PEOPLE v. DELGADO (ANTHONY GILBERT)

Appellant’s Reply Brief

Cal.March 30, 2014

SUPREME COURT COPY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA Case No. S089609 Plaintiff and Respondent, vs. Kings County Superior Court No. 99CM733 ANTHONY GILBERT DELGADO Defendant and Appellant C ODY APPELLANT’S REPLY BRIEF Automatic Appeal from the Judgmentof the Superior Court of the State of California for the County of Kings SUPREME COURT HONORABLE JUDGE PETER M. SCHULTZ _ MAR 20.2014 MICHAEL J. HERSEK State Public Defender Frank A. McGuire Clerk JOLIE LIPSIG Deputy Senior Deputy State Public Defender Cal. State Bar No. 104644 lipsig@ospd.ca.gov 770 L Street, Suite 1000 Sacramento, CA 95814-3518 Telephone (916) 322-2676 Fax (916) 327-0459 Attorneys for Appellant TABLE OF CONTENTS Page INTRODUCTION ...... ccc cece cece cece cee e eee e scene eeeeees 1 I, THE JUDICIAL “EXTENSION” OF THE ATTORNEY- CLIENT PRIVILEGE TO INCLUDE STATE CORRECTIONAL OFFICERS PRIOR TO THE APPOINTMENT OF COUNSEL, OUTSIDE APPELLANT’S PRESENCE AND WITHOUTHIS CONSENT, VIOLATED APPELLANT’S RIGHT TO COUNSEL, HIS RIGHT TO BE PRESENT AT ALL CRITICAL STAGES OF THE PROCEEDINGSAND AT TRIAL, AND REQUIRES REVERSAL ...... ccc cece cern cece cere eect eeeteneereeee 3 A. Introduction ....... ccc ccc cect cere ects eee eeeece 3 B. The Record Does Not Establish that Prospective Counsel Requested or Desired the Presence of Corcoran Correctional Officers During Attorney-client Conferences ........ 2 ee cece ecaeeees 7 C. Appellant Did Not Waive or Forfeit His Claim that His State or Federal Constitutional Right to Counsel Was Violated by the Presence of Correctional Officers During Attorney-client Conferences .........-eeeceeeeseees 13 1. This Court Cannot Infer from a Silent Record that Appellant Was Informed of and Agreed to the Presence of Prison Guardsat His Meetings with Counsel or the Purported Extension of the Attorney-client Privilege, nor that He Waived His Right to Confidential Communications with Counsel .............-- 14 2. Appellant Did Not Forfeit His Right to Appellate Review of his Claims ..............-. 15 a. Respondent’s ArgumentRelies on Unreasonable and IIlogical Inferences .... 15 TABLE OF CONTENTS Page b. Appellant’s Right to Counsel Was Not Forfeited by His Failure to Object ....... 17 Appellant’s Right to Counsel Was Violated When the Court Authorized a Stipulation Between the Prosecutor and Prospective Counsel Eliminating Confidential Attorney-client Communications Without Appellant’s Knowledge or Consent, Whether or Not There Was Intentional Governmental Interference.............. 19 The Presence of Prison Guardsat All Attorney-client Conferences Violated Appellant’s Right to Counsel Whetheror Not the Guards Actually Disclosed Appellant’s Communications to the Prosecution ...... 24 The Record Does Not Show that the Presence of Prison Guardsat All Attorney-client Conferences WasReasonably Necessary for the Transmission of Information to Trial Counsel, nor that Appellant Was Aware that Their Presence Was Reasonably Necessary ........cceececec ere eecenens 26 Appellant’s Sixth Amendment Rights Were Violated and Structural Error Occurred When the Court Authorized the Presence of Prison Guardsat All Attorney-client Conferences ..........ce eee eseennes 28 Appellant’s State Constitutional Right to Counsel Was Violated When the Court Authorized the Presence of Prison Guardsat All Attorney-client Conferences Resulting in a Miscarriage of Justice ...........0000. 41 Appellant’s Due Process and Statutory Rights to Be Present Were Violated by His Exclusion from the Conference Where the Court Authorized the Denial of His Right to Private Attorney-client Communications ..... 43 ii I. ql. IV. TABLE OF CONTENTS Page J. TheViolation of Appellant’s Right to Be Present Requires Reversal .........ccscceccececnceeeceess 44 K. Appellant is Not Estopped from Asserting that the Court Acted in Excess of Jurisdiction by Authorizing the Stipulation Regarding the Extension of the Attorney-client Privilege ...........c0ceeeeeeeeeees 46 L. Appointment of an Attorney with Whom Appellant Would Not be Able to Confer Privately Violated Appellant’s Right to Counsel .........-0eeseeseeees 50 M. The Record Clearly Establishes that During the Trial, Appellant Was Surrounded by Uniformed Prison Guards Who Prevented Him from Communicating Privately with Coumsel ..........cseececceccecees 50 N. Conclusion .......cccccvccccccccccccccscessceses 52 APPELLANT’S MURDER CONVICTIONS ARE LESSER INCLUDED OFFENSESOF HIS CONVICTIONS FOR MURDERBYA LIFE PRISONER, AND THUS MUST BE REVERSED ....... ccc ccc c ener e cece en eerteeseeees 54 THE LYING-IN-WAIT SPECIAL CIRCUMSTANCE IS UNCONSTITUTIONAL BECAUSEIT FAILS TO PERFORM THE NARROWINGFUNCTION REQUIRED BY THE EIGHTH AMENDMENTANDFAILS TO ENSURE THAT THERE IS A MEANINGFULBASIS FOR DISTINGUISHING THOSE CASES IN WHICH THE DEATH PENALTYIS IMPOSED FROM THOSEIN WHICHIT IS NOT 2... ccc ccc ccc cece cree e eee enees 37 GUILT PHASE AND PENALTY PHASE INSTRUCTIONS UNDERMINED THE REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBT, REQUIRING REVERSAL OF APPELLANT’S CONVICTIONS AND DEATH SENTENCES........ ccc eee cece ete erent eenes 59 ili TABLE OF CONTENTS Page THE TRIAL COURT ERRONEOUSLY ADMITTED AND ERRONEOUSLY INSTRUCTED ON EVIDENCE PRESENTED IN AGGRAVATION PURSUANT TO PENAL CODE SECTION190.3 SUBDIVISION (b) AND THE EVIDENCE WASINSUFFICIENT FOR ANY JUROR TO FIND THAT APPELLANT COMMITTED THE UNCHARGED CRIMES OF FORCE OR VIOLENCE BEYOND A REASONABLE DOUBT........ ee eee eeeaeee 60 A. Appellant Did Not Forfeit His Claims that Evidence of Unadjudicated Offenses at the Penalty Phase Was Improperly Admitted, and/or WasInsufficient to Establish the Elements-of the Uncharged Crimes ..... 60 1. There is No Rationale for Requiring an Objection to the Sufficiency of Factor (b) Evidence ......... 0. cece weer cence eeeee 60 2. The Forfeiture Rule Does Not Apply to Issues the Trial Court Addressed and Rejected Sua Sponte ........ 0c eee e en eeees 68 B. The Trial Court Erred in Admitting Evidence Regarding the March 8, 1997, Extraction at High Desert State Prison ........ 0. cc eee eee eee eeees 69 C. The Trial Court Erred in Admitting Evidence Regarding the April 18, 2000, Incident at Corcoran State Prisom ........ cc cece ccc ceareccecccnccrees 70 D. The Admission of Evidence Regarding the March8, 1997, and the April 18, 2000, Incidents Violated the Federal Constitution .................. 71 iv TABLE OF CONTENTS Page Evidence Presented in Aggravation Pursuant to Penal CodeSection 190.3 Subdivision (b) Was Insufficient to Establish that Appellant Committed Uncharged Crimesof Force or Violence Beyond a Reasonable Doubt ...........cccccccncncrcccecece 72 1. The Evidence WasInsufficient to Establish That Appellant Committed an Assault When He Attempted to Exit His Cell on March 8, 1997 ... 72 The Evidence WasInsufficient to Establish that Appellant Committed a Battery on March 12, 1997, at High Desert State Prison .... 74 The Evidence WasInsufficient to Establish that Appellant Committed an Assault or Battery on March 12-13, 1997, at High Desert State Prison . 77 The Evidence WasInsufficient to Show that Appellant Committed an Uncharged Act of Possession of a Weaponor Assault at Corcoran State Prison on November 13,1999 ........... 78 The Evidence WasInsufficient to Show that Appellant Committed an Uncharged Act of Violence at Corcoran State Prison on March 29, 2000 0... . cc ccc ccc cee eee eeeee 79 The Evidence WasInsufficient to Show that Appellant Committed an Uncharged Act of Violence at Corcoran State Prison on | April 15, 2000 2.0... ccc cece cece een ee eees 80 The Evidence WasInsufficient to Establish that Appellant Committed a Battery on April 18, 2000, at Corcoran State Prison ....... cece eee e wee ern ec erences 81 TABLE OF CONTENTS Page F. The Instructions Erroneously Directed the Jury to Find that Appellant’s Unadjudicated Other Crimes Involved the Use or Threat of Force or Violence and Were Incomplete and Misleading ............-.-08- 83 G. Admission and Reliance on Evidence of the Unadjudicated Crimes at the Penalty Phase Requires the Reversal of Appellant’s Death Sentences .......... cece cece eee ncceceecens 84 CONCLUSION 2... cc cece ccc ce cence ccc e cee eeeneee proccss 86 . CERTIFICATE OF COUNSEL ....... ccc cece cece eect ee eneans 87 vi TABLE OF AUTHORITIES Page(s) FEDERAL CASES Arizona v. Fulminante (1991) 499 U.S.279 2.ccccee e nee nenes 45 Brooks v. Tennessee (1972) 406 U.S. 605 0...ccceee teen ene 22 Carnley v. Cochran (1962) 369 U.S, 506 0.ccccette eee en eeas 14 Chapmanv. California (1967) 386 U.S. 18 2...ceceete e ence ee eeee 85 Cuyler v. Sullivan (1980) 446 U.S. 335 2.cccence e eens 21, 30 Furman v. Georgia (1972) 408 U.S. 238 0...ceeeee een eens 57 Geders v. United States (1976) 425 U.S. 80 0...cecetenes 21, 22, 33 Godfrey v. Georgia (1980) 446 U.S. 420 0.ccerect eens 57 Johnson v. Zerbst (1938) 304 U.S. 4580.ceetenn nnn eens 14 Kennedy v. Louisiana (2008) 554 U.S. 407 00.ccc cence tenet nee 56 Kentucky v. Stincer (1987) 482 U.S. 730 0...centeen t nee enes 43 Mickens v. Taylor (2002) 535 U.S. 162 0.cccteeters 32 vii TABLE OF AUTHORITIES Page(s) Powell v. Alabama (1932) 287 U.S.45oceeeent ees 6, 21 Rushen v. Spain (1983) 464 U.S. 1142ceeene45 United States v. Cronic (1984) 466 U.S 468 0...centeens 31 United States v. Olano (1993) 507 U.S. 7252.eeeeeete eee 13 Von Moltke v. Gillie (1948) 332 U.S. 7080.eeeteens 30 Weatherford v. Bursey (1977) 429 U.S. 545 2.eeetees 36, 37, 39 Woodsonv. North Carolina (1976) 428 U.S. 280 6... eeeceeeee nee 67 STATE CASES Barber v. Municipal Court (1979) 24 Cal.3d 742 2.0... cee cere e34, 41 City of Ukiah v. Fones | (1966) 64 Cal.2d 104 2...eeeeee ees 14 County ofLos Angeles v. Legg (1936) 5 Cal.2d 349 20.ccceee ee etnies 56 County ofSan Diego v. Gorham (2010) 186 CalApp.4th 1215 2...eceeeeens 49 Cowan v. Superior Court (1996) 14 Cal.4th 367 2.ceeee eens 13 Vill TABLE OF AUTHORITIES Page(s) Ex parte Rider (1920) 50 Cal.App. 797 2.0... ccc ccc ee eee teen ee eees 47 In re Andres G. (1998) 64 Cal.App.4th 476 2...ceeee tenes 47 In re Clark (1993) 5 Cal.4th 750 2...cece eee teenies 71 In re Johnson (1965) 62 Cal.2d 325 2...ceceteenies 14 In re Johnson (1992) 1 Cal4th 689 2...ccceee eee eens 20 In re Jordan (1972) 7 Cal.3d 930 2...ceeeee eet e een eees 34 Inre Sheena K. (2007) 40 Cal.4th 875 2...ecee eee eee eens 71 In re Troy Z. (1992) 3 Cal.4th 1170 2... eeeccc cee nee eet eee 61 Jones v. Brown (1970) 13 Cal.App.3d 513 2...cece eee eens 14 Kramerv. Municipal Court (1975) 49 Cal.App 3d 418. 2.ceceeee teens 56 NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178 oo.ceee e ee 46 People v. Ahmed (2011) 53 Cal.4th 156 2.eceee eee ee ene 55 ix TABLE OF AUTHORITIES Page(s) People v. Alexander (2010) 49 Cal.4th 846 2...cccee eae 36, 37 People v. Beardslee (1991) 53 Cal.3d 68 2.0...eeeeens 64 People v. Boyd (1985) 38 Cal.3d 762 2...cececcc teens 61 People v. Brown (1988) 46 Cal.3d 432 2.ccceee ene n eee 85 People v. Butler (2003) 31 Cal4th 1119 2.ece en eee 61 People v. Butler (2009) 46 Cal.4th 847 2...ccccee ee enn 80 People v. Carpenter (1999) 21 Cal.4th 1016 20...ceeee eens 63 People v. Carrera (1989) 49 Cal.3d 291 2.ceeeee tenes 62 People v. Chance (2008) 44 Cal.4th 1164 22...eceee eens 79 People v. Chatmon (2005) 129 Cal.App.4th 771 2...eeeene 49 People v. Davis (1968) 68 Cal.2d 481...ece ee neneeene 56 People v. Davis (2005) 36 Cal.4th 510 2.cecece ene eee 43 TABLE OF AUTHORITIES Page(s) People v. Dunkle (2005) 36 Cal.4th 861cccccctenes 83, 84 People v. Ervine (2009) 47 Cal.4th 745 occte eee teens 38, 40 People v. Felix (2000) 22 Cal.4th 651 oececetenes 55 People v. Gibson (1994) 27 Cal.App.4th 1466 0... cece eee ee eens 67 People v. Gonzales (2012) 54 Cal.4th 1234 2...cccette 43 People v. Guiton (1993) 4 Cal.4th 1116 2.ceceeee eee eee eee 66 People v. Gutierrez (2002) 28 Cal.4th 1083 21...cece eee ee eee eee 58 People v. Hernandez (1988) 46 Cal.3d 194 2.oeccccee teens 55 People v. Hernandez (2012) 53 Cal.4th 1095 oo.ccceee ee eee 30, 31, 32 People v. Hill (1992) 3 Cal.4th 959 oooeeeeee eens 2 People v. Hill (1998) 17 Cal.4th 800 2...ccee teen ee 69 People v. Horton (1995) 11 Cal.4th 1068 2...cete cee ees 67 xi TABLE OF AUTHORITIES Page(s) People v. Jackson (2005) 134 Cal.App.4th 929 0...eeeeens 48 People v. Lara (2010) 48 Cal4th 216 2.ceceeee eens 47 People v. Livingston (2012) 53 Cal.4th 1145 2.cceee eens 63 People v. McCullough (2013) 56 Cal.4th 589 2.cccene ens 60, 63 People v. McDowell (2012) 54 Cal.4th 395 0.ceeteens 67 People v. McKenzie (1983) 34 Cal.3d 616 2.0...ceceee ene e nee 23 People v. McNabb (1935) 3 Cah.2d 441 2...cecen eens 54 People v. Mendez (1992) 234 Cal.App.3d 1773 0... cccceeee eens 47 People v. Mendoza (1998) 18 Cal.4th 1114 2.eeeeens 76 People v. Montiel (1993) 5 Cal.4th 877 1...cc eee eee nee 61, 62, 63, 66 People v. Moore (2011) 51 Cal.4th 1104 2...ceceeee 73, 77, 82 People v. Nakahara (2003) 30 Cal.4th 705 2... ccc ccceeeteens 80 xil TABLE OF AUTHORITIES Page(s) People v. Perry (2006) 38 Cal.4th 302 2...eectteen ene 45 People v. Prettyman (1996) 14 Cal.4th 248 2.ccceens 76 People v. Rich (1988) 45 Cal.3d 1036 2...ceceeee ene 24, 25 People v. Rodriguez (1998) 17 Cal.4th 253 ooccee eens 60, 65, 66 People v. (Roger) Rodriguez (2004) 122 CalApp.4th 121) 0...eeeees 66 People v. Rundle (2008) 43 Cal.4th 76 2...eeeee ence eens 32, 37 People v. Russo . eo (2001) 25 Cal.4th 1124 2...cecee 65 People v. Saunders (1993) 5 Cal.4th 580 2...eeeeet n eens 13 People v. Shelley (1984) 156 Cal.App.3d 521 2...Lecceeens 23 People v. Smith (1950) 36 Cal.2d 444 2...eeenen eens 54 People v. Stevens (2007) 41 Cal.4th 182 2...ceeeen ens 58 People v. Superior Court (Laff) (2001) 25 Cal.4th 703 2...eceee ee eee eens 23 xiii TABLE OF AUTHORITIES Page(s) People v. Thomas (2012) 53 Cal.4th 771...ccc cee ete eee ees 80 People v. Thompson (1988) 45 Cal.3d 86 2.0...eeeee ene62 People v. Towler (1982) 31 Cal.3d 105 2...ietee ees 17, 18 People v. Tully (2012) 54 Cal.4th 952 2...ceceeee eee 65, 70 People v. Vargas (1993) 13 Cal.App.4th 1653...ceeee teen es 14 People v. Viray (2005) 134 Cal.App.4th 1186 2.0... ccceee teenies 18 People v. Welch (1993) 5 Cal.4th 228 2.0...eeetenes 68, 71 People v. Whisenhunt (2008) 44 Cal.4th 174 2...ceeeens 66 San Francisco Unified Sch. Dist. v. Johnson (1971) 3 Cal.3d 937 o.ooceteee eee eae 56 Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11ooteee eens 61 xiv Evid. Code §§ Penal Code §§ CALJIC Nos. TABLE OF AUTHORITIES Page(s) STATUTES 600 2.eee eee ete ees 15 a25, 26, 27 |54 189ceceeee eee 64 |]ORpassim 4500 occeee ee 54, 55, 56 JURY INSTRUCTIONS 2.0L LLL eee ee cee eens 59 cee eee teenies 59 2eeeee nen eee 59 227 Llc ccc ete teen enn teenies 59 2 Leeeee nets 59 B20cece eee eens 59 B87ceee eens 84 XV IN THE SUPREME COURT OF THE STATE OF CALIFORNIA ) PEOPLEOF THE STATE OF CALIFORNIA,) ) Plaintiffand Respondent, ) ) No. 8089609 V. ) ) Kings County ) Superior Court ANTHONYGILBERT DELGADO ) No. 99CM7335 ) Defendant and Appellant. ) ) APPELLANT’S REPLY BRIEF INTRODUCTION Appellant wentto trial for two capital murders and anassault,all of which occurred on prison grounds, without the opportunity to consult with counselin private before or during trial. Trial preparation, investigative leads and every defensestrategy had to be discussed with prison guards present and within earshot, or not discussedat all. The entire structure of appellant’s trial was built on this fatally weak foundation, for without confidential consultation, the right to counsel is but a hollow beam that cannot withstand constitutional scrutiny. Ignoring this gross infringement of the right to counsel andto a fair trial, respondent relies on unsupported inferences, misstatementsofthe facts, and tenuous legal arguments in an attempt to support appellant’s convictions and death sentences. In addition to this fundamental structural error, as shownin the openingbrief, the proceedings against appellant also were marredbytrial errors and constitutional defects in California’s death penalty scheme. In addressing respondent’s argumentsto these claims, appellant does not reply to contentions which already are adequately addressed in appellant’s openingbrief.' The lack of a response to any particular contention or allegation madeby respondent,orto reassert any particular point made in appellant’s opening brief, does not constitute a concession, abandonmentor waiverofthe point by appellant (see People v. Hill (1992) 3 Cal.4th 959, 995, fn. 3), but rather reflects appellant’s view that the issue has been adequately presented andthe positions ofthe parties fully joined.’ 1. For this reason, appellant does not present any reply to Argument VI of the openingbrief. 2. The following abbreviations are used throughoutthis brief: “AOB?”refers to appellant’s openingbrief; “RB”refers to respondent’s brief. Although respondent, for reasons that are entirely unclear, has substituted its own abbreviations for the transcripts, appellant continuesto use the abbreviations described andutilized in his AOB in order to maintain consistency and avoid confusion. Accordingly, “CCT”refers to the Kings County Consolidated Courts Clerk’s Transcript on appeal; “CT”refers to the Clerk’s Transcript on appeal; “SCT”refers to the Supplemental Clerk’s Transcript on appeal, and “RT”refers to the Reporter’s Transcript on appeal. 1 THE JUDICIAL “EXTENSION” OF THE ATTORNEY-CLIENT PRIVILEGE TO INCLUDE STATE CORRECTIONAL OFFICERS PRIOR TO THE APPOINTMENT OF COUNSEL, OUTSIDE APPELLANT’S PRESENCE AND WITHOUTHIS CONSENT, VIOLATED APPELLANT’S RIGHT TO COUNSEL, HIS RIGHT TO BE PRESENT AT ALL CRITICAL STAGES OF THE PROCEEDINGS AND AT TRIAL, AND REQUIRES REVERSAL A. Introduction All criminal defendants, even those charged with capital crimes, havethe right to consult privately, and in confidence, with counsel in order to effectuate their state and federal constitutional rights to a fair trial, to the assistance of counsel and to due process. Despite this, during a cursory in camera proceeding, held in appellant’s absencejust prior to arraignment andprior to the appointment of counsel, the court authorized the close presence ofprison guards at every meeting between appellant andhis future attorney. At the request of the prosecutor, and with prospective counsel’s agreement, the court ordered that the attorney-client privilege be “extended” to include prison guards employed at Corcoran Prison, wherethe alleged crimes had occurred and where appellant remained housedfor the duration of the trial. In complete disregard ofthe personal nature ofthe attorney- client privilege and the importance ofthe confidentiality of attorney-client communicationsin our adversary system,the court madethis order in appellant’s absence and without his knowledge or consent. Because counsel wasnot yet appointed, and appellant was not present, appellant had no representation and no oneto protect his interests when the court madeits order. Nonetheless, the court took no steps of its own to safeguard appellant’s rights. It did not notify appellant that the attorney-client privilege had been extendedor that specific prison guards had been ordered to keep what they heard confidential, nor did it require counselto so notify her future client. It did not inform appellant of his prospective attorney’s stipulation, nor did it ascertain whether appellant consented to the stipulation, or to the inclusion of his ownjailors on the “defense team.” After the case wastransferredto the superiorcourt, anotherjudicial officer extended the previousstipulation for the duration ofthe trial, without any inquiry into its inception, necessity, or the procedure under which it was initially obtained, and again without appellant’s consent or awarenessofits origins. . Representation by counsel would be severely impeded for any defendant facing a criminaltrial for any crime if unwelcome and unnecessary third parties were authorizedto listen in and to observeallhis pretrial meetings and trial consultations with his attorney. But the trial in this case was not just any criminaltrial, it was a capital trial. The defendant was charged with the most serious of offenses, and he faced notjust a trial to determine his guilt or innocence,butalso faced a penalty trial at which his character and personalhistory were at issue, and his very life at stake. The defendant here was notjust any defendant. He stood accused of crimes at Corcoran State Prison, including charged and uncharged crimes against Corcoran correctional officers. Corcoran Prison was not just any prison;it was a prison which had been the subject of extensive press coverage and investigation into allegationsthat its guards set up prisonersto fight each other, and then, together with their supervisors, engaged in a cover-up to protecttheir fellow guards from punishmentfor their misconduct. (See AOBat 2-4.) And, the unwelcome and unnecessary individuals who were presentduringall of appellant’s attorney-client conferences before and during trial were not just uninvolved, neutral law enforcementor security personnel, but were themselves correctional guards at Corcoran Prison. It is not only realistically possible but extremely likely that appellant was harmed bythis novel and unconstitutional arrangement amongthe prosecutor, prospective defense counsel and the court. The crimes charged all occurred at Corcoran State Prison, and involved or implicated the 3. Respondentconcedesthat the effect of the stipulation was to make prison guards “part of the defense team... .” (RB at 41.) 4 behaviorof correctional officers. One of the victims, Eric Mares, was himself a Corcoran correctional employee. Even more troublingis that 16 of the 19 guilt phase witnesses were employed at Corcoran,‘ andall 16 of the witnesses the prosecution called in its case in chief at the penalty phase were correctional officers, 12 ofwhom were officers at Corcoran.’ The remaining prosecution penalty phase witnesses were correctional officers and sergeants at other California state prisons.° The close presence of correctional officers who worked under or with the prosecution witnesses, and who were governed by the same chain of command, wasaschilling to appellant’s exercise of his right to counsel as ifan actual wall of ice had been placed betweenattorneyandclient. Underthese unique circumstances, the court’s endorsement and enforcement of this ongoing intrusion into the attorney-clientrelationship, without appellant’s knowledge or consent, turned the criminal proceedings into a non-adversarial travesty ofjustice. Respondentraises multiple arguments in an attempt to uphold 4. Fifteen guilt phase witness worked at Corcoran as correctional officers, (Williams, 3RT 511; Carmona, 3RT 526; Montgomery, 3RT 561; Carrell, 3RT 602; Hernandez, 3RT 615; Sexton, 3RT 690; Uyeg, 4RT 735; Vasquez, 4RT 736; Castaneda, 4RT 758; Kee, 4RT 769; Mares, 4RT 782, Alaniz, 4RT 823; Phillips, 4RT 857; Ortega, 4RT 868, Todd, 4RT 876), and another witness (Lemos, RT 915-917) was employed there as a medical technician but had also beentrained as a correctional officer. At least three of the Corcoran officers whotestified were sergeants (Montgomery, 3RT 561; Sexton, 3RT 690; Phillips, 4RT 857), and thus held a higher rank than the officers who monitored appellant’s meetings with his attorney. 5. (Tovar, 6RT 1292; Espinoza, 6RT 1316; Ny, 6RT 1335; White, 6RT 1339; Boyer, 6RT 1364; Henderson, 6RT 1382, Butts, 7RT 1390; Pearson, 7RT 1414; Mascarenas, 7RT 1437; McClaren, 7RT 1452; Gatto, 7TRT 1458; Ortega, 7RT 1488.) Two of the Corcoran penalty phase witnessesheld the rank of lieutenant (Pearson, 7RT 1414; Gatto, 7RT 1458), and three were sergeants. (White, 6RT 1339; Boyer, 6RT 1364, McClaren, 7RT 1452.) 6. (Dewall, 6RT 1216; Valko, 6RT 1261; Schmidt, 6RT 1268; Baires, 6RT 1284.) appellant’s convictions and sentences, each of which will be addressed and refuted in detail below. But there is one point that respondent completely overlooks — the duty ofthe court to protect the rights of the accused by assuringthat his interests are adequately represented at every step of the criminal proceedings. As the United States Supreme Court established nearly 80 years ago in Powell v. Alabama,it is the court’s obligation to see that criminal defendants “are denied no necessary incidentofa fair trial.” (Powell v. Alabama (1932) 287 U.S. 45, 52.) The right to communicate freely and in confidence with a competent legal representative is a basic, and possibly the most important, aspectofthe right to counsel andthusis “a necessary incident”ofa fair trial and due process. Nonetheless, the court deprived appellant ofthis right without any notice, process, or an opportunity to be heard. The court madeits order in appellant’s absence and without the presence ofa legal representative loyal to appellant’s interests. The court did not require any showingthat appellant actually posed a threat to his attorneyand no such showing wasput on the record. But even assuming appellant did pose such a threat, the court did not consider any of the obvious, less onerous ways of assuring counsel’s safety.’ It did not consider the impact of the presence of Corcoran guards on appellant’s relationship with counselor on his ability to speak candidly about the offenses with which he was charged or abouthis life and prison history. The court did not advise or inform appellant that the guards were ordered not to disclose what they heard, nordid it require anyoneelse to do so, and even sealed the transcript of the in camera proceeding. There is nothing on 7. Someless chilling arrangements that could have protected counsel, if necessary, included handcuffing or shackling appellant, arranging for conferences to be conducted behind glass or in a room where security personnel could visibly observe appellant but not hear attorney- client communications, requiring the guards to wear earplugs, and/or using personnel unconnected to Corcoran State Prison. These alternatives could haveprotected counsel from any possible harm, without eliminating appellant’s right to communicate confidentially with his attorney. 6 the record to show that the court attempted to safeguard, balance or protect appellant’s state and federal rights to counselor his right to be present at critical proceedings. Underthese circumstances, respondent’s contention that there was no state interference with the right to counsel is unavailing. Similarly, respondent’s contentions that appellant “waived”his right to confidential communications with his attorney because he failed to object or voice displeasure with counsel’s stipulation or the court’s order have no basis in law orin principles of due process. A rule that a defendant must voice objections to the outcomeof a proceeding of which he was unaware,to the stipulation of an attorney who wasneverrequired to discuss it with him, and/or to an order of the court of which he was not informed, cannot withstand the mandates of fairness andjustice. B. The Record Does Not Establish that Prospective Counsel Requested or Desired the Presence of Corcoran Correctional Officers During Attorney-client Conferences Virtually all of respondent’s arguments are constructed on a faulty legal premise — that the right to counsel cannot be violated where the attorney in question “requested” the conditions leading to the constitutional violation herself. However, whether it was prospective counselor the prosecutor who requested the presence of prison guards during counsel’s meetings with appellant, it was the court that authorized the arrangement and purported to sanction an extension ofthe attorney-client privilege without appellant’s presence, knowledge or consent. It was the court that sealed the proceedings to keep them secret. Followingthis, the court appointed counsel without assuring appellant was aware of the arrangement it had previously authorized, let alone that appellant consentedto it. Thus, whetheror not it was prospective appointed counsel Donna Tarter’s desire to be accompanied by Corcoran guards, the record does not show that appellant was awareofthat desire, that he shared or acquiescedinit, nor that he was informed ofthe court’s order. It was the court that had the ultimate duty to protect appellant’s right to counsel, and the court that allowed the evisceration ofthat right. Ignoring these principles entirely, throughout its arguments respondentinsists, in contradiction to the record, that attorney Tarter initiated, desired, and/or requested herself that correctional officers be presentatall attorney-client meetings.’ It then relies on this misleading characterization of the record in each of its arguments to appellant’s claims and subclaims, in an attempt to divert from the serious constitutional violations that underminedthe entire frameworkofthe trial.’ 8. See, e.g., RB at 27 [“Tarter indicated her desire,” the court accepted “her request,” appellant did not object to “Tarter’s desire”]; RB at 28 [“‘Tarter wanted the officers present for her protection”]; RB at 29 (““Tarter requested the officers’ presence”); RB at 30 [“Tarter desired the officers’ presence for her protection”]; RB at 31[‘Tarter’s desire to have the officers accompany her”]; RB at 38 [“Tarter requested the officers’ presence for her protection”; “the court, accepting Tarter’s desire”]; RB at 39 [“Tarter requested the officers’ presence”); RB at 41 [““Tarter requested the officers’ presence”’]; RB at 45 [“Tarter requested that the officers accompany her to meetings with appellant’”]; RB at 46 [“Tarter requested that the officers accompanyher to her conferences with appellant”); RB at 47 [the hearing where Tarter indicated her desire to have officers accompanyher to conferences with appellant”]; RB at 48 [“Tarter’s desire to have the officers present”]; RB at 50 [appellant knew that “Tarter desired officers to accompany her while in appellant’s presence”]; RB at 51 (“Tarter’s desire to have officers accompany her”); and RB at 53 [“the court’s acceptance ofTarter’s request”; “Tarter desired to have officers accompany her”; “appellant had knowledge of Tarter’s request”]. 9. See e.g., RB at 28, 38, 51 [arguing that appellant waivedhis right to challengethe violation ofhis rights on appeal because he never objected to counsel’s “desire,” that because the court merely accepted “Tarter’s desire”for the officers’ presence, there was no “governmentinterference” with the right to counsel, and that because appellant accepted Tarter’s appointment, the record does not show that he did not agree with Tarter’s “desire”]; RB at 29 [arguing that because Tarter requested the officers’ presence, this Court can infer from the silent record that she explained to her future client why the officers were with her]; RB at 30 [arguing that the extension of the attorney-client privilege without appellant’s knowledge or informed and express consent was valid because “Tarter desired the officers’ presence for her protection” and that that desire alone “made the officers, in essence, a part of the defense team”]; RB at 41 [arguingthat there was no harm to appellant or benefit to the prosecution because, in part, Tarter requestedthe officers’ presence]; RB at 45, 46 [arguing that (continued...) Appellant was denied the right to counsel, to be present, and to due process when the court, at a proceeding from which appellant was absent and at which he had nolegal representative, authorized prison guards from the prison where the crimes occurredto be presentat pretrial andtrial attorney-client meetings. Nonetheless, because respondent apparently considers Tarter’s asserted “desire” and “request” critical to so manyofits arguments, appellant is compelled to set the record straight and to dispel any harm from respondent’s inclusion and repetition of misleading factual statements into the record. Appellant therefore sets forth the entirety of the transcript of the critical in camera court hearing: THE COURT: On the record. What case are wetalking about? MR. GULARTE:People versus Anthony Delgado, Judge. THE COURT: What’s the Case Number? It’s in court, see, I’m in chambersat this point in time. We’ll put the court number on whateveritis. MR. GULARTE: Okay. THE COURT: Will you, please. MR. GULARTE: Present in chambers, representing the People, Chris Gularte, Shane Burns; andfor the defendant, whoweanticipate to be appointed, Donna Tarter. Also present is Correctional Officers Martinez and Correctional Officer Kaszap from Corcoran State Prison. THE COURT: Andthere’s -- okay. MR. BURNS: Investigator Rick Bellar from the D.A.’s office. THE COURT: I knew we were missing someone. MR. GULARTE:Giventhe nature of the case and the person we’re dealing with, Mr. Delgadois, in our belief, very, very, 9. (...continued) appellant cannot show there wasanintrusion into the attorney-client relationship because any intrusion wasat Tarter’s request and that there was no structural error because Tarter’s “desire” did not amountto the denial of counsel]; RB at 52 [arguing that because appellant must have had knowledge of Tarter’s “request” and didn’t complain about it, he is now “estopped” from challenging the court’s jurisdiction]. 9 very dangerous. He’s already killed two individuals and we believe he’s going to kill another person. In order to protect his attorney, we are willing to stipulate that the attorney/client privilege will extend to the transport officers whoare present with Donna Tarter. In the future we’re going to have two specific officers assigned to the case from then on. They’re not present today, but for today’s purposes I would like to have Officer Kaszap and Officer Martinez admonishedas to whatthe attorney/client privilege is. I’ve already spoken to them in private, so has Donna, we’ve told them not to disclose any of the communications they hear while they’re in the room with Miss Tarter and herclient, and that to do so would be a violation of a court orderif the Court were to so order that. That’s what we’re seeking. MS. TARTER: And I’m in agreement with that order. THE COURT: Youare in agreementwith that order? MS. TARTER:Yes. THE COURT:All right. Mr. Martinez and Mr. Kaszap? OFFICER MARTINEZ: Yes,sir? THE COURT: Youare ordered anything that you might casually overhear-- hopefully you won’t, but if you do overhear anything, communications between the attorney, Miss Tarter, and herclient, it’s absolutely confidential and the attorney/client privilege will -- based on stipulation, will apply to that and cannot be used for any purposes whatsoever. OFFICER MARTINEZ: Yes,sir. OFFICER KASZAP:Yes,sir. THE COURT:Not even an impeachmentpurpose or anythingelse. MR. BURNS: Can’t even be disclosed. THE COURT:It cannot be disclosed to anyone. OFFICER MARTINEZ: Yes,sir. THE COURT: Youjust forget it, don’t even put a report down. OFFICER MARTINEZ: Yes,sir. MR. GULARTE: Your Honor,just to clarify, it won’t be a casual overhearing, they’re going to be present in the room at all times. THE COURT: Well, I’m extending it all the way to casual. 10 MR. GULARTE:Okay. MS. TARTER: Myother requestis that this transcript be sealed so that the press does not, or the public, have access to it. THE COURT: Any objection? MR. GULARTE:Noobjection. THE COURT: So ordered. Opened only under court order. MS. TARTER: Now I need to go speak with Mr. Delgado. (8/6/99 CCT 15-21.) Asthe abovetranscript shows, the in camera proceeding was initiated and conducted by the prosecutors, not Tarter. Tarter never said she was requesting the officers’ presence nor, significantly, that she felt any need for protection from her future client. Indeed, the record reflects thatit wasnot Tarter, but Deputy District Attorney Gularte who asserted that Tarter needed “protection,” based solely on the prosecution’s belief that appellant was “very, very, very dangerous.” The court made noinquiry into the basis for the prosecutor’s assertions, or into Tarter’s own concerns,if any, for her personal safety. The timing of the conference, as well as the presence andthe role of the prosecutors belies respondent’s contentions regarding Tarter’s desire for protection. The conference occurred prior to Tarter’s appointment as appellant’s trial counsel, i.e. at a time when Tarter would have had no access to any information about the case other than what the prosecutor chose totell her.’ She had not yet met appellant and therefore had no independent knowledge of him. Even assuming, without conceding,that Tarter felt the need for protection from her future client, it was a matter betweenher andthe court, and not between the court and the prosecutor, or even between Tarter and the prosecutor. The prosecutor’s presence wasnot necessary to “extend”the attorney-client privilege, nor did the prosecutor need to be present to request that the transport officers be admonished. And 10. During record settlement proceedings, the parties stipulated that there were no unreported or untranscribed proceedingspriorto the in camera conference on August 6, 1999. (2nd SCT 2.) 1] yet it was the prosecutor who claimed Tarter needed protection, and who initiated and led the entire proceeding. Further, although Tarter stated her agreement with the prosecutor's request, that request wasthat the court approvea stipulation that the attorney-client privilege be extendedto the officers who transported appellant to court, and that the court specifically admonish the two officers who happenedto be presentthat day that they would violate the court’s orderif they revealed what they heard to anyone. As Gularte stated: “. . . for today’s purposes I would like to have Officer Kaszap and Officer Martinez admonishedas to what the attorney/client privilege is. I’ve already spokento them in private, so has Donna, we’ve told them not to disclose any of the communications they hear while they’re in the room with Miss Tarter and herclient, and that to do so would be a violation of a court orderif the Court were to so order that. That’s what we’re seeking.” (Id. Italics added.) Asthe transcript shows, Tarter requested only one thing herself — that the transcript of the hearing be sealed. (/d.) Thus, respondent’s contention that Tarter requested or even desired the presence of correctional officers for her ownprotection is contrary to the record. It wasthe prosecution whoproffered the arrangementto the court, the prosecution whogratuitously extended a privilege it had no right to waive or extend, and the prosecution who requested that the officers be admonished. The subsequenthearingin the trial court at which two additional officers were admonished to keep confidential anything they heard between appellant and his attorney also cannotbeattributed to any request by attorney Tarter. (1RT14-15.) The record makesclear that it was the government, through the California Departmentof Corrections, that requested that the court admonish two different correctional officers, Masters and Close, that they too were covered by the attorney-client privilege and that they were not to disclose attorney-client discussions to anyonein the CDCorthe District Attorney’s office. The prosecutor explained that the request to admonish the officers came from Masters and 12 Close’s supervisors at the CDC andnot attorney Tarter. (1RT14-15.) In fact, Tarter said nothing during this hearing. To the extent that respondent’s legal arguments depend on the factual representation that Tarter requested or desired the presence of prison guards for her own protection, these arguments must be rejected. But regardless of the desires or requests of his future attorney, the court authorized the arrangementthat stripped appellant of an essential componentofthe right to counsel, resulting in the denial of appellant’s state and federalrights. C. Appellant Did Not Waiveor Forfeit His Claim that His State or Federal Constitutional Right to Counsel Was Violated by the Presence of Correctional Officers During Attorney-client Conferences Respondentargues that appellant “waived” any claim regarding the officers’ presence becausehe failed to object and he accepted Tarter’s appointment, “knowing that officers would accompanyTarter to all conferences.” (RB at 27.) As this Court has repeatedly acknowledged, “waiver” is frequently used to describe tworelated, but distinct concepts: forfeiture or the loss of a right by failing to assert it; and waiver or the intentional relinquishment of a knownright. (Cowan v. Superior Court (1996) 14 Cal.4th 367, 371.) Forfeiture is the failure to make the timely assertion of a right, while waiveris the intentional abandonmentof a known right. (/d., citing United States v. Olano (1993) 507 U.S. 725, 733; People v. Saunders (1993) 5 Cal.4th 580, 590, fn. 6.) Respondent throughoutits brief argues that appellant “waived”his rights, without distinguishing between the two concepts of waiver and forfeiture. Nonetheless, whether respondent’s argumentis construed as oneofthe intentional relinquishment of a knownright,or as the simple forfeiture of a claim oftrial error, the record does not demonstrate that appellant either waived or forfeited the claimsat issue here. 13 1. This Court Cannot Infer from a Silent Record that Appellant WasInformed of and Agreedto the Presence of Prison Guards at His Meetings with Counsel or the Purported Extension of the Attorney-client Privilege, nor that He Waived His Right to Confidential Communications with Counsel To establish waiver here, the burden is on respondentto establish that appellant knowingly relinquished a crucial aspectofhis right to counsel, the right to consult in private. The party claiming the existence of a waiver must proveit by evidence that does not leave the matter to speculation, and doubtful cases mustbe resolved against a waiver. (City of Ukiah v. Fones (1966) 64 Cal.2d 104, 107-108.) The valid waiverof a right presupposes an actual and demonstrable knowledgeofthe very right being waived. (People v. Vargas (1993) 13 Cal.App.4th 1653, citing Jones v. Brown (1970) 13 Cal.App.3d 513.) In the context of the right to counsel, the United States Supreme Court has mandated, and this Court has duly acknowledged, that courts must“indulge every reasonable presumption against waiver of fundamental constitutional rights” and must “not presume acquiescence in the loss of fundamentalrights.” (Johnson v. Zerbst (1938) 304 U.S. 458, 464; accord, Jn re Johnson (1965) 62 Cal.2d 325, 334.) “Presuming waiver from silent record is impermissible. The record must show,or there mustbe an allegation and evidence which shows, that an accused wasoffered counsel butintelligently and understandingly rejected the offer. Anything less is not waiver.” (Carnley v. Cochran (1962) 369 U.S. 506, 515-516.) Respondent does not even attempt to meet its burden here andit could notprevail if it did. There is nothing on the record that showsthat appellant was informedofhis right to communicate confidentially with counsel, or that by accepting counsel’s appointment, he had waived the right to challenge anything that had happenedprior to that appointment, whetheror not he knew about it. No judge informed appellantthat his prospective attorney had stipulated away a crucial aspectofthe attorney- client relationship, and no judge sought his agreementin that stipulation. | 14 Critically, there is nothing on the record that establishes appellant was ever asked for his waiver or consent. Respondent has not proven that appellant waived any of his Sixth Amendmentorstate constitutional rights. 2. Appellant Did Not Forfeit His Right to Appellate Review of his Claims a. Respondent’s ArgumentRelies on Unreasonable and IIlogical Inferences Respondent, while couching its argumentsolely in the language of waiver, does not point to any facts that show an actual, knowing waiver on the record, but instead essentially argues that appellant has forfeited appellate review ofhis claims by failing to object or voice his displeasure in the trial court. In the absence of a record to prove that appellant knowingly waivedhis rights, respondentis forced to base its argumententirely on inferences, presumptions, and assumptions of what might have occurred when counsel met with her future client for the first time. Specifically, respondentasserts that the first time Tarter met appellant she “presumably” was accompanied by officers Martinez and Kazsap. From that presumedfact and “the fact that the in camera hearing had just commenced[sic],”'’ respondenturgesthat “it is a reasonable inference that Tarter explained to appellant why the officers were accompanyingher.” (RB at 27.) While appellant does not dispute that the prison guards were present when Tarter met with appellantprior to arraignment, and at every meeting thereafter, there is no basis on whichthis Court may infer anything that may or may not have been said by counsel or appellant prior to arraignment, or at any other meeting between them. An inference under California law is defined as “a deduction of fact that may logically and reasonably be drawn from anotherfact or group of facts found or otherwise established in the action.” (Evid. Code § 600, subdiv.(b).) It is not reasonable or logical to infer merely from the presenceofthe officers at Tarter’s first meeting with appellant that she explained why the officers were there or that she informed appellant that 11. The in camera hearing had just concluded. (8/6/99 CCT 21.) 15 they would be present at every subsequent meeting, and respondentdoes not further describe the logic of its reasoning or explain how it draws such a specific inference from silent record.’? The only thing that reasonably can be drawn from the record is that prospective counsel met “briefly” with . appellant prior to arraignment, that she attempted some form of communication with him, and that two prison guards were present with her at the time. But even assuming, without conceding,that future counsel provided somesort of “explanation”to herclient, the record contains no indication of what that explanation might have been. It would be unwarranted to assume that Tarter told appellant she had “requested” the arrangement whenthe record does not reflect that she made such a request. Further, the record does not indicate that Tarter was afraid of appellant or concerned for her ownprotection, and whenlater asked about the need for courtroom security, she affirmatively stated that appellant was “not going to be a problem.” (1RT 54.) It is extremely unlikely, and therefore unreasonable to infer that she would havetold her future client that “she wanted the officers present for her protection” (RB at 28), when she never even made such a representation to the court, not even in the privacy of an in camera and sealed proceeding. Further, it is not reasonableor logical to assumethat she - would have undercut her imminent appointment as counsel by informing appellant that she had requested, “desired”or stipulated to this arrangement. The record does not show,noris it logical to infer any specific details of her wholly imagined “explanation.” Nonetheless, from the unreasonable inference that Tarter provided some kind of unknown explanation to appellant in her brief pre-arraignment meeting with him, respondent concludes that (1) appellant waived his right to challenge the denialofhis right to counselby failing to object: (2) that he is estopped from challengingthe court’s jurisdiction; and (3) that he accepted Tarter’s appointment “knowing”that she had agreedto the 12. The record indicates only that Tarter “tried to talk with [appellant] briefly”prior to arraignment. (CCT 31-32.) 16 presenceofthe officers for her own protection. (See e.g., RB at 28, 38, 51, 52.) Basing such conclusions on unsupported inferences or presumptions is improper, especially where the right to counsel is involved, and any inferences that may be drawn from the silent record should not be construed against appellant. b. Appellant’s Right to Counsel Was Not Forfeited by His Failure to Object In light of the lack of any record to support respondent’s asserted inferences, this Court cannot properly find that appellant knowingly waived or forfeited his right to counsel. But even if appellant did know that his prospective attorney hadstipulated to the presence of the correctional officers, respondent’s contention that none of appellant’s arguments regarding the denial of counsel are preserved for appeal,i.e. that they are forfeited, flies in the face of the state constitution, the Sixth and Fourteenth Amendments, and the rights included therein. Respondentcites one case only for the principle that claims concerning of the denial of counsel can be forfeited by the defendant’s failure to object, People v. Towler (1982) 31 Cal.3d 105, 121-122. (RB at 27-28.) That case, however, did not address the denial of counsel but instead, addressed the propriety of reversal and dismissal of a criminal case becausethe district attorney had entered the defendant’s jail cell without a warrant and without defense counsel’s consent and had seized a numberof documents, including a “synopsis” of the defense which Towler had prepared at counsel’s request. Defense counsel raised the matter in the trial court by movingthat the court either hold the district attorney in contempt, or seize the intercepted documents. The court granted the defense motion and seized the documents, which were never introducedattrial. Thus, defense counsel did not seek suppression of the documents or dismissal as a remedyin the trial court. This Court found the claim of “prosecutorial interference with the attorney-client relationship” was waived becausethe defendant received the relief requested in the court below in the form of judicial seizure of the documents, and had soughtno further remedy in the 17 trial court. (/bid.) Thepresentcase is set apart from Tow/er for multiple reasons. First, the error here is oneofstructure, a structure that was established before appellant was even arraigned and when hehad nolegalrepresentation. Unlike Towler, appellant does not argue that the prosecutor seized a specific piece of privileged evidence and soughtto useit against him at trial, or even that appellant’s conviction was or may have been based on the introduction of such privileged informationat his trial,'’ but rather that his right to communicate with his attorney in confidence was completely eliminated, thereby impairing the very basis of the attorney-client relationship. Unlike appellant, Towler did not assert that he was deniedthe assistance of counsel. Further, counsel in Towler did object to the prosecutor’s actions and succeeded by winningthe relief requested in the trial court. What was forfeited in Towler wasthe appellant’s right to seek a remedy that had not been sought below. Respondentpoints to no other cases where this Court has refused to hear a denial of the right to counsel claim because ofthe lack of any objectionin the trial court. If, as respondentrepeatedly insists, the deprivation ofthe right to confidential communications was based on counsel’s own “desire” and accomplished at her own “request,” its waiver arguments are even more specious. Appellant’s claims cannot be waived by counsel’s failure to raise an objection to a process designed only to serve her owninterests, and not appellant’s. An appellate waiver or forfeiture cannot properly rest on the failure ofa trial attorney to challenge an orderor process that was madeat her request, and solely to protect her owninterests. (Cf. People v. Viray (2005) 134 Cal.App.4th 1186, 1215 [finding that appellant’s failure to object to an order concerningtrial attorney fees did not forfeit appellate claims regarding the order because it involved the assessmentoffees for the 13. Appellant does not concede that there were no specific violations ofthe attorney-client privilege by the prosecutorin this case, but to the extent that there were, such issues are not apparent from the appellate record and thus cannotberaised on direct appeal. 18 attorney’s ownoffice and employer].) Similarly, the proceedings and orders “as to which appellant’s attorney stood mute”here, like the issue of fees to be paid to counsel by a client, were solely for counsel’s benefit and wentdirectly against her client’s rights and interests. Counsel had a financial interest in gaining appointmentin a capital case, and herfailure to object to an arrangementthat furthered such an appointment cannotbe held against her client. And of course, counsel would not, and indeed, could not later object to something sheherself had agreedto prior to accepting appointmentas appellant’s counsel. If respondent’s argumentis that appellant himself hadto raise an objection or express displeasure with counsel prior to her appointment regarding the court authorized stipulation or the presence ofprison guards at his meetings with counsel,it has not cited any authority for those arguments. Indeed, if appellant’s personal failure to object bars consideration of the claims raised herein, then all claims of the denial of counsel would be barred on appealif not raised in some mannerin thetrial court. This Court has never held that an unrepresented individual, such as appellant was prior to Tarter’s appointment, hasto take any steps to protect his right to counsel or effective representation, nor that an individual whois represented by counsel hasa personalduty to raise an objection to counsel’s performanceinthetrial court, or risk losing all judicial review ofhis claims. Application of such principles, if ever appropriate, would be particularly unfair where,as here, the record is devoid of any suggestion that appellant was informed ofthe challenged stipulation and court order. D. Appellant’s Right to Counsel Was Violated When the Court Authorized a Stipulation Between the Prosecutor and Prospective Counsel Eliminating Confidential Attorney-client Communications Without Appellant’s Knowledge or Consent, Whether or Not There Was Intentional GovernmentalInterference Respondentargues that appellant has not established a claim of “governmental interference” with the attorney-client relationship because the court’s order authorizing the presence of prison guardsat attorney-client conferences was not made “unilaterally” and thus, was “notat the 19 government’s hands.” (RB at 28.) Respondent misconstrues both the facts and the bases of appellant’s claims. Initially, respondent relies on another misstatement of the facts, this time claiming that “the prosecutor explained to the court that . . . Tarter wantedthe officers presentfor her protection.” (RB at 28.) As the transcript of the August 6, 1999, hearing shows, the prosecutor did not “explain” to the court that Tarter wantedprison guards at her meetings with appellant for her protection, but only that the prosecutor believed generally that appellant was dangerousandthat counsel neededprotection. (8/6/99 CCT 15-21.) But whetheror not it was future appointed counsel, the prosecutor, the court or a combination ofall three who wereresponsible, through nofault of his own appellant was tried, convicted and sentenced to death withoutthe ability to consult in private with his attorney, and thus, was effectively without counsel. Respondentignores the gravamenofappellant’s claim. Because of the court’s actions and inactions, appellant was denied theright to counsel entirely, whether or not there was an intentional prosecutorial interference with his relationship with counsel. Under both the state and federal constitutions, the right to counselis absolute in the absence of an informed, voluntary waiver. Violations of the right to counsel can occur even when there was nointentional interference by the prosecutor and even where appellant’s “representative” agreedto the violation. Thus, this Court has found reversible violation of the state constitutional guarantee to the assistance of counsel where the defendant wasrepresentedat a felonytrial by an attorney whohad been suspended from the practice of law and had submitted his resignation to the state bar while disciplinary charges were pending. (In re Johnson (1992) 1 Cal.4th 689.) Theright to counsel and all subsidiary rights can be violated even where purported counselis privately retained, rather than appointed by the state court. The United States Supreme Court has madethis point abundantly clear by extending the Sixth Amendmentright to counsel and effective assistance to cases where the defendanthas retained counsel andthus, 20 whereneither the prosecutor nor the court had anyrole in selecting or appointing the chosen attorney. “The vital guarantee of the Sixth Amendmentwould standforlittle if the often uninformed decision to retain a particular lawyer could reduceor forfeit the defendant’s entitlement to constitutional protection.” (Cuyler v. Sullivan (1980) 446 U.S. 335, 345.) The Court reasonedthat, in the state trial court, it is “the State,” i.e, the government,that is responsible for the conductofthetrial. Thus, the Sixth Amendment does more than require the States to appoint counsel for indigent defendants. The right to counsel prevents the States from conductingtrials at which persons whoface incarceration must defend themselves without adequate legal assistance. .. . [T]he State’s conduct of a criminaltrial itself implicates the State in the defendant’s conviction. (Id.) To the extent respondent’s arguments depend onthe asserted lack of “governmental” interference, they ignore these long-established principles and have no merit. Appellant’s legal representation in this case wasat all times under the control of the court. Tarter was appointed by a judge whohadjust authorized the violation of appellant’s right to counsel at a proceeding orchestrated by the prosecutor, and which waskeptsecret by judicial order. Underthese circumstances, the deprivation of the right to confidential communication with counsel wasentirely at the hands of the “government,” whichincluded notjust the prosecution, but the judicial officer overseeing the proceedingsas well. The United States Supreme Court has conferred upontrial courts the final authority for ensuring that a criminal defendant receivesa fairtrial. (Powell v. Alabama, supra, 287 U.S.at p. 52 [“However guilty defendants, upon due inquiry, might prove to have been, they were, until convicted, presumed to be innocent. It was the duty of the court havingtheir cases in charge to see that they were denied no necessary incidentofa fair trial”; Geders v. United States (1976) 425 U.S.80, 87 [“If truth and fairness are not to be sacrificed, the judge must exert substantial control over the proceedings”].) 21 Indeed, in Geders, the Court foundstructural error based ona trial court order prohibiting one meeting between counsel andclient during a lengthy trial. There was no discussion in Gedersofthe lack of “governmental interference.” Instead, the Court acknowledged thatthe trial judge hadthe authority to control the proceedings, and thus, the authority to order and oversee the sequestration of witnesses duringtrial. -It found that the trial court’s application of a sequestration order to a testifying defendant that prohibited him from meeting with counsel on one occasionduringtrial violated the defendant’s constitutional rights. (/d. at p. 91.) Althoughit recognizedthat there is a legitimate purpose to be served by court orderto sequester witnesses, the Geders court noted thatthe trial court had a variety of ways to further that purpose without placing a sustained barrier to communication between the defendantand his lawyer. It held that “a judge faced with a conflict between the defendant’s right to consult with his attorney andother legitimate concerns must, under the Sixth Amendment, resolve such conflicts in favor of the right to the assistance and guidance of counsel. (Jbid., citing Brooks v. Tennessee (1972) 406 U.S. 605.) The court here did not do so. In this case, the court did not acknowledge that appellant had any rights whatsoevervis-a-vis the attorney-client privilege, let alone make any attemptto resolve the conflict between those rights and any “other legitimate concerns” in a mannerthat would favor appellant’s right to the assistance of counsel. Notably, assuming, arguendo,that there was a legitimate concern for counsel’s safety, as in Geders, there were a variety of ways to accommodate that concern without placing a sustainedbarrier to communication between appellant and his lawyer. The court could have considered moretraditional methods of security, such as handcuffing or shackling appellant when he met with counsel. It could have arranged for conferences to be conducted with appellant behind glass ora partition, or in a room where security personnel couldvisibly observe, but not hear, attorney-client communications. It could even have directed the guards to wear earplugs. Anyofthese arrangements would haveserved any need to 22 protect counsel, without impeding appellant’s right to communicate confidentially with his attorney." Thetrial judge is not simply an observerofthe trial process, but rather has the responsibility “for safeguarding both the rights of the accused and the interest of the public in the administration of criminaljustice.” (People v. Shelley (1984) 156 Cal.App.3d 521, 530.) Even when a defendant has counsel, the trial court retains “the obligation to supervise the performance of defense counsel to ensure that adequate representation is provided.” (/d. at pp. 531-532.) . The adversary nature of the proceedings doesnotrelieve the trial judge of the obligation of raising on hisorherinitiative, at all appropriate times and in an appropriate manner, matters which maysignificantly promote a just determination of the trial. (People v. McKenzie (1983) 34 Cal.3d 616, 626-627, quoting ABA Standards for Criminal Justice — Special Functions of the Trial Judge, std. 6-1.1.) Asthis Court has recognized: “Protecting the confidentiality of communications between attorney and client is fundamental to our legal system. The attorney-client privilege is a hallmark of our jurisprudence that furthers the public policy of ensuring the right of every person to freely and fully confer and confide in one having knowledge ofthe law, and skilled in its practice, in order that the former may have adequate advice and a properdefense. [Citations.]” “Tt is no mere peripheral evidentiary rule, butis held vital to the effective administration ofjustice. [Citations.]” (People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 715, italics added.) Byfailing to protect appellant’s right to confidential communications with his attorney, neither the court that initially authorized and enforced the prosecutor’s stipulation, nor the trial court that further “extended”the attorney-client privilege, safeguarded appellant’s right to counsel or the 14. Although the presence of any unwantedthird parties would have infringed on appellant’s right to counsel, the court also failed to consider minimizing the possibility of harm by using personnel unconnected to Corcoran State Prison, such as marshals, bailiffs or local law enforcement. 23 effective administration ofjustice in this case. Appellant recognizesthat the issues raised here do notfit squarely into any cases previously decidedbythis or any other court. The absence of cases directly on point, however, does not mean that appellant’s rights were not violated, but only that a situation such as the one presented bythis case has not previously reached the courts. Indeed, their sui generis nature further underscores the unreasonablenessofthe circumstances which were forced upon appellant. Because the acceptance ofa stipulation purporting to make prison guards part of the defense team in a prison murdercase, without appellant’s presence, knowledge or informed consentis so completely counter to the guarantees ofthe state constitution, the Sixth and 14th Amendments,and the duties of the court, these facts have notarisen in the past and are extremely unlikely to arise again. E. The Presenceof Prison GuardsatAll Attorney-client Conferences Violated Appellant’s Right to Counsel Whether or Not the Guards Actually Disclosed Appellant’s Communications to the Prosecution Respondentargues that, regardless of appellant’s failure to object, or whetheror not there was governmentinterference, there was noerror. Respondentrelies entirely on a footnote in People v. Rich (1988) 45 Cal.3d 1036, 1100, fn. 16, for this argument. In the footnote, this Court summarily discounted an argumentthat counsel’s failure to object to the presence of one police officer at an interview between the defendant and a court- appointed mental health professional amountedto ineffective assistance of counsel. Respondentpoints to the fact that counsel in Rich did notobject and stated on the record that they would not object because the officer had assured them he would not discuss the conference with anyone. This Court’s footnote in Rich does not control the present case for several reasons. Appellant’s claim here is not based on counsel’s failure to raise an objection, but rather on a stipulation authorized by the court which underminedthe entire framework of appellant’s right to counsel and his trial. Appellant does not base his present claim on theinterception or use of a specific privileged communication, or on his prospective counsel’s failure 24 to object, but on the far more insidious invasion ofthe attorney-client relationship that was causedby the presence of prison guards duringallhis meetings with counsel. Even assuming, arguendo,that, as in Rich, the accompanyingofficers did not disclose what they heard, and/or that the prosecution gained nospecific benefit from any such disclosure, the violation of appellant’s rights here stems not from a breach ofthe privilege, but from its absence altogether, an absence which deprived him ofa basic and fundamental componentofhis right to counsel, the right of the accused to confer privately with his attorney. Moreover, unlike the court-appointed expert in Rich, there is no indication that Tarter expressly requested the presence of Corcoran prison guards, or even more importantly, that their presence was necessary to her representation of appellant. In Rich, this Court foundit significant that the expert himself had refused to interview the defendant unless his request for protection was granted. (People v. Rich, supra, 45 Cal.3d at p. 1100,fn. 16.) The attorney-client privilege does not extend to third parties unless their presence is “reasonably necessary” for counsel to accomplish his or her goals. (Cal. Evid. Code. § 952.) In Rich, the expert’s insistence on this specific form of protection before meeting with the client rendered that protection “reasonably necessary,” and thus there was no incursion on the right to confidential communications. Respondent’s reliance on Rich only highlights the egregiousness of the violation of appellant’s right to confidential communications with counsel in this case. At issue in Rich was one conference with one expert, not every conference between attorney and client. Unlike in Rich, appellant here was never allowed to speak in confidence with counsel. Further, there was no showinghere that counsel, like the expert in Rich, would not or could not communicate with her client absent the presence of Corcoran prison guards, and thus the record does not demonstrate any necessity for the arrangement." 15. Even assuming Donna Tarter would not accept appointmentin (continued...) 25 F. The Record Does Not Show that the Presence of Prison Guardsat All Attorney-client Conferences Was Reasonably Necessary for the Transmission of Information to Trial Counsel, nor that Appellant Was Awarethat Their Presence Was Reasonably Necessary Respondenturges this Court to find that appellant was not denied the right to consult with counsel confidentially because, by virtue of Evidence Codesection 952, the guards were included within the attorney-client privilege and thus were,effectively, members of the defense team. Asset forth in the AOB,at pages 48-51, the requirements of section 952 were not met because the presence of Corcoran guards was not necessary to transmit information between appellant and his attorney nor to accomplish appellant’s representation and,in fact, their presence only impeded, rather than promoted appellant’s right to counsel. Respondentagain is forced to rely on seriesofillogical and unreasonable inferences to counter appellant’s arguments. Respondent again asserts that Tarter “desired the officers’ presence for her protection,” and addsthat “presumably, she was awareofthe facts underlying appellant’s charges.” (RB at 31, italics added.) Based on Tarter’s purported “desire” and a presumption that she was familiar with the facts of a case to which she had not yet been appointed, respondentasksthis Court to conclude that the presence of prison guards employedat the prison where the crimes occurred and where appellant was housed was“reasonably necessary for the transmission of the information from appellant to Tarter.” This Court cannot reasonably draw any such conclusion. Appellant has already shownthat respondent’s underlying premise that prospective counsel “desired”the presence of prison guardsat attorney- client conferences is not supported by the record. He has also shownthat there is nothing in the record to support the conclusion that counsel herself felt that she needed protection. But even assuming that Tarter did want 15. (...continued) the absence of extraordinary security measures,as discussed above,there were multiple ways to accommodate any legitimate concerns short of stripping away appellant’s right to confidential communications. 26 protection, that desire alone does not support an inference that her protection was “reasonably necessary”to represent her client. And perhaps mostsignificantly, there is nothing on the record from which any court could reasonably infer that it was necessary to place two Corcoran prison guards within earshot of every conversation between appellant andhis counselin order to provide counsel with such protection as wasactually warranted. Further, the Evidence Code only protects communications transmitted by a means which,“so far as the client is aware,” discloses the informationto nothird parties other than those present to further his own interests or that are reasonably necessary to transmit information to counsel. (Evid. Code § 952.) Respondent contendsthatthere is “nothing in the record” to show appellant did not understand “why”the officers were there, but the problem is that there is nothing to show that he was aware of the reasons either. Whether or not appellant was present when the court told two particular guards they could not repeat what they heard, the Evidence Code and relevant authority makes clear that statements madein the presence of unnecessary third parties are not privileged unless the clientis awarethey are reasonably necessary for his representation. Because the presenceofthe officers was not reasonably necessary,it is impossible for this Court to infer that appellant was aware that they were. Further, contrary to respondent’s contention (RB at 31), the court’s belated admonishmentoftwo ofthe officers, Masters and Close, in appellant’s presence some four monthsinto trial preparation, does not support an inference he was aware they were reasonably necessary to assist counsel, and certainly cannot support any inference that appellant was aware of anything regarding any other guards who werepresent at the meetingsthat occurred prior to that admonishment. . Regardless, appellant is not contending here that section 952 of the Evidence Code wasviolated, and is not seeking relief for any such violation. Instead, he points to the Evidence Codeonly to showthat, despite its broad interpretation of the attorney-client privilege, the mere 27 judicial acceptanceofthe “extension”ofthe privilege, without a showing of reasonable necessity and without appellant’s awareness of any such necessity, could not effectively render any communications between | appellantand his attorney “confidential.” G. _Appellant’s Sixth Amendment Rights Were Violated and Structural Error Occurred When the Court Authorized the Presence of Prison GuardsatAll Attorney-client Conferences In Section D ofits brief, respondent again argues that the lack of “sovernment action” is determinative of appellant’s right to reversal. (RB at 38.) It begins its argumentwith a footnote in which it claimsto refute an argument not madeby appellant, that the guards were “sitting” at counsel table. (RB at 32, fn. 9.) Appellant did not make any representationsas to whether the guards weresitting or standing and such detailis irrelevant to his argument. However, respondentalso claims the record does not show that the guards werepositioned in between appellant and his counsel while in open court. Onthatpoint, it clearly is mistaken. The officer in charge of security assured the court that there would beone officer to the left of appellant, one to the right and onedirectly behind him atall times. (ART 114.) While respondent now claimsthat actually was notthe case,'* the record showsotherwise. District Attorney investigator Ebner was asked twice during his testimony to identify appellant. On the first occasion, hetestified that appellant was situated “betweenthree correctional officers and to the right of defense attorney, DonnaTarter.” (3RT 702.) Had appellant actually been positioned betweenhis attorney and the correctional officers, as respondent now asserts, Ebner’s description would have been incorrect, yet the prosecutor himself confirmed the description by responding “Good identification.” (/d.) On the second occasion, Ebner described appellant’s 16. Respondent knows, or should know,the precise security arrangements enforced at appellant’s trial. Its attempt to rely on a minor — inconsistency in the record to falsely suggest that those arrangements were not actually followed is reprehensible. 28 position as “to the left of Defense Attorney Tarter, and three correctional officers to his rear.” (SRT 996.) This time, the prosecutor corrected the witness’ imprecise description, a correction which the court itself confirmed: [District Attorney] Burns: Maythe record reflect that the witness has pointed in the general direction of Mr. Delgado, whoissitting to— from the witness’ perspective— the left of Ms. Tarter, is wearing a white shirt, button-up shirt, and has three correctionalofficers in green circling around him? Court: Yes (SRT 996,italics added.) The record thus showsthat officers were circling between appellant and his attorney when they were in open court. After discussing the opinions of the United States Supreme Court that have addressed,inter alia, the circumstances under which the denial of counselor related Sixth Amendmentrights have been foundto bestructural, respondentasserts such error can only be established in cases wherethereis “government action.” Relying again on the unsupported inference that Tarter requested the presence of prison guards to protect her from her future client, respondentinsists there was no “governmental interference” with the right to counsel. As appellant argued above, the prosecutor’s proffered stipulation to extend the attorney-client privilege made no mention of Tarter’s desire or request for the presenceofthe officers. The State cannot seek judicial approval and acceptanceofits plan, and then claim,as it does here, that the court bore no responsibility for the resulting constitutional violation. But even if the arrangement was madeat prospective counsel’s request, it was the court that was asked to accept the unconstitutional stipulation and the court that purported to extend the attorney-client privilege. Further, it was the court that appointed Tarter to defend appellant against charges of two prison murders andthe assault of a prison guard, knowingthat Tarter had just agreed to allow prison guards employed at the very sameprison to hear all communications between her and her future client. As the United States Supreme Court has observed: Whenan indigent defendantis unable to retain his own lawyer, the trial judge’s appointmentof counselis itself a 29 | critical stage of a criminaltrial. At that point in the proceeding, by definition, the defendant has no lawyerto protect his interests and mustrely entirely on the judge. For that reason it is “the solemn duty ofa ... judge before whom a defendant appears without counsel to make a thorough inquiry andto take all steps necessary to insure the fullest protection of this constitutional right at every stage of the proceedings. (Yon Moltke v. Gillie (1948) 332 U.S. 708, 722.) Further, the law is clear that the Sixth Amendmentright to counsel exists unless it is affirmatively and knowingly waived, and Sixth Amendmentviolations can and do occur even in the absence of a court order or prosecutorial interference. As discussed above,“the State’s conductofa criminaltrial itself implicates the State in the defendant’s conviction.” (Cuyler v. Sullivan, supra, 446 U.S. 335, at p. 345.) No further state action or interference is required to plead a Sixth Amendment violation. Respondent’s attempt to draw a distinction between Sixth Amendmentstructural error and regular trial error based on whetheror not the error was caused by “government action”is thus misplaced. In People v. Hernandez, this Court recognized there are several different categories of Sixth Amendmentviolations in which a conviction may be reversed without a specific showingofprejudice because“the costoflitigating their effect in a particular case is unjustified.” (People v. Hernandez (2012) 53 Cal.4th 1095, 1104-05.) In describing these errors, this Court explained that no prejudice need be shown wherethe accused “was denied counsel,” or where “counsel wastotally absent” or was “prevented” from assisting the accused during a critical stage of the proceedings.” (Jbid.) Similarly, if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendmentrights that makes the adversarial process itself presumptively unreliable. Noneof these categories require any state action beyondthe action of bringing the accused to trial. To the extent that this Court has also described examples of instances where the United Supreme Court found that “the government's 30 interference with counsel’s ability to render effective assistance”justified a presumption of prejudice, that language appears to be shorthandfor action or inaction by the court, or for the application of state statutes or court rules, and doesnot require any overt or intentional governmental “interference” or misconduct. (People v. Hernandez, supra, 53 Cal.4th at 1104-05.) After discussing the different types of cases deemedreversible for structural error, this Court also acknowledgedthat “[c]ircumstances of that magnitude may be present on some occasions when although counselis available to assist the accused duringtrial, the likelihood that any lawyer, even fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conductofthe trial.” (/bid., citing United States v. Cronic (1984) 466 U.S 468, 659-660.) Again, this circumstance does not depend on the presence or absence of governmentalaction.” Respondentidentifies no rationale for a rule that would limit a finding of structural error to cases where there was someadditional “governmentaction” beyond that which attaches to every criminaltrial. While the Supreme Court haslisted certain circumstances whereit has foundstructuralerror, it has clearly stated that other “circumstancesofthat magnitude” mightalso justify such a finding. In discussing why certain errors are considered “structural” the Supreme Court generally does not place any significance on who causedthe error, and for good reason. The deprivation ofthe right to counsel is no more[orless] egregiousin situations where the deprivation is caused by prosecutorial misconductor a direct order by thetrial court, than whereit is caused by oversight or even counsel’s own actions. Accordingly, as this Court has recognized, the proper focus for purposes of determining whetheran erroris “structural” is on the nature and scopeoftherestrictions on the right to counsel and 17. Obviously, where the claimed Sixth Amendmentviolation is itself based on prosecutorial misconduct,i.e. the unlawful seizure or interception of privileged communications without the knowledgeofthe defendant or counsel, then such misconductor interference must be shown on the record. Appellant is not raising such a claim in this proceeding. 31 whetherit is possible to demonstrate prejudice. (People v. Hernandez, supra, 53 Cal. 4th at pp.1104-05.) The presumption of prejudice redresses situations where Strickland’s prejudice requirementis inadequate to assure vindication of the defendant’s Sixth Amendmentright to counsel. (/bid., citing Mickens v. Taylor (2002) 535 U.S. 162, 176.) Thus,to protect the defendant’s Sixth Amendmentrights, the presumption of prejudice must be applied where “the possibility of prejudice and the corresponding difficulty in demonstrating such prejudice are sufficiently great comparedto other more customary assessments ofthe detrimental effects of deficient performanceby defense counsel.” (People v. Rundle (2008) 43 Cal.4th 76, 173.) The circumstancesin the present case fall squarely into the class of cases where prejudice has been presumed. Both the possibility of prejudice and the difficulty of demonstratingit are far greater in this case than in cases involving counsel’s specific acts or omissions before or duringtrial. Giventhe importanceof confidential attorney-client communicationsto the right to counselitself, the denial of the ability to speak with counselin private and outside the hearing ofthird parties closely aligned with the prosecution, the witnesses, and one ofthe victims, operated in the same way as a complete denial of counsel. Whether considered as a constructive denial of counsel, or as circumstances under which no lawyer, even a fully competent one, could provide effective assistance, the existence of prejudice cannot be determined using the “more customary assessments of the detrimentaleffects of deficient performance by defense counsel,” i.e. by assessing whether, in the absenceoftheerror,there is a reasonable probability the result of appellant’s trial would have been different. Respondentarguesthat the presence of Corcoran prison guardsat every meeting between appellant and Tarter before and duringtrial did not amount to a complete denial of counsel because the record does not affirmatively show that appellant was prevented from effectively communicating with his attorney. (RB at 39.) Appellant disagrees. The first time appellant was asked by the court for his input into a decision by 32 counsel, he told the judge he had “no intentions to discuss anything with her.” (CCT 34.) That exchange demonstrates that there was no effective communication between appellant and Tarter. But even without appellant’s expression ofdistrust and his lack of communication with his attorney, in this case, the uninvited inclusion of prison guards during all conferences with counsel created a situation where no similarly situated defendant would or could speak freely and in confidence about matters directly related to his defense. In Geders v. United States, supra, 425 U.S. 80, the Court found structural error when the defendant wasnot allowedto speak to his attorney during just one overnight recess in the course of a lengthytrial. The Court there basedits ruling on general concepts and “commonpractice” regarding the importance of a defendant’s right to consult with counsel! during trial, rather than on any case specific factors articulated by counsel or Geders himself. As the Court explained: The recess at issue was only one of many called duringa trial that continued over 10 calendar days. But it was an overnight recess, 17 hours long. It is common practice during such recesses for an accused and counselto discuss the events of the day’s trial. Such recesses are often times of intensive work, with tactical decisions to be made andstrategies to be reviewed. The lawyer may need to obtain from his client information maderelevant by the day’s testimony, or he may need to pursue inquiry alonglines not fully explored earlier. At the very least, the overnight recess duringtrial gives the defendant a chance to discuss with counsel the significance of the day’s events. Our cases recognize that the role of counsel is important precisely because ordinarily a defendantis ill-equipped to understand and deal with thetrial process without a lawyer’s guidance. (d., at p. 88.) Appellant’s need to discuss matters with his counsel at recesses and breaks during preliminary proceedingsandattrial here was no less important than the defendant’s in Geders. Meetings with counsel at recesses during court proceedings, just as in Geders, were crucial for him to receive the benefit of counsel’s assistance and guidance, and to make tactical decisions and review strategies with counsel. Here, however, appellant never had the opportunity for any private, confidential 33 conferences with counsel, as prison guards were present at all such conferences, from the time the complaint wasfiled until the judge imposed a sentence of death. The denial of counsel here lasted not just a matter of hours, but a period of months. Nowherein respondent’s brief does it mention the fundamental nature of the right to private consultation with counselor the reasonsitis considered to be fundamental. These reasonsare every bit as compelling and possibly more so, than the reasons identified by the Court in Geders to support per se reversal where the defendant was not allowed to meet with his attorney on only one occasion duringtrial. A defendant cannot enjoy the effective aid of counselif he is denied theright of private consultation with him or her. “The purpose and necessities of the relation between a client and his attorney require, in many cases, on the part of the client, the fullest and freest disclosure to the attorney ofthe client’s objects, motives, and actions.” (n re Jordan (1972) 7 Cal.3d 930, 940.) [Counsel’s] duty to investigate requires that counsel gather as much information as possible aboutthe case, including facts concerning the acts charged, possible defenses, and the accused’s background andprior record. A primary source of such information is the accused himself. Often, whether guilty or innocent of the offense charged, the accused knowsfacts pertinent to his defense which maytendto incriminate or embarrass him. (Barber v. Municipal Court (1979) 24 Cal.3d 742, 751.) A client who knowsthat damaging information could more readily be obtained following disclosure to his attorney than it could be obtained in the absence of such disclosure will be reluctant to confide in his lawyer andit will be difficult to obtain fully informed legal advice. (/d.) If an accusedis to derive the full benefits of his right to counsel, he must have the assurance of con- fidentiality and privacy of communication with his attorney. While this assurancelikely could not be fulfilled in any case where the defendant’s meetings with counsel were heldin the presence of any unwanted and unnecessary thirdparties, it is significantly greater here, wherethe third parties were directly connected to the prosecution team,i.e., 34 to the prison officers who investigated the charged crimes, and to a vast majority of the witnesses, as well as to one of the victims. Asset forth in Section A of this argument, ante, 16 of the 19 guilt phase witnesses and 12 of the prosecution’s 16 penalty phase witnesses were employed at Corcoran State Prison, and a numberofthem held higher ranks than the transport officers present during appellant’s meetings with his attorney. Any defendant would be hesitant to disclose names and information relevantto the attorney’s investigation and necessary for the formulation of trial strategy and defenses in the presence of people who werepossibly friends, coworkers or subordinates of the people the defendant might implicate, not to mention one of the victims. But a defendant charged with killing two prisoners and assaulting a prison guard would, with justification, be especially hesitant to doso in front of other prison guards from the same institution. Particularly in a case such as this, where the CDC,the Warden _ and Corcoran correctional officers were facing investigation and possible criminal and/orcivil proceedings for their negligence in one of the charged murders, and thus had a significant stake in the facts developedat appellant’s trial (see AOBat 4-5), the defendant would necessarily feel constrained in discussing his case freely in the presence of Corcoran employees. Even assuming the four guards who were admonishednotto divulge whatthey heard in this case upheld that admonition, appellant had more to fear than that they would divulge confidential communicationsto the prosecutor, to prison staff or to other guards, because these men also were appellant’s jailors. As such, they did not need to share or disclose what they learned with anyonein orderto “use” privileged information to appellant’s detriment. The guards, by virtue of their position, had the power and authority to make appellant’s daily life much moredifficult by using the information they learned about him to taunt or provoke him, to impose special punishmentsorrestrictions in their encounters with him, and/or to take advantage of any specific vulnerabilities he revealed to counsel. 35 Discussions betweenclient and counselin a capital case necessarily touch on manythings that a defendant may not wantto revealto strangers, particularly notto individuals with control over virtually every aspect ofhis life. During preparation for the guilt phase ofthe trial in this case, effective counsel would needto investigate, inter alia, appellant’s mentalstate, physical condition and relationship with other prison guards and prisoners. In preparation for the penalty phase, counselhad a duty to investigate, inter alia, appellant’s life history, his relationship with his family and others,his institutional history, his mental health and medical problems, andhis history of physical or sexual abuse. There are myriad reasons why a prisoner would not be comfortable disclosing such information in front ofhis jailors, includingbut not limited to fear ofretaliation for implicating the guard’s co-workers and friends, fear of appearing weak or vulnerable, a desire not to reveal family or other sensitive matters to strangers, and embarrassment or shame about events in his life or his background.'* Based on his own experience, appellant here would have had a legitimate and not unwarranted fear that his personal information might be used to harm his interests. Respondent urges this Court to apply Weatherford v. Bursey (1977) 429 U.S. 545, 553, and People v. Alexander (2010) 49 Cal.4th 846,both of. whichrejected a structuralerror analysis for claims involving specific, discrete, and identifiable intrusionsinto the attorney-client relationship. Applyingthis line of cases, respondent argues that appellant must show “the realistic possibility of injury to the defendantor benefit to the state” to prevail. Appellant disagrees that this case is governed by Weatherfordorits progeny to the extent that they require more than demonstrating that the facts here give rise to a presumptionofprejudice. The nature of the injury claimed here is categorically different from that presented in the cited cases, and that differenceitself makes both “the possibility of prejudice and the 18. Indeed, before appellant was ever charged in this case, investigators, for no apparent reason, had notified his foster parents that he wasaccused ofkilling his cellmate. When he learned that the investigators had disclosed this information, appellant was distraught because he had wanted to break the newsto his foster parents himself. (9CT 2428.) 36 corresponding difficulty in demonstrating such prejudice . . . sufficiently great” (People v. Rundle, supra, 43 Cal.4th at p.173), to warrant reversal without any additional showing of prejudice. In Weatherford, the defendant filed a civil rights suit seeking redress for the violation of his Sixth Amendmentrights. The issue there was whetherthe presence of an undercoverpolice informant, who also was pretending to be a co-defendant, at just two pretrial meetings with the defendantandhis attorney, violated the Sixth Amendmentright to counsel when the record unequivocally established that no privileged communications were passed on to the prosecution or were usedat trial. As the Supreme Court found,to prevail on a claim based on the government’s surreptitious interception of privileged communications, there must be some showingthat the intercepted communications were used forthe prosecution’s benefit or that there was a “realistic possibility” of harm to the defendant. The Court rejected a presumptionthat “federal or state prosecutors will be so proneto lie or the difficulties of proof will be so great that we must always assumenotonly that an informant communicates whathe learns from an encounter with the defendant and his counsel but also that what he communicateshas the potential for detrimentto the defendantor benefit to the prosecutor’s case.” (/d. at p. 57.) In light of the trial court’s express findings that nothing privileged had been divulged or usedattrial, the Court in that case found no benefit to the prosecution and no possibility of harm to the defendant. In Alexander, supra, 49 Cal.4th 846, this Court applied the same principles and the rationale of Weatherford in a criminal appeal. As in Weatherford, the defendant there claimedthat specific privileged communications were intercepted, in that instance through the surreptitious wire tap of one specific phone call between the defendant, his mother, and a defense investigator. As in Weatherford, the trial court had made express findings that the privileged information revealed during the intercepted call wasnot used in any way against the defendant and that the government’s conduct was not egregious. (/d. at 886-887.) 37 In People v. Ervine (2009) 47 Cal.4th 745, another case in whichthis Court found Weatherford to be dispositive, a defendant’s notes abouthis case and strategy were improperly seized from his jail cell during one search. The defense learned of the seizure prior to trial and moved to dismissall charges. The prosecutors represented that they had not directed, authorized, or received any information from the search of defendant’s cell, a showing the defense did notattempt to rebut. The trial court made a factual finding that Sacramento County jail personnel had read defendant’s privileged legal materials, but declined to dismiss in the absence of any evidencethatjail personnel had communicated the confidential defense information to members of the Lassen County prosecution team. This Court agreed, and held thatit is the duty of the defense to establish, as part ofits prima facie case, that “confidential information wasactually communicatedto the prosecution team.” (Jd. at 768.)'° Respondent misses the point when it argues that Weatherford rejected any assumption that law enforcement agents always communicate the contents of “intercepted communications”to the prosecutors because appellant’s claim does not depend on whether or not the guardsactually communicated information to the prosecutors handlinghis case. Appellant’s claimsare sui generis, and thus cannotbe resolved by looking to cases like Weatherford, Ervine or Alexander which only addressthe surreptitious interception or unauthorized seizure ofidentifiable, privileged materials. Unlike a situation where, unbeknownst to defendantorhis attorney, a governmentagentis present and surreptitiously “overhears,” tapes, or seizes privileged communications, appellant was faced with an inherently chilling situation — either knowingly disclose strategic, personal 19. As appellant demonstrated in his AOB at pages 58-59, under the authorities cited and rationale set forth in Ervine, the prison guards in appellant’s case, unlike the Sacramento Sheriff's Departmentin Ervine, were members of the prosecution team. As employees of the CDC, and of Corcoran State Prison where the crime occurred, the prison guards worked directly for, and were under the supervision of, agencies indisputably connectedto the investigation and prosecution ofthe criminal charges against the defendant. 38 and sensitive information to third parties who werenot only directly connected with the prosecution and many witnesses, but were in a position of power, authority and control over him, or forgo free and open communications with counsel. This “Hobson’s choice” does not arise when a defendantlearns, after the fact, that the government overheard something he meant to be confidential. In the latter situation, as in Ervine, Weatherford, and Alexander, the defendant cannotestablish the interception chilled his ability to confide in counsel for the simple reason that he was not even aware ofthe interception until it was afait accompli. In that situation, it is not surprising that more must be shownthan the mere interception of a privileged communication to establish a violation of the state or federal right to counsel. | Even in Weatherford, however, the Supreme Court acknowledged that “[o]ne threat to the effective assistance of counsel posed by governmentinterception of attorney-client communicationslies in the inhibition of free exchanges between defendant and counsel becauseofthe fear of being overheard.” (Weatherford, supra, 429 U.S.at p. 554, fn 4.) The Court went on to note that, in the usual case, such a fear can simply be avoided “by excluding third parties from defense meetingsor refraining from divulging defense strategy when third parties are present at those meetings.” (/d.) Appellant here had no opportunity, let alone power,to exclude the guards from his conferences with counsel, and thus the only meansavailable to him to “avoid” the “fear” was to remain silent about case strategy, prison matters, relationships with guards or other inmates,his personal background andhistory,or, in other words, about anything that mattered to his defense. Whenthe claimed harm is the interception of specific privileged communications, the impact of the interception can be determined by examining what information was revealed and whetherit was actually used to the defendant’s detrimentat trial. In contrast, the harm here can only be established by proving to the court what wasnot said during attorney-client conferences dueto the inhibiting circumstances under which they were 39 conducted. The “difficulties of proof” required by such a showingare apparent and thus warrantapplication of a presumptionofprejudice. Further, while respondent attempts to equate the present case with the circumstances ofErvine by claiming that the facts there also showed “epregious and pervasive governmentinterference,” (RB at 42), neither this Court nor the trial court found that the interception of the attorney-client notes during onecell search conducted byjail personnel employed by a different county than the prosecuting attorneys was “egregious”or “pervasive.” In situations such as in Ervine, Alexander and Weatherford, where the precise universe of intercepted communicationsis limited in time or number, and the contents of the specific communications can be identified, described and reviewed by the court, there is no basis for a presumption of prejudice because whatwas actually communicatedto the prosecution and/orused to prosecute the case, as well as the harm it did or did not cause the defendant, can readily be determined. Indeed, in Ervine one reason this Court rejected the claimed violation was because the defense could have, but did not, submit the seized notes to the trial court to demonstrate what specific information had beenintercepted. (Ervine, 47 Cal.4th at p. 770.) Here, the guards were privy not to just one document or conversation, or even twoorthree, but to every word spoken and every gesture made betweencounseland client before and duringhis capitaltrial. An unconstitutional condition that persists throughout every phase of the judicial process, unlike a one-time search or overheard conversation,is truly pervasive and infects the entire framework of the adversary process. Even assuming appellant must show a realistic possibility of harm, appellant’s argumentis not based on a speculation, but on the actual conditionsthat persisted throughouthis trial and denied him the right to converse freely and in private with counsel. These conditions alone are enoughto establish the requisite possibility ofharm, but even if this Court finds that more is required, appellant’s inability to communicate with counsel appears on the record here. (See CCT 34, where appellant informed the court, immediately after arraignmentandhisfirst meeting with 40 counsel and the prison guards, that he had “no intentions to discuss anything with [counsel].””) To the extent this Court finds that appellant must make an additional showing of possible harm beyond that whichrealistically arose from the arrangementthat prohibited him from meeting with counsel outside the earshot of guards employed at the same prison where the charged crimes occurred, that showing has been methere. H. Appellant’s State Constitutional Right to Counsel Was Violated When the Court Authorized the Presenceof Prison Guardsat All Attorney-client Conferences Resulting in a Miscarriage of Justice Respondent concedesthat the right to counsel under the California Constitution “embodies the right to communicate in absolute privacy with one’s attorney” and thus concedesthat appellant’s right to counsel under state law was in fact violated. (RB at 43.) Nonetheless, it argues that reversal is not warranted here because the California Constitution also prohibits the reversal of a criminal judgment on procedural groundsin the absence of a “miscarriage ofjustice.” Asdiscussedat length, ante, the circumstances under which appellant wastried, convicted and sentenced to death do not mirror anything foundin existing cases. Barber v. Municipal Court (1979) 24 Cal.3d 742, which discussed the state right to counselas distinct from that under the Sixth Amendment, imposed the most extreme remedy,the dismissal of all charges, for the “intrusion, through trickery”into the attorney-client relationship by the presence of undercoverofficers at pretrial meetings between counseland their clients. Respondent’s attempt to both distinguish and apply Barber here must be rejected. Barber addressed a situation unlike the present one, where the presence of governmentagentsat defense strategy meetings wassurreptitious, but was discoveredprior to trial. Once defense counsel learned of the invasion ofthe attorney-client privilege, he immediately went to the court and requestedrelief. The trial court ordered that nothing overheard by the law enforcement agents could be usedat trial, and that the prosecution would have to prove any such evidence came from an independent source. This Court held thatthetrial 4] court’s remedy did not go far enough, and granted dismissal of the charges. Oneofthe reasons for dismissal was the testimony of one of the defense attorneysin thetrial court that his clients still were suspicious and paranoid, and were now refusing to speak with counsel, thereby impedingtrial preparation. This Court required no greater showing of harm than that to justify imposition of the most severe penalty. Relying on the minimal showing put on the record by concerned counselin Barber, respondentasserts appellant has shown no miscarriage ofjustice becausethere is no similar record of harm here. However, the record in this case does show a breakdownofthe attorney-client relationship at its very inception. After arraignment, appellant told the court he wasnot talking to counsel. The court ignored his statement, showed no interest in appellant’s plight, and offered appellant no opportunity to explain why he wasnot willing to speak to counsel. Underthe circumstances, appellant’s commentis sufficient to show impairmentofthe attorney-client relationship, andhis failure, in his very brief statement, to articulate the basis for his refusal to speak to counsel cannotbe held against him. To the extent respondentrelies on the absenceof any further record of harm here, that absence must beattributed to attorney Tarter, an attorney whohad agreedto the presenceof the prison guards andthe violation of appellant’s rights before she even represented appellant.” 20. Although a claim ofineffective assistance of counsel based on counsel’s trial performance cannotberesolved on the appellate record here and thusis not before this Court, the record does establish that Tarter’s advocacy during her representation of appellant was extremely passive. She filed no written motions before or during either the guilt or penalty phases ofthe trial, except to seek more time, no written opposition to any of the prosecution’s written motions, andnotrial briefs. She made no| opening statementat either phaseofthe trial. On more than oneoccasion,thetrial court stepped in and raised, sua sponte, matters that one would usually expecttrial counselto raise. For example, the court reminded Tarter she did not need to stipulate to matters just because they were proposed bythe prosecutor (4RT 852), questioned the sufficiency of some of the prosecution evidence presented at the penalty phase, and raised several instructionalissues for the benefit of the defense. (See e.g., 6RT 1234- (continued...) 42 I. Appellant’s Due Process and Statutory Rights to Be Present Were Violated by His Exclusion from the Conference Where the Court Authorized the Denial of His Right to Private Attorney-client Communications The Sixth Amendmentright of the accused to be present during trial proceedings depends on whether the defendant’s presence would “contribute to the fairness of the proceeding.” (Kentucky v. Stincer (1987) 482 U.S. 730, 744-745.) The right to be present, under both the California - Constitution and state statutory provisions, depends on whetherthe personal appearanceofthe accused bears a “reasonable, substantial relation to his opportunity to defend the charges against him.” (People v. Davis (2005) 36 Cal.4th 510, 530.) This Court has tended to conflate the federal and state standards. (See e.g., People v. Gonzales (2012) 54 Cal.4th 1234, 1253- 1254.) Respondent contends that appellant’s assertions that his presence was mandated at the in camera hearing wherethe court sanctioned the stipulation between prospective counsel and the prosecutor “are speculative.” (RB at 50.) To the contrary, both the substantial relation of the proceeding to appellant’s ability to defend against the charges, and the importance of appellant’s presence to the fairness of that proceeding are established by the record of what transpired at the hearing. In the AOB,at pages 68-70, appellant set forth the reasons why his right to private consultation with counsel could not be eliminated fairly in his absence, in what ways his presence would have contributed to the fairness of the proceeding, and how the proceeding bore a substantial relation to the entire course of his defense. The purpose of the in camera proceeding wasto get judicial authorization and enforcementof a stipulation that struck at the heart of appellant’s relationship with his attorney by impedinghis ability to cooperate with and assist counsel, to obtain counsel’s candid advice, and to share vital and personal information 20. (...continued) 1235; 7RT 1479-1481.) This Court thus cannot assumean absence of harm solely from Tarter’s failure to make a record thereof. 43 essential to an adequate guilt and penalty investigation. The purported stipulation was not valid without appellant’s knowledge or consent, and the presenceofan attorney, particularly one who wasnotrepresenting appellant or his interests, could not supplant the need for appellant’s own personal presence. Withoutappellant, the court could not, and did not, assure that appellant was awareof and/or consented to the requestedstipulation, the reasons therefor, his prospective counsel’s position on the matter, or the purported extension ofthe attorney-client privilege to the two guards who were present that day. Without such information, appellant’s acceptance of counsel at his subsequent arraignmentreflected no implicit consentto the arrangement. Nospeculation is required for this Court to holdthat appellant had right to be presentat this critical proceeding. | Respondent does notaddress these points and instead predicatesits argument entirely on its own speculation, based on whatit considers reasonable inferences, as to what transpired after the hearing. (See RB at 50.) Nothing in the record provides any support for respondent’s proffered inferences that Tarter explained to appellant the reasons for the guards’ presence, explainedthat she had “desired” the guards to accompany her, or advised him ofthe admonishmentofthe two guardsprior to his acceptance of her appointmentas counsel. Becauseofthis, any inference that appellant accepted her appointment, and/or reappointment in the superior court, “knowing that Tarter desired officers to accompany her” mustberejected. But even assuming arguendothat appellant, at some point after the hearing, learned of everything that transpired at the hearing from which he was excluded,he still had a right to be present at the hearing itself because his presence would have greatly contributed to its fairness, for the reasonsset forth above and in the openingbrief. J. The Violation of Appellant’s Right to Be Present Requires Reversal Theviolation of appellant’s right to be present at the in camera proceedingin this case cannot be considered a “trial error”that is amenable to usual harmless error review. Trial errors are those which occur during 44 the presentation of the case to the jury, and unlike structural errors, can be readily assessed in the context of “other evidence.” In contrast, structural errors affect the framework in whichthetrial proceeds, and permeate the entire conductofthe trial. (Arizona v. Fulminante (1991) 499 U.S.279, 309-310.) Respondentcites to People v. Perry (2006) 38 Cal.4th 302, 312, whichin turn cited Rushen v. Spain (1983) 464 U.S. 114, to argue that the denial of the right to be present can never, under any circumstance, be treated as structural error. Respondent does not address the point raised in appellant’s opening brief, which is that the Rushen v. Spain decision did not so hold. As appellant argued there, the Supreme Court merely stated that a violation of the right to be presentis, like other constitutional rights, subject to harmless error review, “unless the deprivation, by its very nature, cannot be harmless.” (Rushen v. Spain, 464 U.S.at p. 119, fn. 2.) To the extent that this Court has held otherwise, it should reconsiderits position. Respondent also argues that any harm from theerrorhere is “quantifiable, and is determinate,” and thus does not defy harmless error analysis. (RB at 49.) The sole basis for this argumentis that appellant could have, but did not, voice any complaints to the judge about the presence of the guardsafter the hearing at which the stipulation was accepted. Respondentthus incorrectly assumes that any harm arising from the in camera, sealed proceedings was cured because appellant wasnot prevented from complainingat a later time. Whetheror not appellant’s exclusion from the hearing prevented him from voicing any objection to the presence of the guards, as discussed previously, his presence was required for far more than that. The fact that appellant wasableto speak to the court does not ameliorate the invalidity of the stipulation to extend the attorney-client privilege. The fact that he could have complained about the guards’ presence did not ameliorate the failure of the judge to assure that appellant was aware of the requestedstipulation, the reasonstherefor, his prospective counsel’s position on the matter, or to the purported extension ofthe attorney-client privilege to the two guards present that day. The “opportunity” to voice his concerns aboutthe 45 presence of guards would havelittle meaning if he did not know why the guards were there, or whethertheir presence had been requested by the prosecutor, his prospective attorney or simply imposedbythe coutt. The harm from appellant’s absence was heightened by thetrial court’s order to seal the transcript of the in camera hearing,solely at defense counsel’s request. There was absolutely nothingsaid at the hearing that warranted the sealing of the transcript from the public.”’ The fact that attorney Tarter requested the sealing herself undercuts respondent’s insistence throughout its brief that this Court may infer that Tarter explained what happenedat the proceedingto her client. A hearing at which the right to consult in private with counselis abrogated for the entire criminal proceeding, and at which no one represented appellant’s interests, is not a routine trial conference about legal matters. The hearing resulted in the impairmentof appellant’s right to counselandto due processin ways that cannot be quantified. As such,itis one ofthe rare instances where this Court should reverse without any further showing of harm. K. Appellant is Not Estopped from Asserting that the Court Acted in Excess of Jurisdiction by Authorizing the Stipulation Regarding the Extension of the Attorney-client Privilege Respondentargues that appellant is estopped from arguing that the court acted in excessofjurisdiction at the sealed, in camera proceeding from which he was excluded because he didn’t raise the jurisdictional issue in the trial court. Respondent contendsthat estoppel is appropriate here because there is no proceduralor substantive policy precluding it. (RB at 53.) That conclusory statement, without explanation,is insufficient to support respondent’s argumentfor estoppel underthe very cases it cites. Respondent points out that whether estoppel will be imposed on “a 21. The court did not follow any of the procedures required for sealing the transcript as set forth in NBC Subsidiary (KNBC-TV), Inc. v. Superior Court(1999) 20 Cal.4th 1178, on which current Rules of Court 2.550 and 2.551 are based. Notably, the court made no express finding of an overriding interest warranting the sealing of the record. 46 party who soughtor agreed”to an act in excessofjurisdiction depends on the importance ofthe irregularity and considerations of public policy, and that reviewing courts have sometimes found claims regarding acts in excess ofjurisdiction to be estopped when the acts were “beneficialto all parties and did not violate public policy” or when “allowing objection would countenancea trifling with the courts.” (RB at 52-53, citing People v. Lara (2010) 48 Cal.4th 216, 225 and Jn re Andres G. (1998) 64 Cal.App.4th 476, 482.) But respondent does not argue why or how anyofthose circumstances are relevant here, and, indeed, they are not. First, the record does not show that appellant sought or agreed to the act in excess ofjurisdiction. Even assumingthe stipulation was at Tarter’s request, she did not represent appellant at the time she entered into it and thus her purported request and her agreement cannotbeattributed to appellant. Respondent’s further speculation that Tarter must have informed appellant of her request, which also finds no support in the record, does not address appellant’s knowledge ofthe court’s acts in excess ofjurisdiction. Appellant cannot be estopped from challenging judicial acts of which he was completely unaware. (See e.g., People v. Mendez (1992) 234 Cal.App.3d 1773 [Attorney General, representing the Departmentof Justice, is not estopped from challenging on appeal a court order stipulated to by the District Attorney, even though they both represented “[t]he People,” and were boundbythe stipulation, where neither the AG or the DOJ received notice of the order].) Second,there are public policy reasons to disallow estoppel of claims involving the right to confer privately with counsel. (Exparte Rider (1920) 50 Cal.App. 797, 799 [The right of an accused to consult freely and in private with his counsel is so fundamentalthat no Legislature or court can ignoreor violate it].) Third, respondent does not argue that the stipulation was beneficial to all parties, and it most certainly did not “benefit” appellant. Even if there had been a showing that counsel needed protection from herclient, the method authorized by the court was unnecessary and harmed,rather than benefited, appellant. Extending the 47 attorney-client privilege to individuals who were,by virtue oftheir positions, antagonistic to appellant’s interests did not serve him in any way. Finally, respondentdoes notpoint to, and the record does not show ~ that appellant wasoris “trifling with the courts.” Courts have typically found suchtrifling in criminal cases where the defendantenters a guilty plea and then attempts to overturn the plea by arguing the court lacked jurisdiction. The rationale behindthis policy is that defendants who have received the benefit of their bargain should not be allowedto trifle with the courts by attempting to better the bargain through the appellate process. (See e.g., People v. Chatmon (2005) 129 Cal.App.4th 771.) Similarly, a defendant has been estopped from raising claims regarding conditions of probation where she lead the trial court into error, obtained the benefit of the court’s error by avoiding immediate incarceration, and then exploited on appealthe error she induced the trial court to commit. (People v. Jackson (2005) 134 Cal.App.4th 929, 933). Here, appellant had nothing to gain by awaiting his conviction and sentence before raising the issues presented herein, and everything to lose. Without the ability to consult freely with counsel, appellant did not have any better chance of acquittal, conviction of lesser crimes, or obtaining a life sentence than he would have had he gone to trial with all the identifiable benefits of confidential consultation with counsel. | Moreover, the court’s extension of the attorney-client privilege was not only an act in excessofjurisdiction, but also was ineffectual becauseit did not extend to any other correctional guards beyond the four whom the court specifically admonished. Respondentcountersthat the record does not showthat any other officers besides Master and Close neededto be admonished. In making this argument respondent makes wholly unsupported representations aboutboth the record and appellant’s opening brief. (RB at 53, citing AOB at 75.) Nowherein his brief did appellant “acknowledge that noneofthe officers . . . disclosed” any of appellant’s conversations. 48 More importantly, while conceding that a third officer, Griem, was one ofthe officers stationed around appellantat all times in open court, respondentclaims that Griem did not need to be admonished because the record does not show there wasa risk he might overhear communications between counsel and appellant. Respondent bases this argumenton a fact that itself is unsupported and essentially contradicted by the record: respondentstates that “Officer Griem and the two other officers sat at some distance behind appellant during thetrial.” (RB at 53, fn 10, italics added; RB at 55.) Whetheror notall three guards were “circling around appellant” or some were “‘to his rear,” there is nothing in the record from whichthis Court could possibly infer that they were “at some distance” from appellant and his attorney. According to Griem himself, who wasresponsible for security duringtrial, at all times during the trial there would be three officers surrounding appellant: “Oneto the left and oneto the right and one directly behind [appellant].” (1RT 114,italics added.) The word “directly” in this context necessarily indicated close proximity rather than “some distance,” because the guards were present for security and, ostensibly, to keep appellant in check while he sat at counsel table. If the guards were in fact, “some distance” from appellant, they would not have servedtheir purported purpose. Respondent’s other incorrect factual assertions regarding the record of security arrangementsin court (RB at 32-33, fn 9 and RB at 53, fn 10) have either been addressed in Section G, ante, or will be addressed further in Section M, post. To the extent those assertions are relevant to the issue of the court’s acts in excess ofjurisdiction, appellant’s reply to them is incorporated by referencehere. Respondent concedesthat any acts which exceed the defined power of a court in any instance, whether defined by constitution, statute or court rules, are acts in excess ofjurisdiction. (RB at 52, quoting County ofSan Diego v. Gorham (2010) 186 Cal.App.4th, 1215,1225-1226.) It does not present any argument to suggest the court here did have the powerto extend the attorney-client privilege or to deny appellantthe right to consult freely with counsel. Because appellant is not estopped from pursuingthis issue on 49 appeal, this Court must find the court’s order was in excessofits jurisdiction. L. Appointmentof an Attorney with Whom Appellant - Would Not be Able to Confer Privately Violated Appellant’s Right to Counsel In his opening brief, appellant demonstrated that the appointment of counsel who has agreed to never meet confidentially with her client cannot satisfy the constitutional guarantees of the assistance of counsel. In response, respondent“disagrees,” and “adopts” arguments madein earlier section ofits brief. (RB at 54.) The prior argument, however, does not address whetherthe court fulfills its duty to appoint counsel whenit appoints an attorney unableor unwilling to provide an essential andvital ingredient of effective representation. (See AOB at 76-78.) Further, respondent again miscasts the record and appellant’s claim into one about Tarter’s “desire” for the presence of the officers. Whether or not Tarter “desired” the arrangement, it was authorized by the court, and maintained throughoutthe trial. Thus, regardless of Tarter’s own feelings, appellant was denied counsel who could perform the functions necessary for representation ofher client. M. The Record Clearly Establishes that During the Trial, Appellant Was Surrounded by Uniformed Prison Guards WhoPrevented Him from Communicating Privately with Counsel In responseto appellant’s argumentthat he was, in essence,tried in absentia because he could not consult with counsel in the courtroom or duringtrial breaks, respondent contendsthat appellant could communicate with counsel in the courtroom because the guards werenot “sitting at counseltable.’’?. Whether or not the guards were seated, the record shows that at least one guard was in between appellant and his attorney throughout 22. Respondentclaims that appellant has a “faulty belief that security officers were seated at counsel table,” and points to page 79 of the AOB. Appellant has neverrepresented that the officers were “sitting,” but only that they were “present” at counsel table and that there wasanofficer on either side of appellant, separating him from his attorney. That arrangement is precisely what the record indicates. (See Section G, ante.) 50 the trial. As respondent concedes,the officer in charge of security assured the court that there would be oneofficer to the left of appellant, one to the right and one directly behind him at all times. (IRT 114.) To the extent respondent now claimsthat actually was notthe case, appellant has already addressed that claim in Section G, ante. As set forth there, District Attorney investigator Ebner was asked twice during his testimony to identify appellant. Once, he testified that appellant wassitting “between three correctional officers and to the right of defense attorney, Donna Tarter.” (3RT 702.) The prosecutor confirmed the description. The second time, Ebnerstated that the officers were to appellant’s “rear,” but the prosecutor corrected him andestablished on the record that appellant had “three correctional officers in green circling around him.” Thetrial court agreed with this description. (SRT 996.) Respondent now contends that Ebner’s second description of the officers’ position as “to [appellant’s] rear” (SRT 996) is sufficientto establish that the guards were not at or next to counsel table in between appellant and his attorney but that, instead, they were “sitting at some distance behind appellant.” (RB at 55.) The only evidenceasto the distance between the guards and appellant was Griem’s assuranceto the court that one guard wasto be placed “directly behind” appellant. The record thus does not show that there was any appreciable distance between appellant and the guards. (See Section K, ante.) Indeed, there is no apparent contradiction between Ebner’s descriptions, the prosecutor’s restatements of those descriptions, or the arrangements discussed with the court prior to the trial. There was a guard on appellant’s right, on appellant’s left, and one behind him. All three may have,in fact, been standing to appellant’s “rear” rather than in a direct horizontal line with him, but the recordis clear that they also were positioned “between” appellant and his attorney, purportedly to protect her from herclient. Respondent’s reliance on this significant misinterpretation of the record underminesits argument that appellant was not impeded from assisting counsel in court during the trial, as well as during conferences 51 whenthe court wasin recess or on a break.” Because there was a guard between appellant and counsel, he was unable to assist counsel without disclosing his commentsto the correctional officers at the same time. He could not whisper to his attorney, nor pass her confidential notes, without also revealing his communications to the correctional guards who were “circling around” him,at least one of whom was never even admonished to keep anything he heard confidential. Under these circumstances, appellant wasessentially tried in absentia, in violation of his Sixth Amendment right be present and the California Constitution. N. Conclusion The right to counsel includesthe right to consult freely, in private and in complete confidentiality with counsel. The importance of confidential consultation has been acknowledged by both state and federal courts, and is considered “essential” to the fulfillment of the role of counsel. Yet in this case, appellant was appointed a legal representative who could not fulfill her role because she was accompanied by correctional guards who wereallowed to sit in on every meeting between her andherclient, and who stood between appellant and counsel during the presentation of the trial. Thechilling impact on appellant caused by the presence of law enforcement personnel within earshot of his every word to counsel was exacerbated by the unwarranted and unjustified use ofprison guards who were employedat the very prison wherethe crimes occurred. The nature of the crimes for which appellant stoodtrial made the use of Corcoran Prison guardsa singularly poor,irrational, and legally indefensible choice for security. Appellant was charged with two murders which occurredat Corcoran Prison, while appellant was supposedly under watch by other Corcoran guards. Oneof the murders involved possible misconduct, 23. Respondent hasinterjected another unsupported “fact”into its argument — that the officers charged with courtroom security were “sitting” during the trial. The record does not so indicate, and if the officers were “sitting” they would not have been described as “circling around,” appellant, words that plainly indicate movement. 52 malfeasance, or, at a minimum,dereliction of duties by a Corcoran correctional guard. Further, appellant was also charged with an assault on another Corcoran officer. Virtually all the witnesses were employed as officers at Corcoran. (See Section A, ante.) The penalty phase included evidence of other crimes of violence that appellant supposedly committed while at Corcoran, several directly involving prison guards. Asif that was not chilling enough, appellant remained housed at Corcoran during the entire trial, putting him in daily contact with, and under the complete control of these and other prison guards and their supervisors, who had the powerto makehislife intolerable. It is hard to imagine an arrangement, short of a muzzle, that would be more discouraging to open and free communication between a death penalty defendant andhis attorney than the arrangement authorized by the court in appellant’s absence, and withouthis knowledge or consent. Appellant’s rights to counsel, to be presentat all crucial proceedings, and evento be presentat trial were violated. These violations undermined and infected the fairness of every step of the proceedings against him, from arraignment through sentencing, and cannot be measuredin termsoftrial error. The errors were structural, and, accordingly, appellant’s convictions and death sentences must be reversed. 53 I. APPELLANT’S MURDER CONVICTIONS ARE LESSER INCLUDED OFFENSES OF HIS CONVICTIONS FOR MURDER BY A LIFE PRISONER, AND THUS MUST BE REVERSED Appellant was charged and convicted of two separate capital offenses for the death of Mendoza, and two separate capital offenses for the death of Mahoney. Becauseall of the elements of murder as defined in Penal Code section 187 are included in the elements of a killing that occurs following an assault by a life prisoner pursuant to Penal Code section 4500, the formeris a lesser included offense ofthelatter. Respondentdoes not dispute that appellant’s convictions under section 187 and section 4500 were based on identical elements found by the jury beyond a reasonabledoubt. It also does not dispute that, to determine whether one offenseis a lesser included offense of another, this Court looks only to the elementsset forth in the statutes themselves, and not the facts alleged in the accusatory pleading or provenattrial. Instead, respondent argues that section 4500 is merely an aggravated assault statute, with a built-in sentencing enhancement mandatingeither the death penalty orlife withoutthe possibility of parole when the victim dies within a year and a day of the assault. Respondentarguesthat, if the death ofthe victim requirement is construed as a sentencing enhancement, rather than an “element,” then murder is not a lesser included offense of section 4500, and there is no prohibition against appellant’s multiple convictions for identical crimes. . Theissue appears to be one offirst impression for this Court.” While section 4500 does contain an additional sentencing factor for a lesser 24. In its brief, respondent cites two cases to support its argument, People v. Smith (1950) 36 Cal.2d 444, 448 and People v. McNabb (1935)3 Cal.2d 441, 458. (RB at 59.) Neither of these cases sheds any light on the issue now before this Court becauseat the time they were decided, section 4500 prescribed a mandatory death sentence for any intentional, aggravated assault by a life prisoner, whether or not the victim actually died. (See AOBat84,setting forth the history of section 4500.) To the extent those cases considered whether murder wasa lesser included offense of section 4500,the statute has materially changed since they were decided. 54 sentence wherethe victim does not die within a year and a day from injuries causedby the assault, nothing in the statute creates an “enhancement”as that term is defined under California law. An “enhancement”is an element that justifies additional or greater, not lesser, punishment. (People v. Ahmed(2011) 53 Cal.4th 156, 161; People v. Felix (2000) 22 Cal.4th 651, 655.) “Enhancements typically focus on an element of the commission of the crime . . . which justifies a higher penalty than that prescribed for the offenses themselves.” (People v. Hernandez (1988) 46 Cal.3d 194, 207-208.) Here, however, on its face section 4500 prescribes a sentence of death or life without parole for the offense of an assault, with malice aforethought, by a life prisoner. There is no portion ofthe statute that creates an enhancementor higher penalty if certain factors are met, rather the statute contains what can only be described as the opposite of an enhancement,i.e. it prescribes a lower penalty, a sentence oflife without the possibility of parole for nine years in cases where the victim does not die within a year and a day. Although this Court may only look to the “statutory elements” of an offense when determining whetherit includes another offense, the elements of section 4500 are notclearly identified in the statute. Respondent argues that the death of the victim is not an elementofthe offense, but only a sentencing factor. However, death of the victim is not expressly listed as either an elementor a sentencing factor on the face of statute. Despite this, both the original and the current version of the statute describe a crime that is a capital offense for which the death penalty may be imposed. In order to meet constitutional requirements, the current version eliminated the mandatory death penalty portion of the statute and allowedfor an alternate sentence oflife without the possibility of parole. It later added a proviso that, in essence, creates a non-capital offense where the victim survives the assault: “however, in cases where the person subjected to such an assault does not die within a year and a day... .” (AOBat 84, n.84.) If, as respondent argues, the victim’s death is not an element of section 4500, then the statute is unconstitutional on its face becauseit 55 makes an assault a death penalty crime. The United States Supreme Court has heldthat, in cases of crimes against an individual, the death penalty must be reserved for “for crimes that take the life of the victim.” (Kennedy y. Louisiana (2008) 554 U.S. 407, 447.) A statute that allows use of the death penalty for crimes not involving the death of the victim thus violates the Eighth Amendment. The courts have long recognizedthe principle that if the terms ofa statute are by fair and reasonableinterpretation capable of a meaning consistent with constitutional requirements,the statute will be given that meaning, rather than another interpretation which is in conflict with the state or federal Constitution. (San Francisco Unified Sch. Dist. v. Johnson (1971) 3 Cal. 3d 937, 948; People v. Davis (1968) 68 Cal.2d 481, 483-484; County ofLos Angeles v. Legg (1936) 5 Cal.2d 349, 353.) The court's duty in interpreting a statute is not limited to merely avoiding the construction which makesit clearly unconstitutional and,if possible, the statute must be construed so that the constitutional difficulties will never arise. (Kramerv. Municipal Court (1975) 49 Cal.App.3d 418.) When twoalternative interpretations are presented, one of which wouldbe unconstitutional and the other constitutional, the court is compelled to chose the construction that will uphold the validity of the statute and will be constitutional. (County of Los Angeles v. Legg, supra, 5 Cal.2dat p. 353.) Accordingly, this Court must reject respondent’s argumentthat the death ofthe assault victim is not an element of section 4500. Without that element, the statute is unconstitutionalon its face. To the extent that section 4500 is also charged in cases where the victim does not die within a year and a day,the clause ofthe statute establishing a lesser sentence operates as an exception to the statute which renders only those specific cases non- capital. . This Court should find that murderis a lesser included offense of murderby life prisoner, and reverse both of appellant’s convictions for murder. 56 Hl. THE LYING-IN-WAIT SPECIAL CIRCUMSTANCE IS UNCONSTITUTIONAL BECAUSEIT FAILS TO PERFORM THE NARROWINGFUNCTION REQUIRED BY THE EIGHTH AMENDMENTAND FAILS TO ENSURE THAT THERE IS A MEANINGFULBASIS FOR DISTINGUISHING THOSE CASES IN WHICH THE DEATH PENALTYIS , IMPOSED FROM THOSEIN WHICHIT IS NOT In his opening brief, appellant argued that the lying-in-wait special circumstance (§ 190.2, subd. (a)(15)), as interpreted by this Court, violates the Eighth Amendmentbyfailing to narrow theclass of personseligible for the death penalty, and by failing to provide a meaningful basis for distinguishing the cases in which it is imposed from the manycases in whichit is not. (Godfrey v. Georgia (1980) 446 U.S. 420, 427, citing Furman v. Georgia (1972) 408 U.S. 238, 313 (conc. opn. of White, J.).) Appellant raised three separate arguments: (1) that this Court’s interpretation of the lying-in-wait special circumstanceis so broadthatit does not distinguish between murders committed while lying-in-wait and simple premeditated murder; (2) that this Court has blurred anydistinction between lying-in-wait murder and the lying-in-wait special circumstance; and (3) that the lying-in-wait special circumstance, as interpreted by this Court, does not provide a meaningfulbasis to distinguish defendants who may be subjected to the death penalty from those who maynot. Appellant noted that this Court has rejected each of these arguments in the past, but requested that this Court reconsiderits previous rulings and explained why reconsideration is warranted. (AOBat 88-97.) Respondent does not address any of the arguments for reconsideration presented in the openingbrief, nor doesit address the substance of appellant’s argumentsrelating to this Court’s interpretation of the special circumstance. Instead, respondent merely repeats that this Court has previously rejected similar claims andcites the very cases that appellant asserts have stretched the lying-in-wait special circumstanceinto an ever- expanding, seemingly limitless net, in which virtually all first-degree murders can be captured. Thus, in response to the argumentthat this Court 57 has expanded the circumstances under whichit finds sufficient evidence of lying-in-wait so broadly that it now includesvirtually all premeditated murders, respondent merely quotes this Court’s restatement of the elements of the special circumstance andits holding that the elements on their face do not “undermine the narrowing function.” (RB at 63, quoting People v. Stevens (2007) 41 Cal.4th 182, 201.) Such response does not addressthe gravamenof appellant’s argument, which goesnot to the wording of the elements, but to how those words have been applied by this Court. Similarly, respondent merely quotes from the decision in Peoplev. Gutierrez (2002) 28 Cal.4th 1083, 1148-1149, which stated that the additional requirements of an intent to kill and that the killing take place during the period of concealment and watchful waiting are enoughto distinguish special circumstance lying-in-wait from murder by means of lying-in-wait. Again, respondent focuses on the language ofthe elements rather than the application of that language by this Court. Finally, in responseto appellant’s arguments that the lying-in-wait special circumstance does not distinguish between defendants whoare subject to the death penalty and those who maynot besubjected to capital punishment, respondentmerely asserts the obvious, that this Court has repeatedly rejected that contention. (RB at 64-65.) For the reasons set forth in his opening brief, appellant urgesthis Court to reverse the lying-in-wait special circumstance, and the death sentences predicated uponit. 58 IV. GUILT PHASE AND PENALTY PHASE INSTRUCTIONS UNDERMINED THE REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBT, REQUIRING REVERSAL OF APPELLANT’S CONVICTIONS AND DEATH SENTENCES At the guilt phase,the trial court instructed the jury with CALJIC Nos. 2.01, 2.21.2, 2.22, 2.27, 2.51, and 8.20. (SRT 1082-1083, 1085-1086, 1096-1097; 9CT 2525, 2530, 2532, 2533, 2534, 2556.) At the penalty phase, the parties agreed that the trial court would re-instruct the jury with all general guilt phase instructions, including most ofthe instructionslisted above. Accordingly, the trial court read CALJIC Nos. 2.01, 2.21.2, 2.22, 2.27, and 2.51 again to the jury before they began their penalty phase deliberations. (8RT 1636-1637, 1639-1640; 10CT 2709, 2714, 2716, 2717, 2718.) These instructions violated appellant’s constitutional rights to due process andtrial by jury and the fundamental requirementofreliability in a capital case, by relieving the prosecution ofits burden to present the full measureofproofat either the guilt or penalty phase. As argued in the openingbrief at pages 98-108, these instructions violated constitutional precepts in a mannerthat can never be harmless. . In his openingbrief, appellant noted that this Court has rejected each of these argumentsin the past, but requested that this Court reconsiderits previousrulings and explained at length why reconsideration is warranted. Respondenthas not addressed the grounds for reconsideration set forth in appellant’s brief, but merely repeats that this Court has rejected the underlying claims. (RB at 65-66.) For the reasonsset forth in the opening brief, this Court should find that the challenged instructions distorted the jury’s consideration and use of circumstantial evidence, lessened the prosecution’s burden anddiluted the reasonable doubt requirement, to the extent that the reliability of the jury’s findings of guilt and the appropriate penalty are undermined. The judgments against appellant and his death sentences must be reversed. 59 V. THE TRIAL COURT ERRONEOUSLY ADMITTED AND ERRONEOUSLY INSTRUCTED ON EVIDENCE PRESENTEDIN AGGRAVATION PURSUANTTO PENAL CODESECTION190.3 SUBDIVISION (b) AND THE EVIDENCE WASINSUFFICIENT FOR ANY JURORTO FIND THAT APPELLANT COMMITTED THE UNCHARGED CRIMES OF FORCE OR VIOLENCE BEYOND A REASONABLE DOUBT A. Appellant Did Not Forfeit His Claims that Evidence of Unadjudicated Offenses at the Penalty Phase Was Improperly Admitted, and/or WasInsufficient to Establish the Elements of the Uncharged Crimes Respondentcontendsthat all of appellant’s claims regarding the admission andsufficiency of the evidence presented to prove uncharged offenses pursuant to “factor (b)”are forfeited because appellant did not “object to the admission”ofthis evidenceat trial. (RB at 66.)” Appellant urges this Court to reconsiderits prior holding that the forfeiture rule applies to all challengesto the sufficiency of evidence of unadjudicated offenses introduced to obtain a death sentence. . 1. There is No Rationale for Requiring an Objection to the Sufficiency of Factor (b) Evidence It is well-established that appellate claims ofsufficiency of the evidenceto establish the elements of criminal offenses are cognizable on appeal evenin the absence of any objection in the trial court. “Parties may generally challengethe sufficiency of the evidence to support a judgment for the first time on appeal because they ‘necessarily objected’ to the sufficiency ofthe evidence by ‘contesting[it] at trial.’ [citations].” (People v. McCullough (2013) 56 Cal.4th 589, 596; see People v. Rodriguez (1998) 17 Cal.4th 253, 262 [sufficiency challenge to prior “strike” allegation not 25. Respondent also arguesthat all claims regarding factor(b), includinginstructional error and claims regarding the constitutionality of factor (b), are forfeited. (RB at 67.) To the extent those arguments are specifically raised in regard to specific claims discussedin this brief, appellant will address the arguments therein. 60 forfeited by lack of objection]; cf In re Troy Z. (1992) 3 Cal.4th 1170, 1180-1181 [guilty plea or no contest plea waives challenge to the sufficiency of the evidence].) Thus, there is an exception to the general rule that an objection must beraised in thetrial court to avoid forfeiture of sufficiency of the evidence claims, and this Court has held that “questions of the sufficiency of the evidence are not subject to forfeiture.” (People v. Butler (2003) 31 Cal.4th 1119, 1126-1128, & fn. 4; Tahoe National Bankv. Phillips (1971) 4 Cal.3d 11, 23, fn. 17 [“contention that a judgmentis not supported by substantial evidence”is an “exception”to the rule that “points not urged in the trial court cannot be raised on appeal”J.) Despite the long-standing principle that sufficiency of the evidence claimsare not forfeited by lack of objection, this Court has applied a different rule in connection with claims challenging the sufficiency of factor (b) evidence introduced in aggravation at the penalty phase. (People v. Montiel (1993) 5 Cal.4th 877, 928, fn. 23.) For the same reasonsthat claims challenging the sufficiency of the evidence of the charged offenses, of the special circumstances, or of other sentencing factors do not require a trial level objection for appellate review, no objection should be required to permit appellate review of the evidence of unadjudicated offenses presented at the penalty phase of a capitaltrial. Before the opinion in Montiel, this Court was faced several times with sufficiency of factor (b) evidence claims that had not been raised in the trial court. In People v. Boyd (1985) 38 Cal.3d 762, this Court held that factor (b) required that the underlying uncharged offenses be proven beyond a reasonable doubt. This Court then assessed the evidentiary sufficiency of several incidents under factor (b), some of which were objected to and some of which were not. (/d. at pp. 777-778.) With regard to the unobjectedto factor (b) incidents, having found the evidencesufficient, this Court declined to “decide whether the defense’s failureto object barsit from raising this point on appeal.” (/d. at p. 777.) After Boyd, this Court continued to reach andreject the merits of factor (b) sufficiency claims without deciding whether or not such claims were forfeited by lack of 61 objection. (See e.g., People v. Carrera (1989) 49 Cal.3d 291 [assuming sufficiency of factor (b) evidence claim was properly raised despite the lack of objection, and finding the evidence sufficient].) However,this Court has also found factor (b) evidence to be insufficient despite the lack of any objection before the trial court. In People v. Thompson (1988) 45 Cal.3d 86, this Court considered, among other factor (b) evidence, the defendant’s alleged discussion aboutkilling a witness against him. Although the record does notindicate thattrial counsel objected to the sufficiency of this factor (b) evidence, in Thompson this Court cited the substantive rule applied in Boyd andheld that there was insufficient substantial evidence to establish a violation of the criminal statute prohibiting solicitation of murder. (Id. at p. 129 [“Since there was insufficient substantial evidence to establish violation of section 653f as a separate crime, we conclude that whatever the relevanceofthis evidence at the guilt phase to show defendant's consciousnessof guilt, the trial court should not have permitted it to be argued under factor (b) at the penalty phase”’].) Application of the general forfeiture exception to sufficiency of the evidence claims where the challenged evidence was presented to prove unadjudicated criminal activity under factor (b) at the penalty phase of a capital trial wasfirst squarely addressed by this Court in People v. Montiel, supra, 5 Cal.4th at p. 928. Without citation to any prior authority on the issue, this Court explainedits rejection of the generalrulein a brief footnote: Even if defendant need do nothingat trial to preserve an appellate claim that evidence supporting his conviction is legally insufficient, a different rule is appropriate for eviflence . presentedat the penalty phase of a capital trial. There th ultimate issue is the appropriate punishmentfor the capital crime, and evidence on that issue may include one or more other discrete criminalincidents. (§ 190.3, factors (b), (c).) If the accused thinks evidence on any such discrete crime is too insubstantial for jury consideration, he should be obliged in general terms to object, or to move to exclude orstrike the evidence, on that ground. 62 (People v. Montiel, supra, 5 Cal.4th at p. 928, fn. 23, italics in original.) This forfeiture holding in Montiel has been reiterated in subsequent decisions of this Court. (See e.g., People v. Livingston (2012) 53 Cal.4th 1145, 1175; People v. Carpenter (1999) 21 Cal.4th 1016, 1060.) In Livingston, this Court was confronted with the argument that there is a distinction between claimsthat the factor (b) evidence wasso insubstantial that it should never have been presented to the jury, i.e. that it was error to admit the evidencein thefirst instance, and claims that such evidence, once presented, wasinsufficient to actually establish the uncharged offense. This Court apparently rejected such distinction for the sole reason that factor (b) evidence is admitted as aggravating evidenceto obtain a death sentence, and notto obtain a conviction. Other than quoting the above-cited footnote from Montiel, this Court only explained the distinction as follows: Defendant claimsheis not challenging the admission of the evidence but its sufficiency, a challenge a defendant may makeon appeal from a conviction without an objection. But, as we explained in Montiel, here the evidence was admitted at the penalty phase ofa capital trial as aggravating evidence, not to support a conviction for that crime. (People v. Livingston, 53 Cal.4th at p.1175.) The reasonsstated in Montiel and Livingston provide nobasis for a distinction between sufficiency of evidence claims directed toward evidence of the charged offenses or special circumstances and claims directed toward evidence of unchargedoffenses at the penalty phase. Claimsrelating to the sufficiency of guilt phase evidence are not subject to forfeiture because the defendant“‘necessarily objected’ to the sufficiency of the evidence by ‘contesting [it] at trial.” [citations].” (People v. McCullough, supra, 56 Cal.4th at p. 596.) This is apparently the rule whether the defense actually mounted any challenge, either through objections, motions to exclude or strike, cross-examination, presentation of evidence or argument, to the prosecution’s evidence regarding one or more elements of any of the charged offenses. Even where the defendantattrial did not argue to the jury that the prosecution failed to meet its burden as to any element of a charged offense, under McCullough, he is deemedto have “‘contested” the 63 sufficiency of the evidence for that offense simply by goingto trial on that charge. This Court has apparently entertained the merits of sufficiency of the evidence claims regarding a specific crime in cases where multiple crimes were charged, but the defendant presented no defense whatsoeverto the specific crime for which he challenges the sufficiency of the evidence on appeal, as well as in cases where multiple special circumstances are alleged, but defendant challenged noneor only one special circumstance duringtrial. | To the extent that this Court’s footnote in Montiel distinguished factor (b) evidence from evidence presentedat the guilt phase based onthe fact that the prosecution may present evidence of multiple prior criminal incidents to support a death sentence whenit stated that “evidence on that issue may include one or more otherdiscrete criminal incidents,” the rationale forthis distinction is not clear. While, unlike at the guilt phase, the penalty phase jury is not required under California law to indicate which, if any, of the factor (b) offenses were established beyond a reasonable doubt, the same is true when the defendantis convicted offirst- degree murder and evidence was presented on more than onefactualtheory, such as premeditated and deliberate murder, torture murder, lying in wait, felony murder or any of the other grounds described in section 189. Where multiple theories of first-degree murder are presented to the jury, this Court does not require the jury to render a unanimousverdict or makespecific findings as to whichtheory ortheories it found were established beyond a reasonable doubt. (People v. Beardslee (1991) 53 Cal.3d 68, 92 [a jury may convict a defendantoffirst degree murder . . . without making a unanimous choice of one or more of several theories proposed by the prosecution,e.g., that the murder was deliberate and premeditated or that it was committed in the course of a felony”].) Nonetheless, this Court addresses all guilt phase sufficiency of evidence claims regardless of whether or not there was an objection below. Similarly, where burglary murderis alleged or argued as the basis for first-degree felony murderor the felony-murder special circumstance, the 64 prosecution may rely on more than one “target offense,” such as theft, rape, or any other felony and “the jury need not unanimously decide, or even be certain, which felony defendant intendedas longasit finds beyond a reasonable doubt that he intended some felony.” (People v. Russo (2001) 25 Cal.4th 1124, 1132-1133.) Despite the fact that, just like factor (b) evidence, evidence ofintent to support a burglary-murder conviction or special circumstance “may include one or more other discrete criminal incidents,” i.e. the evidence may support the intent to commit one or more target offense, this Court does not require an objection to the sufficiency of the burglary murderor special circumstance evidence to preserve the issue for appeal. (See e.g., People v. Tully (2012) 54 Cal.4th 952, 1007-1008 [evidence sufficient to support burglary-murder conviction and special circumstance based onintent to committheft, or intent to commitrape.] In light of this, there is no logical reason why a penalty phasetrial, at whichthe defendant necessarily argues that the prosecution hasfailed to establish that the aggravating factors, including any unchargedfactor (b) crimes, outweigh any mitigating factors, does not serve to “contest” the prosecution’s evidence in the same waythat a guilt phasetrial does. If this Court discerns somedistinction between the strength of the evidence needed to support the elements of a crime or a special circumstance finding at the guilt phase, and the strength of the evidence needed to support the elements of a crime as a sentencing factor at the penalty phase of a capital trial, the law does not support any such distinction. Each element of each unadjudicated offense under factor (b) must be established beyond a reasonable doubt before it can be weighed as an aggravating factor at sentencing just as each element of a crimeor special circumstance must be established by precisely the same quantum ofproof. Nordo this Court’s cases about forfeiture create a meaningful difference betweensufficiency of evidence claimsthat affect guilt versus claimsthat affect only the sentence. In People v. Rodriguez, supra, 17 Cal.4th 253, for instance, the Court addressed the sufficiency of the evidence supporting a prior felony “strike” underthe three strikes law. (d. 65 at pp. 261-262.) This Court found thatthe prosecution’s abstract of judgmentoffered attrial to support oneofthe strike allegations was insufficient to sustain the trial court’s finding and reversed. (/d. at p. 262.) Applying the rule set forth in McCullough, supra, 56 Cal.4th at p. 596, this Court rejected the Attorney General’s argumentthat the claim wasforfeited because the defendantraised the issuefor the first time on appeal, stating: “ft]o the contrary, defendant at the outset mounted the most complete challenge possible to the strike allegation: He demandeda trial.” (Ibid; see also People v. (Roger) Rodriguez (2004) 122 Cal.App.4th 121, 129 [no forfeiture of insufficiency claimsrelating to sentencing enhancements].) The logic of Montiel also does not hold up in light ofhow and when factor (b) sufficiency is consideredby trial courts and weighedbyjuries. Underthe reasoning ofPeople v. Montiel, supra, 5 Cal.4th at p. 928, fn. 23, the defendant must necessarily “object, or [] move to excludeorstrike the evidence”in support of each insufficient factor (b) incidentto preserve the claim for appellate review. Butit is entirely unclear when the timeis ripe for such an objection or motion to be made. The issue cannot adequately be resolved at an in limine Phillips hearing because at such hearing,thetrial court does not make the ultimate sufficiency determination based on all available evidence at such a hearing and it may lack, or indeed properly exclude,critical defense evidence. (People v. Whisenhunt (2008) 44 Cal.4th 174, 225[trial court need not consider defense rebuttal testimony at the Phillips hearing].) The prosecutor’s proffer at the hearing also may go beyond whatit actually presents to the jury. | Nor doesit suffice to require a defendant to move to “exclude or strike the evidence,” People v. Montiel, supra, 5 Cal.4th at p. 928, fn. 23, after the actual evidence demonstrating insufficiency is adduced during trial. It is often entirely speculative when evidencetips from the pointof relatively weak to legally insufficient. Even a formalistic requirement of a motion to strike at the close of evidence would be both legally premature and ineffectual. It would be premature because sufficiency error does not even occur until the jury finds against the defendant. (Cf. People v. Guiton 66 (1993) 4 Cal.4th 1116, 1125 [sufficiency error “occurs when a jury, properly instructed as to the law, convicts on the basis of evidence that no reasonable person could regard as sufficient”].)”° Even if the close of evidence werethe legally appropriate point at which to raise claimed insufficiency of the evidence and request its exclusion,striking the evidence at this juncture would dolittle to prevent the very same claim from being raised on appeal, because the jury’s thought process would have been infected by presentation of the evidencein the first place. In other words, even if such a motionto strike or exclude were granted, this Court would be faced with a constitutional claim that the jury’s individualized weighing processwastainted by irrelevant and inflammatory evidence, despite the court’s instruction to strike it from consideration after the close of evidence. Thus, the purposes of the forfeiture doctrine would not be served. (Cf. People v. Gibson (1994) 27 Cal.App.4th 1466, 1468 [“[t]he purpose of the waiverdoctrineis to bring errorsto the attention ofthetrial court so they ‘may becorrected or avoided”’].) Moreover, while application of the forfeiture rule to a claim that the trial judge improperly admitted certain evidence may be warranted because the claim is based ontrial court error, in contrast, a sufficiency of the evidence claim is not based on any notion ofjudicial error but on fundamental constitutional principles of due process and/orreliability. Finally, given the heightened standardforreliability in death determinations, Woodson v. North Carolina (1976) 428 U.S. 280, 305, forfeiture should not be applied to factor (b) sufficiency claims. In a capital case,it is critical that evidence of a defendant’s past crimes that are used to put him to death is not wholly insufficient. (See People v. Horton (1995) 11 Cal.4th 1068, 1138 [allowing collateral challenge of prior murder 26. Because this Court has steadfastly refused to require special findings on factor (b) evidence(see, e.g., People v. McDowell (2012) 54 Cal.4th 395, 443), the only evidence available to the defendant that the jury may have improperly used insufficient factor (b) evidence against him is after the verdict is reached. 67 conviction because “the unique nature of the death penalty imposes a special need forreliability in the determination of the applicability and appropriateness of this ultimate sanction.”].) The gravity and seriousness of a death judgmentshould not be undermined by insubstantial allegations of wrongdoing that may inflame and confuse a jury. AsJustice Arabian noted in his concurrence in People v. Welch (1993) 5 Cal.4th 228, whenthe allegedly forfeited claim “implicat[es] fundamental principles of policy and constitutional guaranties . . . the prerequisite of an objection to appellate review wouldfrustrate rather than subserve the interests ofjustice.” (People v. Welch (1993) 5 Cal.4th 228, 241, (conc. opn. of Arabian, J.).) The importance of rendering a fair and reliable death judgment based on substantiated evidence implicates just such important policy and constitutional guarantees, regardless of whether defense counsel argued the insufficiency of evidence to the judge. Forall these reasons, this Court should reconsiderits ruling that the sufficiency of factor (b) evidence must be challengedin the trial court or such challenges will be deemed forfeited on appeal. Appellant urges this Court to address the merits of each of the challenges to the evidence presentedin this appeal, despite the lack of objection. 2. The Forfeiture Rule Does Not Apply to Issues the Trial Court Addressed and Rejected Sua Sponte In the event that this Court declines to reconsider application of the forfeiture rule to sufficiency of factor (b) evidence claimsraised for the first time on appeal, that rule should not be applied, where, as here, thetrial court actually ruled against appellant on the admissibility of some of the evidence. In raising its forfeiture argument, respondent does notdistinguish between two incidents whichthe trial court expressly held admissible following a sua sponte hearing (the March 8, 1997,cell extraction at High Desert State Prison and the April 18, 2000, cell extraction at Corcoran State Prison), and the other incidents the prosecution presented in aggravation. Evenif the forfeiture rule is upheld, it should not apply to the two incidents that the trial court expressly ruled admissible in this case. 68 There is a general exception to the forfeiture rule for instances when an objection would have been futile. (People v. Hill (1998) 17 Cal.4th 800, 820.) Futility has been found not only where there is no support for the appellant’s position in the existing case law, but also wherethetrial court has already addressed an issue andthereis no basis to think that a specific objection would haveresulted in a different ruling. (/bid.) In this case, the trial court addressed on its own whether there was sufficient evidence to permit admission of the March 8, 1997, and the April 18, 2000, incidents and found the evidence sufficient for both offenses. Under these circumstances, any objection by counsel would have been futile and thus appellant’s arguments that neither incident should have been admitted are not forfeited and are preserved for review. B. The Trial Court Erred in Admitting Evidence Regarding the March8, 1997, Extraction at High Desert State Prison Turning to the merits of appellant’s argument that the March 8, 1997, incident did not involve an act of force or violence, respondentrelies on irrelevant and/or misstated facts. The only issue is whether there was sufficient evidence that appellant’s act of holding a mattress in front of him whenhetried to leavehis cell after repeatedly being shot at with a volley of potentially lethal rubber projectiles and sprayed with pepper spray was an act of force or violence. Nonetheless, respondentasserts that, because prisoners are not allowedto leave their cells without cuffs on, and appellant had not voluntarily exited his cell when provided an opportunity to “cuff- up”before the third deployment of ammunitioninto hiscell, the evidence showsthat his attempt to exit during the extraction was an act of force or violence.” 27. In makingits argument, respondentrelies in part on the video tape of the incident (Exhibit A-1), which was only shownto the court and the jury after the court madeits ruling. While appellant does not concede that the video in any way supports respondent’s view ofthe evidence, particularly that appellant “stood by the entrance and waited for the officers to open the door,” (RB at 75), in addressing the propriety ofthe trial court’s ruling, this Court may not consider evidence not before the court whenit (continued...) 69 Other than repeating the word “charged”to describe appellant’s attempts to exit the cell (RB at 74-75), respondent does not explain how holding a mattress up as shield renders appellant’s attempted exit from the cell an act or threat of force or violence, particularly where, as here, there was minimalor no evidence that appellant made or attempted to make any contact with another person in doing so. Further respondent wholly ignores the argumentsthat factor (b) evidence should be limited to assaults that cause or threaten to cause serious bodily or violent injury and that a simple assault with no contact or injury is no more than trivial incident that should not influence a life or death decision. (AOB at 119-122). Accordingly, appellant will not restate those argumentshere. As argued here andin the openingbrief, the trial court abused its discretion in admitting evidence of the March 8, 1997, extraction as an unadjudicated crime of force or threatened force or violence. C. The Trial Court Erred in Admitting Evidence Regarding the April 18, 2000, Incident at Corcoran State Prison Respondent, in its argument, states that the only evidence to support the introduction of the April 18, 2000, offense was that appellant “contacted Officer Gatto’s hand” while he was attempting to grab a pepperspray cannister away from Gatto. (RB at 78.) In doing so, respondent overstates the facts before the court at the time ofits ruling. Gatto had nottestified that appellant “contacted” his hand,but only that he had a vague memory “of some kind of somewhatfeeling of a touch.” (7RT 1479-1480.) Further, respondent onceagain ignores the arguments that factor (b) evidence should be limited to crimes that cause or threaten to cause serious bodily injury or violent injury and that a “technical battery” alone is no more than trivial incident that should not influencea life or death decision (AOB at 131- | 133), and accordingly, appellant will not restate them here. As argued here andin the openingbrief, the trial court abused its discretion in admitting evidence of the April 18, 2000 incident as an 27. (...continued) made its ruling. (See e.g., People v. Tully, supra, 54 Cal.4th at p. 1029.) 70 unadjudicated crime of force or threatened force or violence. D. The Admission of Evidence Regarding the March 8, 1997, and the April 18, 2000, Incidents Violated the Federal Constitution Appellant raised two arguments that the admission of the March 8, 1997, and April 18, 2000, incidents violated the Sixth, Eighth and 14" Amendments to the United States Constitution. (AOB at 134-139.) Respondent contends that both argumentsare forfeited, and that both fail on the merits. For the reasonsstated in Section A of this argument, ante, appellant’s federal constitutional claims are not forfeited. In addition to the reasonsset forth there, the use of de minimis ortrivial acts as factors in aggravation unconstitutionally introduced irrelevant matters into the penalty phase. If section 190.3, factor (b) allows the introduction of acts that are only “technical batteries” or “technical assaults”in that they did not involve any violence or serious bodily harm, then California’s death penalty statute violates the Eighth Amendment. This argumentraises an issue of pure law anda facial constitutional defect in the death penalty statute, of the type that appellate courts may consider despite the possible application of the forfeiture rule. (In re Sheena K. (2007) 40 Cal.4th 875, 887, citing People v. Welch (1993) 5 Cal.4th 228, 235-236.) For these reasons, appellant’s Eighth Amendmentclaim should be considered on the merits. (See also, Jn re Clark (1993) 5 Cal.4th 750, 798,[finding that “the magnitude and gravity of the penalty of death” outweighs the values that otherwise justify procedural bars in capital habeas corpus cases].) With regard to the merits, respondent argues only thatthe trial court did not abuseits discretion in admitting the two incidents, and thus, their admission did not violate the United States Constitution. (RB at 79.) The trial court’s decision that there was sufficient evidence to admit these offenses has no bearing on the constitutionality of a statute that allows the jury to consider such minor“technical” crimes when determining whether the defendant should live or die. Since respondent has not addressed the 71 merits of the argument raised in the openingbrief, appellant will not furtherreply. E. Evidence Presented in Aggravation Pursuant to Penal CodeSection 190.3 Subdivision (b) Was Insufficient to Establish that Appellant Committed Uncharged Crimes of Force or Violence Beyond a Reasonable Doubt Respondentagain asserts that appellant’s claims regarding the sufficiency of the evidence ofthe factor (b) incidents are forfeited. Appellant addressed that contention in Section A of this argument, ante, and incorporates that discussion here. 1. The Evidence WasInsufficient to Establish That Appellant Committed an Assault When He Attempted to Exit His Cell on March 8, 1997 Respondent arguesthat appellant’s description of the evidenceis no more than a “one-sided view”that appellant had innocent explanations for his actions. To the contrary, appellant’s description is fully supported by the evidence asset forth in his opening brief at pages 113-118, and 141- 142. Rather, it is respondent whois ignoring the evidence andaskingthis Court to draw inferencesthat are contradicted by the record. Regardless of whetherappellant cuffed-up when given an opportunity to do so in between the rounds of pepper spray and lethal rubber bullets, the best evidence, the videotape of the incident, does not show that appellant chargedout ofthe cell towards the guards. Instead,it showsa projectile launcher being fired into the cell, and then a mob of guardsin riot gear entering the cell, struggling to remove a mattress, and eventually dragging appellant out. (Exhibit A-1.) Moreover,there was no testimony or evidence from which it could be inferred that appellant “waited” by the door for the officers to open it; Dewalltestified that appellant threw himself over the webbing that was blocking the door when the third round of bullets were fired. (6RT 1256.) To the extent respondent arguesthat appellant knew he would come in contact with officers, that fact does not provide any evidence of an intent to commit an assault. Appellant was holding a mattress in front of his body with both hands, in the position of a shield, when he attempted to exit the 72 cell. A shield is not a weapon. Hadhe intendedviolent contact with the guards, the mattress wasin the way. Respondentalso argues that the appellant did not act in self-defense in response to unreasonable or excessive force when he used the mattress to shield himself as he attempted to exit his cell. Although it contendsthat the evidence showedthat using pepper spray and/or “less-lethal” weapons”to removean inmate from his cell for refusing to be handcuffed is reasonable and not excessive, there was absolutely no evidence presented on this point. Respondent does not explain why the use of pepper spray and now-banned lethal weaponsto force prisonersoutoftheir cells is not an excessive responseto violations of prison regulations that do not involve any force or violence. Dewall merely testified as to prison policy, and neither he nor any other witnessestestified as to the reasonsforthe policy or the reasonableness of the use of such force. (See RB at 88-90.) Moreover, it was the prosecutor’s burden to prove beyond a reasonable doubt that 1) the correctional officers did not use excessive force; 2) the correctional officers did not engage in behavior that appellant actually and reasonably believed put him in dangerof suffering excessive force; and 3) appellant used unreasonable force to defend himself against a real or apparent danger. (AOBat 146.) No evidence waspresented on any of these issues. To the extent respondentrelies on People v. Moore (2011) 51 Cal.4th 1104, 1136, for the proposition that the prosecution doesn’t need to introduce evidence to negate “possible justifications” for the defendant’s actions where noneis raised by the evidence,its reliance is misplaced. In Moore,the appellant had been involvedin a jailhouse scuffle with another inmate. No officers were involved. Unlike the present case, in Moore, “the evidence . . . did not raise any legal justification for defendant's actions.” (Id.) In contrast here, as the trial judge found, there was evidence from which self-defense and/or the use of excessive force could have been established, and, indeed, the court felt that the evidence required an 28. A “less lethal” weaponis still lethal. 73 instruction on these issues even in the absence of a defense request. (7RT 1610-1612; 8RT 1627.) Under these circumstances, the prosecutor was required to present evidence to show the force was not excessive, that the guard’s behaviordid not cause appellant to reasonably believe he was in danger of becominga victim of excessive force, and that appellant’s “use of force” was unreasonable. No such evidence on any of these issues was presented. Respondent does argue that the prosecution met its burden of showingthat appellant did not reasonably believe the officers would use excessive force because appellant had refused to comply with their previous orders “knowing”that the officers would deploy pepper spray and potentially lethal projectiles. (RB at 91.) Respondent does not explain how appellant’s knowledge that excessive force would be used negates a reasonable belief that such force would be used and, indeed, that very knowledge defeats its argument. | Forall the reasons stated here and in appellant’s openingbrief, there wasinsufficient evidence to prove appellant committed an assault on March 8, 1997. 2. The Evidence WasInsufficient to Establish that Appellant Committed a Battery on March 12, 1997, at High Desert State Prison In the absence of any evidencethat it was appellant, and nothis cellmate, Romo, who “gassed” the guards on March 12, 1997, respondent first claims that the evidence supported an inference that two people, instead of one, threw the two cartons of noxiousliquid through the food port oftheir cell. Respondent’s interpretation of the evidenceis not based on the actual evidence nor on any reasonable inferences that could be drawn therefrom. First, there was no evidence that the two cartons were thrown “simultaneously or in rapid succession” as respondentasserts (RB at 93), but even if they were thrown quickly, no “accuracy” is required to hurl a milk carton though a food port opening. Accordingto thetrial testimony, the size of a food port was variously described as either 14 4 or 18 inches 74 wide, and fouror five inches high. (4RT 739; 7RT 1469.) The cartons were described as “small” (6RT 1239), indicating that they were single- serving or half-pint sized cartons, and the food port is designed to accommodate a food tray on which such cartons would be placed together with other items.” The port opening apparently was large enough for someonein a cellto fling a large piece of plastic throughit using a broad, swinging arm motion. (6RT 1386-1387.) But more to the point, respondent does not reasonably infer that one individual standing directly in front of the port would haveany difficulty hurling two cartons through the opening in rapid succession. Indeed, the size of the cell, as depicted in the very evidence on which respondentrelies, would have precluded twoindividuals from standing next to each otherin front of the door, particularly when moving their arms to make throwing motions. Respondentalso argues that, even if appellant did not throw one of the cartons himself, he was guilty of aiding and abetting a battery committed by Romo. (RB at 93.) While the court is not required to instruct on the elements of uncharged offenses absent a request by the defense, the jury in this case wasinstructed on the elementsofall asserted factor (b) offenses. The court asked the prosecution on several occasionsto identify the specific uncharged crimesit was relying on and whichinstructions pertained to those offenses. (See e.g., SRT 1192-1194; 7RT 1593-1596.) The prosecutor never mentioned it was relying on an aiding and abetting theory for this or any other factor (b) incident and did not request any instructions on aiding and abetting at either phase ofthe trial. Further, the prosecution never argued that appellant aided and abetted a battery. Indeed, the only argumentpresented to the jury on this incident wasthat “Mr. Delgado andhis cellmate each throw a container”on the officers. (8RT 1671.) The government cannot now argue the evidence wassufficient to 29. The food port is also used to put handcuffs on a prisoner before he exits a cell. This is accomplished by the inmate placing both hands, up to his wrists, through the port simultaneously. It is thus big enough for two hands to comethrough at the same time. (4RT 738.) 75 establish an aiding and abetting theory whenit failed to present that theory to the court or to the jury in any form. Whetheror not the evidence may havealso established appellant was an aider and abettoris irrelevant to this issue of whether the prosecution met its burden of proofof establishing the elements of the identified uncharged crimesas presented and argued to the jury. Nonetheless,the evidenceis also insufficient to show that any reasonable juror could have found the elements ofliability as an aider and abettor beyond a reasonable doubt. Aider and abettorliability requires that the defendant 1) know of the perpetrator’s unlawful purpose; 2) have the intent or purpose of encouragingor facilitating the commission of the crime; and3) aid, promote, encourage orinstigate, by act or advice, the commissionofthe crime. (People v. Prettyman (1996) 14 Cal.4th 248, 262.) Respondent’s argumentthat these elements were proven is circular and nonsensical. It first argues that it was reasonable to conclude that appellant and Romo were in agreementto force a cell extraction. Because of this supposed “collusion,” respondent arguesthat it was also reasonable to conclude that appellant knew that Romohadthecartonsofnoxiousliquid in the cell and that Romo wasgoing to throw them. From this, respondent theorizes that “the jury could reasonably concludethat appellant, acting with the intent for Romo to commit a battery and with knowledge that Romo would throw the milk cartons... , encouragedor instigated the battery by colluding with Romoto force the officers to initiate a cell extraction.” (RB at 94.) Regardless of appellant’s intent with regard to the cell extraction, however, respondentcan pointto no evidence to support a reasonable inference that appellant intendedto aid and abet the gassing battery offense, and certainly no evidence that would establish his intent to do so beyond a reasonable doubt. (See People v. Mendoza (1998) 18 Cal.4th 1114, 1129 [to be culpable, an aider and abettor must intend not only the act of encouraging and facilitating but also intend the criminalact the perpetrator commits].) Despite appellant’s history of incarceration and extractions, there was no 76 evidence he ever committed a gassing and nobasis for an inference of an intent to assist Romohere. 3. The Evidence WasInsufficient to Establish that Appellant Committed an Assault or Battery on March 12-13, 1997, at High Desert State Prison Respondentargues that the evidence showsappellant committed a battery during the extraction that followed the incident discussed above and that the appellant did not act in self-defense in response to unreasonable or excessive force when he struck an officer attempting to forcibly remove him from his cell for a violation of a prison regulation that did not involve force or violence. (RB at 95-100.) Although the extraction followed the gassing incident, the evidence showedthe extraction was performed because Romo and/or appellant failed to remove the coverings from their windows. | Although respondent contends that the evidence showedthat using pepper spray and/or “less-lethal!” weapons to remove an inmate from his cell for refusing to be handcuffed is reasonable and not excessive, there was no evidence presented on this point. Respondent does not explain why the use of pepper spray.and now-bannedlethal weaponsto force prisoners out of their cells is not an excessive responseto violations of prison regulations that do not involve any force or violence. Dewall merely testified as to prison policy, and neither he nor any other witnessestestified as to the reasons for the policy or the use of such force. (See RB at 97-99.) Moreover,asset forth above in Section E1, ante, it was the prosecutor’s burden to prove beyond a reasonable doubtthat 1) the correctional officers did not use excessive force; 2) the correctional officers did not engage in behavior that appellant actually and reasonably believed put him in danger of becoming a victim of excessive force; and 3) appellant used unreasonable force to defend himself against a real or apparent danger. Respondent’s reliance on People v. Moore, supra, 51 Cal.4th at p.1136,is misplaced. As explained above, in Moore, unlike here, “the evidence... did notraise any legal justification for defendant's actions” (/d.) In this case,the trial judge found there was evidence from whichself-defense 77 and/orthe use of excessive force could have been established and instructed on these issues, even though the defense did not request the instructions. The prosecutor thus wasrequired to present evidence to show the force was not excessive, that the guard’s behavior did not cause appellant to reasonably believe he was in danger of becoming a victim of excessive force, and that appellant’s “use of force” was unreasonable. No such evidence onany ofthese issues was presented.” Asit did before, respondent argues that the prosecution metits burden of showing that appellant did not reasonably believe the officers would use excessive force because appellant had previously refused to comply with orders “knowing”that the officers would deploy pepper spray andpotentially lethal projectiles. (RB at 100.) Again, respondent does not explain why appellant’s knowledge that excessive force would be used supports, rather than defeats, its argumentthat he didn’t reasonably believe such force would be used. For all the reasons stated here and in appellant’s openingbrief, there wasinsufficient evidence to prove appellant committed an assault or battery on March 12-13, 1997. | 4. The Evidence WasInsufficient to Show that Appellant Committed an Uncharged Actof Possession of a Weaponor Assault at Corcoran State Prison on November13, 1999 Respondent contends the evidence wassufficient to show that appellant possessed the sharpened instrumentthat Officer Tovar found while escorting another inmate, Lopez, to the shower. Asset forth in the opening brief, however, Tovar provided no testirnony from which a juror could conclude, beyond a reasonable doubt, that appellant actually or 30. Because the prosecution bore the burden of proving beyond a reasonable doubt that appellant did not act in self-defense, respondent’s argument that “a lack of evidencethat appellant was notactingin self- defense is not evidence that he was lawfully defending himself,” (RB at 100), is unavailing. The missing evidence here was evidencethe prosecution had to present pursuant to the instruction given to the jury: “The burden is on the people to provethat the use of force or violence was not in lawful self-defense.” (8RT 1649; 10CT 2732.) 78 constructively possessed the sharpened instrument. (AOBat 157-158.) Respondentalso finds the evidence ofassault to be sufficient, arguing that the mere fact that a sharp object was discovered sticking out of a crack in appellant’s cell door when another prisoner happenedto be walking by is sufficient to prove beyond a reasonable doubtthat appellant willfully placed the instrumentin a crack in his door, that doing so would naturally, probably and “directly” result in the application of force to the other prisoner, that appellant was aware of these probable results, and that appellant had the presentability to apply force to the other prisoner. (RB at 105.) Asstated in the openingbrief, in the absence of any evidence that appellant himself put the instrumentin his door, whether he did so before or while Lopez was walking by, whether he did so with any force or propulsion, or whether he even knew Lopez wasthere, no reasonable juror could properly draw the inferences required to find appellant guilty of assault beyond a reasonable doubt. (AOBat 158-159.) Respondentalso asserts the evidence showed appellant had the present ability to assault Lopez because he possessed the instrument. It relies on case law that finds a present ability may be established even if some “steps remain to be taken,” and even if the victim thwarts the attack. (RB at 105.) Respondent overlooks that there was no evidencethat appellant was “capable ofinflicting injury on the given occasion”as the very case law it cites requires. (People v. Chance (2008) 44 Cal.4th 1164, 1172.) No evidenceat all was presented on this crucial elementofassault, and there was no evidence from which this element could be inferred. 5. The Evidence WasInsufficient to Show that Appellant Committed an Uncharged Act of Violence at Corcoran State Prison on March 29, 2000 Respondent argues that appellant’s contention that the evidence does not establish that appellant committed an act or threat of force or violence on March 29, 2000,is forfeited because,in its view, only the judgeis required to find such a fact and the judge here was neveraskedto doso. (RB at 107-108.) 79 To the extent respondent relies on People v. Thomas (2012) 53 Cal.4th 771, People v. Butler (2009) 46 Cal.4th 847, and People v. Nakahara (2003) 30 Cal.4th 705, appellant has asked this Court in a related argumentto reconsiderits ruling in those and other cases that the question of whether the uncharged crimesare acts of force or violenceis not to be considered by the jury. Appellant addresses respondent’s responseto that argumentin Section F,post. In this case, the supposed weapon wasin plain view and within appellant’s reach for a significant length of time while Mascarena, who had 12 years of experience as a correctional officer, calmly watched and video- taped his superior, Lt. Pearson, standing just outside ofthe cell conversing with appellant. Mascarena did not warn Pearson ortake any steps to removethe “weapon”despite the supposed danger to his superior officer. Pearson did not even learn of the “threat” until after Mascarena had thrown away the “weapon.” (AOBat 163-165.) Under these circumstances, the evidence was insufficient to establish that appellant committed an act of force or threatened the use of force. 6. The Evidence WasInsufficient to Show that Appellant Committed an Uncharged Act of Violence at Corcoran State Prison on April 15, 2000 The evidence presentedat the penalty phase showedthat one correctional guard observed appellant jumping up to covera lightin the cell he had been placed in, that appellant voluntarily removed the covering, and that, after he was escortedoutofhis cell, plastic scrapings were seen on the floor and several weapons were found on the bed. Respondentasserts that this evidence is sufficient to establish that appellant “knowingly exercised control over” the items foundin the cell, even though no evidence was presented to provethis element of the uncharged offense. Respondent’s argument is based on unreasonable and unsupported inferences. First, respondent concedes that appellant had not been in hiscell continuously before he wasescorted outof it on April 15, 2000, and that no one “other than officers” had access to it. (RB at 111-112, italics added.) 80 The fact that other individuals, whetherprison staff or prisoners, had access to the cell before the weapons were found, however, disproves that appellant had sole access during all relevant time periods. Second, respondentasserts thatit is reasonable to infer that, because appellant was jumping towardsthe light, and grooves andplastic shavings werelater found on the floor, he was making the weaponsfoundin his cell. (/d.) However, because no one made a recordof the condition of the cell when appellant was placed there, no evidence was presented from whichthe jury could infer the grooves and shavings werenot present before appellant was placed in the cell. Third, respondent contends the evidence showsthat appellant knew the weapons werein his cell because they were found hidden on his bed. In an argument drawnstraight out of “The Princess and the Pea,” respondent contendsthat a jury could reasonably infer that, even if appellant did not put the weapons there himself, he would havefelt the weaponswhenhelay down. (RB at 113.) However, there was no evidence that appellant had everslept, laid down,or sat on the bed, and without any evidence establishing that he had beenin the cell overnight, it was unreasonable for the jury to infer that he would have knownthe items were on the bed. 7. The Evidence WasInsufficient to Establish. that Appellant Committed a Battery on April 18, 2000, at Corcoran State Prison Respondentdisputes appellant’s argumentthat the evidence was insufficient to establish that appellant was not acting in self-defense against excessive force when he grabbed a canister of pepper spray from the hand of a guard who wasspraying the chemicalat close range at appellant while he wasconfined inhis cell.*’ Although respondent contends the prosecution proved that the guard did not use excessive force in response to appellant’s refusal to leave his cell, not one shred of evidence was presented 31. Respondent does not contend the evidence wassufficient to establish appellant possessed a weapononthat date, as the prosecutor had argued to the court. Respondentessentially concedes the evidence wasnot sufficient to establish this offense. (RB at 114, fn. 25.) 81 on this issue. Whether or not appellant was violating a prisonrule, respondent does not explain why the use of pepper spray and now-banned lethal weaponsto force prisoners out oftheir cells is not an excessive responseto violations of prison regulations that do not involve any force or violence. (See RB at 116-117.) | Moreover,as set forth above in Section El, ante, it was the prosecutor’s burden to prove beyond a reasonable doubt that 1) the correctional officers did not use excessive force; 2) the correctional officers did not engage in behavior that appellant actually and reasonably believed put him in danger of becoming a victim of excessive force; and 3) appellant used unreasonable force to defend himself against a real or apparent danger. Respondent’s reliance on People v. Moore, supra, 51 Cal.4th at p.1136,is misplaced. As explained above, in Moore, unlike here, “the evidence... did not raise any legal justification for defendant's actions” (/d.) In this case, the trial judge found there was evidence from whichself-defense and/or the use of excessive force could have been established and instructed on these issues in the absence of a defense request. The prosecutor thus was required to present evidence to show the force was not excessive, that the guard’s behavior did not cause appellant to reasonably believe he was in danger of becoming a victim of excessive force, and that appellant’s “use of force” was unreasonable. No such evidence on any ofthese issues was presented. Respondentfaults appellant for misinterpreting the length of time that Gatto held downthe trigger of the pepper spray canister, and claims that, instead of subjecting appellant to a 13 second burst of the chemical, the burst lasted only “four to five seconds.” Of course, as respondent admits, appellant has shownthat pepperspray is normally used in bursts of no more than #wo seconds’ duration, and generally last no more than a half- second. (RB at 117.) Despite this, it makes no attempt to explain why the use of the spray for even fouror five seconds was not an excessive response 82 to appellant’s refusal to leave his cell.” Respondent again arguesthat the prosecution met its burden of showing that appellant did not reasonably believe the officers would put him in dangerof suffering excessive force, because appellant had refused to comply with their previous orders “knowing”the officers would deploy pepperspray. (RB at 119.) As before, respondent does not explain how appellant’s knowledge that excessive force would be used negates a reasonable belief that such force would be used, and again, that very knowledge defeats its argument. Forall the reasons stated here and in appellant’s openingbrief, there wasinsufficient evidence to prove appellant committed an assault on April 18, 2000. F. The Instructions Erroneously Directed the Jury to Find that Appellant’s Unadjudicated Other Crimes Involved the Use or Threat of Force or Violence and Were Incomplete and Misleading - As argued in appellant’s opening brief, this Court’s jurisprudence regarding the jury’s role in determining the defendant’s guilt of uncharged offenses presented in aggravation pursuantto factor (b) has not been entirely consistent. Appellant also showedthat, in keeping with the death penalty statute, the jury must be allowed to decide whether the evidence actually presentedat trial involved a crime of force or threatened force or violence. (AOBat 175-176.) Respondent focuses on whether this Court decision in People v. Dunkle (2005) 36 Cal.4th 861, held that the jury decides whethera crimeis one of force or violence when determining whether uncharged offenses may be weighed in aggravation. In Dunkle, although this Court was addressing whether “burglary for theft” is not, categorically, a crime of force or violence, it also stated in general terms that the question ofthe nature of the crime is to be decided by the jury and that the circumstancesof an offense 32. Contrary to respondent’s contention, appellant was not pointing to the length of the bursts from the second canister when he claimed the use of force was excessive. (RB at 119, fn. 27.) 83 are relevant to whether it involves force or violence. (/d. at pp. 922-923.) To the extent this Court intendedto distinguish between burglary fortheft and other uncharged offenses, it provided noprincipled reasons to do so and indeed, there are none. Even though a burglary can be based ona intentto commitviolent as well as generally non-violent target offenses, i.e. robbery as well as theft, the same is true of other potential factor (b) offenses, such as certain assaults, false imprisonmentor escape, for example. If the decision as to whether a specific burglary involves force or violenceis properly decided bythe jury, then the same decision with regard to other crimesis also properly decided by the jury. As appellant argued in his openingbrief, while the trial court is charged with the threshold question of the admissibility of factor(b) evidence, once that evidence is admitted, the jury must decide whetherit should be given any weightas an offense involving the use of force or — violence. (AOBat 175-178.) Neither respondent nor this Court has addressed this contention in light of California’s death penalty scheme. Further, respondentrelies on this Court’s previous rejection of arguments that CALJIC 8.87 creates an impermissible mandatory presumption that the uncharged offenses alleged under factor(b) are crimesof force or violence, yet it has ignored the groundsfor reconsideration of those decisionsset forth in appellant’s openingbrief. (/d.) G. Admission and Reliance on Evidence of the Unadjudicated Crimes at the Penalty Phase Requires the Reversal of Appellant’s Death Sentences Respondentarguesthat reversal is not warranted from the erroneous introduction ofany of the factor (b) evidence because there is no reasonable possibility that such errors influencedthe penalty phase verdict.” Respondent concedesthat it must show that any error was harmlessbeyond a reasonable doubt (RB at 126), but it has failed to meet that burden. Respondent contends that even without any of the challenged factor 33. Respondent’s forfeiture arguments made in connection with this point have already been addressed in Section A of this argument, ante. 84 (b) evidence, the jury would have sentenced appellant to death because of the following: there were several other incidents involving force or violence that were properly presented underfactor (b); the circumstancesofthe capital crimes “sealed appellant’s fate”; there was very little mitigating evidence provided to the jury; and the prosecutor mentioned the uncharged offenses only “fleetingly.” (RB at 127-128.) Respondent misconstrues the importance of the unadjudicated offenses to the prosecution’s penalty case. Contrary to respondent’s characterization of the prosecution’s penalty argument, the uncharged factor (b) evidence wasintegral to the reasons it offered to return the death verdicts. Rather than “fleeting” mention of the uncharged crimes, the prosecution set forth in detail the facts of each of the uncharged incidents that occurred. (8RT 1670-1673 1677- 1681.) Further, the prosecutor interwove these incidents with the capital offenses to paint appellant as a man whose purposein life was to “draw blood,” “to live his life with violence and threats of violence (8RT 1677),” and “to assault, to attack, to injure.” (8RT 1678.) The prosecutor further pointed to the uncharged offenses to show “the measure of the man of Anthony Delgado” (8RT 1680), and that appellant is a “thinker and planner” who choosescarefully when to seize an opportunity to engage in violence. (8RT 1681.) For these reasons, together with the reasonsset forth in the opening brief, there is a reasonable possibility that the jury’s consideration of these unproven and invalid aggravating factors affected the penalty verdicts. (People v. Brown (1988) 46 Cal.3d 432, 447). The state cannot provethat the introduction of the insufficient factor (b) evidence was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Accordingly, appellant’s death sentences should be reversed. 85 CONCLUSION Forall the foregoing reasons, appellants convictions must be reserved and his judgments of death vacated. DATED:March 19, 2014 MICHAEL J. HERSEK State Pwblic Defender JOLIE LIVSIG A Senior Deputy State Public Defender Attorneys for Appellant 86 CERTIFICATE OF COUNSEL (CAL. RULES OF COURT, RULE8.360(b)(1)) I, Jolie Lipsig, am the Senior Deputy State Public Defender assigned to represent appellant, Richard Leon,in this automatic appeal. I conducted a word countofthis brief using our office’s computer software. On the basis of that computer-generated word count,I certify that this briefis 29, 698 words in length excluding the tables andcertificates. _ Dated: March 19, 2014 A A Jolie Lipsiy co-< 87 DECLARATION OF SERVICE BY MAIL Case Name: People v. Anthony Delgado Case Number: Supreme Court No. S089609 Superior Court No. 99CM7335 I, the undersigned, declare as follows: I am overthe age of 18, not a party to this cause. I am employedin the county where the mailing took place. My business address is 770 L Street, Suite 1000, Sacramento, California 95814. I served a copy of the following document(s): APPELLANT’S REPLY BRIEF by enclosing them in an envelope and // depositing the sealed envelope with the United States Postal Service with the postage fully prepaid; /X/ placing the envelope for collection and mailing on the date andat the place shown below followingourordinary business practices. I am readily familiar with this business’s practice for collecting and processing correspondence for mailing. On the sameday that correspondenceis placed for collection and mailing, it is deposited in the ordinary course ofbusiness with the United States Postal Service in a sealed envelope with postage fully prepaid. The envelope was addressed and mailed on March 19, 2014, as follows: Anthony Delgado, #D-29974 Jessica Jackson CSP-SQ Habeas Corpus Resource Center 1-AC-2 303 SecondStreet, Suite 400 San Quentin, CA 94974 San Francisco, CA 94107 Tia M. Coronado 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 I declare under penalty of perjury underthe lawsofthe State of California that the foregoing is true and correct. Executed on March 19, 2014, at Sacramento,California. \, Saundra Alvarez