that defense counsel did not have the powerto prevent Mr. Mai from testifying that death wasthe appropriate penalty in this case. (See AOB 136-138 [ArgumentI-G-3-c].) Respondent contends that Mr. Mai had a “‘fundamental right to testify on his own behalf’” which entitled him to “tell the jury the appropriate punishmentfor the crimes committed is death.” (RB 36.) ~~ Forthe reasons discussed in the opening brief (AOB 136-138, 249- 271) and more fully in Argument V, post, which is incorporated by reference herein, a defendant does not havetheright to testify to his opinion that death is the appropriate penalty. Hence, objecting to Mr. Mai’s testimony asirrelevant and inadmissible was a “plausible”or “objectively reasonable” alternative that was available to but discarded by defense counsel. (AOB 137-138, citing, e.g., United States v. Pierce (Sth Cir. 1992) 959 F.2d 1297, 1304 & fn. 13 [counsel’s objection/refusal to present *° Respondentalso suggests that Mr. Mai threatenedto disruptthe proceedingsif defense counsel presented mitigating evidence. (RB 36-37.) Not so. Mr. Mai’s only threatened to disrupt the proceedings if defense counsel presented closing argumentpleadingfor his life. (8-RT 1399, 1402-1403.) 70 client’s testimony to irrelevant matter was objectively reasonable]; Part D, ante.) Certainly, refusing to joinin his requestto so testify or actively presentit to the jurors as “the only defense evidence” offered (8-RT 1409) wasa plausible or objectively reasonable alternative. (AOB 137-138, citing, e.g., People v. Klvana (1993) 11 Cal.App.4th 1679, 1713-1718 [counsel properly refused to join in defendant’s request to testify to matter that would not be in his best interest and for court to refuse the request on the ground,inter alia, that defendant was on a “suicide mission”].)”° In any event, even if Mr. Mai did have the “right” to testify to his irrelevant opinion that death was the appropriate penalty, state law and the federal Constitution prohibit jurors from relying on such evidenceas a basis for death. (Argument V, post; AOB 265-271 [Argument V-E].) Respondent does not dispute as much. (See RB 62-66 [Argument V].) However, respondent ignoresthat the prosecutor urged the jurors to rely on Mr. Mai’s opinion as aggravating evidence weighing in favor of a death verdict. (8-RT 1424; AOB 136-137; see also AOB 265-271 [Argument V- E].) In so doing, respondent does not dispute the prosecutor’s argument was improper. (AOB 265-271; see also RB 62-66 [Argument V].) Hence, even if objecting to Mr. Mai’s opinion testimony wasnota “plausible” *6 Respondentalso contendsthat defense counsel attempted to dissuade Mr. Mai from sotestifying. (RB 32-33.) The record does not support this contention. To the contrary, defense counsel joined in his requestto sotestify (8-RT 1399-1400), affirmatively presented his testimonyto the jurors as “the only defense evidence” they were offering (8-RT 1409), permitted the prosecutor and the jurors to rely on his testimony as aggravating evidence weighing in favor of a death verdict (8- RT 1424), and later expressed admiration for his testimony (8-RT 1491). Defense counsel clearly had no qualms about Mr. Mai’s testimony or about the jurors relying onit as a basis for their death verdict. 71 alternative because Mr. Mai had an “absolute right”to testify to it, as respondentcontends, objecting to the prosecutor’s improperuse of that testimony in argument and requesting instructions prohibiting the jurors from basing a death verdict upon itwere“plausible”alternatives to defense counsel’s silence. (8-RT 1424; see AOB 265-271 [Argument V-E].) As respondentdoes notdispute these facts, no further discussionof this aspect ofthe issue is necessary. Asto the alternative of presenting closing argument pleading for Mr. Mai’s life (AOB 138-140 [ArgumentI-G-3-c]), respondent contendsthat “it wasthe strategic decision of defense counselto forgo the presentation of ... penalty phase argument based on Mr. Mai informing counsel that he would disrupt the proceedings or otherwise act out” if counsel did so. (RB 36.) The real question is whether Mr. Mai’s threat to disruptthe proceedings meantthat presenting closing argument wasnot a “plausible” or “objectively reasonable” alternative available to counsel. (Part D, ante.) The answeris no. __ The courthad removed Mr.Mai from the courtroom onprior occasionsfor his disturbancesandrepeatedly threatened to do so again if he caused further disruptions of the proceedings which would have allowed defense counsel to present closing argument on Mr. Mai’s behalf. (AOB 139, citing 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] and Illinois y. Allen (1970) 397 U.S. 337, 343.) Respondent does not dispute that defense counsel had the powerto plead for their client’s life in argument, even over Mr. Mai’s objections (AOB 135, 139-140,citing, inter alia, Bell v. Cone (2002) 535 U.S. 685, 72 701-702) as well as the ability to request Mr. Mai’s removal from the courtroom in order to present that argument without disruption (AOB 139- 140, citing Douglas v. Woodford, supra, 316 F.3d at pp. 1087-1088, State v. Morton (N.J. 1998) 715 A.2d 228, 255, 258-259, and McGregor v. Gibson (10th Cir. 2001) 248 F.3d 946, 961; see RB 32-37). These were plausible alternatives available to but discarded by defense counsel. It is a matter of record that lead defense counsel Peters has pursued the alternative of presenting closing argument overa client’s objections, despite his fear that the client would physically assault him for disregarding his wishes. (AOB 136,citing Douglas v. Woodford, supra, 316 F.3d at pp. 1087-1088.) The question is why he did not pursuethat alternativein this case. Again, the answerlies in the conflicts: this strategy was inherently in conflict with defense counsel’s owninterests in this case but was notin the other case. (Parts D and G-1, ante; see also AOB 104-111, 135-140.) Finally, it is no answerto say that the strategy counsel did pursue served both Mr. Mai’s “interest” in obtaining a death verdict and defense counsel’s interest in avoiding an adversarial penalty trial. An “attorney representing the defendantis required to ‘advocate the position counsel perceives to be in the client’s best interests even whenthatinterest conflicts with the client’s stated position.” (People v. Stanley (1995) 10 Cal.4th 764, 804-805, and authorities cited therein; see also AOB 127-128.) Whetherit is ever in a client’s “best interests” to be executed is a matter open to much debate. The critical question here, however,is whether defense counsel were willing or able to impartially determine what was in Mr. Mai’s “best interests,” free from any influencebytheir personal interests in avoiding an adversarial penalty trial. The answeris no. (See, e.g., United States v. DeFalco (3d Cir. 1979) 644 F.2d 132, 137 [when 73 defense counsel has personalinterest in avoiding investigation or potential prosecution for crimesrelated to client’s, the “inherent emotional and psychological barriers” makeit nearly impossible for counsel to determine and advocate for best interests of client, uninfluenced by their owninterests or for reviewing to determine to what extent counsel’s decisions were influenced by conflict]; accord United States v. Shwayder, supra, 312 F.3d at p. 1119, as amended by (9th Cir. 2003) 320 F.3d 889 [underconflict analysis, “human self-perception regarding one’s own motivesforparticular actions in difficult circumstancesis too faulty to be relied upon”); Malpiedi, supra, 62 F.3d at p. 470.) Forall of the foregoing reasons, as well as those set forth in the opening brief, defense counsel’s personalinterests in currying favor with the state and federal prosecuting authorities and avoiding an adversarial trial influenced their decisions from the beginningoftrial through the end. The conflicts thereby adversely affected their performance, in violation of the state and federal Constitutions. H. The “Actual Conflict” Here Warrants Application of the Sullivan Limited Presumption of Prejudice 1. Application of the Sullivan Limited Presumption Turns on Its Purpose Asto the issue of prejudice, respondentresorts to another straw argument. According to respondent, “Mai urges this Court to... adopt a ‘bright-line rule’ to apply a presumption of prejudice in all cases where a criminal defense counsel has an actual conflict of interest. Alternatively, Mai contendsthat this Court should apply the presumption of prejudice enunciated in Cuyler v. Sullivan, supra, 446 U.S. at pp. 347-349, to an actual conflict involving multiple concurrent and serial representation cases 74 and their ‘functional equivalent.’” (RB 37.) Yet again, respondent misrepresents Mr. Mai’s argument. Mr. Maiagreesthat the Sullivan limited presumption1s not susceptibleof any “bright-line”rules. Under theprecedents of this Court and others, the presumption is not susceptible of a “bright-line” rule that applies to any andall actual conflicts. (See AOB 156-157.) Noris it susceptible of a “‘bright-line” rule that restricts it to actual conflicts arising from the simultaneous representation of co-defendants. (AOB 148-162.) Instead, application of the Sullivan presumption dependson the circumstances of each case. As discussed above and in the openingbrief, the Supreme Courtin Strickland identified two reasonsthatjustify application of the Sullivanpresumption. First, it is appropriate to apply the _ presumption whenthe actual conflict is attributable at least in part to the state. (Strickland, supra, 466 U:S.at pp. 686, 692.) Second,it is reasonable to presume prejudice from an “actual conflict” when “‘it is difficult to measure the precise effect on the defense of representation corruptedby conflicting interests.”” (Strickland, supra, 466 U.S. at p. 692.) When an actual conflict creates a high possibility of prejudice or great difficulty in assessing prejudice,the traditional Strickland standardis “inadequate to assure vindication of the defendant’s Sixth Amendmentright to counsel” and therefore the Sullivan “prophylaxis”is necessary to do so. (Mickens, supra, 535 U.S. at p. 176; AOB 143-162, citing, inter alia, People v. Friend (2009) 47 Cal.4th 1, 46-47; People v. Doolin, supra, 45 Cal.4th at pp. 418, 429, and People v. Rundle, supra, 43 Cal.4th at pp. 169, 173.) In other words, application of the Sullivan presumption turns on its purpose, whichis to “to apply needed prophylaxis in situations where Stricklanditself is evidently inadequate to assure 75 vindication of the defendant’s Sixth Amendmentright to counsel.” (Mickens, supra, at p. 176; People v. Rundle, supra, at p. 173.) Once again, this is just such a case. (AOB 162-167.) Respondent’s “response”is based entirely on its misreading of the majority holding in Mickens v. Taylor, supra, 535 U.S. 162 and this Court’s decision in People v. Doolin 45 Cal.4th 390. (RB 37-40.) According to respondent, the high court in Mickens “restricted the Sullivan presumed prejudice to cases where an actual conflict exists arising from multiple concurrent representation of criminal defendants by counsel [and] determinedthatin all other instances of an actual conflict, requiring the defendant to make the necessary showing of prejudice under Strickland was sufficient.” (RB 38.) This Court appropriately adopted that standardin People v. Doolin, supra, 49 Cal.4th 390 and “Mai has presented no convincing basis for this Court to depart from its holding in Peoplev. Doolin, supra.” (RB 37-38.) Notso. The Mickens decision, on its face, makes clear that the majority did not announceany binding holdingorrulerestricting the Sullivan limited presumption to any particular kind of actual conflict. (AOB 143-145; Mickens, supra, 535 U.S. at pp. 174-176.) This Court recognized as much in Doolin, supra, 45 Cal.4th 390, as well as in People v. Rundle, supra, 43 Cal.4th at pp. 169, 173 and People v. Friend (2009) 47 Cal.4th 1, 46-47.) Indeed, the Mickens majority affirmed that the purpose of the Sullivan presumptionis “to apply needed prophylaxis in situations where Stricklanditself is evidently inadequate to assure vindication of the defendant’s Sixth Amendmentright to counsel [Citation].” (Mickens, supra, 535 U.S. at p. 176.) Consistent with this purpose, the high court has recognized an exception to Strickland’s prejudice requirement and will 76 presume prejudice in limited circumstances — namely, when “assistance of counsel has been denied entirely or during critical stage of the proceeding”or in “circumstances of that magnitude.” (Mickens v. Taylor, supra, 535 U.S. at pp. 166, 175-176, emphasis supplied.) “When that has occurred, the likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary and prejudice will be presumed.” (Ibid.) The Supreme Court emphasizedthat “[w]e have held in several cases that ‘circumstances of that magnitude’ may... arise when the defendant’s attorney actively represented conflicting interests.” (Mickensv. Taylor, supra, 535 U.S. at p. 162, citing, inter alia, Cuyler v. Sullivan, supra, 446 US.at pp. 348-349.) Respondentignores the majority decision and instead relies on dicta noting that the question of whether the Sullivan presumption necessarily applies to any andall “actual conflicts” is “an open” one under the precedents of the Supreme Court.’ That being said, the high court has never held that the presumptionis limited to a particular category of “actual conflicts.” -(AOB 143-145, 153-161,-citing; inter alia, Wood v. Georgia, supra, 450 U.S.at pp. 272-273 [Sullivan presumption would applyif defense counsel was “influencedin his basic strategic decisions” by the conflicting interests of a third party who is paying his fees].) This and other courts have recognized as much. (AOB 143-162.citing, inter alia, People v. Rundle, supra, 43 Cal.4th at p. 173; People v. Doolin, supra, 45 Cal.4th °7 As the majority itself emphasized,the sole issue presented and decided in Mickens was whether a defendant must prove “adverse effect” whena trial court erroneously fails to inquire into a potential conflict. (Mickens v. Taylor, supra, 446 U.S. at pp. 174-175.) 77 at pp. 418, 428.) Indeed, aproposof this case, the Fourth Circuit Court of Appeals has explicitly recognized that although the Mickens dicta “expressed doubt about whether Sullivan applies to every potential conflict of interest [citation], the Supreme Court has never indicated that Sullivan would not apply to a conflict as severe” as onearising from attorney wrongdoing related to his.client’s crimes. (Rubin v. Gee, supra, 292 F.3d at pp. 401-402 & fn. 2, italics added.) As discussed in the opening brief, conflicts arising from plausible allegations or evidence of related attorney wrongdoing present at least “comparable difficulties” to those arising from concurrent representation of co-defendants; indeed, some courts have held that conflicts arising under these circumstances are even more severe — and create an even greater danger of adversely impacting virtualHly-ever aspect of counsel’s performance — than conflicts arising from the joint representation of co-defendants. (AOB 156-162,citing, inter alia, United States v. Perez (2nd Cir. 2003) 325 F.3d 115, 126-127.) Hence, even post-Mickens, courts, judges, and other commentatorshaverecognized thatthesame.rationale warranting application of the Sullivan presumption to actualconflicts 8 Nicholson II, 611 F.3d at pp. 205-216 [post-Mickens decision applying Sullivan presumptionto actual conflict arising from simultaneous representation in separate proceedings of clients who werenotco- defendants but whoseinterests diverged]; 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”; no Supreme Court authority restricts Sullivan presumption to actual conflicts arising from multiple concurrent representation]; United Statesv. 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.) 78 arising from joint representation of co-defendants applies with at least equal force to actual conflicts arising from plausible evidence of an attorney’s complicity in his client’s crimes. (AOB 156-162; accord, e.g., Rubin v. Gee, supra, 292 F.3d at pp. 401-402 & fn. 2; Prof. Ann Poulin, “Conflicts of Interest in Criminal Cases: Should the Prosecution Have a Duty to Disclose?” 47 American Criminal Law Review 1135, 1144, 1162-1169 | (Summer 2010) [characterizing conflict arising from implication or “accusation that attorney is involved in criminal activity closely related to client’s crimes as “particularly intense,” “likely to be so severe that counsel should not be permitted to represent the defendant,” andits “impact on counsel’s performanceis likely to be [so] pervasive and profound”that application of Sullivan presumption is warranted].) Similarly, actual conflicts arising from the simultaneous representation of adverse interests in separate proceedings, such as Mr. Peters’s representation of Ms. Pham in herrelated federal conspiracy case while representing Mr. Maiin these proceedings, also presents “comparable difficulties” to conflicts arising from the simultaneousrepresentation of co- defendants in the same proceedings. (See, e.g., United States v. Infante (5th Cir, 2005) 404 F.3d 376, 392 & fn. 12 [evenafter Mickens, Sullivan presumption would apply to actual conflict arising from successive | representation of clients in separate proceedingsclosely related in subject matter and time]; accord, Hall v. United States (7th Cir. 2004) 371 F.3d 969, 974) Forall of these reasons, as well as those set forth in the opening brief, while the Sullivan limited “presumption of prejudice need notattach to every conflict” (People v. Doolin, supra, 45 Cal.4th at p. 428), it can and should apply when,as here, defense counsel’s conflicting interests in their 79 liberty, livelihood, and reputation created by plausible allegations or evidence of his wrongdoing related to their client’s crimes “influenced... . [their] basic strategic decisions” throughouthis representation. (Woodv. Georgia, supra, 450 U.S. at pp. 272-273; AOB 156-164.) Furthermore, the presumption can and should apply when,again as here, the actual conflictis attributable at least in part to the trial court’s failure to comply withits constitutional-duty of inquiry or other improperstate action. (Strickland, supra, 466 U.S. at pp. 686, 692.) 2. The Sullivan Presumption is Necessary Here to Assure the Vindication of Mr. Mai’s State and Federal Constitutional Rights to Counsel The conflicts in this case adversely influencedvirtually every aspect of defense counsel’s representation. Defense counsel not only failed to function in any meaningful sense as advocatesfor their client’s best interests by acting appropriately on their doubts over his competency and submitting either the guilt or the penaltyphase to the adversarial process vital to a fair and reliable capital murdertrial and death verdict. Their decisions and actions effectively ensured that Mr. Mai would beeligible for and receive the death penalty. The conflict thus created “circumstances of the magnitude”of the denial of counsel “entirely or at a critical stage of the proceeding” (Mickens v. Taylor, supra, 535 U.S. at pp. 166, 175-176; accord, People v. Rundle, supra, 43 Cal.4th at p. 169), which “‘call[ed] into questionthe reliability of the proceeding and represent[ed] a breakdownin the adversarial process fundamental to our system of justice” (Rubin v. Gee, supra, 292 F.3d at p. 402). (Accord, Cuyler v. Sullivan, supra, 446 US. at p. 349; cf. Turrentine v. Mullen (10th Cir. 2004) 390 F.3d 1181, 1207-1208 [constructive denial 80 of counsel under Bell and Cronic triggering presumption of prejudice exists Seewhen “‘the evidence overwhelmingly established that (the) attorney abandonedthe 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 weaken his client’s case’’].) Moreover, the impairment of Mr. Mai’s rightto the effective assistanceof counsel uninfluenced by conflicting interests isattributable in part to the state, which could have prevented it. (Strickland, supra, 466 U.S. at pp. 686, 692.) As discussedin Part D, ante, the trial court failed adequately to inquire into the conflicts and their potential to impact counsel’s representation or to prevent them from ripening into actual ones. Moreover,at the only hearing into the possible conflicts created by Watkins’s indictment and the federal conspiracy prosecution, the state prosecutor, together with defense counsel, affirmatively misled court about the existence and potential for the conflicts to impact counsel’s performance in this case. Application of the Sullivan presumption under these circumstance is appropriate and demandsreversal of the death judgment. (Strickland, supra, 466 U.S.at pp. 686, 692.) Respondent’s only response to Mr. Mai’s argumentin this regard is that there was no “actual conflict” here and hence the Sullivan presumption does not apply. (RB 39-40.) Respondent’s contention is circular, Mr. Mai has already addressed and refuted its premise that there was no “actual conflict” in this case, and thus no further reply is necessary. The judgment must be reversed. 81 1. Alternatively, Even if the Strickland Standard of Prejudice Applies, The Actual Conflicts Undermine Confidence in the Outcomeof the Proceedings and Demand Reversal Alternatively, even under Strickland’s second prong, the judgment must be reversed. Under Strickland, reversal is required if there is a “reasonable probability”that the result of the proceeding would have been different absent counsel’s deficient performance. (Strickland, supra, 466 U.S. at pp. 693-694.) This standard does not require the defendantto prove that his or her counsel’s deficient performance “morelikely than not altered the outcomeofthe case.” (/d. at p. 693; accord, e.g., Nix v. Whiteside (1986) 475 U.S. 157, 175.) This Court has made “‘clear that a “probability” in this context does not mean morelikely than not, but merely a reasonable chance, more than an abstract possibility.’ {Citation.]” (Richardsonv. Superior Court (2008) 43 Cal.4th 1040, 1050,italics in original.) Put another way, reversal is required underthis standardif there is a “probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington, supra, at p. 694; accord, e.g., Nix v. Whiteside, supra, at p. 175.) As discussed above and in ArgumentsIII, post, and in the opening brief, had counsel refused to consent to Mr. Mai’s slow plea and presented a defense to the sole special circumstanceallegation, it is reasonably probable that the outcomeofthe courttrial on that allegation would have been different. Hence, the true finding on the sole special circumstance allegation mustbe set aside and the death judgmentbased thereonreversed. Evenif the special circumstance stands, the death judgment must nevertheless be reversed. “The United States Supreme Court [has] explained that th[e] second prongof the Strickland test is not solely one of 82 outcome determination. Instead, the question is ‘whether counsel’s deficient performancerendersthe result of thetrial unreliable or the proceeding fundamentally unfair.’ (Lockhart v. Fretwell (1993) 506 U.S. 364, 369.)” (In re Harris (1993) 5 Cal.4th 813, 833, italics added; accord, e.g., Williams v. Taylor (2000) 529 U.S. 362, 391-393.) Forall of the | reasons discussed in this and the opening brief, the death verdict in this case was-the unreliable product of an effective stipulation to the death penalty without the substantive and procedural safeguards — such as a determination of Mr. Mai’s competency, adversarial testing, and the exclusion of constitutionally irrelevant aggravating evidence — critical to the reliability of death judgments. As such,it must be reversed. I // 83 i THE TRIAL COURT’S TRUE FINDING ON THE SOLE SPECIAL CIRCUMSTANCE UNDER PENAL CODE SECTION 190.2, 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 Anessential element of the only special circumstancealleged and foundtrue in this case, the murder of a peace officer in lawful performance of his or her duties (Pen. Code, § 190.2., subd. (a)(7)), is that Officer Don Burt was engaged in the lawful performanceof his duties when he was killed. Both state law and the federal Constitution require the prosecution to prove this essential element beyond a reasonable doubt. (AOB 168-172.)” In his opening brief, Mr. Mai argued that the evidence before the trial court sitting as trier-of fact was insufficient to prove that element. (AOB 168-178.) Thus, the trial court’s true finding on the only special circumstanceallegation rendering Mr. Maieligible for the death penalty violated state law, Mr. Mai’s rights under the Eighth and Fourteenth Amendments to the United States Constitution, and the special circumstance must be set aside and the death judgmentreversed. (Jbid.) Respondent counters that Mr. Mai’s insufficiency of the evidence claim was forfeited by his counsel’s failure to argue or object on that groundat trial. (RB 42, 46.) Alternatively, respondent contendsthat Evidence Code section 664 creates a rebuttable presumption that the “lawful performance of duties” elementis satisfied as to all offenses and special circumstance allegations which incorporate it. (RB 43-44.) Hence, respondent contends, that element was presumptively satisfied in this case 9 Hereafter “lawful performance of duties element.” 84 and Mr. Maifailed to rebut it. (RB 43-47.) Respondent’s rather astonishing argumentsare utterly without merit. A. Questions Regarding the Sufficiency of the Evidence Are Not Subjectto Forfeiture Respondent contends in a perfunctory fashion that Mr. Mai has forfeited his right to challenge the sufficiency of the evidence to prove the special circumstancebyfailing to objectorotherwise challengeit on that ground below. (RB 42, 46.) As respondentcites no authority to support this remarkable proposition, this Court should pass on it without consideration. (See, e.g., People v. Stanley (1995) 10 Cal.4th 764, 793 [court may pass without consideration “argument” made withoutcitation to supporting authority].) Of course, respondent’s proposition is contrary to the black letter law discussed in the opening brief but ignored by respondent. 666 Asthis Court has recognized, “generally, points not urged in the trial court cannot be raised on appeal. [Citation.] The contention that a judgmentis not supported by substantial evidence, however, is an obvious exception.’ [Citation.]... [QJ]uestions of the sufficiency of the evidence are not subject to forfeiture.” (People v. Butler (2003) 31 Cal.4th 1119, 1126-1128, & fn. 4, italics added, and authorities cited therein.) This Court has explicitly held that this black law rule applies where, as here, a defendant agrees to submit the matter of his guilt to the trial court based on the evidence in the preliminary hearing transcript and presents no evidence or argumentagainst the sufficiency of the evidence contained therein to prove guilt. (AOB 169-170, citing People v. Martin (1973) 9 Cal.3d 687, 694-695, and Bunnell v. Superior Court (1975) 13 Cal.3d 592, 602-604.) “Irrespective of any foregone conclusion or understanding that he will be 85 found guilty,” such a submissionis still a court trial; hence the prosecution is not relieved of it heavy burden of proof beyond a reasonable doubt. (Bunnell v. Superior Court, supra, at p. 604; accord, People v. Martin, supra, at pp. 693-694.) Nor maythetrial court “abdicate the heavy responsibility imposed uponit to determine, on the record, the question of guilt presented on a stipulated transcript. ... [T]he trial court must weigh the evidence contained in the transcript and convict only if, in view of-all matters properly contained therein, it is persuaded beyond a reasonable doubt of the defendant’s guilt.” (People v. Martin, supra, at pp. 694-695; accord, Bunnell v. Superior Court, supra, at pp. 603-604.) Hence,just as any challenge to the sufficiency of the evidence to sustain a verdict is not subject to forfeiture, a defendant’s submission under these circumstances “cannot be held to have waivedhis right to challenge the sufficiency of the evidence on appeal.” (People v. Martin, supra, at p. 695, italics added; accord, Bunnell v. Superior Court, supra, 13 Cal.3d at p. 604; AOB 169-170.)”° . Respondent’s inexplicable decision to ignore or make any attemptto ° Accord, e.g., In re Tommy E. (1992) 7 Cal.App.4th 1234, 1236- 1237 [parent’s agreementto submit jurisdictional determination to the court based on social services report and failure to object to sufficiency of evidencein report to support jurisdictional findings did notforfeit right to raise that challengefor thefirst time on appeal]; In re Gregory A. (2005) 126 Cal.App.4th 1554, 1557, 1560-1561 [where agency bore burden of proving adoptability and only evidence offered was permanency hearing report recommending adoption, parent’s failure to object to sufficiency of evidence contained therein did not waivetheir right to raise that challenge for first time on appeal]; People v. Viray (2005) 134 Cal.App.4th 1186, 1217 [failure to object to or otherwise oppose reimbursementorder did not waive defendant’s right to challenge sufficiency of evidence to support order]. 86 distinguish or dispute this black letter law does not makeit go away. Defense counsel’s failure to challenge the sufficiency of the preliminary hearing evidenceto prove the sole special circumstanceallegation did not forfeit Mr. Mai’s right to make that challenge on appeal. B. The Official Duty Presumption Does Not Apply, and Indeed Cannot Constitutionally be Applied, to Relieve the Prosecution of its Burden of Proving Beyond a Reasonable Doubt The “Lawful Performance of Duties” Elementof Section 190.2, subdivision (a)(7) Respondent concedesthat “an elementof [the section 190.2, subdivision (a)(7)] special circumstance is a requirementthe officer was acting lawfully at the time he was killed.” (RB 43, citing People v. Mayfield (1997) 14 Cal.4th 668, 791 and People v. Gonzalez (1990) 51 Cal. 3d 1179, 1217.) From this concessionit necessarily follows that respondent also concedesthat the prosecution bore the burden of proving this “lawful performanceof duties” element beyond a reasonable doubt. (See AOB 169- 170,citing, inter alia, Pen. Code, §190.4, subd. (a), Ring v. Arizona (2002) 536 U.S. 584, 609, Bunnell v. Superior Court (1975) 13 Cal.3d 592, 602- 604, and People v. Martin, supra, 9 Cal.3d at pp. 694-695.) Nevertheless, respondent contends that absent disputed facts about the lawfulnessof the officer’s actions,“it is presumedthe officer acted lawfully. (Evid. Code, § 664 [‘it is presumed that official duty is regularly performed].)” (RB 43-44,italics added.) In other words, according to respondent, section 664 creates a rebuttable presumptionthat the “lawful performance of duties” elementof all crimes and special circumstances incorporatingit is satisfied even in the absence of evidence to prove as much. (RB 43-44.) Because the preliminary hearing evidence was undisputed and defense counsel offered no evidenceto prove that the peace 87 officer victim’s detention of Mr. Mai was unlawful and therebyrebutthat presumption, respondent contends that Evidence Code section 664 mandated the presumption that the “lawful performance of duties” element _.ofsection 190.2,.subdivision (a)(7), had been proved beyond a reasonable doubt. (RB 43-44.) Yet again, respondent cites no authority to support these remarkable and insupportable propositions. _ Respondent cites Evidence Codesection 664 for the proposition that “ft is presumedthatofficial duty is regularly performed” (RB 43-44) and Badillo y. Superior Court (1956) 46 Cal.2d 269, 272 (which predated the enactment of section 664) for the proposition that “‘[i]n the absence of evidenceto the contrary, it is presumedthat the officers acted legally’ (RB 53). Respondent’s quotations from both section 664 and Badillo are misleadingly incomplete. . In fact, the full text of section 664 provides: “It is presumed that official duty has been regularly performed. This presumption does not apply on an issue as to the lawfulness ofan arrestif it isfound or otherwise _establishedthat.the arrest was.madewithout a warrant.” (Italics added.) Consistent with this exception, the full text of Badillo makesclear that a warrantless arrest or detention itself rebuts any presumption that the officer wasacting lawfully. Here, of course, it was and is undisputed that the officer’s detention of Mr. Mai was made without a warrant. Hence, even if section 664 (or Badillo, which predated the enactmentof the statute) could apply to relieve or lessen the prosecution’s burden of proof on an elementof a crime,it wouldnot apply here. More fundamentally, any such application of the presumption codified in section 664 would be patently unconstitutional. Section 664 is a 88 oesmandatory but rebuttable presumption, which “‘impose[s] on the party against whom the presumption operates the burden of proofas to the nonexistence of the presumedfact.’ [Citation.]” (California Advocatesfor Nursing Home Reform v. Bonta (2003) 106 Cal.App.4th 498, 505; see also Evid. Code, § 601.) It is well settled that application of such presumptions to eliminate, lessen, or shift to the defendant the prosecution’s burden of proof beyond a reasonable doubt onthe essential elements of crimes or special circumstances violates the due process clause of the federal Constitution. (See, e.g., Carella v. California (1989) 491 U.S. 263, 265; Rose v. Clark (1986) 478 U.S. 570, 592, and authorities cited therein; People v. Roder (1983) 33 Cal.3d 491, 500-504, and authorities cited therein.) Hence, while “[t]he presumption that public officers have done their duty .. . is undoubtedly a legal presumption[,] . . . it does not supply proofofa substantive fact,” which the prosecution must satisfy beyond a reasonable doubt whenthat fact constitutes an element of a crime. (United States v. Ross (1876) 92 U.S. 281, 284,italics added.) For the same reasons, respondent’s contentions that the lawful performance of duties element may be presumed whenthefacts are not “disputed” or the elementis not specifically contested are without merit. (RB 43-44.) “[T]he prosecution’s burden to prove every elementof the crime is not relieved by a defendant’s tactical decision not to contest an essential elementofthe offense. ... [In California], a simple plea of not guilty . . . puts the prosecution to its proof as to all elements of the crime charged.’ [Citation.]” (Estelle vy. McGuire (1991) 502 U.S. 62, 69-70.) Mr. Maipleaded not guilty to the capital murder charge. (1-CT 87.) As discussed in the opening brief but ignored by respondent, although he ultimately entered a “slow plea” which operates in effect as and is 89 “tantamount to” a guilty plea and waives many importantconstitutional rights, a slow pleais unlike a guilty pleain that it does not override the defendant’s not guilty plea. (Bunnell v. Superior Court, supra, 13 Cal.3d at p. 603.) As discussed above,it is a submissionto a courttrial on the basis of a particular record (such as a preliminary transcript) in which the presumption of innocencestill applies and the prosecution must rebutthat presumption with proof beyond a reasonable doubt on every elementof the charged offenses and special circumstance allegations. (AOB 169-170, | citing Bunnell v. Superior Court, supra, at pp. 602-604, and People v. Martin, supra, 9 Cal.3d at pp. 694-695.) “There is no rationale . . . which warrants the finding of an implied admission of the existence of each element of a charged crime merely because the accused agrees to a determination by the court as to the existence of such elements on the evidencepresented at the preliminary hearing.” (People v. Martin, supra, at p. 694.) Hence, understate law and the federal Constitution, Mr. Mai’s failure to “dispute” the facts admitted at the preliminary hearing or contest the “lawful performanceof duties” elementof the special circumstance allegation did not relieve the prosecution of its burden ofproof. In sum, when a defendantpleadsnot guilty to an offense incorporating the “lawful performance of duties element, the prosecution bears the burden of proving that element beyond a reasonable doubt. The burden cannotbe relieved, lessened, or shifted to the defendant by any presumption or the defendant’s failure to specifically dispute or contest that elementor entry of a “slow plea.” Respondent’s contentionsto the contrary must be rejected. 90 C. The Absence of Evidence to Prove the Reason for, and Thus Lawfulness of, the Detention During Which Officer Burt WasKilled The “lawfulness” of an officer’s performance of duties is obviously assessed by the “law,” including the paramount“law”of the land — the United States Constitutionand the Fourth Amendment. (AOB 170-171, citing, inter alia, In re Manuel G. (1997) 16 Cal4th 805, 815, Peoplev. Gonzalez (1990) 51 Cal. 3d 1179, 1217, Peoplev. Mayfield (1997) 14 Cal.4th 668, 791, and People v. Curtis (1969) 70 Cal.2d 347, 352.) Under the Fourth Amendment, a temporary detention without a warrant — such as a traffic stop — is only lawful if facts knownto the detainingofficer are sufficient.to raise a “reasonable suspicion”that the detainee is violating the law. (See, e.g., Whren v. United States (1996) 517 U.S. 806, 809-810; Delaware v. Prouse, supra, 440 U.S. at p. 663; People v. Hernandez (2008) 45 Cal.4th 295, 299-300). Just as they didat trial, the People on appeal repeatedly and obliquely characterize Officer Burt’s detention of Mr. Mai as a “routine traffic stop” (RB 30, 53, 86) for a “routine” or “ordinary traffic violation” (RB 2, 44), then focus primarily on what he discovered (or might have discovered) after — and as a direct result of — that “routine” detention, such as Officer Burt’s reasonable belief that Mr. Mai was driving on a suspended license (RB 44). (See AOB 173-175.) Of course, respondent’s approach begs the fundamental question of the lawfulness of the “routine”traffic stop which effectuated the detention during which Officer Burt was killed. If that detention was not lawful, then subsequent events did not transform it into a lawful one. (See AOB 171-175, citing,inter alia, Florida v. J.L. (2000) 529 U.S. 266, 271, Illinois v. Rodriguez (1990) 497 U.S. 177, 188, 91 Florida v. Royer (1983) 460 U.S. 491, 507-508 and People v. Hernandez, supra, 45 Cal.4th at pp. 299-301.) Asdiscussed in the opening brief, the prosecution presented no competent evidence to prove the reason for Officer Burt’s detention of Mr. Maithroughthetraffic stop. (AOB 173-175; see also AOB 87-89.) Absent such proof, there was insufficient evidencefor the trial court to find true the specialcircumstance allegation and for thisCourt to uphold that finding on appeal. (AOB 173-175.) Respondent acknowledgesthat Officer Burt’s written citation did not cite Mr. Mai for any traffic violation that explained the stop and detention. (RB 44-45.) Instead, he only cited Mr. Mai for driving on a suspended license — something he discovered only after and as a direct result of the detention. (1-Muni-RT 93-94; see also 3/16/07 3-SCT 421 [People’s Exhibit 20].) Nevertheless, respondent contends thatit is “it is entirely possible” that Officer Burt had a lawful reason to detain Mr. Mai for which he intended to cite him, but simply did not have the chanceto enterit on the “incomplete” citation he had written. (RB 45.) Based on this “possibility,” respondentcontendsthatthe trial court could find the allegation to be true and this Court must uphold that finding on appeal. (/bid.) Respondent’s contention is unsupported by the facts and the law. As a matter of law, the prosecution bore the burden of proving that Officer Burt was engaged in the lawful performanceof his duties when he was killed with evidence and this Court can only uphold the special circumstance finding if substantial evidence in the record supportsit. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) “Possibilities,” speculation, or conjecture is not substantial evidence. (See, e.g., People v. Marshall (1999) 15 Cal.4th 1, 35.) 92 As a matter of fact, Officer Burt had signed the citation, indicating that he had completed the citation. (1-Muni-RT 65-66, 93-94.) The only portion of the citation that was “incomplete” (RB 45) was the driver’s own ‘signature. (1-Muni-RT 65-66, 93-94.) Furthermore, the transcript of Officer Burt’s conversation withpolice dispatch after the stop indicated only that he suspected the driver of driving on a suspended license — which hediscovered as a-direct result of the detention. (1-Muni-RT 23, 52-53, 70, 92, 95,97.) Officer Burt stated no reason for the detention itself. The prosecution offered no other evidence — such as a brokentaillight or outdated registration tags ~ from whichthe trial court could infer that facts knownto Officer Burt at the time of the stop provided reasonable suspicion that Mr. Mai was committing traffic violation. Alternatively, respondent contends that Alex Nguyen’s non- percipient testimony that Officer Burt told Mr. Mai that he had stopped him for driving without illuminated headlights proved both the reason for, and the lawfulnessof, the stop. (RB 44-45.) However, as discussed in the opening brief, Officer Burt’s statements to Mr. Mai during the detention were not offered or admitted for their truth. (AOB 175-186; see also AOB 87-89.) | Respondent disagrees. Citing Nguyen’s initial testimony that Mr. Maitold him that “he was driving and he thoughthe hadhis light on, but he got pulled over by California Highway Patrolman for not havinghis light [sic]” (2-Muni-RT 278), respondent contendsthat the evidence was admitted and received forits truth under the hearsay exception for party statements. (RB 44,citing, inter alia, Evid. Code, § 1220.) Officer Burt’s statement wasnot offered or admitted under this exception nor wasit admissible for its truth under this exception. While Mr. Mai’s own 93 statement about what Officer Burt had told him was a party statement, the Officer Burt’s statement was not a party statement, admissible for the truth of proving that he had stopped Mr. Mai for driving withoutilluminated headlights. In this regard, respondent acknowledges that defense counsel made a “multiple hearsay’ objection to Nguyen’s testimony purporting to recount the.conversation between Mr. Mai and Officer Burt during the detention,to which the prosecutor responded that he was offering Mr. Mai’s own statements as an “an admission [but] J understand thatthe layerfrom the officer to the defendantis notfor the truth of the matter.” (2-Muni-RT 280, italics added; RB 45.) Respondent also acknowledgesthat the trial court agreed and acceptedthe officer statements to Mr. Mai only forthe non- hearsay purpose of explaining andputting into context Mr. Mai’s admissions. (2-Muni-RT 280; RB 45.) However, respondent contends,this limitation applied only to Officer Burt’s statements that he was going to have Mr. Mai’s car towed. (RB 44-45.) Respondent’s reading of the record is nonsensical. | The “multiple hearsay” objection followed Nguyen’s testimony regarding several ofthe officer’s statements to Mr. Mai, including the alleged statementthat he stopped him for driving withoutilluminated headlights. (2-Muni-RT 278-280.) In response, the prosecutorproffered, and the court limited, a blanket purpose for introducing Officer Burt’s statements to Mr. Mai: for the non-hearsay purposeof explaining or putting into context Mr. Mai’s admissions. Since Mr. Mai made no statements in response to Officer Burt’s remarks about towing the carthat could be construed as “admissions,” this ruling was obviously not directed or limited to those statements. (RB 44-45.) 94 To the contrary, the only evidence aboutthis conversation that could even conceivably be construed as an admission on Mr. Mai’s part was Neguyen’s vague,initial testimony in rather broken English that Mr. Mat told him that “he was driving and he thought he hadhislight on, but he got pulled over by California Highway Patrolman for not having his light [sic].” (2-Muni-RT 278.) If viewed in isolation, this account might be interpreted as Mr. Mai’s admission that he had been “pulled over . . . for not having his light.” However, Nguyen’s testimony must be viewed as a whole. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) After the prosecutor’s assurance that he wasnot offering, and the court’s ruling that it was not admitting or considering, Officer Burt’s statements to Mr. Maifor their truth, Nguyen clarified that Mr. Mai had 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, italics supplied.) Hence, Mr. Maidid not admitthat his headlights were actually off; he simply recounted what Officer Burt “told him.” And what Officer Burt “told” Mr. Mai was not offered or received for its truth. (2-Muni-RT 280.) Hence,there was no competent evidence received forits truth that Officer Burt had stopped Mr. Maifor driving without illuminated headlights. Nor was there any other evidence regarding the reasonfor the detention. Respondentthus graspsat a final straw, contending that Mr. Maiis at fault for “[aJny absence of the specific Vehicle Code section that Mai violated with caused the officer to initiate the stop” because he killed the officer. (RB 47.) Mr. Maiis not sure what to makeof this contention, but it has no legal force for several reasons. Among them, respondent seemsto assumethat the officer’s testimony is necessary to prove that he was 95 lawfully engagedin the performanceofhis duties. Of course, that assumption is preposterous. Due to the very nature of the special circumstance, the peace officer victim is always unavailableto testify. Nevertheless, the lawfulness ofhis conductis anecessary elementof the special circumstance allegation that the prosecution must prove beyond a reasonable doubt. Like any other element, it may be proved with circumstantial or other evidence, such as the testimony of percipient witnesses that the driver was committing an obvioustraffic violation like exceeding the posted speed limit or other evidenceoftraffic violations that would have been obviousto the detaining officer, such as expired registration tags, license plates that match a stolen vehicle, or a broken taillight. At bottom, while the defendant’s act of killing a peace officer may be murder, he is not death eligible for that murder under Penal Code section 190.2, subdivision (a)(7), unless and until the prosecution proves beyond a reasonable doubthe killed the officer while theofficer was lawfully engagedin the performanceofhis duties. In any event, even if the officer’s statement to Mr. Maithat he had detained him for driving without illuminated headlights could have been considered forits truth, that evidence only explained the reason for detention. It did not prove that this reason was a lawful groundfor - detaining Mr. Mai. D. Even if Officer Burt Did Detain Mr. Mai for Driving Without Illuminated Headlights, The Prosecution Presented No Evidence to Prove that the Detention was Lawful Asdiscussed in the opening brief, driving without illuminated headlights is only illegal under limited circumstances. At the time of the 1996 traffic stop, the Vehicle Code only required that headlights be 96 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 renderclearly discernable any person or vehicle on the highwayat a distance of 1,000 feet” (Veh. Code, § 280). (AOB 176-177.) The prosecution presented no evidence-at the preliminary hearing to prove when the sun set on the date of the stop (July 13, 1996)or that the stop occurred “one-half hour after sunset” or “during darkness” as defined by the Vehicle Code. (Ibid.) To the contrary, the only preliminary hearing evidence of the time and conditions of the stop was prosecution witness Berniece Sarthou’s testimony that when she observed the officer and Mr. Mai, “it wasstill daylight[,] [i]t wasn’t sunset yet.” (1-Muni-RT 190.) Therefore, even if the officer did detain Mr. Mai for driving without illuminated headlights, the prosecution’s ownpreliminary hearing evidence established that Mr. Mai was not committing a traffic violation and therefore the detention was unlawful. (AOB 177-178.) Respondent attempts to counter this argumentby repeatingits contentionsthat the official duty presumption conclusively established the lawful performance of duties element and Mr. Mai forfeited his right to challenge the sufficiency of the evidence to support that element by failing to do so below. (RB 46-47.) Mr. Mai has already addressed and refuted these contentions in Parts A & B, ante, which are incorporated by reference herein. In addition, respondent contends that Ms. Sarthou’s testimonythat she was wearing sunglasses when she observedthe detention did not rebut the (non-existent) “presumption”that the detention was lawful. (RB 46.) 97 This argumentis a red herring. Aspreviously discussed, the basis of Mr. Mai’s argumentis not merely Ms. Sarthou’s testimony that she was wearing sunglasses when she observed the detention, as respondent suggests. (RB 46.) Ms. Sarthou explicitly and unequivocallytestified that “it was still daylight[,] [i]t wasn’t sunset yet” (1-Muni-RT 190,italics added), and that she was wearing her sunglasses “because the sun wasstill bright enough to need them.”(1- Muni-RT 152; see also 1-Muni-RT 190-192). (AOB 176-177.) Mr. Mai takes respondent’s failure to address or disputethis testimony as an implicit concessionthat it established Mr. Mai was not committing traffic violation by driving withoutilluminated headlights during “daylight.” Nevertheless, respondent contends that even if Mr. Mai’s unilluminatedheadlights was nota traffic violation, Officer Burt was simply “mistaken”that it was, which “does not make his actions unlawful. ‘A mere “mistake” with respect to the enforcementofourtraffic laws does not establish that the traffic stop was pretextualor in bad faith.’ (People v. Brendlin (2008) 45 Cal.4th 262, 271.)” (RB 45.) Respondent’s contention is flawed in several respects. As a preliminary matter, there is no evidence that Officer Burt was acting on a “good faith” mistaken belief that Mr. Mai had violated the law and not that he simply stopped him based on an unlawful hunch. In any event, even accepting respondent’s contention that Officer Burt was acting on a “good faith” “mistake”aboutthe law, it is of no moment. Respondent seems to assumethat so long as a peaceofficer is not acting in “bad faith” or on a “pretext,” his or her conductis necessarily lawful. Of course,thisis not the case. As previously discussed, a temporary detention without a warrant — 98 such as traffic stop — is only lawful if facts known to the detaining officer are sufficient to support a “reasonable suspicion” that the detaineeis violating the law. (See, e.g., Whren v. United States (1996) 517 U.S. 806, 809-810; Delaware v. Prouse, supra, 440 U.S. at p. 663; Peoplev. Hernandez (2008) 45 Cal.4th 295, 299-300). “Reasonable suspicion”is measured by an objective standard. (See, e.g., Whren v. United States, supra;-at pp: 812-813.) The subjective “good faith” or “bad faith” of the detaining officer is irrelevant to determining whether the detention was objectively reasonable and therefore lawful. (See, e.g., Whren v. United States, supra, 517 U.S. at p. 813; People v. Tereskinski (1982) 30 Cal.3d 822, 831-832 & fn. 6, and authorities cited therein; United States v. Lopez-Soto (9th Cir.2000) 205 F.3d 1101, 1103-1105; United States v. Washington (8th Cir. 2006) 455 F.3d 824, 827.) Judged underthis objective standard, peace officers are “reasonably expected to know” the laws whichthey are regularly called upon to enforce. (See, e.g., People v. Cox (2008) 168 Cal.App.4th 702, 710, and authorities cited therein; accord, People v. Tereskinski, supra, 30 Cal.3d at pp. 831- 832; People v. McNeil (2002) 96 Cal.App.4th 1302, 1309; United Statesv. Washington, supra, 455 F.3d at p. 827; United States v. Leon (1984) 468 U.S. 897, 920, fn. 20 [objective reasonableness standard “requires officers to have a reasonable knowledge of what the law prohibits”].) Hence, a peace officer’s traffic stop or other detention based on a goodfaith mistake of the law that reasonable officers in his position regularly enforce is objectively unreasonable and therefore unlawful. (People v. Tereskinski, supra, at pp. 831-832; People v. Cox, supra, at p. 710; People v. McNeil (2002) 96 Cal.App.4th 1302, 1309; People v. White (2003) 107 Cal.App.4th 636, 643-644; United States v. Twilley (9th Cir. 2000) 222 F.3d 1092, 1096; 99 United States v. Lopez-Soto (9th Cir.2000) 205 F.3d 1101, 1103-1105; United States v. Washington, supra, 455 F.3d at pp. 827-828.) It is axiomatic that California Highway Patrol officers, like Officer Burt, are regularly called upon to enforce commonprovisionsof the California Vehicle Code. Certainly, the provisions governing the illumination of headlights are ones that are regularly enforced by the California Highway Patrol. Hence, California HighwayPatrol officers are “reasonably expected to know”those provisions. Hence, even accepting respondent’s position that Officer Burt’s traffic stop and detention of Mr. Mai were based on his subjective, good faith but mistaken belief that Mr. Mai had violated the Vehicle Code by driving without illuminated headlights “during daylight” (1-Muni-RT 190; see also 1-Muni-RT 152), the detention was nevertheless objectively unreasonable and therefore unlawful. For these andall of the other reasonsset forth in the-openingbrief, at best the prosecutor’s preliminary hearing evidence wasinsufficient to prove beyond a reasonable doubtthe “lawful performance of duties” element of the sole special circumstance allegation. At worst, the evidence affirmatively disproved that element. Thetrial court’s true finding therefore violated Mr. Mai’s state and federal Constitutional rights to due process anda fair andreliable death eligibility determination. (U.S. Const., Amends. VIII, XIV.) The special circumstance finding mustbeset aside and the death judgmentreversed. / // 100 Ill DEFENSE COUNSEL’S CONSENT TO MR. MAT’S SLOW PLEA TO THE SOLE SPECIAL CIRCUMSTANCE ALLEGATION AND FAILURE TO ARGUE OR PRESENT EVIDENCEIN SUPPORT OF -AREASONABLE DOUBT DEFENSE VIOLATED MR. MAI’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL AND DEMANDS THAT THE SPECIAL CIRCUMSTANCEBESET ASIDE AND THE DEATH JUDGMENT REVERSED Even if the evidence in the preliminary hearing transcript were legally sufficient to sustain the trial court’s true finding on the special circumstanceallegation, defense counsel’s consent to the plea and failure to argue or pursue a strong reasonable doubt defense to the sole special circumstance allegation nevertheless deprived Mr. Maiofhis state and federal constitutional rights to the effective assistance of counsel under the traditional Strickland v. Washington (1984) 466 U.S. 668 analysis. (AOB 179-199.) As discussed in ArgumentI, ante, the submission in this case wasa benchtrial in which the courtsat as the trier offact. (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 603; People v. Martin (1973) 9 Cal.3d 687, 694-695.) Hence, the question before the trial court was not the bare legal sufficiency of the evidence to support the special circumstance. That test “does not require a court to ‘ask itself whetherit believes that the evidenceatthetrial established guilt beyond a reasonable doubt,’” but rather “whether, after viewing the evidencein the light most favorable to the prosecution, any rationaltrier of fact could have foundthe essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) To the contrary, the question before the trial court was whetherit, sitting as trier of fact, was persuaded beyond a reasonable doubtthat the special circumstance wastrue. (See. e.g., People 101 v. Martin (1973) 9 Cal.3d 687, 694-695; In re Tommy E. (1992) 7 Cal.App.4th 1234, 1237.) Therefore, even if the evidence werelegally sufficient to prove the special circumstance, that did not made the guilt verdict a foregone conclusion. Defense counsel’s consent to Mr. Mai’s slow plea knowing that Mr. Maithat it was highly likely to result in a death verdict together with their to argue or present an obvious and compelling reasonable doubt defenseto the trier of fact fell below the heightened standards of reasonableness demandedof counsel in a capital murdertrial. (Stricklandv. Washington, supra, 466 U.S. at pp. 688-689.) Given the strength of that defense, defense counsel’s deficient performance undermines confidence in the outcomeofthe court trial on the special circumstanceallegation. (Strickland v. Washington, supra, at pp. 693-694.) Based primarily on its misstatements of Mr. Mai’s actual arguments on appeal and the law governing them, respondent disagrees. (RB 47-53.) A. Defense Counsel’s Consent to the Slow Plea Without Arguing That the Evidence WasInsufficient to Prove the Truth of the Sole Special Circumstance Allegation Deprived Mr. Mai of His State and Federal Constitutional Rights to the Effective Assistance of Counsel According to respondent, “Mai contends, as a matter of law, whenever counsel consents to a defendant’s guilty plea absent somebenefit, counsel had rendered ineffective assistance.” (RB 49.) Not so. As the opening brief makes clear, Mr. Mai’s arguesthathis counsel’s consentto his slow plea underthe particular circumstances of this case fell below objective standards of reasonable competence. Those particular circumstances are: defense counsel knew that (1) Mr. Mai entered the plea in order to obtain a death verdict, and that he would object 102 to any strategy that would seek to utilize his plea as mitigating evidence at penalty; (2) that Mr. Mai’s plea was highly likely to result in a death verdict; and (3) defense counsel failed to argue an obvious reasonable doubt defense to theof the only special circumstance rendering Mr. Mai even eligible for a death sentence. (AOB 183-192; see Bunnell v. Superior Court, supra, 13 Cal.3d at p. 604 [submission on preliminary hearing transcript reserves right to argue against sufficiency or weight of evidence to prove charges, but without argument or evidence a “slow plea”is “tantamount to a guilty plea” essentially making guilty verdict a “foregone conclusion’’] Pen. Code, § 1018 [defense counsel must consent to guilty plea to capital murder charge]; People v. Alfaro (2007) 41 Cal.4th 1277, 1296-1302, and authorities cited therein [section 1018 confers power on counsel to override defendant’s wish to plead to capital murder and prevent it].) With respectto the first of these circumstances, respondent concedes that Mr. Maientered a “slow plea”to the capital murder charge, which required his counsel’s consent under Penal Code section 1018. (See RB 47- 53; see also RB 30-31.) Further, respondent does not dispute that counsel’s consent to such a plea knowingthat the defendant wishesto enter it in order to obtain a guilty verdict and that it will likely lead to that verdict is inconsistent with the very purposeof section 1018 and objective standards of reasonable competence in a capital murdertrial. (See RB 49-51; compare AOB 184-187; see also AOB 78-85.) Instead, respondent disputes that these circumstances existed in this case. (RB 50.) Respondentrelies on three pieces of evidence: (1) defense counsel’s own statements that they consented to the plea because there was no viable guilt phase defense and they intendedto utilize the plea to Mr. Mai’s benefit 103 at the penalty phase (RB 49-50; 1-RT 189-190); (2) Mr. Mai’s statement ~ made longafter his plea — that he was “not suicidal” (RB 50; 8-RT 1402); and (3) Mr. Mai’s statements that he entered the plea in order to assist Ms. Phamin her related federal prosecution. (RB 49; 1-RT 207-210.) None of this evidence demonstrates that counsel did not know that Mr. Mai entered the plea in order to obtain a death verdict or that it was likely to lead to that verdict. a Asto lead counsel Peters’s statement that they consented to the plea because they intendedto use it to Mr. Mai’s benefit at the penalty phase, respondentignores that immediately after Mr. Peters madethat representation, Mr. Mai disavowedthat this was his purposefor entering the plea and indeed would disagree with any such strategy. (AOB 78-79,citing 1-RT 189-198, 207-210.) As to Mr. Peters’s representation that Mr. Mai’s “primary purpose”for entering the plea wasto help and protect Ms. Pham, he also admitted that Mr. Mai’s plea could in no way help or protect Ms. Pham, who hadalready been convicted and sentenced. (AOB 78-79.) _ Hence,Mr. Maidid not enter the plea in order to gain a tactical advantage at penalty and knew that his plea could not gain any advantage for Ms. Pham.” To the contrary, the record as a whole clearly demonstrates that Mr. Maientered the plea in order to obtain a death verdict. The record further 3! Indeed, if there were any truth to Mr. Peters’s representation that Mr. Maibelievedhis plea could help or assist Ms. Pham notwithstanding the fact that it could not, then the only reasonable explanations for that belief were that defense counsel either misled Mr. Maiinto entering the plea or that Mr. Mai wasnotrational, just as defense counsel later and repeatedly represented. (See Part F, post & ArgumentIV, post; and AOB 92-103, 200-247.) 104 demonstrates that defense counsel knew as much,andthat the plea was likely to result in that verdict. (AOB 183-187; see also AOB 79-80.) In this regard, Mr. Mai not only stated that he would disagree with any effort to utilize the plea as a mitigating factor at penalty. (1-RT 189-198, 207-210.) Defense counsel made several statements to the effect that “we havefor some time talked about putting no penalty evidence on” (3-RT 449), and “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). Of course, as discussed in the openingbrief, this is precisely the situation Penal Code section 1018 was enacted to avoid. (AOB 183-187, citing, inter alia, People v. Chadd (1981) 28 Cal.3d 739, 750-751, 753; see also AOB 80-85.) Further, under the professional normsthat prevailed at the time oftrial (and continue to apply today), when — as in California — attorneys have the powerto prevent a guilty plea to capital murder, they should exercise that power whenthere is no guarantee thatthe state will not seek the death penalty and must do so “whenthereis a likelihood that such a plea will result in a death-sentence.”(ABA Guidelines-for the Appointment and Performance of Defense Counsel in Death Penalty Cases (1989) [1989ABA Guidelines”], Guidelines 11.6.2 and 11.6.3 and Commentaries, emphasis in original; AOB 183-187; see also AOB 80-85.) Asto the second componentof Mr. Mai’s claim, respondent contends that defense counsel’s failure to argue that the preliminary hearing evidenceleft reasonable doubt aboutthe truth of the sole special circumstanceallegation was objectively reasonable. (RB 51-53.) Respondentpoints to defense counsel’s explanation that they consented to the slow plea because there was no viable defense to the capital murder charge while they intendedto utilize the plea to Mr. Mai’s benefit at the 105 penalty phase. (RB 49-51.) According to respondent, defense counsel’s was correct and their stated strategy was reasonable. (RB 49-53.) Asdiscussed in the opening brief, even asssuming arguendo that defense counsel consentedto the plea in hope of the possibility that it might help to save his life at the penalty phase, they obviously had no valid reason for failing to pursue a strategy that could have prevented Mr. Mai from becoming even eligible of the death penalty and avoided a penalty phase altogether. (AOB 188-189.) In arguing to the contrary that there was no viable defense to the special circumstanceallegation, respondent simply repeats it contentions from ArgumentsI andII of its brief based on the flawed premise that the “lawful performance of duties” element was conclusively presumed under Evidence Codesection 664. (RB 51-53; see also RB 29-31, 41-47.) As Mr.Maihas already addressed and refuted these contentions in ArgumentsI andII, post, which are incorporated by reference herein, no further reply to them is necessary here. Next, respondent contends that Mr. Mai’s argument “inappropriately presupposes an absence of additional evidence”to prove the “lawful performance of duties” element, which the prosecutor simply did not present. (RB 51.) Respondent appears to reason that if defense counsel had arguedthat the preliminary hearing evidenceleft reasonable doubt regarding the truth of the special circumstance allegation, the prosecutor would have been free to counter that argument by presenting evidence outside of the preliminary hearing transcript to prove the lawful performanceof duties element and contradict its own evidencethat the officer’s detention of Mr. Mai was unlawful. (See Arguments I-E-4 andII, ante.) Respondent’s contention is without merit. As discussed in the openingbrief, the prosecution agreed to submit 106 its case to the trial court based solely upon the preliminary hearing transcript. (1-RT 181-182; AOB 190-191.) Under the law, a defendant who submits the issue of guilt to the trial court on the basis of the ‘preliminary hearing transcript retains the right to argue against the weight and sufficiency of that evidence to prove the charges. (AOB 190-191, citing Bunnell v. Superior Court, supra, 13 Cal.3d at p. 604.) The court and the parties below recognized as much. In agreeing to the submission, the court inquired of defense counsel if they reserved their right to present additional evidence. (1-RT 180-181.) Defense counselreplied that they did not; the matter was submitted solely on the preliminary hearing transcript. (/bid.) The court then inquired if the prosecutor joined in the “jury waiver and request that the matters be submitted on the transcript of the preliminary hearing[.]” (1-RT 181.) The prosecutor affirmed. (1-RT 181.) Following this colloquy, the court concludedthat the parties agreed to submit the issue of guilt based solely on preliminary hearing transcript obtained Mr. Mai’s personal, express agreement to that procedure. (1-RT 181-182.) Thus, the agreement was settled. The court then asked defense counselif they “had a point of law that you wish to argue?” (1-RT 184.) Defense counsel declined. (1-RT 184.) Hence, under both the law and the facts, the stipulated submission did not preclude defense counsel from arguing against the weight or sufficiency of the evidence to prove the charges. In other words, had counsel presented such argument, the stipulated submission would still stand unaffected. By his own agreement, the prosecutor would not or could not present evidence outside of the preliminary hearing transcript to prove the lawful performance of duties element or contradict its own evidence 107 disproving that element. (See Arguments I-E andII,ante.) In any event, even if the prosecutor could have presented evidence outside of the preliminary hearing transcript regarding the circumstances of the traffic stop that detained Mr. Mai, the face of the record reveals just what that evidence would have been. Becausethe penalty phase jurors did notsit at the guilt phase but could consider the circumstances of the crime and existence of the special circumstance in determining penalty (Pen. Code, § 190.3, subd.(a), the prosecutor presented a full blown case on the underlying murder and special circumstanceat the penalty phase. At the prosecutor’s own request, the penalty jurors received instructions on all of the elements of first-degree murder and the peace officer murder special circumstance, including the “lawful” performanceof duties element. (3-CT 758-763.) As discussed at length in the opening brief but inexplicably ignored by respondent, the prosecutor presented a substantial amount of evidence from numerous Witnesses, including evidence about the circumstances of the stop and detention, to support those elements. (AOB 192-199.) The hole in that evidence, which was the same hole in the preliminary hearing evidence, was proof that Officer Burt’s detention of Mr. Mai by wayofthe traffic stop was in fact lawful. Ibid.) Indeed, that evidence only raised further doubt that the detention during which Officer Burt was killed was lawful. ([bid.)? Given the prosecutor’s burden to present sufficient evidence at the *° For this reason, Mr. Mai arguedin the alternative that defense counsel’s failure to present this evidence on Mr. Mai’s behalf also fell below an objective standard of reasonable competence. (AOB 192-200;see also Part D, ante.) 108 preliminary hearing to hold Mr. Maito answeron the special circumstance allegation (see, e.g., Thompson v. Superior Court (2001) 91 Cal.App.4th 144, 148-149) and his penalty phase strategy of effectively litigating Mr. Mai’s guilt of the underlying murder and special circumstance, the only “reasonable explanation for the absence of evidence in the record to prove the lawful performanceof duties elementis that the prosecution simply had no such evidence. Even if the prosecution did possess such evidencethatit inexplicably withheld at both the preliminary hearing and penalty phase, that evidence could not conclusively have proved the element given the wealth of the prosecution’s own other evidence tendingto disprove it. In other words, even if the prosecutor did have additional evidence and could have presentedit, it wouldstill have to be weighed against the substantial prosecution evidence tending to disprove the element. Given the strength of the evidence tending to disprove that element, as detailed at length in the opening brief, reasonably competent counsel wouldstill have argued or presented that defense. Defense counsel’s failure to do so could not be justified by any (hypothetical) belief that-the prosecutor could conclusively disprove that defense. Under the circumstances andfor all of the reasons discussed above and in the opening brief, defense counsel’s decision to consent to the slow plea, knowingthat it was intended andlikely to result in a death verdict, and without arguing against the lawful performance of duties element based on the submitted preliminary hearing transcript fell well objective standards of reasonable competence. (AOB 179-1972.) Significantly, respondent doesnot dispute that if counsel’s performancein this regard was objectively unreasonable, counsel’s deficient performance undermines confidence in the outcome of the court 109 trial on the special circumstance allegation. (Strickland v. Washington, supra, 466 U.S.at p. 693; AOB 191-192.) Thus, Mr. Mai was deprived of state and federal constitutional rights to the effective assistance of counsel, which requiresthat the special circumstancebe set aside and the death judgmentbased thereon reversed. B. Alternatively, Defense Counsel’sFailure 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 Even if defense counsel’s consentto the slow plea without arguing against the sufficiency of the evidence to prove the special circumstance allegation did not alone deprive Mr. Mai ofhisrights to the effective assistance of counsel, his failure to present argumentand additional evidence did. (AOB 192-199.) As discussed above andin the opening brief, assuming arguendothetruth of the only record evidence suggesting a reasonforthetraffic stop —i.e., that Mr. Mai was driving without illuminated headlights — the face of the record and indisputable facts reveal substantial additional evidence that the detention was nonetheless unlawful. Onthe date and placeof the traffic stop, the sun set at 8:04 p.m.; it was a clear day with zero precipitation and a mean visibility of 11.4 miles, or 60,192 feet. (The Old Farmer’s Almanac,http://www.almanac.com.; (AOB 194-196.) Had defense counsel movedthetrial court to take judicial notice of those indisputablefacts, the court would have been required to do so. (Evid. Code, §§ 452, subd. (h), 453.) These indisputable facts would conclusively have established that the law did not require illuminated headlights that day until 8:34 p.m., which was “one-half hourafter sunset. (Veh. Code, §§ 280, 24400, 38335.) (AOB 194-196.) As detailed in the 110 opening brief, the prosecution’s own penalty phase evidence overwhelmingly established that the stop occurred before 8:34 p.m. (AOB 192-199.) Moreover, as previously discussed, prosecution witness Sarthou testified that when she observed the officer and Mr. Mai, “it wasstill daylight[,] [i]t wasn’t sunset yet” and she was wearing her sunglasses “because the sun wasstill bright enough to need them.” (1-Muni-RT 152, 190-192.) All of this evidence demonstrated that Mr. Mai was not violating the law by driving without illuminated headlights when Officer Burt detained him for that reason. Hence,all of this evidence not only raised reasonable doubt that Officer Burt was engaged in the lawful performance of his duties when he was kilied; it tendedto affirmatively disprove that element. Defense counsel’s consent to the slow plea without presenting and arguing this evidence to the court fell below objective standards of reasonable competence. (AOB 192-199; Strickland v. Washington, supra, 466 U.S. at pp. 688-689.) Curiously, respondent does not even address the prosecution’s own penalty phase evidence casting doubt on the lawfulness ofthe traffic stop. Instead, as discussed above, respondent simply contends that Mr. Mai’s argument“inappropriately presupposes the absence of additional evidence” to prove the lawfulness of the stop. (RB 51.) Forall of the reasons discussed above and in the opening brief, respondent’s argumentis without merit. Asto defense counsel’s failure to move for judicial notice of the indisputable facts that the day of the traffic stop was a clear one in which the sun set at 8:04 p.m., Mr. Mai filed a motion in this Court to take judicial notice of those facts in order to review his claim pursuant to Evidence Code sections 452, subdivision (h) [“facts and propositionsthat are not 111 reasonably open to dispute and are capable of immediate and accurate determination by resort to resources of reasonably indisputable accuracy” are proper subjects of judicial notice] and 459. (See AOB 195, fn. 88.) Respondent contendsthat.this. Court should not consideror take judicial notice of those facts for three reasons: First, respondent contendsthat they were not presentedattrial and are not containedin the record ofthe trial proceedings. (RB 52.) Butthisis the very essence of Mr. Mai’s claim, i.e., defense counsel should have presented those facts to the trial court by way ofjudicial notice and their failure to do so fell below an objective standard of reasonably competent assistance. In this context, it is entirely appropriate to take judicial notice of properly noticeable facts. (See, e.g., People v. Marlow (2004) 34 Cal.4th 131, 149-150 [taking judicial notice of such evidence over People’s arguments that it was notpartof trial record and counsel forfeited issue by failing to raise it below]; People v. Burgos (2004) 117 Cal.App.4th 1209, 1212 [taking judicial notice of court records proffered in support of claim defense counsel was ineffective for not movingto strike a prior conviction based on evidence contained in those records].) Respondent has not offered a reasonedbasis for the Courtto decline to do sohere. Second, respondent summarily asserts that taking judicial notice of those indisputable facts-on appeal would “result in unfairness to the prosecution,” but fails to explain how it would result in unfairnessto the prosecution in this case. (RB 52.) Instead, respondent simply cites People 33 Mr. Mai filed the motion in this Court on March 30, 2010, along with his opening brief. On April 14, 2010, respondentfiled an opposition. On April 22, 2010, Mr. Mai filed a reply to respondent’s opposition. The motionisstill pending. 112 v. Hardy (1992) 2 Cal.4th 86, 134, in support of the general proposition that a reviewing court should not take judicial notice of facts that were not presented to the trial court ifit would result in unfairness to a party. (RB 52.) But respondent ignores the holding in Hardy, which actually supports Mr. Mai’s argument and undermines respondent’s objection. In Hardy, this Court did take judicial notice of facts forthefirst time on appeal. (People v. Hardy;-supra, 2 Cal.4th at pp. 134-135.) In so doing, the Court explained: Evidence Codesection 459, subdivision (d), provides certain procedural safeguards when a reviewing court takes judicial notice. . . [by] ‘afford[ing] each party reasonable opportunity to meet such evidence beforejudicial notice of the matter may be taken.’ ... By providing for special rules for situations in which a party seeks judicial notice of information “not received in open court or not included in the record of the action” (Evid. Code, § 459, subd. (d)), the Evidence Code clearly contemplatesthat, at least in somesituations, a reviewing court will grant judicial notice even when the information was not presented to the trial court. [Citations.] (Id. at pp. 134-135 & fn. 8.) Furthermore, this Court emphasized that noticing the facts in that case would not result in unfairness to the adversary because “the facts [to be judicially noticed were] not reasonably open to dispute.” (/d. at p. 135.) The same considerations apply here. The time of sunset and weather conditions on July 13, 1996 “are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code §§ 452, subd.(h), and 453; AOB 195-196.) Indeed, respondent has been given the opportunity to “meet” those facts and has not disputed their accuracy. (Evid. Code, § 459, subd. (d); People v. Hardy, supra, 2 Cal.4th at pp. 134-135 & fn. 8.) 113 Respondenthas also been given an opportunity to explain how taking judicial notice of those facts wouldresult in unfairness to the prosecution, but has failed to do so. To the contrary, under Evidence Codesection 453, had defense counsel made the motion below,judicial notice of those indisputable facts by the trial court would have been mandatory. Therefore, the prosecution wasnotunfairly deprived of an opportunity to object to judicial notice below because any such objection would have been futile. Thus, just as in Hardy, taking judicial notice on appeal of the indisputable and undisputedfacts that the day of the detention wasa clear one in which the sunset at 8:04 p.m. would notresult in any unfairnessto the People. And,as in People v. Marlow, supra, 34 Cal.4th at pp. 149-150, it is entirely appropriate to do sc-given Mr. Mai’s claim that his counsel was ineffective by failing to move for mandatory judicial noticeof those factsattrial. Finally, respondent contendsthat this Court should refuse to take judicial notice of those facts to resolve Mr. Mai’s claim on direct appeal because “claims of ineffective assistance of counsel are more appropriately raised on habeas corpus, where relevant facts and circumstances not reflected in the record on appeal, can be brought forward to inform the two prongedineffective assistance of counsel inquiry. (People v. Tafoya (2007) 42 Cal.4th 147, 196.)” (RB 52.) Respondent’s contention exalts form over substance. As Mr. Mai acknowledgedin the opening brief, it is true that when the appellate record or other evidence properly before the reviewing court does not containfacts vital to assessing an ineffective assistance of counsel claim — for instance, counsel’s explanations forhis or her strategic choices — the claim is more appropriately raised on habeas corpus. (AOB 182-183, citing, inter alia, People v. Pope (1979) 23 Cal.3d 412, 425-426.) However, 114 it is equally true that “when counsel’s ineffectiveness is so apparent from the record”that a Sixth Amendmentviolation may be demonstrated on direct appeal, it is appropriate to raise that issue on appeal. (Massaro v. United States (2003) 538 U.S. 500, 508; accord, e.g., People v. Pope, supra, 23 Cal.3d at pp. 425-426 [where,inter alia, defense counsel explains reasons for challenged acts and omissions, ineffective assistance of counsel claim-is appropriately raised on direct appeal];AOB 182-183.) Indeed, when the reviewing court has “sufficient information”to resolve such a claim on direct appeal, it not only can but should do so in theinterest of judicial economyandother important considerations. (People v. Pope, supra, at p. 440, dis. opn. of Mosk,J; see also, e.g., People v. Wiley (1995) 9 Cal.4th 580, 594 [taking judicial notice of matters on appeal in order to avoid “revisit[ing]’” the issue “on habeas corpus”’]; Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 165, fn. 12 [where matters properly subject to judicial notice establish fact on which action may be disposed or decided without further proceedings,it is appropriate to do so “without further waste of judicial resources”); In re Harris (1993) 5 Cal.4th 813, 827-829, 841 [explaining reasons for general rule that “issues that could be raised on appeal mustinitially be so presented, and not on habeas corpusin the first instance,” including,inter alia, legislative preference that such issues beraised and resolved on direct appeal, distinctions between appeals and habeas corpus proceedings, and conservation of judicial resources].) Here, defense counsel’s ineffectiveness is apparent from the face of the record and facts that “are not reasonably subject to dispute.” As respondent recognizes, defense counsel expressedtheir tactical reason for consenting to the slow plea andfailing to present a guilt phase defense on 115 the record. (See, e.g., People v. Pope, supra, 23 Cal.3d at pp. 425-426.) The face of the record reveals the evidence that should have been argued and presented to the court in determining the truth ofthespecial circumstanceallegation. The time of sunset and weather conditions on the date andplaceofthe traffic stop are not “reasonably subject to dispute,” have not been disputed by respondent, are properly the subjectof judicial notice on appeal, and would have been the subject of mandatory judicial notice attrial if counsel had made the motion. Hence, Mr. Mai’s ineffective assistance of counsel claim not only can be, but should be resolved on this appeal based on the record evidence and judicial notice of relevant and indisputable facts. Forall of the foregoing reasons, as well as those discussed in the opening brief, defense counsel’s failure to make any attempt to defend against Mr. Mai’s death eligibility fell below objective standards of reasonableness demandedof counselin capital cases. (Stricklandv. Washington, supra, 466 U.S. at pp. 688-689.) Again, respondent does not disputethat if defense counsel’s performance weredeficient,it undermines confidence in the outcomeofthe trial on the special circumstance allegation. (/d. at pp. 693-694; AOB 199.) Hence, no further reply is necessary. Mr. Mai was deprived of state and federal constitutional rights to the effective assistance of counsel, which requires that the special circumstance be set aside and the death judgment based thereon be reversed. // H/ 116 IV 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 INITIATE COMPETENCY PROCEEDINGS SUA SPONTE A. Introduction . Asdiscussed in Argument I-F, ante, andthe openingbrief, “a person whose mental condition is such that he lacks the capacity to... consult with counsel, and to assist in preparing his defense may not be subjected to a trial” because he is incompetent within the meaning of the federal Constitution and state law. (Drope v. Missouri [““Drope’’] (1975) 420 U.S. 162, 171; accord, Pen. Code, § 1367; AOB 217.) Whenthetrial court is aware of substantial evidence that the defendant may be incompetent — Le., evidencesufficient to raise a reasonable doubtas to his competency — the federal Constitution and state law impose a sua sponte duty to suspend criminal proceedings and initiate competency proceedings. (AOB 218-224, citing, inter alia, Pate v. Robinson (1966) 383 U.S. 375, 384-386, People v. Halvorsen (2007) 42 Cal.4th 379, 401; Pen. Code, § 1368, subds.(a)-(c).) Asdetailed in the opening brief, the trial court was presented with a wealth of evidence that Mr. Mai’s mental state had so deteriorated under the extraordinarily harsh conditions of his federal solitary confinementthat he was no longerable to rationally consult with counsel and participate in his penalty phase defense. (AOB 200-216.) This evidence raised a reasonable doubt as to Mr. Mai’s competencyto standtrial at the penalty phase and triggered thetrial court’s sua sponte dueto initiate competency proceedings. (AOB 217-241.) Thetrial court’s failure to do so violated state law, as well as Mr. Mai’s federal constitutional rights to due process anda reliable death 117 verdict. ([bid.) Because remandfora retrospective competency determination would be inappropriate in this case, outright reversal per se of the death judgmentis required. (AOB 241-248.) Atthe outset, it is important to emphasize whatis not in dispute. First, respondent doesnot dispute thatit is “well accepted that conditions fof solitary confinement] . . . can cause psychological decompensation to the point that individuals may become incompetent.” (AOB 225, quoting Miller-ex. rel. Jones v. Stewart (9th Cir. 2000) 231 F.3d 1248, 1252; see RB 53-62.) Particularly in light of the overwhelming weight of authority regarding the existence of this mental disorder (AOB 225-226), this Court should treat this as a concession. Nor does respondent dispute thatif the trial court did err in failing to initiate competency proceedings, reversal per se of the death judgmentis required becausea retrospective competency determination would be inappropriate here. (AOB 241-247; see RB 53-62.) Again, this Court should treat this as a concession. (See AOB 241-247.) Respondent’s only dispute is that the evidence wasinsufficient to raise a reasonable doubt that Mr. Mai wasable to rationally consult with counsel andparticipate in his penalty phase defense. (RB 53-62.) Respondent’s dispute is without merit. B. The Evidence Before the Court Was Sufficient to Raise Reasonable Doubt that Mr. Mai wasAble to Rationally “Consult with Counsel and to Assist in Preparing His Defense” Asdetailed at length in the opening brief, the trial court was presented with the following, well recognized indicia of incompetence: (1) The opinion of Mr. Mai’s court-appointed psychologist, Dr. Veronica Thomas, who metwith him regularly and opined 118 (2) (3) (4) )) that the extraordinary conditions of Mr. Mai’s federal solitary confinement had caused Mr. Mai to decompensateto the point that he was no longerable to consult with his counselor assist in the preparation of his penalty phase defense (AOB 200- 215, 220, 224-228, citing, inter alia, People v. Pennington (1967) 66 Cal.2d 508, 519, Drope, supra, 420 U.S.at pp. 175- 180); the repeated representationsof his defense attorneys to the same effect (AOB 200-216, 229-230, 236-237, citing,inter alia, Medina v. California (1992) 505 U.S. 437, 450, Drope, supra, 420 U.S. at p. 177 & fn. 13, and Torres v. Prunty (9th Cir. 2000) 223 F.3d 1103, 1109); Mr. Mai’s self-defeating behavior in entering an unconditional, effective guilty plea to capital murder and effectively stipulating to the death penalty (AOB 223-224, 231-236, citing, inter alia, Drope, supra, 420 U.S.at pp. 166- 167, 179-180, United States v. Loyola-Dominguez (9th Cir. 1997) 125 F.3d 1315, 1318-1319, and Burt v. Uchtman (7th Cir. 2005) 422 F.3d 557, 565); the report that his violent behavior increased dramatically after suffering near fatal injuries, which in Dr. Thomas’s professional opinion suggested the possibility of brain injury or trauma (AOB 228-229,citing, inter alia, Pate v. Robinson, supra, 383 U.S. at p. 378); Mr. Mai’s apparent disorientation in some proceedings, continual outbursts throughout the proceedingsin disregard of the court’s orders which prompted his removal from the 119 courtroom,and threats to disrupt further proceedings (AOB (See AOB 202, 204-205, 213-216, 230-231, citing, interalia, Drope v. Missouri, supra, 420 U.S. at pp. 179-180, McGregor v. Gibson (10th Cir. 2001) 248 F.3d 946, 958-959, 961, Torres v. Prunty, supra, 223 F.3d at p. 1109); and (6). Mr. Mai’s ownstatementthat he was unableto control himself coupled with his self-defeating request to be chained _in visible shackles during the penalty phase (AOB 233-234, Torres v. Prunty, supra, 223 F.3d at p. 1109). Mr.Mai argued that Dr. Thomas’s opinion alone, and surelythetotality of Dr. Thomas’s opinion andall of the foregoing evidence, was sufficient to raise a reasonable as to Mr. Mai’s competencyandtriggerthe trial court’s sua sponte to initiate competency proceedings. (AOB 219-236.) As demonstrated below, respondentdistorts or ignores much of the evidence. Otherwise, addressing each piece of evidencein isolation, respondent contendsthat each piece wasinsufficient standing alone to raise reasonable doubt as to Mr. Mai’s competence. (RB 53-62.) 1. Dr. Thomas’s Professional Opinion That Mr. Mai Was Unable to Assist Counsel in the Preparation of His Defense Was Substantial Evidence Triggering the Trial Court’s Sua Sponte Duty to Initiate Competency Proceedings Asto Dr. Thomas’s trial court testimony, the only part that respondentreferences is completely irrelevant to the issue presented here, namely, her opinion that Mr. Mai wasa sociopath,or had anantisocial personality disorder, and was “highly intelligent.” (RB 55.) Otherwise, respondentonly obliquely acknowledgesthat she “testified extensively about Mai’s conditions of confinement.. . and the impact those conditions 120 of confinement were having on Mai.” (/bid.) However, respondent does not address or describe her opinion about the impact those conditions of confinement were having on Mr. Mai. Instead, respondent summarily asserts that Dr. Thomas “never opined that Mr. Mai was mentally incompetent” (RB 55), and “never testified that the conditions of Mr. Mai’s confinement had caused him to become mentally incompetent” or “unableto assist his defense counsel.” (RB 55-56.) Therefore, respondent contends that neither Dr. Thomas’s testimony alone nor her testimony in combination with any other evidence raised a reasonable doubt as to Mr. Mai’s competenceto stand trial. (RB 55-60.) Respondent’s contentionis plainly refuted by the testimonyit so carefully avoids discussing. As detailed in the opening brief but completely ignored by respondent (AOB 205-207), in March 2000 — a month before the penalty phase commenced with jury selection — Dr. Thomastestified that she had been retained as a memberof the defense team to investigate and develop mitigating evidence, had been meeting with Mr. Mai since January 1999, and had personally witnessed the severe deterioration of his mental health under the extreme conditions of his federal solitary confinement. (3- RT 406-411, 429.)** She opined that Mr. Mai could not “cope with” the stress and “sensory deprivation,” under which he had becomeincreasingly, “alternately enraged”and “‘irrational,” “causing his emotionsto, on a frequent basis, to override his judgment.” (3- RT 411, 414, italics added.) His condition was “impairing” his “ability to process the issues that we ** Both defense counsel and Dr. Thomasdescribedat length the conditions of Mr. Mai’s solitary confinement. (See AOB 200-215.) 121 need[] to discuss with regard to his case” not only with her, but with defense counsel, which was “impairing the process of the defense all the way around.” (3-RT 411, italics added.) He no longer trusted anyone on his “defense team,” being “each and every one of us, myself included,” which madeit “difficult to absolutely address the issues that are imperative, to at least my part, in finishing with this phase of the case.” (3-RT 414, italics added.) Referring to Mr. Mai’s “present state of sensory deprivation” (3-RT 428), defense counsel Peters explicitly askedif it was her “opinion that [Mr. Mai] needs somerelief from his present situation in order to be cooperative with his counsel?’ (Ibid., italics added.) Dr. Thomasreplied, “something has to change, Mr. Peters, in orderfor me to do what I need to do to get him to be able to work with you.” (Ibid., italics added.) Furthermore, Dr. Thomastestified, “J am unable to moveforward at this point” with the “work” she needed to accomplishin order to prepare for the penalty phase. (/bid., italics added.) If the situation remained unchanged,her prognosis was that Mr. Mai’s ability to think and process information would only continue to diminish. (3-RT 428.) Consistent with her prognosis, over a month later and in the midst of the penalty phase voir dire, Mr. Peters reported that Dr. Thomas had met again with Mr. Mai the previous week and “noted there was an increase in his physiological symptoms. . . an increase in the intensity of his emotional reaction to innocuousstimuli” and “confirmed her prior opinions that he can’t be objective in dealing with her or me.” (6-RT 1076,italics added.) Hence, respondent’s assertion that Dr. Thomas never opined that Mr. Mai was“unable to assist his defense counsel .. . .” (RB 55-56)is clearly incorrect. Dr. Thomas’s professional opinion of Mr. Mai’s mental condition wasvery the definition of incompetence within the meaning of 122 the federal Constitution and state law. (Pen. Code, § 1367; Drope, supra, 420 U.S.atp.171.) Furthermore, Dr. Thomas’s state court testimony wasnotthe only evidence of her opinions before the trial court. As discussed in detail in the opening brief but ignored by respondent, defense counsel repeatedly described Dr. Thomas’s opinions based not only on herstate court testimony,but also on her testimony in federal court and ongoing reports to defense counsel. (AOB 200-216, 229-230, 236-237.) And they repeatedly represented that they shared Dr. Thomas’s opinion. (AOB 205-212, citing 3-RT 403-405; 3-RT 489; 4-RT 589; 5-RT 1075-1076; 3/16/07 2-SCT 42- 44, 156, 161, 169, 175, 178-181, 187, 189-190; 3/16/07 3-SCT 365-367.) For instance, defense counsel Peters represented that defense counsel “was unable to effectively communicate with” Mr. Mai, there “was a breakdown in the attorney-client relationship .... Dr. Veronica Thomascan no longer finish her evaluation of [him] . . . [which] is a necessary componentof” penalty phase preparation,” and that “[t]he conditions surrounding [his] custodystatus . . . are so inhuman and oppressivethat Petitioner’s counsel cannot complete and present to the [court or the jury] evidence of [Mr. Mai’s] mental state in mitigation of the death penalty.” (3/16/07 2-SCT 42- 44., italics added.) At bottom,the “conditions of [Mr. Mai’s] confinement have caused him to become mentally unstable to a point where his Counsel and psychologist cannot prepared [Mr. Mai] fortrial.” (3/16/07-2-SCT 161., italics added.)*° *> These quoted representations were madein a pleading defense counselfiled in the Ninth Circuit and served onthetrial court. Respondent acknowledgesthat the trial court state that it had received and reviewed the (continued...) 123 Indeed, even though they had discussed the prospect of presenting no penalty phase defense with Mr. Mai, defense counsel emphasized to the state court that “Mr. Mai needsto be in a situation where he can make rational decisions aboutthis,” but his mental condition precluded such rational decision making. (AOB 208,citing 3-RT 449, 471-473.) Consistent with Dr. Thomas’s opinion, defense counsel’s. description of Mr. Mai’s mental condition was the very definition of incompetence. (See, e.g., Maxwell v. Roe (9th Cir. 2010) 606 F.3d 561, 570 [substantial evidence warranting competency proceedings based,inter alia, on evidence that defendant’s “communication with counsel wasso strained” that counsel was unable to perform necessary duties]; Deere v. Woodford (9th Cir. 2003) 339 F.3d 1084, 1086 [substantial evidence based,inter alia, on evidence that defendant wasnot able to make rational judgements about his defense].)*° (,.continued) pleading. (RB 32, 591; 3/16/07-2-SCT 156, 169; 5-RT 1075-1076.) © In a footnote, respondentstatesthat “Mai [also] seemsto rely on his Petition for Writ of Prohibition/Mandate Request for Emergency Stay denied by the Fourth Appellate District ....(AOB 210-211.) The record below does notindicate that the trial judge reviewed the writ... .” (RB 59, fn. 17.) Respondentis correct that Mr. Mai relies on defense counsel’s representations in that petition to the effect his “mental state has been continually deteriorating” (3/16/07 2-SCT 190) ”under the “dehumanizing” conditions of his solitary confinement, that he “cannot think clearly” (3/16/07-2-SCT 178), “cannot control his emotions” (3/16/07-2-SCT 178, 180-181), counsel is “unable to effectively communicate with Petitioner” (3/16/07-2-SCT 187), and Dr. Thomascan “not complete her work up for the critical penalty phasetrial” (3/16/07-2-SCT 178, 190), including an (continued...) 124 *6(.. continued) evaluation that “is a necessary componentof the Petitioner’s defense at his penalty phasetrial” (3/16/07-2- SCT 187), all of which caused “a breakdownin the attorneyclient relationship” (3/16/07 2-SCT 187) to the extentthat ‘‘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,” in violation of his constitutional rights (3/16/07-2-SCT 189-190).(AOB 211-212.) These representations essentially mirrored the same representation defense counsel madein the pleading theyfiled in the Ninth Circuit Court of Appeals, and served on, received and reviewed by the trial court. (5-RT 1075-1076.) Respondentis incorrect, however, in suggesting that Mr. Mai cannot rely on those representations because the record does not indicate that the trial court was aware of them. The court was a named party in the petition; defense counsel personally served that pleading on the state court; and defense counsel orally notified the court that they had done so. (3/16/07-3- SCT 365-367; 5-RT 866.) Similarly, the Court of Appeal served its denial on thetrial court, specifically naming the trial judge. (3/16/07-3-SCT 369- 370.) This service created a rebuttable presumption that the pleading was actually received by the court. (See, e.g., 6 Witkin Cal. Proc. 4th (2008) PWT,§ 23, p. 445, and authorities cited therein.) Nothing in the record rebutsthatpresumption. To the contrary,the trial court acknowledgedthat it had received and reviewed the federal pleadings on the sametopic, which had similarly been served on the court. (3/16/07-2- SCT 156, 169; 5-RT 1075.) There is nothing in record to suggest that the court did not also receive and review the Fourth District petition in which it was a named party and which had been served by the same methodofprocess. Furthermore, even if the court did not actually review the pleading with which it was served, that would only mean that the trial court erred. Again, defense counselalerted the court that he hadfiled the petition in the Fourth Appellate District and the court was otherwise aware thatit — like the Ninth Circuit pleadings the court had received and reviewed — challenged the conditions of Mr. Mai’s confinement on the groundsthat they had caused Mr. Mai’s mental state to decompensate to the point that he was unable to communicate with counsel and participate in his defense in a (continued...) 125 It is well settled that where,as here, “a psychiatrist or qualified psychologist [citation], who has had sufficient opportunity to examinethe accusedstates under oath with particularity that in his [or her] professional opinion the accused is, because of mentalillness [or disorder] . . . 18 incapable of assisting in his defense or cooperating with counsel, the substantial evidencetest [triggering the trial court’s sua sponte duty to initiate competency proceedings]is satisfied.” (People v. Pennington, supra, 66 Cal.2d at p. 519; AOB 220-221, 227.) The evidence of Dr. Thomas’s opinion — presented to the state court through her sworn testimony and otherwise relayed to the court by defense counsel — clearly satisfied this test. To be sure, Dr. Thomasdid not use the term “mentally incompetent” in her state court testimony because no one ever asked her that question directly. This is so, of course, because defense counsel inexcusably failed to offer her testimony for that purpose because theyinsisted that competency proceedings were unnecessary (ArgumentI-F, ante) and the trial court did not receive her testimony for that purpose becauseit failed to make reasonably inquiry into that critical issue. (AOB 227.) Instead, as 36, continued) rational manner. (5-RT 866, 1075-1076.) Under the circumstances, the trial court was obligated to review that pleading and determineifit contained evidence relevant to the issue of Mr. Mai’s competency:“a trial court must always bealert to circumstances. . . that would render the accused unable to meet the standards of competenceto standtrial.” (See, e.g., Drope v. Missouri, supra, 420 U.S. at p. 181.) For all of these reasons, Mr. Mai appropriately relies on his trial counsel’s representations in the petition they filed in the Fourth Appellate District in support ofhis argument that the trial court erred in failing to initiate competency proceedings. 126 respondent points out, Dr. Thomas’s testimony was inexplicably offered only for the purposeof alleviating the conditions of Mr. Mai’s confinement conditions, not for the purposeof initiating competency proceedings. (RB 56-57; see AOB 207-208, 227.) Nevertheless, Pennington does not hold that a psychiatrist or qualified psychologist, who has had sufficient opportunity to examine the accused state under oath with particularity that in his professional opinion the accusedis, because of mental illness or disorder “incompetent” in order to satisfy the substantial evidence and demandtheinitiation of competency proceedings sua sponte. Rather, Pennington holdsthat “‘a psychiatrist or qualified psychologist [citation], who has had sufficient opportunity to examine the accusedstates under oath with particularity that in his professional opinion the accused is, because of mental illness [or disorder]. ... incapable of assisting in his defense or cooperatingwith counsel, the substantial evidencetest is satisfied.” (People v. Pennington, supra, 66 Cal.2d at p. 519, italics added.) Here, although Dr. Thomas did not use the magic word “incompetent,” the substance of her testimony clearly conveyed her opinion that, due to the mental condition caused byhissolitary confinement, Mr. Mai was “incapable ofassisting in his defense or cooperating with counsel.” (/bid.) This was enoughto trigger thetrial court’s sua sponte duty to initiate competency proceedings. (AOB 227, citing, inter alia, People v. Kaplan (2007) 149 Cal.App.4th 372, 386-387 [although psychologist “did not expressly state the opinion defendant was 999‘incompetent,’” she submitted a report in which she “addressed at length how and whydefendant was unableto assist counsel,” which wassufficient to raise reasonable doubt regarding competency and demandhearing]; cf. Maxwell v. Roe, supra, 606 F.3d at pp. 574-575 [‘“although defense counsel 127 did not formally” declare doubt as to defendant’s competency, they “did on numerousoccasions express concern that he was unableto aid in his own defense ... was deteriorating, not communicating with defense counsel,” which wassufficient to alert the court that they were “concern[ed] about [his] competence’”’].) Indeed,the trial court-itself recognized and expressed its concern that incompetent based on Dr. Thomas’s opinion and their owninteractions with him. (AOB 236-240, citing 5-RT 1075-1076.) Thetrial court failed to act on that substantial, objective evidence of Mr. Mai’s incompetence based on its own speculative, subjective impressions of his demeanor during a brief period of the penalty phase voir dire proceedings. (/bid., citing, inter alia, People v. Jones (1991) 53 Cal.3d 1115, 1152-1153 [“substantial-evidence” of incompetence is measured by an objective standard and, hence, cannot be defeated by the trial court’s own observations of the defendant].) 2. The Totality of the Evidence Before the Trial Court Triggered Its Sua Sponte Duty to Initiate Competency Proceedings Even if Dr. Thomas’s testimony and opinion were not alone sufficient to meet the substantial evidencetest and trigger to court’s sua sponte duty to initiate competency proceedings,the totality of her diagnosis and the other evidence before the court was. (AOB 200-216, 228-236 [detailing evidence].) Respondentdisagrees. In so doing, respondent addresses each piece of evidencein isolation and contendsthat each one, standing alone, was notsufficient to raise a reasonable doubt as to Mr. Mai’s competency. (RB 53-62.) Similarly, respondentessentially contends that since each piece of evidence did not 128 conclusively demonstrate incompetency becauseit was susceptible of interpretations consistent with competency, the evidence wasinsufficient to trigger the court’s duty. (RB 53-62.) Respondent’s analysisis fatally flawed. In determining whetherthere exists substantial evidence of incompetencysufficient to require the initiation of competency proceedings, the United State Supreme Court has explicitly held that it is improper to “consider[] indicia of’ the defendant’s “incompetence separately[].” (Drope, supra, 420 U.S. at pp. 179-180.) Instead, the trial court must consider “the aggregate of those indicia.” (Jbid.; accord, e.g., McGregorv. Gibson (10th Cir. 2001) 248 F.3d 946, 955.) Furthermore, as discussed in the opening brief but ignored by respondent, “substantial evidence” of incompetency does not mean conclusive, unconflicting or even persuasive evidence. (AOB 219-220, citing, inter alia, People v. Young (2005) 34 Cal.4th 1149, 1219 and People v. Pennington (1967) 66 Cal.2d 508, 518.) As with any other “substantial 66 evidence” standard, the trial court’s “sole function is to decide whether there is any evidence which, assumingits truth, raises a reasonable doubt about the defendant’s competency.” (Moore v. United States (9th Cir. 1972) 464 F.2d 663, 666,italics added; accord, e.g., People v. Jones, supra, 53 Cal.3d at pp. 1152-1153; Speedy v. Wyrick (8th Cir. 1983) 702 F.2d 723, 725; United States v. Mason (Ath Cir. 1995) 52 F.3d 1286, 1290.) “Once such substantial evidence appears, “‘a doubt as to the [competency] of the accused exists, no matter how persuasive other evidence — testimony of prosecution witnesses or the court’s own observations of the accused — may be to the contrary. ... [I]t is immaterial that the prosecution’s evidence [or contrary inferences] may seem morepersuasive. The conflict can only be 129 resolved upona specialtrial before the judge or jury, if a Jury is requested.” _ (Pennington, supra, at pp. 518-519,italics added; accord, e.g., People v. Stankewitz (1982) 32 Cal.3d 80, 93; AOB 218-220, 224,.) With this background in mind, respondent contends that Mr. Mai’s self-defeating behavior in entering an unconditional slow plea to capital murder and effectively stipulating to the death penalty was not suggestive of incompetence for two reasons. First, Mr. Mai’s plea was born ofa rational decision because he wasguilty and there was no viable defense. (RB 57.) However, as discussed in Arguments I-E,II, and III, ante, and the opening brief, defense counsel’s statement that there was no viable defense to the capital murder charge wasnot only incorrect; Mr. Mai disavowedthat he wished to enter the plea for the reasons defense counsel expressed. (AOB 78-79, 231-232; 1-RT207-210.) Instead, Mr. Mai explained that his purposefor entering the plea wasto help and assist Ms. Pham inher federal prosecution. (/bid.) When the court inquired of defense counsel how Mr. Mai’s plea could help her, defense counsel replied that it could not — she had already been convicted and sentenced and “‘it is all done.” (2-RT 209- 210.) Nevertheless, Mr. Mai insisted on entering the plea. (2-RT 209-210.) Thus, the court was aware that Mr. Mai’s stated purpose for entering the plea was simply nonsensical. The court was also aware that Mr. Mai and his counsel made no attempt to seek concessions from the state prosecutor in exchangefor his plea. (1-RT 100, 104-106, 125-126, 148, 168; AOB 73- 77, 231-232; ArgumentI-E, ante.) Hence, this evidence alone would have caused an objective, reasonable judge to have suspected that something was amiss. (AOB 231-232,citing, inter alia, 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 130 other evidence of mental problems, raise doubts as to the defendant’s competency’’].) Asto Mr. Mai’s effective stipulation to the death penalty, respondent simply recites this Court’s oft-repeated observation 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; see RB 57, and authorities cited therein.) Of course, Mr. Mai acknowledgedthis authority in his openingbrief. While it may be true that a defendant’s death or suicidal wishes alone do not necessarily amountto substantial evidence of incompetence,it is equally true that such evidence “in combination with otherfactors, may constitute substantial evidence raising a bonafide doubt regarding a’ defendant’s competenceto standtrial.” (AOB 235-236, quoting People v. Rogers (2006) 39 Cal.4th 826, 848 andciting, inter alia, Drope v. Missouri, supra, 420 U.S. at pp. 166-167, 179-180; accord, Maxwell v. Roe, supra, 606 F.3d at pp. 570-571, 575-576 [substantial evidence based,inter alia, on defendant’s attempted suicide and self-defeating insistence on turning over evidence helpful to prosecution].) Here, Mr. Mai’s death wish was simply one of manyfactors, the aggregate of which combinedto raise a reasonable doubt as to his competency. Next, respondentbuilds yet another straw man, purporting to summarize Mr. Mai’s “contention”that “his incompetency was demonstrated by” the reports of “Mai’s girlfriend, Victoria Pham,[that] Mai had been in a car accident and afterward his behavior changed and he was violent. Mai speculates on appeal this could have indicate a brain injury which wasthe cause of Mai’s violent behavior.” (RB 56.) Having built up 131 this straw man, respondentthen proceeds to knock it down, contending that this evidence did not demonstrate incompetency because: (1) the record does not support Mr. Mai’s “speculation” that he actually suffered brain injury that had any impact on his cognitive functioning; and (2) in any event, “a person with significant brain damage may nonetheless be competentto standtrial.” (RB 56, citing People v. Leonard (2007) 40 Cal.4th 1370, 1415-1416.) Respondent’s contention misstates both Mr. Mai’s argumentand the record on which it is based. It is not Mr. Mai who “speculates”that he could have brain injury that impacted his cognitive functioning. (RB 56; compare AOB 228-229.) It was Dr. Thomas’s professional opinion that the report of Mr. Mai’s near fatal injuries followed by a dramatic escalation of his violence suggested the possibility ofbrain injury that should have been investigated through appropriate testing. (2-CT 501; 1-RT 170-171; 2-RT 231-232.) Of course, the record does not prove or confirm Dr. Thomas’s suspicions dueto the very errors raised on this appeal: defense counsel unreasonablyfailed to investigate this evidence (ArgumentI-G-2, ante; AOB 114-118); defense counsel unreasonably insisted that competency proceedings were unnecessary based onthis and other evidence (ArgumentIJ-F, ante); and the trial court did not order competency proceedings. In any event, affirmative proof that Mr. Mai had suffered brain damage was not necessary to raise a reasonable doubt as to his competence to stand trial. It may be true that “a person with significant brain damage” is not necessarily incompetent, as respondent observes. (RB 56.) But Mr. Mai does notraise a substantive due process claim that he was actually incompetent to standtrial; instead, he raises a procedural due process challengeto the trial court’s failure to initiate competency proceedingsin 132 the face of evidence raising a reasonable doubt as to his competency. (See, e.g., McGregor v. Gibson (10th Cir. 2001) 248 F.3d 946, 952 [distinction between claims, the latter of which requires a lower burden of proof than the former] ) In this procedural due process context, the United States | Supreme Courthas held that evidence of a head injury followed by a change in behavioris a red flag suggestive of incompetence, particularly where, as here, it accompaniesother signs of irrational thinking or behavior. (See, e.g., Pate v. Robinson, supra, 383 U.S.at p. 378.) Again, the evidence reported to Dr. Thomasthat Mr. Mai had suffered near fatal injuries followed by a change in behavior, her professional opinionthatthis evidence suggested the possibility of brain injury, her opinion that Mr. Mai was unableto rationally consult with her or counsel or prepare his defense, and the other evidenceofhis irrational thinking and behavior combined to raise a reasonable doubt as to his competency. (Ibid.) As to Mr. Mai’s disruptive outbursts both inside and outside of the courtroom (AOB 229-231), respondent contendsthat they simply evidenced ‘that he was “angry,” notthat he was incompetent. (RB 57-58.) Indeed, respondent emphasizes,after his last outburst, Mr. Mai did notdisrupt the proceedings again, which “showsthat Mr. Mai chose to be disruptive and that he could control his behavior.” (RB 58.) Again, both the facts and the law undermine respondent’s contention. Asto the facts and as discussed in detail in the openingbrief, respondentignores that despite the court’s repeated admonishments throughout the pre-penalty and penalty proceedings, Mr. Mai repeatedly disrupted the proceedings with violent outbursts. (See AOB 202, 213-216, 230-231, citing 2-RT 305-309, 345, 349; 3-RT 395-400; 5-RT 1076; 6-RT 1079-1083.) These continual outbursts over the court’s repeated warnings 133 were circumstantial evidence susceptible of a reasonable inference that Mr. Mai’s was simply unableto control himself. (AOB 230-234,citing, inter alia, United States v. Williams (10th Cir. 1997) 113 F.3d 1155, 1160 {substantial evidence raising reasonable doubt of competency based, inter alia, on “outbursts, interruptions of the attorneys, and defiance ofthe district court’s instructions”] and Torres v. Prunty, supra, 223 F.3d at p. 1109.) The inference that Mr. Mai was unable to control himself was substantially bolstered by other evidence that respondenttellingly ignores. For example, immediately after the court had yet again warned Mr. Mai abouthis disruptive behaviorin the courtroom, Mr. Mai informed the court that he was concerned abouthis inability to control himself. (2-RT 348, 365; 6-RT 1086-1087; AOB 233-234.) Dueto this concern, Mr. Mai himself requested that he be shackled throughout the remainderofthe proceedings. (6-RT 1086-1087.) Defense counsel shared Mr. Mai’s concerns and joinedin his request for their own “safety.” (6-RT 1086; see, e.g., Torres v. Prunty, supra, 223 F.3d at p. 1109 [substantial evidence based,inter alia, on continually disrupting proceedings and threatening to assault attorney].) Thus, throughout the remainder of the proceedings, Mr. Mai appearedin visible shackles — his hands were cuffed and attached to chainsthat hung aroundhis waist and his leg was chained to counseltable. (6-RT 1086; see also 2-RT 348, 365; AOB 230-234.) Even after being shackled and chained, Mr. Mai’s disruptive outbursts continued throughoutthe penalty phase proceedings in which he continually disrupted the prosecutor’s opening statement and examination of witnesses. (AOB 215-216, citing 6-RT 1089-1091, 1098; 7-RT 1319, 1325-1331.) This disruption of the prosecution’s case seemedparticularly irrational given Mr. Mai’s own desire to effectively stipulate to the death 134 penalty and receive a death verdict. Mr. Mai eventually became so irrational and enraged that he upended counseltable — to which he was shackled — in front of the jurors and had to be removed from the courtroom. (7-RT 1331; AOB 216-216, 230-231, citing, inter alia, (7-RT 1331; see, e.g., Torres v. Prunty, supra, 223 F.3d at p. 1109 [substantial evidence based, inter alia, on constant disruptions that resulted in defendant’s removal from courtroom].) It is true — as respondent observes — that Mr. Mai did not have another courtroom outburst after this final spectacle, but the proceedings were nearly overat that point. (See RB 58.) Furthermore,he later threatened to disrupt the proceedings if defense counsel presented argument for his life. (AOB 234,citing, inter alia, McGregor v. Gibson, supra, 248 F.3d at pp. 958-959, 961 [substantial evidence based,inter alia, on overreactive “temper tantrum”and threats to disrupt proceedings].) A defendant’s self-destructive behavior and physical and verbal outbursts in defiance of court orders that prompt physical restraints and removal from the proceedingsare all well-recognized indicia of incompetence. (See AOB 230-234, citing, inter alia, Torres v. Prunty, supra, 223 F.3d at p. 1109 [substantial evidence based,inter alia, on continual disruptions prompting removal from courtroom andself-defeating insistence on being shackled during proceedings]; accord, e.g., Maxwell v. Roe, supra, 606 F.3d at pp. 570-571.) Furthermore, lack of impulse control is a common symptom of the recognized mental disorder caused by the isolation and sensory deprivation of solitary confinement — sometimesreferred to as “SHU” syndrome. (See, e.g., Madrid v. Gomez (N.D. Cal. 1995) 889 F.Supp. 1146, 1265-1266; Bruce A. Arrigo & Jennifer Leslie Bullock, The Psychological Effects ofSolitary Confinement on Prisoners in Supermax Units: Reviewing 135 What We Know and Recommending What Should Change, 52 Int’! J. Offender Therapy & Comp. Criminology 622, 626-628 (2008); The Corr. Ass’n of N.Y., Mental Health in the House of Corrections 10-11, 58, 45-60 (2004)°’.) Therefore, this evidence also supported Dr. Thomas’s opinion that the extraordinarily harsh conditions of Mr. Mai’s long-term solitary confinement had a profound impact on his mentalstate and ability to participate in histrial. Given Mr. Mai’s own statements that he could not control his behavior, corroborated by the evidence demonstrating as much,and the opinions of Dr. Thomas and defense counselthat he was not capable rational decision making, consulting with counsel in a rational manner, or assisting in the conduct of his defense, the appropriate response wasnotto simply grant Mr. Mai’s request to be chained throughout the remainder of the proceedings. The inappropriateness of that response is surely demonstrated by the fact that chaining Mr. Mai notonly failed to alleviate the problem butlikely compoundedit, resulting in the appalling spectacle of his overturning the counsel table to which he waschained. (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 body of the defendant’” caused by physical restraints, which can “‘‘impair[] his mental faculties’” and his “ability to cooperate or communicate with counsel’”’].) Given the totality of the evidence before the court, the appropriate response wasto suspend the proceedingsandinitiate competency proceedings in order to determine the reasons for Mr. Mai’s 37 Available at www.correctionalassociation.org/PVP/publications/Mental-Health.pdf. 136 troubling behavior and admission that he was unable to control himself — whether Mr. Mai’s conduct was merely the manifestation of “anger” that he could control but chose notto, as respondent contends (see RB 57), or the manifestation of a mental disorder that rendered him unable to control his emotionsor rationally participate in the trial, as Dr. Thomas and defense counsel believed. In this regard, respondent’s contentions that Mr. Mai’s conduct was susceptible of inferences consistent with competency are immaterial. Under well-settled authority, Mr. Mai’s behavior wasat least equally susceptible of an inference that he was not competent, just as Dr. Thomasand defense counsel believed. (AOB 200-236.) Thus, even if the evidence were susceptible of conflicting interpretations, “[t]he conflict [could] only be resolved upona special trial before the judge orjury,if a jury is requested. (Pen. Code, § 1368.) (Pennington, supra, 66 Cal.2d at pp. 518-519; accord, e.g., People v. Stankewitz, supra, 32 Cal.3d at p. 93.) Forall of these reasons, as well as those set forth in the openingbrief, the trial court violated state law, as well as federal constitutional demandsfor procedural due process and reliable death judgments by failing to suspend criminal proceedings and initiate competency proceedings to resolve any such conflicts. // // 137 C. Neither the Trial Court’s Subjective Impressions of Mr. Mai’s Demeanor During a Short Portion of Trial nor Defense Counsel’s Nonsensical Insistence that Competency Proceedings were Unnecessary Relieved the Trial Court of its Independent Duty to Initiate Competency Proceedings Aspredicted in the opening brief, respondent contends that defense counsel’s insistence that competency proceedings were unnecessary ‘coupled with the court’s subjective observations of Mr. Mai’s demeanor during four days of the voir dire proceedings establish that there was no reasonable doubt as to Mr. Mai’s competency. (AOB 236-240; RB 59-61.) Asrespondent has ignored Mr. Mai’s argumentaddressing the fallacy of this position and otherwise failed to raise any point or authority that Mr. Mai did not predict and refute in the opening brief, an extended reply to” respondent’s contention is unnecessary. (AOB 236-240; RB 59-61.) Forall of the reasons discussed aboveandin the openingbrief, whichis incorporated by reference herein, viewed under the requisite objective standard, the totality of the evidence before the court — including defense counsel’s repeated representations that Mr. Mai’s mental condition rendered him unable to consult with them, makerational life and death decisions, or assist in the preparation of his defense — was sufficient to raise a reasonable doubt as to Mr. Mai’s competency. (AOB 236-240;see also ArgumentI-F, ante.) That duty was not relieved by the court’s subjective, speculative observations of Mr. Mai’s demeanor during a small portion of the proceedings. (AOB 236-240,citing, inter alia, People v. Jones, supra, 53 Cal.3d at p. 1153 [“substantial evidence” is measured by an objective standard and, hence, cannot be defeated bythetrial court’s own observations of the defendant]; McGregor v. Gibson, supra, 248 F.3d at p. 138 961 [“even if we were to credit” court’s subjective interpretation of one event, “one instance of demonstrable competency on [defendant’s] part does not overcome the numerousoccasions, occurring before andafter [that event], in which his competency wascalled into doubt’].) Nor wasit relieved by defense counsel’s bizarre insistence that competency proceedings were unnecessary despite the wealth of evidence and representations they had madeto the contrary. (AOB 236-237,citing, inter alia, United States v. John (7th Cir. 1984) 728 F.2d 953, 957 [substantial evidenceraising doubt regarding defendant’s competency demanded hearing despite defense counsel’s statement that he believed his client was competent]; accord, e.g., Maxwell v. Roe, supra, 606 F.3d at pp. 574-575 [court’s independentduty to initiate competency proceedings based on totality of evidence was not relieved by counsel’s failure to “formally request a competency hearing” particular given defense counsel’ s representations that effectively “expressed concern about [the defendant’s] competence’’].) To the contrary, rather than relieving the court of its duty to initiate competency proceedings, counsel’s inexcusable insistence that competency proceedings were unnecessary despite their repeated representations that Mr. Maiwas,in effect, incompetent should havealerted the court that counsel had ceased to function in any meaningful way as advocates for their client’s best interests and promptedit to respond appropriately. (Cf. People v. McKenzie (1983) 34 Cal.3d 616, 626-627 [by permitting proceeding to go forward when defense counsel declined to participate intrial, 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” andits obligation to promote “the orderly administration of justice”]; United States 139 v. ex rel. Darcy v. Handy (3d Cir. 1953) 203 F.2d 407, 427 [when counsel’s representation is “so lacking in competency or goodfaith” that trial may become a “farce and a mockery of justice,” it becomes “the duty of thetrial judgeor the prosecutor,as officers of the state, to observe and correct it”].) But the trial court did nothing. “In a death penalty case, [this Court and the State’s independentinterest in the reliability of death judgments] expect[] 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. Theproceedings here fell well short of this goal.” (People v. Hernandez (2003) 30 Cal.4th 835, 878, italics added.) D. Respondent Does Not Dispute thatif the Trial Court Violated State Law and the Federal Constitution By Failing to InitiateContemporaneous Competency Proceedings, Remand for a Retrospective Competency Determination is Inappropriate and Reversal Per Se of the Judgmentis Required Underthe precedents of the United States Supreme Court andthis Court, a trial court’s failure to conduct a contemporaneous competency hearing amountsto a structural error demanding reversal per se that can never be “cured” by remandingfor a retrospective competency determination. (AOB 241-243; accord, People v. Murdoch (2011) 194 Cal.App.4th 230, 239 [reversal per se of judgment without remandis required remedy]; Beaudreau, Due Process or “Some Process?” Restoring Pate v. Robinson’s Guarantee ofAdequate Competency Procedures (Spring 2011) 47 Cal. West. L. Rev. 369 [extensively analyzing law and concluding remandfor retrospective or nunc pro tunc competency determination can never cure or render harmless unconstitutional failure to hold contemporaneous competency hearing].) Alternatively, if such remand 140 were ever appropriate in rare and highly unusual cases, it would not be appropriate in this case given the substantial passage of time since judgment wasrendered — more than 12 years as of this writing — and the lack of contemporaneous medical evidence relevantto the issue of Mr. Mai’s competencyat the time of trial. (AOB 242-245; accord, Maxwell v. Roe, supra, 606 F.3d at p. 576 [while remandfor retrospective competency hearing may be appropriate in somecases, it was inappropriate when “conviction [was] 12 years old’’].) Respondent does not dispute as much. (See RB 53-62.) Hence, no further discussion is necessary. (See AOB 241- 248.) The death judgment mustbe reversed. / I 141 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 Mr. Mai and his counsel requested that he be permitted to testify that death was the appropriate punishmentin this case. (AOB 249-250.) Althoughthetrial court recognized that the proposed testimony would be “tantamount to suicide and the state of California doesn’t assist or participate in suicides,” it nevertheless granted Mr. Mai’s request on the ground that he had the “‘right to take the stand andtalk to the jurors.” (8-RT 1401, italics added.) Defense counsel Peters affirmatively presented Mr. Mai’s testimony to the jurors as “the only defense evidence” they would hear. (8-RT 1409.) Thereafter, Mr. Mai took the stand and delivered a monologuethat death wasthe appropriate penalty in this case. (8-RT 1409-1410.) This wasthe last piece of penalty phase evidencethe jurors heard. (AOB 249-250.). In the only summation presented to the jurors, the prosecutor encouraged them to return a death verdict based on Mr. Mai’s testimony. (8-RT 1424.) The jurors returned their death verdict minutes later. (3-CT 867-868; AOB 249-250.) Mr. Mai’s opinion wasirrelevant and inadmissible under both state law and the Eighth and Fourteenth Amendmentrights, and hence Mr. Mai had no “right” to present it. (AOB 252-257,citing, inter alia, Booth v. Maryland (1987) 482 U.S. 496, 507-510, Payne v. Tennessee (1991) 501 142 U.S. 808, 830 & fn. 2, People v. Smith (2003) 30 Cal.4th 581, 622-623, and People v. Danielson (1992) 3 Cal.4th 691, 715.) Thetrial court’s failure to exclude that evidence sua sponte violated state law and the Eighth and Fourteenth Amendments. (AOB 258-261, citing, inter alia, United States v. Young (1985) 470 U.S.1, 10, Glasser v. United States (1942) 315 U.S. 60, 71, People v. Carlussi (1979) 23 Cal.3d 249, 256, and Pen. Code, § 1044.) Because that evidence was offered andutilized as a basis for the death verdict, the death judgment must be reversed. (AOB 265-271, citing, inter alia, Brown v. Sanders (2006) 546 U.S. 212, 220-221, Johnsonv. Mississippi (1988) 486 U.S. 578, 585-586, and Zant v. Stephens (1983) 462 U.S. 862, 885.) i Asa principle of law, respondent does not dispute that state law and the federal Constitution impose an independentduty ontrial courts duty to exclude constitutionally irrelevant evidence that threatens the fairness and reliability of capital proceedings. (See RB 62-65.) Nor does respondent dispute that if Mr. Mai’s opinion wereirrelevant and inadmissible,thetrial court in this case violated its duties by admitting that opinion and permitting its use as aggravating evidence weighing in favor of a death verdict. ([bid.) Finally, respondent doesnot dispute that if the court violated its duties in this regard, the death judgment must be reversed. (/bid.) Instead, respondentfirst contends that Mr. Mai’s opinion was G66properly admitted because he had an “‘absolute right to testify, [which] 299cannot be foreclosed or censored based on content,’” even if that “content” it irrelevant and otherwise inadmissible. (RB 63-65.) Second, respondent appears to contend asa general matter that while an opinionthatdeath is the appropriate penalty may be irrelevant and inadmissible when it comes from the victims or their family members,it is not irrelevant when it comes from 143 the defendant’s own mouth. (RB 65.) Third, respondent contendsthat Mr. Mai’s testimony in this particular case demonstrated his “acceptance of responsibility for his crime, as such it reflected on his character,” as well as his “record and the circumstances of the offense” and wastherefore relevant and admissible mitigating evidence. (RB 64, citing Pen. Code, § 190.3.) As demonstrated below, respondent’s first and second contentions are contrary to the law. Its third contention is belied by Mr. Mai’s actual monologueto the jurors and the record evidencethat it was offered, admitted, and utilized as aggravating evidence weighing in favor of death. B. A Defendant Has No Right to Testify to Irrelevant Opinion Evidence that Death is the Appropriate Penalty Respondent’s response to Mr. Mai’s challenges to the relevance and admissibility of his testimony presents a moving target. First, quoting from this Court’s decision in People v. Webb (1993) 6 Cal.4th 494, respondent eecontendsthat criminal defendants enjoy the “‘absolute rightto testify [which] cannot be foreclosed or censored based on content.’ (Peoplev. Webb,supra, 6 Cal.4th at p. 535.)” (RB 63-64; see also RB 65 [citing People v. Nakahara (2003) 30 Cal.4th 705, 719, which relied on Webb, supra, for the same proposition].) Thus, by respondent’s reasoning, defendants have “the absolute right to testify” to anything — even irrelevant matters, including their opinionsthat death is the appropriate penalty — and trial courts have no powerorduty to curtail that right ““based on content.’” (RB 63-64.) Of course, as discussed at length in the opening brief, this Court has explicitly disapproved the language respondent quotes from Webb as applying to challenges to the relevance of a defendant’s testimony. (AOB 264-265.) Contrary to the broad proposition declared in Webb, a defendant’s 144 right to testify is not “absolute” (People v. Webb, supra, 6 Cal.4th at p. 535) and can be limited, “foreclosed or censored based on content” (ibid.) when that “content” is irrelevant. (People v. Lancaster (2007) 41 Cal.4th 50, 101- 102; accord, Rock v. Arkansas (1987) 483 U.S. 44, 51-53, 55 {recognizing “the right to present relevant testimony,” whichis not absolute]; see also AOB 251-252.) Thus, as the Lancaster court explained, the language in Webb mustbe limited to its context, in which this Court addressed the admissibility of the defendant’s testimony in favor of the death penalty on groundsother than relevance and “[t]he relevance of the testimony was not challenged.” (People v. Lancaster, supra, at p. 102, italics added; see also People v. Avila (2006) 38 Cal.4th 491, 566, and authorities cited therein [“‘It iS axiomatic that cases are not authority for propositions not considered’’].) Hence,the broad language of Webb does not apply to irrelevant testimony and defendants have no “right”to testify to irrelevant matter. (People v. Lancaster, supra, 41 Cal.4th at pp. 50, 101-102; accord, Rock v. Arkansas, supra, 483 U.S.at pp. 51-53, 55; AOB 251-252.)** 666Indeed, Webb’s broad language that defendants have an “‘absolute right to testify [which] cannot be foreclosed or censored based on content,” is not only incorrect when it comesto irrelevant testimony. It is incorrect, period. The United States Supreme Court has explicitly held that the *8 For the same reasons, respondent’s reliance on People v. Nakahara, supra, 30 Cal.4th 705 is misplaced. (RB 65.) In Nakahara,this Court relied on Webb in support of the proposition that “every defendant has the rightto testify . . . even if that testimony indicates a preference for death.” (People v. Nakahara, supra, at p. 719.) But just as in Webb, the Nakahara courtdid not address or consider whether the defendant’s testimony in favor of the death penalty was relevant and admissible. Hence, Lancaster’s limitation on the broad language of Webb applies equally to the broad language of Nakahara. 145 defendant’s “right”to testify is not “absolute,” but rather “‘may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process’.” (Rock v. Arkansas, supra, 483 U.S. at p. 55, quoting Chambers vy. Mississippi (1973) 410 U.S. 284, 295; see also AOB 252, 256- 257.) Excluding constitutionally andstatutorily irrelevant opinion testimony regarding the appropriate penaltyis certainly a “legitimate interest{] in the trial process.” (Booth v. Maryland (1987) 482 U.S. 496, 507-510; accord, e.g., United States v. Moreno (9th Cir. 1996) 102 F.3d 994, 998 [under Rock, exclusion of irrelevant evidenceis “legitimate interest[] in the trial process” which overrides defendant’s limited “right” to testify].) Similarly, the state’s independentinterests in ensuring that criminaltrials are both fair and appear to be fair (see, e.g., Indiana v. Edwards (2008) 554 U.S. 164, 177), and that death verdicts are just, based on reason,and reliable (see, e.g., Beck v. Alabama (1980) 447 U.S. 625, 637-638, People v. Guzman (1988) 45 Cal.3d 915, 962) are “legitimate interests in the trial process,” which transcend a particular defendant’s desire to commit suicide or choose his own sentence (see, e.g., People v. Chadd (1981) 28 Cal.3d 739, 744-745, 753; AOB 256- 257; see also Argument VIII, post, AOB 332-352.) In responseto this argument, respondent makes an abrupt and inconsistent about-face from its initial position that defendants have an “absolute right to testify, [which] cannot be foreclosed or censored based on content” (RB 63) by conceding that the “the right[to testify] is not absolute.” (RB 64.) Yet respondent fails to articulate or acknowledge any specific limitations on that right. Instead, respondent simply contendsthat the “cases relied upon by Mai are distinguishable.” (RB 64.) As to Rock v. Arkansas, supra, respondent contends — without supporting authority or analysis — that it stands for no more than the narrow 146 proposition that a blanketrule prohibiting hypnotically refreshed testimony is unconstitutional. (RB 64.) Not so. Rock is the leading case recognizing a constitutional “right to testify” but also recognizing that the “right” is not absoluteor “without limitation” and is consistently cited as such. (See,e.g., Portundo v. Agard (2000) 529 U.S. 61, 65; United States v. Dunnigan (1993) 507 US. 87, 96; People v. Gutierrez (2009) 45 Cal.4th 789, 821-822; People v. Fudge (1994) 7 Cal.4th 1075, 1122-1123; United States v. Moreno (9th Cir. 1996) 102 F.3d 994, 998; United States v. Byrd (11th Cir. 2005) | 403 F.3d 1278, 1282.) Similarly, respondent appears to contend — again without any supporting authority or analysis — that People v. Lancaster, supra, stands for no more than the narrow proposition that a defendanthas norightto testify to irrelevant “evidenceof third parties being wrongfully convicted in other capital cases [and] experimentation upon prisonersafter labeling them ‘crazy,’” not the broad proposition that a defendant has noright to testify to other irrelevant matter. (RB 65.) Respondent’s reading of Lancasteris untenable. As discussed aboveandin the opening brief, the Lancaster court clearly held that the defendant’s “right” to testify does not encompass the right to present irrelevanttestimony, of which the testimonyin that case was merely and example, “it is beyond cavil that evidence presented in mitigation [or aggravation] must be relevant,” and therefore the exclusion of a defendant’s irrelevant penalty phase testimony does not violate the defendant’s right to testify. (People v. Lancaster, supra, 41 Cal.4th at pp. 101-102.) Hence, both Rock and Lancaster stand for the broad and well- settled proposition that a defendant’s right to testify is not absolute and does not encompassthe right to present irrelevant testimony. (See AOB 251- 252.) 147 In this regard, and as discussedat length in the openingbrief, it is well-settled that opinion testimony regarding the appropriate punishmentis constitutionally irrelevant and inadmissible in the penalty phase of a capital trial. (AOB 252-257, citing, inter alia, Booth v. Maryland (1987) 482 U.S. 496, 502-503, Payne v. Tennessee, supra, 501 U.S. at p. 830,fn. 2, and People v.Smith, supra, 30Cal.4th at pp. 622-623.) Consistent with this rule, the defendant’s opinion regarding the appropriate penalty is notlisted amongthe statutory aggravating factors that the jury may consideras a basis for a death verdict and thusis irrelevant aggravation under state law. (Pen. Code, § 190.3; see e.g., People v. Danielson (1992) 3 Cal.4th 691, 715.) Hence, because a defendant does not have a “right” to present irrelevant testimony,it logically follows that a defendant does not have the night to testify to his irrelevant opinion that death is the appropriate penalty. Defying logic, however, respondent appears to contend that penalty opinion testimonyis irrelevant (and inadmissible) only if it comes from the ° As discussed in the opening brief, this general rule of prohibition is subject to a narrow exception not relevant here, namely, namely, the “testimony from somebody ‘with whom defendant had a significant relationship, that defendant deserves to live, [which] is proper mitigating evidence as ‘indirect evidence of the defendant’s character.”’ (Citations).” (People v. Smith, supra, 30 Cal.4th at pp. 622-623; AOB 254.) This exception exists “not because the person’s opinionisitself” relevant, but rather because testimony from a close family memberorfriend’s testimony that the defendant deservesto live “provides insights into the defendant’ s [good] character,” which is relevant and admissible mitigation under Penal Codesection 190.3, factor (k). (People v. Smith, supra, at p. 623; accord People v. Ervin (2000) 22 Cal.4th 48, 102.) For ease of reference, Mr. Mai’s references to the prohibition against penalty opinion testimony incorporates that narrow (butirrelevant) exception without explicitly stating as much. 148 victims or their family members, but not if it comes from the defendant. (RB 65.) Respondentcites no authority in support of this perceived distinction. (RB 65.) This is no doubt because there is no authority for this distinction; to the contrary, under Booth, Payne, Smith, as well as the other authorities cited in the opening brief but ignored by respondent, there is no legal, logical, or fair basis for such a distinction. (AOB 252-257.) In Payne v. Tennessee, supra, 501-U.S. 808, the high court disapproved Booth’s prohibition against “victim impact” evidence regarding the victim’s life. U/d. at p. 827.) The Payne court’s decision was based in large part on “fairness,” the notion being that since the defendantis permitted to present evidence regarding his ownlife, it is unfair to prohibit the prosecution from presenting similar evidence regarding the victim’s life. (Ud. at pp. 822, 825-827.) At the same time, Payneleft intact that part of Booth prohibiting the admission a victim’s opinion that death is the appropriate penalty as, inter alia, constitutionally irrelevant to the jury’s penalty decision. (/d. at p. 830, fn. 2; Booth v. Maryland, supra, 482 U.S. at pp. 507-510; accord, e.g., People v. Smith, supra, 30 Cal.4th at pp. 622-623.) Underthe essential fairness rationale of Payne, that prohibition should not be applied to the prosecution butlifted for the defendant. This Court has recognized as much. In People v. Smith, supra, this Court recognized the United States Supreme Court’s prohibition against the admission of a victim’s opinion that death is the appropriate penalty but further recognized that the high court “has never suggested that the defendant must be permitted to do whatthe prosecution may not do.” (/d. at p. 622.) A witness’s opinion regarding the appropriate penalty is simply irrelevant, regardless of whether the opinion is that death orlife is appropriate and regardless of whether the opinion is 149 offered by the prosecution or the defense. (/d. at pp. 622-623.) Hence,just as the prosecution is prohibited from presenting irrelevant penalty opinion testimony, so too is the defendant prohibited from presenting irrelevant penalty opinion testimony. (/d. at p. 622; accord, e.g., People v. Lancaster, supra, 41 Cal.4th at pp. 96-99.) Although the defense-proffered opinion testimony in Smith wasthat life without parole was the appropriate penalty, its logic (bolstered by Booth and Payne) applies equally to defense-proffered opinion testimony that death is the appropriate penalty.” OF Mr. Mai’s Opinion Testimony that Death Wasthe Appropriate Penalty Was Offered and Utilized as Aggravating Evidence In Violation of State Law and the Federal Constitution Respondent contends that Mr. Mai’s testimony that death wasthe appropriatetestimony was relevant mitigating evidence becauseit demonstrated an “‘acceptance of responsibility for his crime, as suchit reflected on his character,” as well as well as his “record and the circumstances of the offense.” (RB 64, citing Pen. Code, § 190.3.) Notso. Other than its bare citation to Penal Code section 190.3, respondent cites no authority for the proposition that a defendant’s opinion that death is is the appropriate penalty is relevant mitigating evidence. (RB 64.) The only case that could even conceivably support such a proposition is Peoplev. Danielson, supra, 3 Cal.4th 691. But that case actually supports Mr. Mai’s argument and undermines respondent’s. In Danielson, supra, the defendant provided extensive “self-serving” mitigating testimony on direct examination regardinghis religious conversion, remorse, and desire for a “fair judgment.” (3 Cal.4th at pp. 714- 4° See footnote 39, ante. 150 715.) On cross-examination, the prosecutor probed this mitigating testimony by asking the defendant what he believed wasthe “fair judgement” or appropriate penalty for his crimes. (/bid.) The defendantreplied, “If I were one of the 12 jurors, I would vote for the death penalty.” (/d. at p. 715.) The prosecutor did not mention orrely on this testimonyin his closing argument. (Id. at p. 716.) On appeal from the ensuing death judgment, the defendant argued that the prosecutor committed misconductin asking this question because,inter alia, itsought information that wasirrelevant to any statutory sentencing factor. (Ibid.) This Court agreed that as a general matter, “a defendant’s opinion regarding the appropriate penalty the jury should impose usually would be irrelevant to the jury’s penalty decision.” (People v. Danielson, supra, 3 Cal.4th at p. 715, italics added;see also id. at p. 733, conc. & dis. opn. of Kennard,J. [“A defendant’s opinion about the just punishmentfor his or her crimes has no relevanceto the issue the jury must decide at the penalty phase of a capital prosecution” under California law].) However, based on the unique facts of that particular case, the majority held that the prosecutor’s question was not improper due to the defendant’s mitigating testimony on direct examination that he was remorseful and desired a “fair judgment”; the prosecutor was permitted to test that testimony by probing whetherthe defendant was,in fact, so remorseful and desirousofa “‘fair judgment” that he was “willing[] to atone for [his crimes] by paying society’s highestprice. As a general rule, prosecutors should avoid asking such questions, but under the circumstances here, we conclude no misconduct occurred.” (/d.at p. 715, italics added; cf. Simmons v. South Carolina (1994) 512 U.S. 154, 161-163 [even if evidence of parole ineligibility is otherwise irrelevant and inadmissible as mitigating evidence, it may become relevant and admissible 151 to rebut or respond to prosecution’s aggravating theory of future dangerousness; accord Skipper v. South Carolina (1986) 476 U.S. 1, 5, fn. 1.) As to the defendant’s answerto the prosecutor’s question,it tended to support his mitigating testimony. The Danielson court emphasizedthat the prosecutor did not even mentionit in his summation, muchless argue it as a basis for a death verdict. (3 Cal.4th at p. 716.) Therefore, the prosecutor’s question on cross-examination was an appropriate methodoftesting the defendant’s mitigating testimony and the defendant’s answer was not offered or utilized as aggravating evidence weighing in favor of a death verdict. (Id. at pp. 715-716; but see conc. & dis. opns. of Mosk and Kennard,JJ. at.pp. 731-739 [defendant’s penalty opinion testimony was irrelevant, inadmissible, and prejudicial].) Thus, Danielson supports Mr. Mai’s basic proposition that “a defendant’s opinion regarding the appropriate penalty the jury should impose usually would be irrelevantto the jury’s penalty decision.” (Peoplev. Danielson, supra, 3 Cal.4th at p. 715.) On its face, Danielson represents a very narrow exceptionto that rule based on uniquefacts that bear norelation to the facts of this case. Thus, this case falls within the general rule recognized in Danielson that a defendant’s penalty opinion testimonyis irrelevant to the jury’s penalty phase decision and inadmissible. It is true that Mr. Mai’s testimony indirectly reflected an “acceptance of responsibility’ for his crime, as respondent observes. (RB 64.) But it does not follow that his testimony that the jurors should return a death verdict was relevant and admissible mitigating evidence, as respondent contends. (RB 64.) As Justice Kennard pointedy observed in her concurring and dissenting opinion in People v. Danielson, supra, a defendant’ s testimony of remorse or acceptance of responsibility “is a far cry from 152 voluntary agreement to undergo execution.” (3 Cal.4th at p. 736.) Although respondent doesnotcite to a particular statutory factor to whichthis evidence wasallegedly relevant, “acceptance of responsibility” would only fall within the catch-all provision of factor (k). (See Peoplev. Danielson, supra, 3 Cal.4th at pp. 734-736, conc. & dis. opn. of Kennard,J., joined by Mosk,J.) But factor (k) evidence may only be considered in mitigation, or as a basis for a life verdict; factor (k) evidence may not be considered in aggravation,or as a basis for a death verdict. (See, e.g., People v. Edelbacher (1989) 47 Cal.3d 983, 1033; People v. Boyd (1985) 38 Cal.3d 762, 775-776; Zant v. Stephens (1985) 462 U.S. 862, 885 [due process prohibits a death sentence based in any part on “factors . . . that _ actually should militate in favor of a lesser penalty’”].) Here, neither Mr. Mai nor his counsel offered, relied on, or utilized his penalty opinion testimony as mitigating evidence. Mr. Maitold the jurors that he did not wanttheir “sympathy or pity” and did not want them “to spare [his] life.” (8-RT 1409-1410.) To the contrary, he explicitly told them that he believed death was the appropriate penalty, “suited for this occasion. I also feel thatit is the right thing, for you, the jurors, to do” as the “price” to be paid as “part of the game” he was in. ([bid.) Defense counsel presented no argumentfor Mr. Mai’s life at all, much less any argumentthat soughtto utilize Mr. Mai’s testimony as mitigating evidence under factor (k). The prosecutor, on the other hand, argued for Mr. Mai’s death and relied on Mr. Mai’s testimony as aggravating evidence weighing in favor of that penalty: “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; compare People y. Danielson, supra, 3 Cal.4th at pp. 715-716.) 153 Thus, Mr. Mai’s opinion testimony wasconstitutionally and statutorily irrelevant under factor (k) (or any other penalty factor codified in section 190.3), therefore inadmissible, and Mr. Mai had no “right”to testify to it. Thetrial court violated state law, as well as the Eighth and Fourteenth Amendments by admitting it and permitting its use as aggravating evidence.” D. The Trial Court Violated Its Independent Duty to Deny Mr. Mai’s Request and Exclude His Testimony that Death Wasthe Appropriate Penalty, Which was Not Relieved by Or Invited by the Actions of Mr. Maior his Counsel Both state law and the federal Constitution impose sua sponte duties uponthetrial court to “limit the introduction of evidence . . . to relevant and “| Mr. Mai further argued in the opening brief that People v. Guzman (1988) 45 Cal.3d 915 andits progeny(see, e.g., Peoplev. Nakahara (2003) 30 Cal.4th 705, 719; People v. Clark (1990) 50 Cal.3d 617; People v. Webb (1993) 6 Cal.4th 494, 535; People v. Grant (1988) 45 Cal.3d829, 848-849) do not compel a contrary result in this case for several reasons, including that none of those decisions addressed the claim raised here: that the defendant’s testimony in favor of death wasirrelevant, a defendant enjoys norightto testify to irrelevant matter, and thereforehis testimony was inadmissible. (AOB 261-265) Consistent with this Court’s observation in Lancaster, discussed in the above text and in the opening brief, the decisions in those cases simply do not stand for the proposition such testimony.is relevant and admissible. (AOB 261-265.) Respondent contendsthat the “[t]he distinctions cited by Maiare insubstantial and do not makethose holdings inapplicable.” (RB 64-65.) Respondent makesthis contention in a perfunctory fashion, unsupported by any analysis. This Court should treat respondent’s contention in an equally perfunctory fashion. Forall of the reasons discussed in the opening brief but ignored by respondent, Guzman andits progeny have no bearing on Mr. Mai’s claim that his opinion “testimony” that death was the appropriate penalty was constitutionally irrelevant, he had no “right” to give irrelevant testimony, and therefore the testimony was inadmissible. (AOB 261-265.) 154 material matters” and intervene when necessary to ensure a fair penalty trial, and the appearanceofa fair penalty trial fair, that will produce a just and reliable verdict. (AOB 258-260, quoting Pen. Code, § 1044 andciting, inter alia, United States v. Young (1985) 470 U'S. 1, 10, Glasser v. United States (1942) 315 U.S. 60, 71, Brown v. Walter (2nd Cir. 1933) 62 F.2d 798, 799, 256, People v. Sturm (2006) 37 Cal.4th 1218, 1237, People v. McKenzie (1983) 34 Cal.3d 616, 626-627, and People v. Carlussi (1979) 23 Cal.3d 249.) Thetrial court violated these duties by admitting Mr. Mai’s constitutionally irrelevant testimony and permitting the jurors to based their death verdict upon it. (AOB 259-260.) As mentionedin the Introduction, ante, respondent doesnot dispute the existence of these independentduties or their constitutional bases as matters of law. (See RB 62-65.) Nor does respondentdispute that if Mr. Mai’s testimony were constitutionally irrelevant and inadmissible,thetrial court violated these duties by failing to exclude that testimony on its own motion. (/bid.) This Court should treat respondent’s failure to dispute these points as concessions. Hence,no further discussion of these aspects of the issue are necessary. Respondent does however, summarily assert that “Mr. Mai voluntarily testified on his own behalf in the penalty phasetrial, and cannot nowclaim error becausethetrial court did not curtail or limit the scope of that testimony.” (RB 62.) Respondent makesthis assertion in a perfunctory fashion, without supporting argumentor authority. (RB 62.) Hence,this Court should pass it without consideration. (See, e.g.,(1995) 10 Cal.4th 764, 793; People v. Clair (1992) 2 Cal.4th 629, 653, fn. 2 [point made in perfunctory fashion is not properly raised].) In any event, respondent’s contention is without merit. As noted, 155 respondentdoes not dispute the existence of the sua sponte duties raised on this appeal. By definition, a sua sponte duty is one that exists independent of any request or objection below. Nordid Mr. Mai “invite,” and thus forfeit his right to challenge, the court’s error. The doctrine of invited error is an application of the estoppel principle: when a party ““intentionally caused the court to err’ and clearly did so fortactical reasons,” he is deemed to have “invited” the error and is estopped from asserting it as a ground for reversal on appeal. (People v. Dunkle (2005) 36 Cal.4th 861, 923.) “At bottom, the doctrine rests on the purposeof the principle, which prevents a party from misleading thetrial court and then profiting therefrom in the appellate court.” (Norgartv. Upjohn Co. (1999) 21 Cal.4th 383, 403.) Here, no one deliberately “misled” the court into believingthat Mr. Maihadthe “absolute right”to testify to the appropriate penalty or that the court had no powerto prevent that testimony. To the contrary, Mr. Mai and _ his counsel presented his proposed testimony to the court by way ofan offer of proof before he testified. Neither insisted that he had any “right” to. present that opinion or argued or presented any authority in support of any such right. Their offer of proof was consistent with a request for permission to present the proposed testimony, deferring to the court’s powerto prevent or exclude it. (8-RT 1399-1401.) And the court made a ruling on the admissibility of the proposed testimony. The court acknowledged that Mr. Mai’s proposed testimony would be “almost tantamountto suicide and the state of California doesn’t assist or participate in suicides.” (8-RT 1401.) Thus, even the court appeared to appreciate that California law prohibited the state from assisting or participating in “suicides,” which conferred upon it the power to prevent Mr. Mai’s testimony as “tantamountto suicide.” (See 156 also Argument VII, ante; AOB 332-352.) Nevertheless, it was the court, not defense counsel or Mr. Mai, that reasoned Mr. Mai hadthe “the right to take the stand andtalk to the jurors” about his opinion that death was the appropriate penalty and therefore ruled that his testimony was admissible. (8-RT 1401.) Hence, neither Mr. Mai nor his counsel misled the court so as to “invite”its error.” | Furthermore, applying forfeiture here would defeat the very purpose of the sua sponte duties that are the subject of Mr. Mai’s challenge on appeal: the duties to exclude irrelevant matter (Pen. Code, § 1044), particularly when its admission will threaten the fairness and integrity — and the appearanceof fairness — of the proceedings. (See, e.g., People v. McKenzie, supra, 34 Cal.3d at pp. 626-627; People v. Shelley (1984) 156 Cal.App.3d 521, 530-533; Clisby v. Jones (11th Cir. 1992) 960 F.2d 925, 934 & fn. 12; United States v. ex rel. Darcy v. Handy (3d Cir. 1953) 203 F.2d 407, 427; Commonwealth v. McKenna (PA 1978) 383 A.2d 174, 181.) If the parties are doing their duties and thetrial is proceeding in a fair manner, there would be no duty to intervenein the first place. Therefore,it would be illogical and defeat the endsofjustice to hold that the very ” Noris there any indication that Mr. Mai deliberately misled the court into believing that it had no powerto prevent his proposed testimony in order to profit from, or plant reversible error, on appeal. (See Norgart v. Upjohn Co., supra, 21 Cal.4th at p. 403.) To the contrary, Mr. Mai indicated his desire to waive his automatic appeal duringtrial. (See,e.g., 3/16/07 1-SCT 120; 2-SCT 180-181.) As recently as 2006 — during the pendencyof this appeal and years after the court granted his request to testify — Mr. Mai attempted to waive his automatic appeal without success. (8/29/07 SCT 78-86.) Thus,it is clear that neither Mr. Mai nor his counsel misled or induced the court to error in order to profit from it, or “plant” reversible error, on an appeal that he did not and does not wish to pursue. 157 circumstancesthat require the court’s sua sponte duty to intervene also relieve the court of that duty or forfeit the defendant’s right to challengeits violation on appeal. Finally, as discussed in the openingbrief, the trial court’s independent duties are not only to protect the defendant’s rights, but also to protect the state and society’s independentinterests in the fairness — and appearance of fairness — of criminal proceedings andthereliability of death judgments. (AOB 258-261; see also ArgumentVIII, post, AOB 332-352. ) While defendants have the power to waive rights or duties that exist for the public’s benefit, they have no powerto waive rights or proceduresthat exist for the public’s benefit. (Ibid. ) Forall of these reasons, Mr. Mai did not waiveor forfeit the right to challenge on appealthetrial court’s failure to exercise its sua sponte duty to exclude his testimony that death was the appropriate penalty in this case. The admission and use of that testimony as aggravating evidence weighing in favor of a death verdict violated state law, as well as the Eighth and Fourteenth Amendments. E. The Death Judgment Must be Reversed Asnoted in the Introduction, respondent does not dispute that if Mr. Mai’s testimony were erroneously admitted, the death judgment must be reversed. (See RB 62-65.) Hence,forall of the reasons discussed above and in the opening brief, which is incorporated by reference herein, the death judgment must be reversed. (AOB 265-271.) H // 158 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 Based onhis personal knowledgeof, andties to, this particular case along with his views about the death penalty, Juror Number 12 was biased against Mr. Mai and favored his execution. (AOB 272-285.) Juror Number 12’s impanelmenton Mr. Mai’s jury violated Mr. Mai’s rights to an impartial adjudicator, a fair trial, and a reliable death verdict as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments and ourstate constitutional counterparts and constituted a structural defect requiring reversal per se of the death judgment. (/bid.) Finally, the constitutional violations were not waived, forfeited or invited by defense counsel’s failure to challenge Juror Number 12 for cause, to remove him with a peremptory challenge, or to express dissatisfaction with the jury as constituted. (AOB 285-294.) Respondentcontends that Juror Number 12’s questionnaire and voir dire answers“did not demonstrate that his views on capital punishment would substantially impair the performanceof his duties as a juror.” (RB 68-69, 73.) From that premise, respondent concludesthat Juror Number 12 was not actually biased. (RB 69-73.) Alternatively, respondent contends that the violation of Mr. Mai’s fundamental rights was waived,forfeited, or invited. (RB 66-73.) Respondent’s contentions are without merit. 159 B. Respondent’s Contention that Juror Number 12 Was Not Actually Biased Misconstrues Mr. Mai’s Challenge on Appeal, Ignores or Distorts the Facts and the Law on Whichthat Challenge is Based, and is Unsupported by Any Meaningful Legal Analysis Whether through mistake or guile, it appears that respondent has misconstrued Mr. Mai’s claim as a challenge that Juror Number 12 was actually biased based on his general death penalty views within the meaning of Wainwright v. Witt (1985) 469 U.S. 412. (See also Witherspoonv.Illinois (1968) 391 U.S. 510, 520-521 [hereafter “Witherspoon/Witt standard”].) Respondentlimits its discussion of the legal-principles to the Witherspooon/Witt standard and ignores Mr. Mai’s discussionofthe legal principlesgoverning other claims of actual bias (RB 68-69 [Part B], 74 [Part C]; compare AOB 274-281 [Part B]). Andits analysis consists of a recitation (or purported recitation) of Juror Number 12’s answersto the jury questionnaire andlive voir dire (RB 69-72) followed by a summary conclusionthat they “did not demonstrate this his views on capital punishment would substantially impair the performanceofhis duties” (RB 69, 73, quoting from Wainwright v. Witt, supra, at pp. 424-426.) 1. Mr. Mai’s Claim on Appealand the Governing Legal Principles Mr. Maidoesnot argue that Juror Number 12’s “statements... demonstrate his views on capital punishment would substantially impair the performanceofhis duties as a juror” under the Witherspoon/Witt standard. (RB 69; see also RB 68-69, 73.) Instead, Mr. Mai argues that Juror Number 12 was actually biased because he admitted that he had already formed the opinion that Mr. Mai should be executed based on his knowledgeofthis case gleaned from media reports and the fact that one of his family members (a 160 fireman) had attempted to save Officer Burt’s life after he had been shot by Mr. Mai. (5-CT 1413; 5-RT 886-887; AOB 272-285, citing,inter alia, Hughes v. United States (6th Cir. 2001) 258 F.3d 453, 456-460 [actual bias where prospective juror stated that she was biased against defendant based on her close personal ties to law enforcement and did unequivocally promise to set opinion aside].)** In addition, it appears that Juror Number 12’s general support for the death penalty was a factor, but only a single factor, in arriving at his pre-formed opinion that Mr. Mai should be executed. (5-CT 1420.) Despite Juror Number 12’s candid admission that he had already formed the opinion that Mr. Maiin particular (as opposed toall murderers) should be executed, he never swore that he would or could set that opinion aside and decide the case based solely on the evidence admitted in court and the law as stated in the court’s instructions. (AOB 272-285.) To the contrary, in both his questionnaire and voir dire answers, Juror Number 12 stated that the only way he could conceive of even possibly being able to set aside his pre-formed opinion would beif the defense “proved to me that defendant should be spared death.” (5-CT 1413-1414, 1420; 5-RT 886-887.) Hence, Juror Number 12 wasactually biased and his impanelment on the jury that voted to execute Mr. Mai violated his rights to an impartial jury and a fair and reliable penalty trial and verdict as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments andtheir state constitutional counterparts. (AOB 272-285.) The Witherspoon/Witt line of authority focuses on whethera juror’s personal feelings about the death penalty in general(e.g., the juror’s *S The crime washighly publicized in television and newspaper reports. (1-Muni-RT 201-205; 3-Muni-RT 538, 554; see also, e.g., 1-Muni -RT 3-4; 1-Muni-CT 6-16, 25-29, 31-35, 40.) 161 personal opinion that the death penalty should never be imposed in any case) or under circumstancessimilar to the casé at hand(e.g., the juror’s personal opinion that the death penalty should always be imposedfor all premeditated murders) is alone sufficient to establish actual bias as a ground for exclusion. But the Witherspoon/Witt standard itself “‘is not a ground for challenging any prospective juror. It is rather a limitation onthe state’s powerto exclude.’” (Wainwright v. Witt, 469 U.S. at p. 423, quoting Adams v. Texas 448 U.S. 38, 47-48.) In other words,the state not only has the powerbut the duty to exclude a juror for “actual bias.” (AOB 274-281.) Witherspoon, Witt, and their progeny simply hold that a juror’s general death penalty views do not alone establish “actual bias” and thereby limit the state’s power to disqualify a jurors based solely on their general death penalty support or opposition. In this regard, and as discussed in the openingbrief, “actual bias” (or “bias in fact”) is defined as “the existence of a state of mind on the part of the jurorin 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” under both state law and the federal Constitution. (Code of Civ. Proc., § 225, subd. (B)(1)(c); AOB 275-276, citing,inter alia United States v. Torres (2nd Cir. 1997) 128 F.3d 38, 43 and (Franklin v. Anderson (6th Cir. 2006) 434 F.3d 412, 422.) In determining whethera juroris biased underthis standard, the question is whetherthe jurorhas “any bias in fact which would prevent his serving as an impartial juror.” (United States v. Wood (1936) 299 U.S. 123, 133-134.) “What constitutes actual bias of a juror varies according to the circumstancesofthe case.” (People v. Nesler (1997) 16 Cal.4th 561, 580.) Thus, a juror may be actually biased if he (or she) admits that he has 162 any pre-formed opinionofpartiality about the case — beit based on his knowledgeof the parties in the case, knowledgeof putative facts or evidence de hors the courtroom, or based on his views of the law or beliefs about the death penalty. (See, e.g., 55 Wayne R. Lafave, Criminal Procedure § 22.3(c) (2d ed. 1999) [“actual bias encompassesbeliefs grounded in personal knowledge or a personal relationship,” as well as beliefs “grounded in the juror’s feelings regarding the race, religion, and ethnic or other group to which the defendant belongs”]; Irvin vy. Dowd (1961) 366 U.S. 717, 722-723 [pre-formed opinion about particular case based on pre-trial publicity].) However, a prospective juror’s admission of a pre-formed opinion does not necessarily establish a disqualifying actual bias. An admission of bias may be overcomeif the juror is specifically questioned aboutit and provides explicit, unequivocal or “unwavering assurances” that he can set aside that opinion and decide the case impartially, based upon the evidence admitted in court and the law asstated in the instructions. (AOB 275-277, citing, inter alia, Miller v. Webb (6th Cir. 2004) 385 F.3d 666, 675, Hughes v. United States (6th Cir. 2001) 258 F.3d 453, 456-460, Thompsonv. Altheimer & Gray (7th Cir. 2001) 248 F.3d 621, 627, United States v. Sithongtham (8th Cir. 1999) 192 F.3d 1119, 1121, and Johnsonv. Armontrout(8th Cir. 1992) 961 F.2d 748, 750, 753-754.) Absent such - unwavering or unequivocal assurances of impartiality despite the juror’s pre- formed opinion, the juror is actually biased and must be dismissed. (AOB 278-280, citing, inter alia, Miller v. Webb, supra, at p. 675; Hughes v. United States, supra, at pp. 456-460; Thompson v. Altheimer & Gray, supra,at p. 627; United States v. Sithongtham, supra, at p. 1121; Johnson v. Armontrout, Supra, at pp. 750, 753-754.) The Witherspoon/Witt standard applies these general legal principles 163 to the specific contextof a juror’s admission of opposition to, or supportof, the death penalty in general. Thus, a juror’s personal or abstract beliefs about the death penalty do not alone establish a disqualifying actualbias. (Morgan v.Illinois (1992) 504 U.S. 719, 726-728; Wainwright v. Witt, supra, 469 U.S. at pp. 423-426; Witherspoon v.Illinois, supra, 391 U.S. at pp. 521-522.) A juror who hasa pre-formed opinion regarding the appropriate sentence based onhis personal beliefs about the death penalty may not be excludedforactual bias “so long as they state clearly that they are willing to temporarily set aside their own beliefs in deferenceto the rule of law.’” (Lockhart v. McCree (1986) 476 U.S. 162, 176; accord People v. McKinnon (2011) 52 Cal.4th 610, 646.) On the other hand, as this Court has recently held, in the absenceof “‘clear and unqualified statementof [the juror’s] willingness andability, despite his opposition to capital punishment, to apply the law and evaluate the penalty choices fairly,” a juror who holds such a pre-formed opinionis actually biased. (People v. McKinnon,supra, at p. 646.) Indeed, once a juror had admitted a pre-formed opinion, absent unwavering assurancesof impartiality there is no ambiguity in the record, no credibility determination to be made by the court, and henceactualbiasis established as a matter of law. (AOB 279-280, 283-285,citing, inter alia, Hughes y. United States, supra, 258 F.3d at pp. 458-460; see also Peoplev. McKinnon, supra, 52 Cal.4th at pp. 646-650 [juror’s questionnaire answers alone indicating strong opposition to death penalty established a pre-formed opinion that defendant should be sentencedto life and disqualifying bias as matter of law given absenceof “clear and unqualified” statement that he could set that opinion aside and follow the law].) Thus, contrary to respondent’s analysis, the critical question in this 164 case is not whether Juror Number 12’s answers “demonstrate[d] this his views on capital punishment would substantially impair the performanceof his duties” under the Witherspoon/Witt standard. (RB 69, 73.) Rather, the question is whether Juror Number 12’s admitted, pre-formed opinionthat Mr. Mai should be executed based primarily on his knowledgeof facts or evidence outside of the courtroom, along with his strong personal supportfor. the death penalty, established his actual bias. Because Juror Number 12 never “stated clearly” or “unequivocally” that he could set aside that pre- formed opinion, the answeris yes. Absent such unwavering assurances, there was no ambiguity in the record, no credibility determination to be made by the court, and hence Juror Number 12’s actual bias was established as a matter of law and his empanelment on the jury violated Mr. Mai’s due process and Sixth and Eighth Amendmentrights to a reliable death verdict by an impartial adjudicator. (AOB 279-280, 283-285, citing, inter alia, Hughes v. United States, supra, 258 F.3d at pp. 458-460; see also People v. McKinnon, supra, 52 Cal.4th at pp. 646-650.) 2. Respondent’s Contention That Juror Number 12 WasNot Actually Biased Is Based on a Recitation of the Facts That Is Incomplete, Inaccurate, and Misleading. It Is Unsupported by Any Meaningful Legal Analysis, and must Be Rejected Respondent acknowledges that Juror Number 12 “indicated in response to the question of whether he had formed an opinion asto punishmentthat in his opinion a death sentence was appropriate.” (RB 69; 5-CT 1413.) Althoughit is not entirely clear, respondent appears to contend that Juror Number 12s’s admission of this pre-formed opinion was based on his support for the death penalty as a general matter. (RB 68-70, 72-73.) Further, respondent appears to contend that this pre-formed opinion did not 165 amountto actual bias because “Juror Number Twelvestated he could set aside his personal feelings and follow the law.” (RB 70.) Respondent misrepresents the record. Again, Juror Number 12s’s admission of his pre-formed opinion that Mr. Mai should be executed was not based solely on his support for the death penalty in general. (RB 69.) Rather, as discussed above, he indicated that he had formedthat opinion based upon his personal connection to, and mediareports of, the crime. Specifically, Question 1 asked Juror Number 12 if he had any personal knowledgeor information about the case from another source, such as pre-trial publicity. (5-CT 1413.) Juror Number 12 respondedin the affirmative, explaining that one of his family members was a fireman who had attempted to save the victim’s life after the shooting and he had followed media reports of the crime. (5-CT 1413.) Question 2 asked: “Based uponthis information [i.e., the information Juror Number 12 had supplied in response to question 1], what opinions, if any have your formed about the appropriate sentence in this case? (5-CT 1413.) It was in responseto this question (and not the questions directed to his general death penalty views, discussed below) that Juror Number 12 admitted he had already formed the opinion that Mr. Mai should be sentenced to death based on his knowledge of the circumstancesof the case. (5-CT 1413.) Hence, Juror Number 12 admitted his bias based on information de hors the courtroom. (See, e.g. Irvin v. Dowd, supra, 366 U.S. at pp. 722- 723; Hughes v. United States, supra, 258 F.3d at pp. 456-460.) Given this unequivocal admission, impartiality demanded Juror Number 12’s equally unequivocal and unqualified promise to “lay aside his impression or opinion and rendera verdict based upon the evidence presented in court” and the law as stated in the court’s instructions. (Irvin v. Dowd, supra, 366 U.S.at p. 166 723; AOB 275-280, 283-284.) The record is devoid of any such promise. To the contrary, Question 5 asked Juror Number12 if he could set aside his pre-formed opinion that Mr. Mai should be executed. (5-CT 1414.) In stark contrast to his “yes” and “no” answerto other questions, Juror Number12 wrote only “J think so.” (5-CT 1414.) This response did not amount to an explicit or unwavering assurance that he could set aside his bias and decide the case based on the evidence and the law. (See AOB 275- 280, 283-284.)* To the contrary, his other answers clearly indicated that he was unwilling or unable to do so. Following the above-described questions, the questionnaire then focused on the jurors “Attitudes About the Death Penalty” and the pertinent Witherspoon/Witt issues. (5-CT 1417.) The jurors were asked abouttheir personal views regarding the death penalty and Juror Number 12 indicated “ Citing, e.g., accord Patton v. Yount (1984) 467 U.S. 1025, 1036; White v. Mitchell (6th Cir. 2005) 431 F.3d 517, 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. See also People v. McKinnon (2011) 52 Cal.4th 610, 646; Lockhart v. McCree (1986) 476 U.S. 162, 176. “S Citing, e.g., Miller v. Webb, supra, 385 F.3d at p. 675 (following admission ofpartiality, juror’s statement, “I think I can befair, but I do have some feelings about” the issue did not overcome bias and establish impartiality and her impanelmentviolated impartial jury right); Wolfev. Brigano(6th Cir. 2000) 232 F.3d 499, 503 Guror’s tentative statements that he will “try” to be impartial and decide the case fairly insufficient to establish impartiality); United States v. Sithongtham (8th Cir. 1999) 192 F.3d 1119, 1121 (Gjuror’s statement that he would “probably” be fair and impartial insufficient was not “good enough’); People v. Avila (2006) 38 Cal.4th 491, 532-533 & fn. 26 (juror who did not know if he could set aside pre-formed opinion); White v. Mitchell 431 F.3d 517, 540; Thompson v. Altheimer & Gray, supra, 248 F.3d at pp. 624, 626. 167 that he supported it and believed it was not used often enough. (5-CT 1420.) This section of the questionnaire also contained a general overview of the law describing aggravating and mitigating circumstances and explaining that the law would require the selected jurors to weigh aggravating and mitigating circumstances and “in orderto fix the penalty of death, [you] mustbe persuadedthat the aggravating factors are so substantial in comparison with the mitigating factors, that death is warrantedinstead oflife imprisonment withoutthe possibility of parole.” (5-CT 1418.) Question 30(c) asked if the jurors couldset aside their personal feelings about the death penalty and follow the law. (5-CT 1420.) That question offered two “pro forma”options: “yes” or “no.” In responseto this question, Juror Number 12 checked the box marked “‘yes”; however, he qualified that “pro forma” response with the written explanation: “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.) Of course, this written explanation was contrary to the law. Far from overcoming his admission ofbias, that explanation only reinforced Juror Number 12’s unwillingness or inability to be impartial and perform his duties as a juror. (AOB 277, 281-282,citing People v. Boyette (2002) 29 Cal.4th 318, 418 [juror who would “probably have to be convinced”to vote forlife and “would be more inclined to go with the death penalty”is unable or unwilling to follow the law,actually biased, and must be excluded].) As this Court has recently held under similar circumstances, a juror’s checked answerto a “pro forma” question suggestive of impartiality, or a willingness to set aside his or her personal opinions and follow the law, is overcome as a matter of law by a qualifying written explanation that demonstrates the contrary. (People v. McKinnon, supra, 52 168 Cal.4th at p. 648.) Thetrial court clearly seemed to appreciate as much on live voirdire. The court inquired into Juror Number 12’s answers to Questions | and 2 that he had already formed the opinion that Mr. Mai should be executed and to Question 5 in which he could only “say that you think” he could set aside that opinion. (5-RT 886,italics added.) The court pressed Juror Number 12, asking if he could unequivocally “assure counsel and I that you canset aside any preconceived opinion and decidethis case,” at which point Juror Number12 interjected and simply reiterated his questionnaire answer: “I think I can if they can give me good reason that somebody shouldn’t be put to death, I believe I would vote in that direction.” (5-RT 886-887.) Juror Number 12 agreed with the court that his “position is that they have to prove why someoneshould not be put to death.” (5-RT 887.) In other words, just as he had in his questionnaire, Juror Number 12 admitted on voir dire that he had already decided that: (1) Mr. Mai should be executed; (2) he could not promise to that opinion aside in deference to the law; but (3) only“‘might” set his opinion-aside under circumstances inconsistent with the law —i.e., if the defense (or “the court’) provedthat Mr. Mai’s life should be spared. (People v. Boyette, supra, 29 Cal.4th atp. 418.) Hence, not only did Juror Number 12 fail to give an explicit and unwavering assurance that he could subvert his admitted bias and impartially follow the law; he affirmatively stated that he was unwilling or unableto set aside his pre-formed opinion in deference to the law. This record establishes Juror Number 12’s actualbias. Althoughit is not entirely clear, respondent appears to contendthat Juror Number 12’s answers were rehabilitated on defense counsel’s voir dire. According to respondent, “Juror Number Twelve [told defense counsel 169 that he] believed he could weigh the mitigating and aggravating evidence and rendera fair verdict.” (RB 72, citing 5-RT 915.) Notso.. Where,as here, a juror has explicitly admitted bias,it can only be overcomeby following up on that admission and obtaining the juror’s . unequivocal promiseto set his or her pre-formed opinion aside in deference to the law and the evidence. (AOB 279-280, 283-284, citing, interalia, Hughes v. United States, supra, 258 F.3d 453, 458-460.) The court did follow up on Juror Number 12’s admission, but did failed to obtain Juror Number 12’s unequivocal promise. (5-RT 886-887.) Having failed to do so, the court left it to counsel to inquire further into Juror Number 12’s admission of bias: “[W]ell, I am sure when weget to counsel they will have some further questions in that area.” (5-RT 887.) But counsel failed to do so. (AOB 273-274, 279-280, 282-284, citing, inter alia, Hughes v. United States, supra, 258 F.3d at pp. 458-460 [where neither court nor counsel specifically inquired into admission of bias and obtained unwavering assurance of impartiality, juror was actually biased and his impanelmentviolated impartial jury right].) Instead, as respondent points out, defense counsel simply asked Juror Number 12 whether he could “weigh the aggravating and mitigating, whatever those turn outto be, and rendera fair verdict?” (RB 72.) Juror Number 12 did not unequivocally promise to do so. Instead, just as he had in his questionnaire and on voir dire by the court, Juror Number12 only replied “I think so.” (5-RT 914-915.) Of course, he had already explained what he meantby this answer: he had already formed the opinion Mr. Mai should be executed and only “thought” that he “might” be able to change his mind if Mr. Mai(or “the court”) “proved” that Mr. Mai’s life should be spared. (5-RT 886; 5-CT 1413-1414, 1420.) 170 Withoutcitation or specific reference to the record, respondent contends that Juror Number 12’s answers simply demonstrated “a mistaken belief regarding the criminal justice system as to the roles of counsel and the court regarding the burden of persuasion in connection with penalty determination in a capital case,” which did not amountto bias. (RB 74.) Of course,“it is incumbent upon respondent, in responding to a claim of[error], to provide this [C]ourt with an accurate summary of the evidence, complete with page citations, that respondentbelieves supportsthe trial court’s judgment.” (Air Couriers Inter. vy. Employment Development Dept. (2007) 150 Cal.App.4th 923, 928; accord, Cal. Rules of Court, rules 8.204, subd. (a)(1)(c) [points must be supported byrecord citation] and 8.630, subd.(a)].) Because respondenthasfailed to do so, Mr. Mai can only assumethat respondentrefers to Juror Number 12’s statements that he-would improperly place on Mr. Mai or “the court” the burden of convincing him to changehis pre-formed opinion by provinghis life should be spared. As a preliminary matter, the record does not support respondent’s view that Juror Number 12 was simply “mistaken” about the law. As discussed above, Juror Number 12 wasinformedthat“in orderto fix the penalty of death,” the law required that the jurors “be persuadedthat the aggravating factors are so substantial in comparison with the mitigating factors, that death is warranted instead oflife imprisonment withoutthe possibility of parole.” (5-CT 1418.) Thus, Juror Number 12 wastold that the law did not place any burden on the defendantto provethathislife should be spared; to the contrary, he wastold that the law only permitted the juror to vote for death if the aggravating factors admitted in court “substantial[ly]” outweighed the mitigating factors. Juror Number 12’s questionnaire andlive voir dire answers indicated that he was simply 171 unwilling or unable to follow that law. (5-RT 886; 5-CT 1420; see also 5- CT 1414.) In any event, even assuming that Juror Number 12 was simply “mistaken” about the burden of proof, respondent misses the point. The issue is not whether Juror Number 12 was biased simply because he would place the burden on the defense (or “the court”) to convince him to votefor life. (5-RT 887; 5-CT 1420.) There is no question that Juror Number 12 admitted he was biased; the critical question, then, is whether his admission of bias was overcomeor rehabilitated with an unequivocal promiseto set his bias aside and decide the case based on the evidence and the law. The answer1s no. For all of these reasons, respondent’s remaining contentions are equally unavailing. For instance, respondentcites the well-settled proposition that when a juror provides “equivocal or conflicting” statements, the trial court is in the best position to determinepartiality based onits first hand observations of the juror’s demeanorand toneandits findings are binding on appeal. (RB 74, and authorities cited therein.) Mr. Maicertainly has no quarrel with this proposition; to the contrary, he acknowledgeit in the opening brief. (AOB 284-285, 293.) The principle simply has no application here. As discussed in the opening brief, Juror Number 12 unequivocally admitted his bias and did not provide any conflicting unequivocal assurances that he could set that bias aside that the court could weigh againstthat admission of bias. Thus, Juror Number 12 did not provide “equivocal or conflicting” statements nor does respondentidentify any such statements. Because Juror Number 12’s “declaration [of bias] was not followed by any attemptat clarification or rehabilitation, there [was] no ambiguity in the 172 record as to h[is] bias,” no issue of credibility for the trial court to resolve and no finding to which to defer, and his “express admissionis the only evidence available to review.” (Hughes v. United States, supra, 258 F.3d at pp. 458-460; AOB 279-280, 284-285.) Respondent attempts to counter this argument by misstating the record. That is, respondentasserts that “[{t]he trial court sought and obtained from the prospective jurors, including Juror Number Twelve, the assurance that if selected the juror would keep an open mindthroughoutthe trial and not form or express anyopinion as to the appropriate punishmentuntil in the jury room deliberating.” (RB 71, citing 5-RT 886-887, italics added.) . In truth, as discussed above, the court followed up on Juror Number 12’s questionnaire answers admitting bias and declining to promisetosetit aside by asking hinrif he could “assure” the court and counsel that he would set aside his preconceived opinion. (5-RT 886.) Juror Number 12 only confirmedhis inability or unwillingness to do so, repeating that he only “thought” he could do so if the defense proved that Mr. Mai’s life should be spared. (5-RT 886.) Immediately after this individual voir dire, the court asked the other potential jurors en masse, “anyoneelse in that topic area? If selected asa juror in this case, will you keep an open mind throughoutthe trial and not form any express opinion as to the appropriate punishmentuntil you are deliberating? [{] Do I have the assuranceof all the jurors?” (5-RT 886-887.) None of the jurors responded to that en masse query. (5-RT 886- 887.) Hence, contrary to respondent’s gross mischaracterization of the record, the court did not “obtain” Juror Number 12’s explicit “assurance” that he “would keep an open mind” and would “not form or express any opinion as to the appropriate punishmentuntil in the jury room deliberating.” (RB 71.) 173 Respondentalso recites a number of questions directed to the jurors en masse to which Juror Number 12 either did not respondto at all or provided a short “yes” answer along with all of the other jurors. (RB 70- 72.)*° Although respondent does not make the argumentexplicitly andcites no supporting authority for such a proposition, Mr. Mai can only assumethat respondent believes these group responses and non-responses provided sufficient indicia of impartiality to weigh against and overcome Juror Number 12’s admission of bias. Respondentis incorrect. As discussed in the opening brief, group responses or non-responses posedto the jurors en masse do not qualify as the unequivocal or “unwavering assurance” of impartiality required to overcomea juror’s explicit admission of bias. (AOB 278-279, 284-285,citing, inter alia, Hughes v. United States, supra, 258 F.3d at p. 461, Thompson v. Altheimer & Gray, supra, 248 F.3d at pp. 624- 626, and Johnson v. Armontrout, supra, 961 F.2d at pp. 750, 753-754;cf. People v. McKinnon, supra, 52 Cal.4th at pp. 646-648 [checked answersto pro forma questions suggestive of impartiality do not qualify as “clear and unqualified statement of [the juror’s] willingness and ability . . . to apply the law and evaluate the penalty choices fairly” sufficient to overcome answers indicating partiality].) 46 RB 70, citing 4-RT 790-793 (when courtinquired en masseif any of the potential jurors could not be fair and impartial, Juror Number 12 did not raise his hand); RB 70, citing 5-RT 878-879 (court asked jurors en masseif they could vote for death if they believed appropriate, vote for life if they believed appropriate, and carefully consider both options, to which all of the jurors, including Juror Number 12, answered “yes”); RB 71-72, citing S-RT 890-891 (noneofthe jurors, including Number 12, raised his/her hand to indicate that they would not follow “court’s instructions and rulings on the law” when question asked of jurors en masse). 174 Finally, respondent contends that Juror Number 12 was not actually biased becauseat the closeof the penalty phase, “[t]he trial court instructed the jury as to the proper, criteria to be used to reach a penalty determination. (8-RT 1424-1474.) It is presumed the jurors followedthe instructions of the trial court. (People v. Yeoman (2003) 31 Cal.4th 93, 139)” and there is no record evidence to rebut that presumption. (RB 74-75). Respondent’s contention is without any merit. eee“Amongthose basic fairtrial rights that ‘““can never be treated as harmless’ is a defendant’s ‘right to an impartial adjudicator, be it judge or jury.’” (Gomez v. United States (1989) 490 U.S. 858, 876; AOB 280-281, citing in accord,inter alia, Morgan v.Illinois, supra, 504 U.S. at p. 729 and In re Carpenter (1995) 9 Cal.4th 634, 654.) Therefore, the seating of a biased juror cannot be cured or rendered harmless by the provision of standard instructions directing the jurors to be impartial. C. Because Juror Number 12 Was Actually Biased, the Death . Judgment Must Be Reversed Notwithstanding Defense Counsel’s Failure to Move to Exclude Him For Cause Because Juror Number 12 wasactually biased, his impanelment violated Mr. Mai’s fundamentals right to a fair and reliable trial by an impartial adjudicator. (AOB 285-294,citing,inter alia, Morganv. Illinois (1992) 504 U.S. 719, 727-729.) It is true that defense counsel did not attempt to move to exclude Juror Number 12 for cause andthat this Court has held has held that a defendant must attempt to removea biased juror — if he has the powerto do so — in order to challenge his empanelmenton appeal. (AOB 285-292,citing, inter alia, People v. Hillhouse (2002) 27 Cal.4th 469, 487.) 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 175 his right to an impartial adjudicator on appeal becausehis attorney failed to attempt to removethat juror. (AOB 292.) Indeed, as Mr. Mai argued in the opening brief, any such holding would be inconsistent with fundamental principles that compel remedying the constitutional violation on appeal despite counsel’s inaction below. First, if the fundamental right to an impartial jury can be waivedatall, it requires the defendant’s express, personal, knowing andintelligent waiver on the record, which was absentin this case. (AOB 286-287.) Second, defense counsel’s failure to attempt to remove a juror actually biased in favor of executing Mr. Mai notonly violated his state and federal constitutional rights to trial by an impartial jury but also his rights to the effective assistance of counsel. (AOB 287-292.) Third, the court has a sua sponte duty to remove.actually biased jurors, which is unaffected by counsel’s inaction. (AOB 288-292,citing, inter alia, Miller v. Webb, supra, 385 F.3d at p. 675, Hughes v. United States, supra, 258 F.3dat p. 463, and United States v. Torres (2d Cir. 1997) 128 F.3d 38, 43.) Fourth, the issue raised here involves a fundamentalright that turns on pure questions of law and thus this Court can and should resolveit for the first timeon appeal (AOB 293, citing, inter alia, United States v. Atkinson (1936) 297 U.S. 157, 160 and People v. Yeoman (2003) 31 Cal.4th 93, 118.) Fifth, at the very least, the question of waiver is a close and difficult one and therefore should be resolve in favor of preservation give the fundamental nature of the right violated. (AOB 293, citing People v. Champion (1995) 9 Cal.4th 879, 908 & n. 6.) Respondent only address the first two arguments described above and ignores the rest. (See RB 66-73.) Mr. Mai takes respondent’s silencein the face of those arguments as concessions. 176 Asto Mr. Mai’s first argument, respondent summarily contendsthat “‘[t]here is no legal requirementfora trial court to obtain an express waiver from the defendant when the defense accepts the jury. (See People v. Richardson (2008) 43 Cal.4th 959, 983; People v. Cox (1991) 53 Cal.4th 618, 648, fn. 4.)” (RB 68.) Respondent’s perfunctory assertion is without merit. Richardson and Cox simply stand for the inapplicable proposition that a defense attorney’s “acceptance of [the] jury without exhausting peremptory challengesis a ‘strong indicator that the jurors were fair, and that the defense itself so concluded.’” (People v. Cox, supra, 53 Cal.3d at p. 648, fn. 4, cited in People v. Richardson, supra, 43 Cal.4th 983.) In neither case did the defendant argue or the Court resolve whether a defendant’s fundamental rightto trial by an impartial adjudicator requires the defendant’s personal waiver, expressed on the record. “““It is axiomatic that language in a judicial opinion is to be understood in accordance with the facts and issues before the court. An opinion is not authority for propositions not considered.” [Citation.]” (People v. Knoller (2007) 41 Cal.4th 139, 154-155, and authorities cited therein.)*’ Otherwise, respondenthasfailed entirely to address or attempt to refute Mr. Mai’s argumentthat a defendant’s right to trial by an impartial adjudicator is a fundamental personal right that demandshis personal and express waiver on the record in open court. (AOB 286-287.) The federal 47 Of course, in this case, defense counsel did exhaust their peremptory challenges. They simply failed to challenge Juror Number 12 for cause. To extent that they failed to do so because they believed that Juror Number 12 was impartial, they acted unreasonably. To the extentthat they failed to do so because they wanted jurors partial toward execution, they also acted unreasonably. 177 Constitution demands that death verdicts be rendered by impartial adjudicators. (See, e.g., Gray v. Mississippi (1987) 481 U.S. 648, 668, and authorities cited therein; see also Gomez v. United States (1989) 490 U.S. 858, 876.) This right is grounded in basic due processprinciples as well as the Sixth Amendment, which guarantees not merely the right to a jurytrial but the rightto trial by an “impartial jury.” (See, e.g., Gray v. Mississippi, supra, at p. 668; In re Murchison (1955) 349 U.S. 133, 136; United States v. Nelson (2nd Cir. 2002) 277 F.3d 164, 206, and authorities cited therein; see also People v. Wheeler (1978) 22 Cal.3d 258, 265-266 [right to impartial adjudicator under California Constitution].) “[W]hen a state . . . provide[s] for jury sentencing, as California does in capital cases, the due process clause of the FourteenthAmendmentof the federal Constitution requires the sentencing jury to be impartial to the same extent that the Sixth Amendment requires jury impartiality at the guilt phase ofthe trial. [Citation.] Ourstate Constitution provides the same guarantee. [Citations].)” (People v. Williams (1997) 16 Cal.4th 635, 666-667.) Underthese principles, when a defendant exercises his jury trial right, his right to an impartial jury “is an inseparable and inalienable part” part of that right. (In re Hitchings (1993) 6 Cal.4th 97, 110.) The right to trial by jury is a fundamental personal one that can only be waived bythe defendant’s knowingandintelligent, express and personal waiver in open court and on the record. (AOB 286-287,citing, inter alia, Patton v. United States (1930) 281 U.S. 276, 308-312, disapproved on another ground in Williams v. Florida (1970) 399 U.S. 78, 87-92, People v. Collins (2001) 26 Cal.4th 297, 304-305 & fn. 2, and Cal. Const., art. I, § 16.) It logically follows that the same requirements apply to any purported waiverof the inseparable right to be judged by an impartial jury or adjudicator. (AOB 178 286-287, citing, inter alia, Hughes v. United States, supra, 258 F.3d at p. 463, Franklin vy. Anderson, supra, 434 F.3d at pp. 427-428, and United States v. Nelson (2d Cir. 2002) 277 F.3d 164, 204-213; cf. People v. Traugott (2010) 184 Cal.App.4th 492, 501-503, and authorities cited therein [because the constitutional right to jury trial guarantees rightto trial by 12 acejurors, “‘a defendant’s consentto be tried by less than 12 jurors must be as formal as a waiver of the entire jury’” and thus cannot be made by counsel or implied from defendant’s conduct].) Mr. Mai takes respondent’s failure to addressthe logic of these principles as a concession to their validity. Alternatively, respondent appears to contend that Mr. Mai did make a personal and express waiverof his right to an impartial jury based on two pieces of record evidence: (1) defense counsel’s representation that Mr. Mai wasparticipating in the exercise of peremptory challenges (RB 67-68,citing 4-RT 795-796); and (2) the court’s statement informing defense counsel that the “the bailiff had told me that [Mai] was concerned that he did not have a fair and impartial jury selected, that he had a biased jury” and inquiring of counsel, “is that his issue?” to which defensecounsel replied, “no” (RB 73, citing 6-RT 1081). From this evidence, respondent contendsthat “Mr. Mai personally accepted the jury as it was constituted with Juror Number Twelve on it” (RB 73, italics added; see also RB 68), which respondent equates with a personal, express, knowing andintelligent waiver of his right to an impartial jury. Respondent’s contention is without merit. First, respondent conveniently ignores that the representations by defense counsel on whichit relies were made outside ofMr. Mai’s presence. (RB 67-68, 73; 4-RT 795-796; 6-RT 1081.) Defense counsel’s representations about Mr. Mai, outside of Mr. Mai’s presence, did not amountto the “express” and “personal”acts required to waive Mr. Mai’s 179 personal right to trial by an impartial adjudicator. (See, e.g., People v. Ernst (1994) 8 Cal.4th 441, 446-448, and authorities cited therein [defendant’s personal and express waiver cannotbesatisfied by counsel alone or implied from.defendant’s conduct].) For the same reasons, even if a defendant’s knowing andintelligent waiver of his right to an impartial adjudicator could be implied from his silence in the face of his counsel’s representations — as respondentappears to contend — there was no valid waiverhere. Indeed, any implied waiver is affirmatively dispelled by the record. As respondentobserves, thetrial court noted for the record — though outside of Mr. Mai’s presence outside — that Mr. Mai had informedthe bailiff that he was “concerned that he did not have a fair and impartial jury selected, that he had a biased jury.” (6-RT 1081; RB 73.) While respondentrefersto this discussion, but misconstrues its meaning. (RB 73.) According to respondent’s reading of the record, when the court informed defense counsel of Mr. Mai’s complaintto the bailiff, defense counsel denied that Mr. Mai believed his jury was biased. (RB 73.) Not so. During that in-chambers conference, the court and defense counsel were addressing Mr. Mai’s disruptive behavior that morning. They noted _ that the proceedings had been delayed for an hour because Mr. Mai was refusing to come outof the holding cell and so agitated and “loud you can almost hear it out in the courtroom.” (6-RT 1079.) The court was inquiring into the reasonsfor his behavior that morning. (6-RT 1079-1081.) Defense counsel explained that it was simply another manifestation of Mr. Mai’s deteriorating mental condition. (6-RT 1079-1081.) It was in this context that the court informed defense counsel, “the bailiff had told me that [Mr. Mai] was concernedthat he did not have a fair and impartial jury selected, that he had a biased jury,” and asked “‘is that his issue?” (6-RT 1081.) In 180 other words, the court was asking if Mr. Mai’s disruptive behavior that morning was dueto his concern that he had a “biased jury.” (6-RT 1081.) In response to this question, defense counsel respondedin the negative, thus indicating that Mr. Mai’s disruptive behavior that morning was due to other issues. (6-RT 1081.) The record does not support respondent’s reading that defense counsel was denying or even specifically addressing Mr. Mai’s complaint about a biased jury. (RB 73.) Indeed, the court’s failure to respond in any meaningful way to Mr. Mai’s complaint about a biased jury by personally inquiring of Mr. Mai or even making specific inquiry of defense counselis particularly troubling in given the court’s own implicit concerns about Juror Number 12’s _ impartiality, as reflected in its voir dire. As previously discussed, the court acknowledgedthat his questionnaire and voir dire answers admitted to a pre- formed opinion that he did not promise to set aside, unsuccessfully attempted to obtain his “assurance” that he could set aside that opinion in deference to the law and, havingfailed to doso,left it to counsel to follow up and respond appropriately. (5-RT 886-887.) When defense counsel failed inquire into Juror Number12’s admission ofbias, obtain an unequivocal promise to subvert his pre-formed opinion to the law and the evidence, or challenge him for cause, the court had a duty to act on its own and dismiss Juror Number 12 for cause before he was sworn. (See,e.g., Miller v. Webb, supra, 385 F.3d at p. 675; Franklin v. Anderson, supra, 434 F.3d at pp. 427-428; Hughes v. United States, supra, 258 F.3d at pp. 463- 464; United States v. Torres, supra, 128 F.3d at p. 43.) Certainly, when Mr. Maihimself later informed the court through the bailiff about his concern that the jury was not impartial, which reflected the court’s own apparent concerns, the court had a duty to act to protect Mr. Mai’s rights when his 181 counselclearly failed to do so. (See, e.g., People v. McKenzie (1983) 34 Cal.3d 616, 626-627 [trial court has independentduty to protect the rights of the accused [and] to ensure a fair determination of the issues on the merits,” and the duty to promote “the orderly administration of justice”] MacKennav. Ellis (5th Cir. 1960) 280 F.2d 592, 600 [““Fundamental fairness to a person accused of crime requires such judicial guidance of the conductof trial that when it becomes apparent appointed counsel are not protecting the accused the trial judge should movein and protect him’”].) But the court inexcusably did nothing. Finally, as to Mr. Mai’s second argumentthat defense counsel’s failure to attempt to removea juror actually biased in favor of executing Mr. Mainotonly violated his state and federal constitutionalrights to trial by an _ impartial jury butalso his rights to the effective assistance of counsel, respondent doesnot dispute that a defense attorney’s failure to challenge a biased juror whois seated on the jury amounts to ineffective assistance of counsel as a matter of law. (See RB 68-73; AOB 287-292,citing, interalia, People v. Weaver (2001) 26 Cal.4th 876, 911, Virgil v. Dretke (Sth Cir. 2006) 446 F.3d 598, 609-613, Franklin v. Anderson, supra, 434 F.3dat pp. 427-428, cert. denied, Houk vy. Franklin (2007) 549 U.S. 1156, and Hughes v. United States, supra, 258 F.3d at pp. 463-464.) Instead, respondent makes the circular argumentthat defense counsel did not render ineffective assistance in this particular case because Juror Number 12 wasnotactually biased. (RB 68-75.) As Mr. Mai has addressed and refuted respondent’s contention that Juror Number 12 was not biased and respondent otherwise concedes that an attorney’s failure to challenge a seated, biased juror necessary renders ineffective assistance of counsel, no further reply is necessary here. 182 Forthese and all of the other reasons discussed in the openingbrief, this Court can and should reach the merits of Mr. Mai’s claim on appeal notwithstanding his counsel’s negligence below. (AOB 285-294.) Juror Number 12 wasactually biased and his impanelmenton the jury that voted to execute Mr. Maiviolated his state and federal constitutional rights to due process,trial by an impartial adjudicator, and a reliable death verdict. The death judgment must be reversed. H I 183 Vil THE TRIAL COURT’S DENIAL OF MR. MAI’S WHEELER/BATSON MOTION VIOLATED STATE LAW AND THE SIXTH AND FOURTEENTH AMENDMENTSAND DEMANDSREVERSAL OF THE DEATH JUDGMENT A. Introduction Respondent concedesthat Mr. Maisatisfied the first of the three-step Wheeler/Batson® analysis with a prima facie showingthat the prosecutor had exercised peremptory challenges against the only three African- Americansin the jury pool (all of whom were death penalty supporters) based ontheir race andthat “[t]he trial court found a prima facie case was made by Mai.” (RB 76; AOB 295-296, 303-305.) And Mr. Mai concedes that the prosecutorsatisfied the second step of the analysis by providing facially race-neutral explanations for his challenges. (AOB 306-307; RB 79- 83.) Finally, it is undisputed thatif the trial court erred in denying Mr. Mai’s Wheeler/Batson motion, the error violated the state and federal Constitutions which requires reversal per se of the death judgment without remand. (See RB 75-83; AOB 321-331.) Therefore, the only dispute in this case centers on the mostcritical, third step of the Wheeler/Batson analysis, which requiredthe trial courtto make a “sincere and reasoned attempt to evaluate the prosecutor’s” facially race-neutral explanations (Purkett v. Elem (1995) 514 U.S. 765, 767-768; People v. Hall (1983) 35 Cal.3d 161, 167-168) and resolve the “decisive “8 “Wheeler/Batson”refers to the seminal decisions of this Court and the United States Supreme Court in People v. Wheeler (1978) 22 Cal.3d 258 and Batson v. Kentucky (1986) 476 U.S. 79, respectively, which recognized the state and federal constitutional prohibitions against excluding persons from a jury based on their membership in a cognizable group and mandating a three-step inquiry or analysis to prevent such violations. 184 question” of whether they were actually bonafide or pretextual (Hernandez v. New York (1991) 500 U.S. 352, 365). (AOB 299-321.) Mr. Mai argued in the opening brief that thetrial court’s denial of his Wheeler/Batson motion violated state law and the Sixth and Fourteenth Amendments because the court terminated its analysis at step two andfailed entirety to conductthe critical third step. (AOB 295-321.) The erroris affirmatively established by the record evidence consisting of: (1) thetrial court’s summary denial of the motion with the statement: “Well, the Court finds that no discriminatory intent is inherentin the [prosecutor’s] explanations, and the reasons appearto be race neutral, and on those grounds, the court will deny the Wheeler motion” (5-RT 944,italics added); (2) its refusal to hear defense counsel’s argument against the credibility of the prosecutor’sfacially race-neutral explanations; and (3) its failure to make any findings or inquiry at all into those explanations, despite the facts that they were unsupported or contradicted by the record or otherwise raised serious credibility questions. (AOB 307-321.) Respondent simply ignoresthis issue by assumingthat the trial court conductedthe third step of the analysis and “credited” the prosecutor’s facially race-neutral reasons as bona fide. (RB 80-83.) Based on that faulty assumption — which begs the fundamental question presented in the opening brief — respondent contendsthat the trial court’s denial of the Wheeler/Batson motion must be upheld on appeal becauseits (assumed) third-step findings are entitled to deference and supported by substantial evidence. (RB 80-83.) It is clear that respondent has ignored the thrust of Mr. Mai’s claim on appeal and applied an inappropriate legal analysis to that claim. 185 B. The Trial Court Violated State Law andthe Federal Constitution By Denying Mr. Mai’s Wheeler/Batson Without Conducting the Constitutionally Mandated Third Step And Ruling on the Issue of Discriminatory Intent 1. Respondent’s Response Begs the Fundamental Question of Whetherthe Trial Court Erroneously Terminated The Wheeler/Batson Analysis at Step Twoand Failed to Conduct the Third Step Respondent summarily asserts that the trial court engaged in the third step of the Wheeler/Batson analysis and “credited” the prosecutor’s facially race-neutral reasons in denying the motion. (RB 80, 83.) Respondent makes this assertion without citation to any supporting record evidence or supporting authority. (RB 76-83.) Instead, respondent simply cites the well settled rule that “so long as -the trial court makes a sincere and reasonedeffort to evaluate the nondiscriminatory justification offered” —i.e., actually conducts the third step of the Wheeler/Batson analysis — “its conclusions are entitled to deference on appeal.’ ([People v.] Lenix [2008] 44 Cal.4th [602,] 614-614 ...) (People v. Mills [2010] 48 Cal.4th [158], 175 [italics in original].)” (RB 80.) “On appeal, a finding against purposeful discriminationis reviewed for substantial evidence.” (RB 81, citing, inter alia, Peoplev. McDermott (2002) 28 Cal.4th 946, 971.) Under that deferential standard of review, respondent contendsthatthetrial court’s denial of the Wheeler/Batson motion must be upheld on appeal. (RB 80-83.) In so doing, respondent simply assumesthe very premise of that deferential standard of review without explanation or analysis. (RB 80-83.) As discussed in the openingbrief, the deferential, substantial evidence standard of review applies “only whenthetrial court has made a sincere and reasoned attempt to evaluate each stated reason as applied to 186 each challenged juror.” (People v. Silva (2001) 25 Cal.4th 345, 385-386; accord, People v. McDermott, supra, 28 Cal.4th at p. 971; AOB 301-302.) Whenthetrial court fails to conduct the third step of the analysis, make necessary findings, and rule on the ultimate issue of discriminatory intent, it has made no expressor implied factual findings “crediting” the prosecutor’s facially-race neutral explanations as bonafide to which a reviewing court can defer. (AOB 301-302, citing People v. Silva, supra, at pp. 385-386, and Snyder v. Louisiana (2008) 552 U.S. 472, 477-479, 482-484; accord,e.g., United States v. Rutledge (7th Cir. 2011) 648 F.3d 555, 560; Dolphyv. Mantello (2nd Cir. 2009) 552 F.3d 236, 239; Riley v. Taylor (3d Cir. 2001) 277 F.3d 261, 286-287, 290-291.) Of course, this is precisely the question presented here: did thetrial court actually conductthe third-step of the Wheeler/Batson analysis by making “‘a sincere and reasoned attempt to evaluate” whetherthe prosecutor’s facially race-neutral explanations actually prompted the challenges and thereby rule on the ultimate issue of discriminatory intent? (AOB 295-321.) In the opening brief, Mr. Mai answered that question in the negative based on a thorough analysis of the record evidence and the legal principles governing it. (bid.) Respondent does not answerthis question with its bare assumption — unsupported by any record evidenceor legal authority — thattrial court conducted the third step of the analysis and “credit[ing]” the prosecutor’s facially race-neutral explanations. (RB 80.) Respondent’s “arguments are nothing more than conclusions of counsel made without supporting [analysis] or any citation to the record and deserve no consideration from this Court.” (Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 101-102.) 187 2. Given the Affirmative Record Evidence That the Trial Court Failed to Conduct the Third Step of the Wheeler/Batson Analysis, No Contrary Presumption Maybe Drawnfrom its Mere Denial of the Motion Although respondent does not make the point explicitly or cite any authority to support it, it appears that respondent’s argumentrests on a presumption drawnsolely from thetrial court’s denial of the motionthatit necessarily conducted the third step of the Wheeler/Batson analysis and made implied findings “credit[ing]” the prosecutor’s explanations as genuine. (See RB 80-83.) If so, respondent is mistaken. It is well settled that a reviewing court may not indulge in sucha presumption whenit is belied by the record. (See, e.g., People v. Silva, supra, 25 Cal.4th at p. 386; Snyder v. Louisiana, supra, 552 U.S. at pp. 477- 479, 482-484; United States v. Rutledge, supra, 648 F.3d 555, 557, 560-561; Dolphy v. Mantello, supra, 552 F.3dat pp. 238-239; Lewis v. Lewis (9th Cir. 2003) 321 F.3d 824, 831-833.) As discussed in the opening brief — but completely ignored by respondent — evidence belying such a presumption includes: (1) the court’s summary denial of the motion with statements reflecting only a finding that the prosecutor’s explanations are facially race-neutral, thereby indicating that the court terminatedthe analysis at step two;” * AOB 307-310, citing People v. Hall, supra, 35 Cal.3d at pp. 165- 166, 168-169 (trial court’s statements that it was denying motion because the prosecutor’s explanations did not admit discriminatory intent demonstratedthat it failed entirely to conduct the third step of the Wheeler analysis), Dolphy v. Mantello (2nd Cir. 2009) 552 F.3d 236, 239 (court’s denial of motion with statement, “I’m satisfied that is a race-neutral (continued...) 188 (2) the court’s refusal to hear defense counsel’s arguments against the credibility of the prosecutor’s explanations;*? and “(._.continued) explanation, so the strike stands” demonstrated that it erroneously terminated the analysis at step two and failed to engagein step three), Lewis v. Lewis (9th Cir. 2003) 321 F.3d 824, 831-832 (same where court denied motion with statement that the prosecutor’s proffered reason was“probably ... reasonable,” which was “more like the analysis required in Batson step two than in step three’’), United States v. Alanis (2003) 335 F.3d 965, 969, fn. 3 (same, with statement “deeming the prosecutor’s [race]-neutral explanations ‘plausible’”), Riley v. Taylor (3d Cir. 2001) 277 F.3d 261, 286, 291 (same, with “terse” and “abrupt” “commentthat the prosecutor has satisfied Batson’’), and Jordan v. Lefevre (2nd Cir. 2000) 206 F.3d 196, 200 (same, with “conclusory statement” that “there is somerational basis for the exercise of the challenge”); accord, United States vy. Rutledge (7th Cir. 2011) 648 F.3d 555, 560 (same, with statement prosecutor’s explanations were “nonracial-related reason[s]’’). °° AOB 310-311, citing, inter alia, McCain v. Prunty (9th Cir. 2000) 217 F.3d 1209, 1223 (court’s denial of motion with statementthat prosecutor had “articulated a basis whichI find to be a good faith articulation of [her] reasons” and refusal to hear defense counsel’s effort to rebut those reasons demonstrated it erroneously terminated analysis at step two andfailed to conductthird step), Lewis v. Lewis, supra, 321 F.3d at pp. 831-832, and Jordan v. Lefevre, supra, 206 F.3d at p. 200; accord, Coombs v, Diguglielmo (3d Cir. 2010) 616 F.3d 255, 258, 263-265 (“it is clear from the record that the court effectively omitted the third step of the Batson inquiry by unreasonably limiting the defendant’s opportunity to provethat the prosecutor’s proffered reasonsfor striking Black jurors were pretextual”); compare People v. Jones (2011) 51 Cal.4th 346, 361 (where, inter alia, court invited defense counsel to commenton prosecutor’s proffered explanation, record demonstrated that court conducted third step of analysis and ruled on ultimate issue of discriminatory intent). 189 (3) the court’s failure to make express findings or inquiry of the prosecutor when the prosecutor’s explanations are unsupported or contradicted by the record, suggestive of pretext, or otherwise raise credibility questions that demand inquiry or findings underthe third step of the analysis.” Any one or a combination of the above factors may be sufficient to demonstrate that the trial court erroneously failed to conductthe third step of the analysis (and prohibit any contrary presumption). (AOB 307-312.) Although respondent inexplicably choosesto ignoreit, all of those factors appear in this case. (AOB 307-321.) First, after hearing the prosecutor’s explanations, the trial court summarily denied the Wheeler/Batson motion with the remarks: “Well, the court finds that no discriminatory intent is inherent in the [prosecutor’s] explanations, and the reasons appearto be race neutral, and on those grounds,the court will deny the Wheeler motion.” (5-RT 944,italics added; AOB 307-310.) Of course,it is only “‘at th[e] second step of the inquiry [that] the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason >! AOB 311-321, citing, inter alia, People v. Silva, supra, 25 Cal.4th at pp. 385-386, People v. Turner (1986) 42 Cal.3d 711, 727-728, Peoplev. Hall, supra, 35 Cal.3d at pp. 168-169, Dolphy v. Mantello, supra, 552 F.3d at pp. 238-239, and Snyder v. Louisiana, supra, 552 U.S. at pp. 477-479, 482-484: accord United States v. Rutledge, supra, 648 F.3d at pp. 559-561 (where (1) trial court denied motion with remarksreflecting only findings that prosecutor’s explanations were facially race-neutral; (2) prosecutor’s demeanor-based explanation was not supported by cold record but court made no expressfinding; and (3) prosecutor’s other explanation raised “credibility questions” into which court failed to inquire, record as a whole established court erroneously denied motion by failing to conductthird step of analysis). 190 will be deemed[facially] race-neutral’” under step two ofthe analysis. (Purkett v. Elem, supra, 514 U.S. at pp. 767-768, quoting Hernandez v. New York, supra, 500 U.S.at p. 360; AOB 299-302, 307-310.) Thus,it is clear that the trial court’s expressed “finding”that there was “no discriminatory intent .. . inherent in the [prosecutor’s] explanations,” which “appear to be race neutral” was only a finding that the prosecutor hadsatisfied this second step of the analysis. (Footnote 49, ante; AOB 307-310.) The court’s statementthat it was denying the motion “on those grounds”affirmatively demonstrates that it erroneously terminated the analysis at step two and failed entirely to conduct the mostcritical third step and determine whether the prosecutor’s facially race-neutral reasons were bonafide or pretextual. (Ibid.)” Second, when defense counsel attempted to point out the inaccuracies in the prosecutor’s explanations, the court immediately dismissed the point. (5-RT 943-944; AOB 306-307, 310-311.) When defense counsel pressed,“I am finding everything, I am a lawyer, I am finding every — ,” the court simply cut him off, turned to the prosecutor and ensuredthat he had nothing “further” to add, and summarily denied the motion “on th[e] grounds” that there was “‘no discriminatory intent . . . inherent in [his] explanations,” which “appear to be race neutral.” (5-RT 943-944.) The court’s remarks and refusal to hear defense counsel’s arguments againstthe credibility of the prosecutor’s explanations clearly establish that it erroneously terminated the analysis at step two andfailed entirely to conductthe third step. (Footnote °° Tn its preliminary recitation of the relevant facts, respondent fleetingly acknowledges these statements (RB 80); however, they appear nowherein its legal analysis, and respondent never addresses Mr. Mai’s extensive arguments regarding their legal significance. (See RB 80-83.) 191 50, ante; AOB 306-307, 310-311.)If there is any doubtleft in the face of this evidence,it is surely answered bythe court’s failure to probe the prosecutor’s explanations and makefindings necessitated by them. Asdiscussed in detail in Part 3, post, and the openingbrief, all of the excluded black jurors unambiguously supported the death penalty in general and undercircumstancesthat applied to this case, had college degrees, and were otherwise seemingly ideal jurors for the prosecutor in this capital case. The prosecutor’s facially race-neutral explanations for excluding them were unsupported or contradicted by the record, suggestive of pretext, or otherwise raised serious credibility questions. (AOB 299-302, 311-321.) When such explanations are offered, the third step of the Wheeler/Batson analysis demandsthe court’s active inquiry of the prosecutor and express findings. (AOB 311-321.) The court’s failure to makeany inquiry or findings in this case leaves no doubtthat it terminated the analysis at the second step and violated the very heart of Wheeler, Batson, and their progeny by denying the motion without making anyeffort, much less a “sincere and reasoned”one, to evaluate the prosecutor’s challenges and determine whether they were bonafide or pretextual. (Footnote 51, ante; AOB311-321.) In the face of all of this evidence that the court did not conductthe third step of the analysis, respondentpoints to no contrary evidence. In the face of Mr. Mai’s legal argumentthat the court thereby violatedits constitutional obligations and made no express or implied third step findings to which to defer, respondent makes no contrary argumentandcites no °3 Respondent’s recitation of the facts is misleadingin that it omits this exchange and thereby distorts the court’s ruling. (RB 80.) 192 contrary authority. Instead, respondent simply says that the court conducted the third step of the analysis and “credited” the prosecutor’s explanations as bonafide. (RB 80.) Saying it does not makeit so. Asthe Seventh Circuit Court of Appeals recently observed in rejecting a similar contention in the face of similar record evidence: unable to identify any supporting record evidence,“all [the government] can sayis that the [trial] court ‘made a factual determination that the government’s justification wasrace-neutral.’ ... [T]his is not enough. At the end of the day, the government’s argumentis really that the denial of a Batson challenge mayserve as an implicit finding that the prosecutor’s explanation was credible.” (United States v. Rutledge, supra, 648 F.3d at p. 560.) But on such a record, a reviewing court simply cannot indulge.a presumption that the trial court found “‘that the-prosecutor’s race-neutral justification was credible simply becausethe[trial] judge ultimately denied the challenge.’ [Citation.]” (/d. at pp. 557, 559-561, citing Snyder v. Louisiana, supra, 522 U.S. at pp. 477-479, 482-484; accord, e.g., People v. Silva, supra, 25 Cal.4th at pp. 385-386; Dolphy v. Mantello, supra, 552 F.3d at pp. 238-239; Lewis v. Lewis, supra, 321 F.3d at p. 832.) 3. The Prosecutor’s Facially Race-Neutral Explanations Were Contradicted or Unsupported by the Record, Raised Credibility Questions or Otherwise Demanded Inquiry and Findings By the Trial Court, the Absence of Which Further Demonstrates that the Court Failed to Conduct the Third Step of the Wheeler/Batson Analysis Based onits flawed presumption thatthe trial court conducted the third step of the Wheeler/Batson analysis and “credited” the prosecutor’s explanations, respondent addresses the prosecutor’s explanations under the deferential, substantial evidence standard of review that applies under those 193 circumstances. (RB 80-83,citing, inter alia, People v. Mills, supra, 48 Cal.4th at p. 175, and People v. McDermott, supra, 28 Cal.4th at p. 971.) Underthat standard, an appellant bears a heavy burden of showingthat the prosecutor’s explanations were so implausible, contradicted by the record, or otherwise demonstrative of pretext that no reasonable judge could have found them to be bonafide. (Ibid.) But this is not Mr. Mai’s burdento bear. To be sure, the plausibility and record support fer the prosecutor’s explanationsare relevant here, but not for the reasons respondent assumes. As discussed in the opening brief,the trial court’s third step analysis requires it to consider“all of the circumstances that bear uponthe issue of racial animosity” and evaluate the prosecutor’s credibility (Snyder v. Louisiana (2008) 552 U.S. 472, 478) by assessing “amongother factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has somebasis in acceptedtrial strategy” (Miller-El v. Cockrell (2003) 537 U.S. 322, 339 [“Miller-El P’]). When the proffered reasons are contradicted by the record, illogical or implausible, or apply equally to non-minority venirepersons whom the prosecutor hasnot challenged,“that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.” (Miller- El v. Dretke (2005) 545 U.S. 231, 241 [“Miller-ElIP’}.) In the face of such explanations suggestive of pretext under these standards, “more is requiredof the trial court[’s step three analysis] than a global finding that the reasons appear sufficient.” (Peoplev. Silva, supra, 25 Cal.4th at p. 386.) The court must make active inquiry into those explanations andexpressfindings regarding their credibility. ([bid.; accord, e.g., People v. Turner, supra, 42 Cal.3d at pp. 715, 727-728; People v. Hall, supra, 35 Cal.3d at pp. 168-169; Dolphy v. Mantello, supra, 552 F.3d at pp. 194 238-239; United States v. Rutledge, supra, 648 F.3d at pp. 557-561; AOB 310-321.) The absence of inquiry or findings under these circumstances tends to show thatthe trial court failed to conduct the constitutionally mandatedthird step of the analysis. (Jbid.) Of course, this is Mr. Mai’s claim. In order to prove that claim, Mr. Mai need not prove that the prosecutor’ s explanations necessarily warranted the conclusionthat they were pretexts for discrimination, as respondent suggests. (RB 80-83.) He need only show that the prosecutor’s explanations weresufficiently suspect to demandthe court’s inquiry and findings, such that their absence demonstrate the court’s failure to conduct the third step of the analysis and rule on the ultimate issue of discriminatory intent. Particularly given the other affirmative record evidence discussed above, Mr. Mai has more than satisfied that burden. a. Prospective Juror M.H.* As to prospective juror M.H. (see AOB 312-317), respondent contendsthat the prosecutor’s “primary reason for challenging prospective juror M.H.wasthat she was single, had no children, and was young. (5 RT 942.)” (RB 82.) Respondent omits critical parts of the prosecutor’s actual explanation. In truth, the prosecutor explainedthat his “primar[]y” reason for excluding M.H.was that she was “youngerthan the jurors I prefer,” being in her “thirties,” and was single with no children, while there were “no other * Although Mr. Maireferred in the opening brief to the challenged jurors by their full names, which are reflected in the publicly filed appellate record, Mr. Mai follows respondent’s lead in this brief and refers to those jurors bytheirinitials. 195 jurors on the jury presently whofit that pattern.” (5 RT 942,italics added; AOB 312-313.) As Mr. Mai argued in the openingbrief, this explanation wascontradicted by the record in two ways: (1) M.H. was40, not in her “thirties” (4-RT 674, 8-CT 2416); and (2) Juror Number 12, who “was on the jury presently,” did “fit that pattern” of M.H.’s relative “youth,” marital status, and lack of children, just as defense counsel attempted to argue below (5-RT 908-909, 943-944). (AOB 312-313.) Respondentdoesnot dispute the inaccuracies in the prosecutor’s explanation other than to point out that Juror Number 12 “was older than prospective juror M.H.” (RB 82.) It is true that Juror Number 12 was 43 — three years older than M.H. However, the prosecutor’s “primary” explanation for challenging M.H.wasstill largely contradicted by the record and therefore suggestive of pretext (see, e.g., Miller-El I, supra, 545 U.S. at p. 244), which demandedthe court’s inquiry under step three (People v. Silva, supra, 25 Cal.4th at pp. 385-386). The fact that her true age was only three years “younger” than Juror Number 12 did not diminish those inaccuracies or provide such an obviousbasis for exclusion that further explanation was unnecessary.” Although nothis “primary reason,” the prosecutor also claimed that he challenged M.H. because her “attitude about the death penalty was personal and emotional, not philosophical. She’s the one whotalked about, if it’s my family I could understandit.” (5-RT 942; AOB 313-314.) > Indeed, although the prosecutor claimed that M.H. was “younger than the jurors I prefer,” the prosecutor ultimately accepted a jury without exhausting his peremptory challenges that included three members who were under 40 (CT 1516, 1519; CT 1451, 1454; CT 1477, 1480) and two members who,like M.H., were 40 (CT 1438, 1441; CT 1400; RT 1011- 1012). 196 Respondentcontendsthat this explanation was supported by “[p]rospective juror M.H.[‘s] clearly expressed... belief in the death penalty as punishment waspersonalto her family, but did not necessarily apply to others outside her family. (4-RT 695-697).” (RB 82.) Respondent misrepresents the record. Asdiscussed in the opening brief, M.H. unambiguously described herself as a death penalty supporter in “general.” (8-CT 2420-2421; 4-RT 695-696.) In her questionnaire, she wrote that she also believed that the death penalty is “used appropriately” as a general matter (not, for instance, that it would only be appropriate for someone whokilled a memberof her ownfamily). (8-CT 2420-2421.) On voir dire, she specifically disavowed that her support for the death penalty was “personal” in the sense of being grounded in some personal experience. (4-RT 695-696.) Instead, her support was groundedonretribution — as she explainedit, if one of her loved ones were murdered, she would want to murderer to be executed. ([bid.) She agreed that she would be “emotional” about her desire for that penalty if a memberof her family were murdered. (/bid.) Otherwise, however, she wasnot “emotional” about the issue and would not approach herrole as a juror with the “emotion” she would have if Mr. Mai had killed her own family member. (/bid.) Rather, her general beliefs were that the propriety of the death penalty in a particular case depended on the “circumstances” (4-RT 695-696), and she would considerall of the statutory circumstances in determining whetherit would be appropriate in this case (8-CT 2421-2523). Thus, considering M.H.’s questionnaire and voir dire answers as a whole — as step three of the Wheeler/Batson analysis requires (Miller-ElII, supra, 545 U.S.at p. 247) — her support for the death penalty in general was ‘groundedin retributivist principles and her support for that penalty in a 197 particular case would depend not on “emotion”but rather on the “circumstances.” M.H. in no way suggested that her death penalty support waslimited to retribution for the murder of her own family membersthat “did not necessarily apply to others outside her family,” as respondent contends. (RB 82.) Nor was her support for the death penalty “not philosophical,” as the prosecutor claimed. (5-RT 842.) To the contrary, retribution is not only a “philosophical” justification for the death penalty (Furman v. Georgia (1972) 408 U.S. 238, 394-395 & fn. 20, dis. opn. of Burger,J.); it “the most common basis of supportfor the death penalty” among death penalty advocates. (Baze v. Rees (2008) 553 U.S.35, 80, fn. 14, conc. opn. by Stevens, J., italics added; AOB 313-316.) Hence,like the prosecutor’s “‘primar[y] reason” for challenging M.H. this reason wasalso contradicted by the record of M.H.’s answers as a whole. It was also implausible; the bases for M.H.’s death penalty support were common and shared by most death penalty supporters. It strains credulity to believe that a prosecutor in a capital case would wantto exclude jurors for such common pro-death penalty beliefs. (AOB 315-316.) The implausibility of the prosecutor’s explanation is reinforced by his failure to question M.H.atall, much less probe why she supported the very penalty he was seeking in this case. (AOB 313-314.) All of these factors were highly suggestive of pretext (see, e.g., Miller-El II, supra, 545 U.S. at pp. 242, 246) and thus demandedinquiry bythetrial court(see, e.g., People v. Silva, supra, 25 Cal.4th at pp. 385-386). Apparently recognizing as much, respondentis reduced to grasping at straws by hypothesizing a demeanor-based reason for the prosecutor’ s challenge that the prosecutor himself never offered. According to respondent, M.H.“appeared to become disagreeable” when defense counsel 198 inquired into her death penalty support. (RB 82.) The prosecutor evidently did not share this view since he did not include it in his explanation. In any event, it is improper for respondent - ora trial or reviewing court — to hypothesize or consider reasonsto justify a prosecutor’s challenge that the prosecutor himself did not offer. (See, e.g., Miller-El IT, supra, 545 U.S. at p. 252; Johnson v. California (2005) 545 U.S. 162, 173; People v. Lenix (2004) 44 Cal.4th 602, 624-625; Paulino v. Castro (9th Cir. 2004) 371 F.3d 1083, 1090.) b. Prospective Juror P.F. As to prospective juror P.F. (see AOB 319-321), respondent acknowledgesthat the prosecutor claimed to have challenged her because she stated that the death penalty was “appropriate only where there was a pattern of violent conduct, which is not the law.” (5-RT 942,italics added; RB 83.) Citing only her questionnaire answers and ignoringherlive voir dire, respondent contends that this explanation was supported by P.F’s “opinion that the death penalty was for convicted felons who hada pattern of committing violent offenses, which prospective juror P.F. cited as murder.” (8-CT 2408.)” (RB 83.) Again, respondent’s representation of the record 1s incomplete, incorrect, and misleading. (Miller-El I, supra, 545 U.S.at p. 247 [step three analysis requires consideration of juror’s answers as a whole].) P.F. never stated that the death penalty should be reserved for defendants with a history of violent crimes like murder. (RB 83.) To the contrary, she expressed her personalbelief that “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.) On her questionnaire, she also expressed her personal, 199 “general feelings”that, “in order for someoneto 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.” (8-CT 2407.) On voir dire, P.F. clarified that she meant the death penalty was particularly appropriate when “‘the person just had a pattern of no regard for life.” (4-RT 731.) That factor was not “something exclusive,” or the only circumstance that warranted the death penalty in her opinion. Rather, it was simply a “strong consideration.” (Ibid.; AOB 319-320.) Of course, that “strong consideration” inured to the prosecution’s benefit in this case given its aggravating evidence against Mr. Mai. (AOB 16-18; RB 9-12.) Hence, contrary to the prosecutor’s explanation (and respondent’s representations), P.F. did not express any belief that death was “appropriate only where there was a pattern of violent conduct” like murder. (5-RT 942, italics added.) To the contrary, the beliefs P.F. actually expressed indicated that she would be an ideal juror for the prosecution in this case givenits aggravating evidence that Mr. Mai was a “convicted felon” (8-CT 2407- 2408), whohad killed the victim with “malicfe]” (8-CT 2407) and had committed prior “violent crimes against others” (8-CT 2407-2408; 4 RT 731). For all of these reasons, the prosecutor’s explanation was highly suggestive of pretext and thus demandedinquiry and findings by the court. (See, e.g., Miller-El I, supra, 545 U.S. at pp. 242-244 [concluding prosecutor’s explanations were pretextual based,inter alia, on facts prosecutor’s explanations were not supported by record and that excluded venireman supported death penalty and otherwise seemedideal juror for capital prosecutor]; People v. Silva, supra, 25 Cal.4th at pp. 385-386).) Asto the prosecutor’s explanation that he also challenged P.F. 200 because she “had a very casualattitude and dress,” “didn’t seem particularly interested in the proceedings,” but rather “seemed rather bored with” them (5-RT 942-943), respondent contendsthat in “in crediting the prosecutor’ s reasons,the trial court confirmed that prospective juror P.F’s casual attitude and dress, and apparentdisinterest in the proceedings were credible considerations.” (RB 83, italics added.) Again, respondentcites to no record evidence to supportthis assertion, but instead appears to presume from its mere denial of the motion that the trial court “credited” the prosecutor’s explanation. For the reasons discussedin Part 1, ante, and the opening brief (but ignored by respondent), that presumption is prohibited. (AOB 302, 319, 324-327, citing, inter alia, Snyder v. Louisiana, supra, 552 U.S. at pp. 477-479, 482-484 [refusing to presume court credited demeanor- based explanation in denying motion in absence of any affirmative evidence to prove as much], People v. Silva, supra, 25 Cal.4th at pp. 285-386, and McCurdy v. Montgomery County, Ohio (6th Cir. 2001) 240 F.3d 512, 521; accord, United States v. Rutledge, supra, 648 F.3d at pp. 557, 559-560; People v. Long (2010) 189 Cal.App.4th 826, 845-848, and authorities cited therein.) Asfurther discussed in the opening brief but ignored by respondent, P.F.’s thoughtful and thorough responsesto the questionnaire and voir dire questions, as well as her vocation as a 911 operator, prior experience as a juror, and self-identification as a “strong” proponentof the death penalty (8- CT 2404; 4 RT 645-646, 662, 710-711) belied the prosecutor’s characterization of her as a “bored”or disinterested potential juror. (AOB 318-319, People v. Silva, supra, 25 Cal.4th at p. 385 [since nothing in potential juror’s answers supported prosecutor’s explanation that he was an “extremely aggressive” person,trial court’s failure to make inquiry or 201 findings did notsatisfy step three analysis].) To the contrary, for these and the other reasons discussed above, P.F. was a seemingly ideal juror for the prosecutor in this capital case, which raised serious doubts about the credibility of his facially race-neutral explanations for excluding her. (AOB 318-319, citing Miller-El IT, supra, 545 U.S. at p. 242.) For all of these reasons, step three of the Wheeler/Batson analysis demandedthe court’s active inquiry into the prosecutor’s explanations for challenging P.F. demanded active inquiry and findings. (People v. Silva, supra, at pp. 385- 386.) c. Prospective Juror L.P Asto prospective juror L.P. (AOB 317-318), respondent contends that the prosecutor challenged her “based on her occupation asa social worker and the potential for her applying a heightened burden of proof as to the charges andallegations than the prosecution was required to prove. (5- RT 748, 766, 943; 8-CT 2391.)” (RB 83, italics added.) Respondent further contendsthat these reasons were clearly genuine because L.P. was,in fact, a social worker and she “maintained that she wanted the standard for conviction to be ‘beyond a shadowof a doubt.’ (4-RT 778-779.)” (RB 83.) Respondent misstates both the prosecutor’s explanation for challenging L.P. and the record evidence which contradictsit. Onher questionnaire, L.P. described herself as a death penalty supporter who believed that it was used appropriately and expressed her personal, “general feelings”that “it is important wheninflicting [the death penalty] to make sure that the person is guilty beyond a shadow of a doubt before imposingit.” (8-CT 2394-2395.) Onlive voir dire, L.P. clarified that she meant she wantedto be sure that the person was “convicted beyond a shadow of a doubt” before imposing the death penalty. (4-RT 778,italics 202 added.) The distinction was a significant onein this case: the potential jurors were asked to accept that Mr. Mai had already been convictedoffirst- degree murder with special circumstances in deciding whether he should be executed for that offense. (8-CT 2393.) Under the circumstances, L.P.’s personaldesire for certainty that someone, like Mr. Mai, has been convicted of murder(and is thereby even eligible for the death penalty) before imposing the death penalty for that offense wasa perfectly legitimate one. Thus, the record did not support the prosecutor’s explanation that L.P. “said she couldn’t vote for the death penalty unless the facts were proved beyond a shadow of a doubt, whichis not the law.” (5-RT 943, italics added.) Nor did the record support the prosecutor’s explanation that L.P.’s beliefs were “not the law.” (Ibid.) L.P’s personal concernforcertainty in conviction ander these circumstances wasentirely consistent with the law. (Pen. Code, § 190.4.) The record further contradicted the prosecutor’s explanation that L.P. said that she “couldn’t vote for the death penalty” absent such certainty. (5-RT 943, italics added.) L.P. was expressing her personalbeliefs that she unequivocally promisedto set aside if they conflicted with the law, taking care to emphasize that “as a county employee, I do that often (following the law).” (8-CT 2394-2395.) Given that the record contradicted every part of the prosecutor’s claim that L.P. “said she couldn’t vote for the death penalty unless the facts were proved beyond a shadow of a doubt, whichis not the law,” a “sincere and reasoned attempt” to evaluate it demanded inquiry and findingsbythetrial court. (See, e.g., People v. Silva, supra, 25 Cal.4th at pp. 385-386.) It is true, as the prosecutor represented, that L.P. was a social worker. (4-RT 748-749.) However, the prosecutor did not explain whythis characteristic was objectionable. (bid.) The correlation between social 203 work and a juror’s undesirability from a prosecutor’s perspective is notso obvious that it needs no further explanation. (See, e.g., People v. Fuentes (1991) 54 Cal.3d 707, 719-720 [prosecutor’s explanation based on juror’s occupation was “spurious”since he did notarticulate howit “related to jury service in this case”]; Dolphy v. Mantello, supra, 552 F.3d at p. 239 [when correlation is not so obviousthat it needs no further explanation,third step requires inquiry into correlation between assertedly objectionable characteristic and undesirability as juror]; Kesser v. Cambra (9th Cir. 2008) 465 F.3d 351, 364 [where correlation not obvious, explanation would be expectedif stated characteristic were true motivation for challenge].) Even if the correlation were obvious in other cases, it was not obviousin this one. While L.P. was a social worker, she had also worked in law enforcementas a probation officer and a parole officer. (4-RT 748-749.) These characteristics, together with L.P.’s death penalty support, had an obvious correlation to her desirability as a juror for the prosecution. (4-RT 748-749; Miller-El II, supra, 545 U.S. at p. 242.) Under the circumstances, a “sincere and reasoned”attempt to evaluate the credibility of the prosecutor’s explanation demandedinquiry and findings by the trial court. (See,e.g., Dolphy v. Mantello, supra, at p. 239.) Finally, respondent hypothesizes other reasonsto justify the prosecutor’s exclusion of L.P. that the prosecutor himself never offered — namely that L.P. was “working towards a masters [sic] [degree] in marriage and family therapy” (RB 82-83, citing 4-RT 748-749) and “had a cousin who was a criminal defense lawyer” (RB 83, citing 4-RT 767-768 [sic]).°° As °6 Respondent’s citation to 4-RT 767-768in supportofits assertion that L.P. “had a cousin who was a criminal defense lawyer”is incorrect; (continued...) 204 previously discussed, the state’s hypothesized explanationsfor the prosecutor’s challenges are irrelevant and improper. (See, e.g., Miller-El II, supra, 545 U.S.at p. 252.) Exacerbating the impropriety of respondent’s speculationis that it misstates the record. Contrary to respondent’s representation, L.P neversaid thatshe had a “cousin who wasa criminal defense lawyer.” (RB 83.) Instead, she merely stated that she had a “cousin whois an attorney.” In responseto the court’s query about whether her cousin had done any “criminal defense or criminal prosecutive work[,]” L.P. replied that she “thought” her cousin “may have,” but she was not certain. (4-RT 762-763, italics added.) Respondent’s attempt to justify the prosecutor’s challenge with reasonsthat were not only omitted from the prosecutor’s own explanations butare also flatly untrue is a potent indication of respondent’s recognition that the explanations the prosecutor did offer were highly suggestive of pretext. For these andall of the other reasons discussed in the openingbrief, the prosecutor’s explanations for challenging the only black jurors from the venire — all of whom supported the death penalty and voiced no hesitation about imposingit in this case — were unsupported or contradicted by the record, implausible or otherwise raised serious credibility questions. (AOB 311-321.) Hence, a “sincere and reasoned” attempt to evaluate those ~ explanations and determine whether they were bonafide or pretextual demandedactive inquiry and findings by the court. (See, e.g., People v. Silva, supra, 25 Cal.4th at pp. 385-386; People v. Turner, supra, 42 Cal.3d °6(...continued) those page citations reflect another juror’s voir dire. L.P.’s discussion of her cousin’s vocation is at 4-RT 762-763. 205 at pp. 715, 727-728; United States v. Rutledge, supra, 648 F.3d at pp. 557- 561; Dolphy v. Mantello, supra, 552 F.3d at pp. 238-239.) The court’s failure to make any inquiryor third step findings at all tends to provethatit did not conductthe third step of the required analysis. (/bid.) When those omissions are considered with the court’s only expressed finding that the prosecutor’s explanations were facially race-neutral, its statementthat it was denying the motion “on those grounds,” and its refusal to hear defense counsel’s arguments against the credibility of the prosecutor’s explanations, the record leaves no doubtthat the trial court violated its constitutional obligations by terminating the Wheeler/Batson analysis at step two and failing entirely to conduct the mostcritical third step. (AOB 307-321, and authorities cited therein; Footnotes 49-51, ante.) C. RespondentDoes NotDispute ThatIf the Trial Court Failed to Conduct the Third Step of the Wheeler/Batson Analysis, the Death Judgment Must Be Reversed Without Remand Finally, Mr. Mai arguedthatthe trial court’s failure to conduct the third step of the Wheeler/Batson analysis requires reversal per se of the death judgment. (AOB 321-331.) It would be inappropriate for this Court to find harmless error based onits based on its own third-step analysis on the cold record. (AOB 321-328.) Further, a remandforthe trial court to conduct the third step of the analysis more than 12 years after the fact would befutile. (AOB 328-331, citing inter alia, Snyder v. Lousiana, supra, 552 U.S.at p. 486 [reversing without remandfortrial court to conduct third step of analysis because there was “‘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”] and People v. Hall, supra, 35 Cal.3d at pp. 170-171 [same — three years].) 206 Significantly, respondent does not dispute any of these arguments. Hence, no further discussion of this issue is necessary. Reversal of the death judgmentis required. HI I 207 Vill THE DEATH ELIGIBILITY FINDING AND DEATH VERDICT VIOLATE THE STATE’S INDEPENDENT INTERESTSIN THE FAIRNESS AND RELIABILITY OF ITS CAPITAL PROCEEDINGS AND VERDICTS UNDER STATE LAW AND THE EIGHTH AND FOURTEENTH AMENDMENTSAND MUSTBE SET ASIDE As discussed in the opening brief, the state and federal Constitutions protect not only individual rights but also our community’s independent interests in the fairness andintegrity of its criminal proceedings and the reliability of death judgments. (AOB 332-347,citing, inter alia, Indianav. Edwards (2008) 554 U.S. 164, 177, and Gardnerv. Florida (1977) 430 U.S. 349 357-358) California’s death penalty schemereflects those independent interests. (AOB 332-347,citing, inter alia, People v. Alfaro (2007) 41 Cal.4th 1277, 1300, and People v. Chadd (1981) 28 Cal.3d 739, 750-752.) Whenthoseinterests conflict with a particular defendant’s desire for execution, the state’s interests win out. (AOB 332-347.) Indeed,“to allow a defendant to choose his own [death] sentence introduces unconscionable arbitrariness into the capital punishment system.” (Comer vy. Schriro (9th Cir. 2006) 463 F.3d 934, 950.) This is precisely what occurred here. Mr. Mai’s death penalty “trial” was an empty charade, nothing more than an instrumentto achieve his own execution which violated the state’s independentinterests in the fairness and integrity of its proceedings, the appearanceof fairness, and thereliability of its death judgments. (AOB 347-352.) The sole deatheligibility finding and death judgment mustbe reversed. Respondent disagrees based on its previous contentionsthat, inter alia, Mr. Mai was represented and adequately advised by competent, unconflicted counsel, there was no doubt aboutthetruth of the sole special 208 circumstanceallegation that rendered Mr. Maieligible for the death penalty, and no doubt that he was competent to make a “reasoned choice”to effectively stipulate to the death penalty. (RB 83-87.) Mr. Mai has addressed these contentions — including the many misstatements of facts on whichthey are based and whichare repeated here — in the preceding arguments, which are incorporated by reference herein. Otherwise, respondent assumesthat if a defendant is competent within the meaning of the Fourteenth Amendment and represented by competent counsel within the Sixth Amendment, he can “waive” the substantive and procedural safeguards intendedto protect and serve the state’s independentinterests in fair and reliable death judgments. Respondent’s assumption, however, “fails to recognize the larger public interest at stake” when even a competent defendantpleads guilty to acapital offense and effectively stipulates to the death penalty. (People v. Chadd, supra, 28 Cal.3d at p. 747.) In this regard, “we are not dealing with a right or privilege conferred by law uponthelitigant for his sole personal benefit. Weare concernedwith a principle of fundamental public policy. The law cannot suffer the state’s interest and concern in the observance and enforcementof this policy to be thwarted through the guise of waiver of a personalright by an individual.” (People v. Stanworth (1969) 71 Cal.2d 820, 834, internal quotation marks and citations omitted.) As discussed in the openingbrief, “the state[] [has] a strong interest in reducing the risk of mistaken judgments in capital cases and thereby maintaining the accuracy and fairnessof its criminal proceedings.” (People v. Alfaro, supra, 41 Cal.4th at p. 1300; People v. Chadd, supra, 28 Cal.3d at p. 751.) The heightened degreeofreliability state law and the Eighth and Fourteenth Amendments demand of death verdicts is achieved bya trier of 209 fact’s consideration of all evidence relevant to the defendant’s death worthiness — including both constitutionally relevant “aggravating” evidence that weighs in favor of death and “mitigating” evidence that may serve as a basis for a sentence less than death (see, e.g., Lockett v. Ohio (1978) 438 U.S. 586, 605; Pen. Code, § 190.3) — and throughthe crucible of “meaningful adversarial testing” (United States v. Cronic (1984) 466 U.S. 648, 656-659 [whentrial “loses its character as a confrontation between adversaries,” the “trial process” itself becomes “unreliable” and produces an unreliable result]; Herring v. New York (1975) 422 U.S. 853, 856-864 [discussing constitutionally fundamental importance of closing argumentin adversary process]). California’s death penalty schemeis intendedto serve the state’s paramount, independentinterests in the fairness andreliability of its capital proceedings andreflects “‘a fundamental public policy against misusing the judicial system” (People v. Deere (1985) 41 Cal.3d 353, 362-364) by curtailing even competentcapital defendants’ abilities to “waive” or forgo the substantive and procedural safeguardsthat are vital to achievingthese interests. (AOB 334-352.)”’ Hence, even a competent defendant cannot: (1) plead guilty to a capital offense without the representation and consent of counsel, whose duty is not to acquiescein his client’s wishes but rather to exercise his independentprofessional judgement and safeguard against the risk of a mistaken death judgment (Pen. Code, § 1018; People y. Alfaro (2007) 41 57 As discussed in the opening brief, Deere, supra, has been disapproved on other grounds,to the extent that it held that the failure to present mitigating evidence “in and ofitself’ renders a death verdict unreliable and/or necessarily establishes ineffective assistance of counselas a matter of law. (People v. Bloom (1989) 48 Cal.3d 1194, 1228, fn. 9; People v. Lang (1989) 49 Cal.3d 991, 1031; AOB 341-342 & fn. 104.) 210 Cal.4th 1277, 1300-1302; People v. Massie (1985) 40 Cal.3d 620, 625; People v. Chadd (1981) 28 Cal.3d 739, 750, 753; (2) stipulate to the death penalty and waive a penalty trial (People v. Teron (1979) 23 Cal.3d 103, 115, fn. 7, and authorities cited therein, overruled on other grounds in People v. Chadd, supra, at p. 750, fn. 7; Pen. Code, §§ 190.3, 190.4, subd. (a)); (3) prevent counsel from investigating and presenting mitigating evidence and closing argument — whichare tactical matters controlled by counsel(see, e.g., People v. Alfaro, supra, 41 Cal.4th at pp. 1301-1302, 1320-1321; see also New York v. Hill (2000) 528 U.S. 110, 114-115; Jones v. Barnes (1983) 463 U.S. 745, 751-752; People v. Roldan (2005) 35 Cal.4th 646, 682;or (4) waive the mandatory, automatic appeal from a death judgment, waive counsel on appeal, or contro] the issues to be reaised on that on appeal (Pen. Code, § 1239, subd. (b); People v. Massie (Massie IT) (1998) 19 Cal.4th 550, 566, 570-572; People v. Stanworth, supra, 71 Cal.2d at p. 834). In rejecting challengesto these limitations, this Court has recognized that defendants enjoy fundamental rights to the assistance of counselin their defense, to control certain fundamental aspects of their defense, and even to waive counselin order to represent their own defense. (See, e.g., People v. Alfaro, supra, 41 Cal.4th at pp. 1298-1302, and authorities cited therein.) However, when a capital defendant seeks to present no defense for no tactical advantageor benefit, those rights either are not implicatedatall (ibid) or must bow to accommodate the weightier, legitimate interests of the state (People v. Chadd, supra, 28 Cal.3d at pp. 746-747). (Accord, Massie I, supra, 19 Cal.4th at p. 566, 570-572; People v. Massie, supra, 40 Cal.3d at p. 625: People v. Stanworth, supra, 71 Cal.2d at p. 834; Massie v. Sumner (9th Cir. 1980) 624 F.2d 72, 74; see also Indiana v. Edwards, supra, 554 USS. at p. 171 [rightto self-representation is not absolute but may bowthe 211 legitimatestate interests in fairness of its proceedings under certain circumstances].)*® To be sure, this Court has held that the “failure to present mitigating evidence,in and ofitself, is sufficient to make a death judgmentunreliable.” People v. Bloom (1989) 48 Cal.3d 1194, 1228,fn. 9, italics added; AOB 341-343.) For instance, in People v. Sanders (1991) 51 Cal.3d 471, where a presumably competent defendant made “knowing and vohuntary” decision not to present a penalty phase defense, the jurors otherwise heard mitigating evidence from the guilt phase, the lack of a penalty defense “did not amount to an admission that [the defendant] believed death was the appropriate penalty,” and there was no “showingthat counsel failed to investigate mitigating evidence or advise the defendantofits significance,” this Court 8 In addition to these provisions cited in the openingbrief, the Legislature also enacted Penal Code section 686.1, which mandates representation by counselat all stages of a capital proceeding. This Court had held that section 686.1 is invalid to the extent that it conflicts with the federal Constitution as stated in Faretta v. California (1975) 422 U.S. 806 (a non-capital case), but “‘remains good law asto the California Constitution and the Penal Code.’ [Citation.]” (People v. Johnson (2012) 53 Cal.4th 519, 525-526.) In light of the high court’s recent decision in Indiana v. Edwards, supra, 554 U.S. at p. 171, which recognizedthat the right to self-representation recognized in Faretta is not absolute, but rather may bow to accommodate other legitimate state interests such as the fairness and appearancethereofin its proceedings,it is no longer clear that a construction of section 686.1 mandating representation by counsel at the penalty phase of a capital trial conflicts with Faretta. The question does not need resolution in this case because Mr. Mai did not formally discharge counsel and represent himself (or threaten to do so if they disregarded his wishes). What is significant in this caseis that section 686.1 is yet another reflection of California’s clear legislative intent to subvert an individual defendant’s autonomyin capital cases to the paramountinterests of thestate. 212 held that the proceedings and ensuing death judgmentdid notviolate the state’s interest in, or the constitutional guaranteesto, reliable death judgments. (/d. at pp. 524-527.) Similarly, this Court has held that a defendant’s request forthe death penalty does not, in and ofitself, necessarily render an ensuing death judgmentunreliable. (AOB 261-265, 351.) For instance, in Peoplev. Guzman (1988) 45 Cal.3d 915, the defendant’s testimony that he preferred the “mercy” of the death penalty over a “cruel and inhumane”sentenceof life in prison without the possibility of parole did not renderthe resulting death verdict unreliable where prosecution did not rely on that testimonyas a basis for a death verdict, the defendantalso testified to substantial mitigating evidence, and defense counsel presented closing argumentfor the defendant’s life relying on that mitigating evidence. (Jd. at pp. 959-960, 962-963.) Otherwise, this Court has recognized that these factors combined together (People v. Deere, supra, 41 Cal.3d at pp. 361, 364; Peoplev. Burgener (1986) 41 Cal.3d 505, 541-543) or with other factors (AOB 346- 347, 351-352) may violate the state’s independentinterests in fair and reliable capital proceedings. For instance, whenthe defendant enters an unconditional plea to a capital offense for reasons other than to achieve some benefit for his defense (People v. Chadd, supra, 28 Cal.3d at p. 753; People v. Alfaro, supra, 41 Cal.4th at pp. 1300-1302); defense counsel presents no opening statement, challengeto the state’s aggravating evidence, no mitigating evidence, and no closing argumentat the penalty phase (People v. Snow (2003) 30 Cal.4th 43, 122-123); the penalty jury hears the defendant’s request for a death verdict (People v. Williams (1988) 44 Cal.3d 1127, 1152; People v. Sanders, supra, 51 Cal.3d at pp. 524-527); and the 213 jury hears “misleading argument”or is given “misleading instructions” (People v. Sanders, supra, 51 Cal.3d at p. 526, fn. 23). All of these factors appear in this case. Mr. Mai entered an unconditional plea to capital murder and concededhis death eligibility in order to receive that verdict or for reasons other than seeking tactical benefit at penalty (ArgumentsI, III, and IV, ante, AOB ArgumentsI, III, and IV.) At penalty, defense counsel presented no opening statement, no meaningful challenge to the state’s aggravating evidence, no mitigating evidence, and no closing argument. (ArgumentI, ante; AOB ArgumentI.) Thejurorsdid notsit at the guilt phase and hence heard no other evidence they could consider in mitigation. (Compare People v. Sanders, supra, 51 Cal.3d at pp. 524-527.) The lack of any defense combined with Mr. Mai’s explicit testimony ““amount[ed] to an admission that he believed death was the appropriate penalty.” (/bid.; Argument V, ante; AOB Arguments V, VIII.) And the jurors heard “misleading argument” and were given “misleading instructions”: (1) the prosecutor improperly urged the jurors to base their death verdict on Mr. Mai’s testimony that death wasthe 9 In Snow, supra, this Court emphasizedthat“it is difficult to imagine how a penalty phase in which counsel present no mitigating evidence,call no witnesses, refrain from cross-examining the prosecution’s witnesses, and make no argumentto the jury on the defendant’s behalf, could ever producea reliable penalty verdict...” (People v. Snow, supra, 30 Cal.4th at pp. 109-111, 122-123.) However, because the appellantin Snow had only challenged the objective reasonableness of his counsel’s failure to present penalty phase argumentonhis behalf and not the broader question of whether such a proceedingis constitutionally unreliable as a matter of law, this Court did not resolve that question. (Ibid.) Of course, that question is squarely presented to this Court in this case. 6° Indeed, the jurors were not even informed that Mr. Mai had been convicted upon his plea. (AOB 350 & fn. 107.) 214 appropriate penalty (Arguments I-G-3 and V, ante; AOB Arguments I-F-3- c, V-D & V-E, and VIII); the trial court’s admission and defense counsel’s affirmative presentation of that testimony as the “only defense evidence” created the misleading impression that it was relevant evidence that the jurors could weigh in favor of death (Argument V, ante; AOB Argument V- E & VIII); and the court’s misleading instructions only confirmed that impression (ibid). Forall of these reasons, Mr. Mai’s capital murdertrial subverted society’s independentinterestsin the fairness and reliability of its capital proceedings and failed to produce a death verdict reflecting a highly reliable determination that Mr. Mai wasnotonly eligible for the death penalty but also bereft of any value as a human being deserving of mercy. As such, the trial and death eligibility and death verdicts it produced violated state law and the Eighth and the Fourteenth Amendments even if — as respondent insists — Mr. Mai’s desire to obtain a death verdict was a competent one under the Fourteenth Amendmentandhis counsel’s decision to acquiesce was a objectively reasonable one under the Sixth Amendment. As Mr. Mai had no right to waive the state’s independentinterests in the fairness and reliability of its capital proceedings or to “compel the people of the State of California to use their resourcesto take his life” (People v. Deere, supra, 41 Cal.3d at p. 362), the death eligibility finding and death judgment must be reversed. (AOB 332-3572.) // // 215 IX CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT MR. MAPS TRIAL, VIOLATES THE UNITED STATES CONSTITUTION In his opening brief, Mr. Mai argued that manyfeatures of California’s capital-sentencing scheme, both on their face and as applied in this case, violate the United States Constitution and international law. (AOB 353-365.) Respondent disagrees. (RB 87-89.) Mr. Mai considers this issue to be fully joined by the briefs on file with this Court. Forall of the reasons set forth in the opening brief, Mr. Mai’s death judgment violates international law and the federal Constitution and mustbe reversed. | I HI 216 CONCLUSION For the foregoing reasons, as well as those stated in Mr. Mai’s openingbrief, the judgment mustbe reversed. DATED: June 28, 2012 Respectfully submitted, MICHAEL J. HERSEK StatePublicDefender ay os, ma Senior Deputy State Public Defender Attorneys for Appellant 217 CERTIFICATE OF COUNSEL Cal. Rules of Court, rule 8.630 I, C. Delaine Renard, am the Senior Deputy State Public Defender assigned to represent appellant, Hung Thanh Mai,in this automatic appeal. On May 2, 2012, this Court granted my motionto file appellant’s reply brief in excess of the 47,600-wordlimit specified in Rule 8.630, subd. (b)(1)(C) of the California Rules of Court (up to 64,000 words). I have conducted a word countofthis brief using our office’s computer software. On the basis of that computer-generated word count, I certifythatthis,brief is 63,007 a wordsin length. C. DELAINERENARD Attorney for Appellant DECLARATION OF SERVICE Re: People v. Hung Thanh Mai Cal. Supreme Ct. No. S089478 Orange Co. Superior Ct. No. 96NF1961 I, Randy Pagaduan,declare that I am over 18 years of age, and nota party to the within cause; my business addressis 1111 Broadway, 10" Floor, Oakland, California, 94607, that I served a true copy ofthe attached: APPELLANT’S REPLY 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 Orange County Superior Court Clerk of the Court P. O. Box 22024 Hung Thanh Mai 700 Civic Center Dr. W. Dept. C-45 Reg # 09481-112 Santa Ana, CA 92702-2024 P.O. Box 8500 Florence, CO 81226-8500 Verna Wefald Attorney at Law 65 N. Raymond Ave., # 320 Pasadena, CA 91103 Each said envelope was then, on June 28, 2012, sealed and deposited in the United States Mail at Alameda, California, the county in which I am employed, with the postage thereon fully prepaid. I declare under penalty of perjury that the foregoing is true and correct. Executed on June 28, 2012, at Oakland, California. 0) DEC NT