PEOPLE v. BOYCEAppellant’s Opening BriefCal.May 17, 2010 SUPREME COURTCOPY ~COPY IN THE SUPREME COURT OF THESTATE OF CALIFORNIA THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. No. S092240 Orange County Superior Court No. 97NF2316 KEVIN BOYCE, SPEILEnT f dDefendant and Appellant MAY 1 7 onig Frederick K, Ohirich Clerk APPELLANT’S OPENING BRIEF Deputy Appeal from the Judgment of the Superior Court of the State of California for the County of Orange Honorable Frank F. Fasel, Judge MICHAEL J. HERSEK State Public Defender DOUGLAS WARD Deputy State Public Defender Cal. State Bar No. 133360 221 Main Street, Suite 1000 San Francisco, California 94105 - Phone (415) 904-5600 Attorneys for Appellant DEATH PENALTY TABLE OF CONTENTS Page TABLE OF CONTENTS..ccccssccccsscscsscsccscssssscessescsscsscsssssssecsavsassessssssescsssesesssssanes i TABLE OF AUTHORITIESwcccscccsecsscssecscesseccaesssscecesesssesesssssensessasreses ix STATEMENT OF APPEALABILITY.... eseseuseescossnssssesecenscenscessesceusaceesusesecsusessces 1 INTRODUCTIONwccccicccscssccsscsscscsscsesssssesessscsscesavssssseserssessesecesssssssesssssesessavensess 1 STATEMENT OF THE CASELiuwcccccccccscssscssssscsecsscesecsssscvssessessesssscsesssesssesererens 3 STATEMENTOF FACTSwinceccscscecsccesevssessscsscensssesersccscsvsesesssecensscesessecssersvees 7 A. The Guilt Phase... cccccsscsscssscsssecsssscerccsascsceeeessscecccessscsessenssssersssesesens 7 1. The Prosecution Case.iccccccsccsscsccsscsssssscetssessccssrsscessssaveessnsersseeseees 7 2. The Defense Case oc ceescecccsssescscecsccrsccessesrsesssssessacsessvececstavsesecntssass 27 B. The Penalty Phase ....cssssssecssssssesesessessesesssssssesreessssesssesssseseenssseeseens 32 1. The Prosecution’s Case vvccccscssscscssccsscssscsescsssssscseesrscesssseveeceeserens 32 2. The Defense Case .....cssssssssscsssssrstesssseesssssesseessesseeseessesseneaceeeneens 35 1. IN LIGHT OF APPELLANT’S SIGNIFICANTLY IMPAIRED INTELLECTUAL FUNCTIONING, BRAIN DAMAGE, AND SEVERE MENTAL ILLNESS, THE DEATH SENTENCEIS CRUEL AND UNUSUAL IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTSOF THE FEDERAL CONSTITUTION AND THE PARALLEL PROVISIONS OF THE STATE CONSTITUTION, AND VIOLATES THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE STATE AND FEDERAL CONSTITUTIONSwucccssscsssersereesssees 62 A. Introduction ccccccscsccssssscsssssssccscscsescssccecscesssceesvesassesseceaevssesesosesssensovenes 62 B. Appellant Is Mentally Retarded, Brain Damaged, and Severely Mentally Tieesssseessssesssnssesssssesesscsesrsscessssseesseseness 63 C. The Death Sentence Meted Out to Appellant Violates the Eighth and Fourteenth Amendments... .iessssseeesesseeresesrenseneees 68 D, The Death Sentence Violates Appellant’s Rights under the Due Process and Equal Protection Clauses of the State and Federal Constitutions.....ccccescccsscssecsssccsscssssscsscsscsssessesctseressavssssassceesers 78 E, Appellant’s Death Sentence Must Be Reversed...cise:81 TABLE OF CONTENTS Page THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY PERMITTING THE PROSECUTION TO PLAY FOR THE JURY TAPE-RECORDINGSOF THE 911 CALLS MADE BY THE TWO SURVIVING VICTIMS OF THE SALON INCIDENT uu.cecesocansucgnasecnentenessseseovessnasegesseeneatisntssessontss 82 A. Procedural and Factual Background ....cscscsssssesssssessssnseeessessnsene 82 B, The Trial Court Erred in Permitting the Prosecution to Introduce the 911 Tape-Recordings into Evidenceat the Guilt Phase ..cccssssssesssssecesesessssseessssessssssvssesresssesssssensssenssssnssreseees 86 1. The 911 Recordings Were Not Relevant to Any Disputed Fact at the Guilt Phase ...ccsssssseseessseesssnssesessessssensssareesesenns 86 2. Even If Marginally Relevant, the 911 Tape-Recordings Should Have Been Excluded As More Prejudicial Than PLODALIVE .cccececccsscescesscsesssscssecscsesasseessaceescsussssessceeneceescssavsaressesnseatee 88 C. The Trial Court Erred in Permitting the Jurors to Consider the 911 Tape-Recordings at the Penalty Phase As AQQTAVAtlON vscsecceessssesesessesessssessesnsssessessessesnentenssssessesssesgsenseeneesensensy 90 D. The Error Violated Appellant’s State and Federal Constitutional Rights ......ccessesssesssessssssssssssesstessessesssssseessnessssseeseeseseenes 93 E. The Tnial Court’s Erroneous Admission in Evidence of the 911 Tape-Recordings Requires Reversal of the Special Circumstance Findings and of the Ensuing Death Judgment.......94 THE SPECIAL CIRCUMSTANCE FINDINGS AND THE ENSUING DEATHJUDGMENT MUST BE REVERSED BECAUSE THE TRIAL COURT ERRONEOUSLY AND PREJUDICIALLY INSTRUCTED THE JURY TO CONSIDER APPELLANT'S PUTATIVE FLIGHT IN DECIDING HIS CULPABILITYoeseseesecssssesnesessssssessssssssesncssessessessssevesscssessessesesetesseasees 97 A. Factual Background ...esccsessesseessssssessssssscsssssessssssssesseessssseesesssenes 97 B. The Trial Court Erred in Instructing the Jury to Consider Appellant’s Putative Flight in Deciding His Culpability.............98 1. There Was No Factual Basis for the Flight Instruction........... 98 2. The Flight Instruction Unduly Favored the Prosecution, and Was Argumentative and Unnecessary ...sicsssseserereeneeens 98 TABLE OF CONTENTS Page 3. The Flight Instruction Should Not Be Given When, As Here, Identity Is Concededoiecsecsesssecsessseenscsveneerenssneneens 100 4. The Flight Instruction Permitted the Jury to Draw an Impermissible Inference Concerning Appellant’s Culpability ..ceccseseeseneesassscasesusessuesssesseanecasecsucennsssacenasenness101 C. The Error Violated Appellant’s State and Federal Constitutional Rights ......ccesssssesesssesssssseseeeesseseeessessessseeusesersesns 102 D.Reversal of the Special Circumstance Findings and the Ensuing Death JudgmentIs Required...sss104 4, THE KILLING OF A PEACE OFFICER IN RETALIATION FOR THE PERFORMANCEOFHIS OFFICIAL DUTIES SPECIAL CIRCUMSTANCE FINDING MUST BE SET ASIDE BECAUSE THE EVIDENCEWAS INSUFFICIENT TO SUSTAIN THAT ALLEGATION AND BECAUSE THAT SPECIAL CIRCUMSTANCE IS UNCONSTITUTIONALLY VAGUE, AND, AS A RESULT, THE DEATHJUDGMENT MUST BE REVERSED...cecssesssscessetessesstesssssesssssesseesessasereeenensenees 105 A. Procedural and Factual Background...essere 105 B, The Evidence Was Legally Insufficient to Establish That the Killing Was in Retaliation for the Performanceofthe Victim’s Official Duties...cceesessessssssseseesesessssseesessssssssesseessenes 109 C. The Peace-Officer-Killing Special Circumstance As Applied Here Is Unconstitutionally Vague and Fails to Provide Adequate Notice ...csesssesessseesesesscersssssarsersarsssenssessansesessseneerens 113 D. The Errors Require That the Peace-Officer-Killing Special Circumstance Finding Be Set Aside and That the Ensuing Death Judgment Be Reversed w.cccccsecssesseeeieesenessseeereneneaseseneeenes 114 5. THE TWO FELONY-MURDERSPECIAL CIRCUMSTANCE FINDINGS, AND THE ENSUING DEATHJUDGMENT MUST BE REVERSED DUE TO INSUFFICIENT EVIDENCE AND THE TRIAL COURT’S FAILURE TO CLEAR UP THE JURY’S CONFUSION REGARDING THE ELEMENTS OF THOSE SPECIAL CIRCUMSTANCES, AND BECAUSE THE FELONY-MURDERSPECIAL CIRCUMSTANCEIS UNCONSTITUTIONAL,.wu. eeceteneeseteseetene 117 TABLE OF CONTENTS Page A. Procedural and Factual Background ...eeseseseseseeeeeeseseaenses 117 B. The Two Felony-Murder Special Circumstance Findings MustBe Set Aside ....cscesessesecesesesssesessesssssereessssssessesseessssseessees 121 1. The Felony-Murder Special Circumstance Findings Must Be Set Aside Because the Evidence Clearly Shows That the Killing Was Not Committed in Order to Advance the Independent Felonious Purpose of Robbery or Burglary... cscessessessessesssssesseessssssessesscssasssssvessssesarsscesessssseanessseeevsees 121 2. The Trial Court’s Erroneous Responseto the Jury’s Question Requires That the Felony-Murder Special Circumstance Findings Be Set Asidewn.124 3. The Felony-Murder Special CircumstanceIs Unconstitutional, Both on Its Face and as Applied Here.... 127 C. Reversal of the Felony-Murder Special Circumstance Findings Requires That the Death Judgment Be Reversed......... 128 THE DEATHJUDGMENT MUST BE REVERSED BECAUSE APPELLANT WAS DENIED HIS RIGHT TO SELF- REPRESENTATION AT THE PENALTY PHASE...eee 131 A. Appellant’s Request to Discharge Counsel .....cccsessesreeseeneseees 131 B. Appellant’s Constitutional Right to Self-Representation at the Penalty Phase Was Violated oo. cscssessssesesessseessnssessssssesesssnsesens 134 1. The Trial Court Failed to Inquire Into Whether Appellant’s Request Was Knowing,Intelligent, and VONUINALY oesecesesseseeseescseevesncnesscaeescacencasssnteneasessseenesssscensseensaes 134 2. The Trial Court Erred in Concluding That Appellant Was “Not Qualified to Represent Himself”... 135 3. Appellant’s Request Was Not Equivocalocc136 4, Appellant’s Request Was Timely ...ccessssssssseeeeesssssseseesneses 137 5. Even if Appellant’s Request Were Untimely, the Trial Court Erred in Denying the Request ......essseeseeneeneeteneeen 140 C. Appellant’s Constitutional Right to Control His Own Defense at the Penalty Phase Was Violated ossesesssseseeerereeees 141 D. The Error Requires Reversal of the Death Judgment... 141 iv TABLE OF CONTENTS Page THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING A NUMBER OF PENALTY-PHASE JURY INSTRUCTIONS REQUESTED BY THE DEFENSE... 143 A. Factual Background... .eeessssusesseseseessesesssssesssseesssseasssseesseessesssatsasees 143 B. The Trial Court Erred in Refusing the Penalty-Phase Instructions Requested by Appellant... icessecneccseereesneennen 145 1. The Trial Court Erred in Refusing Appellant’s Requested Instructions Regarding the Jurors’ Consideration of Compassion and Mercy .eccecsesssssessserseeerssssseessssteeseessnseees 147 2. The Trial Court Erred in Refusing Appellant’s Requested Instructions Regarding the Jurors’ Consideration of Lingering Doubt...ssesssecesessenssenesesessssesssrsanseesnestesseeesenes 153 3.The Trial Court Erred in Refusing Appellant’s Requested Instruction Regarding the Jurors’ Consideration of Mental and Emotional Disturbance... 159 4. The Trial Court Erred in Refusing Appellant’s Requested Instructions Regarding Mitigating Evidence and Factors and the Weighing Process ....cscssssssssesseesssssssreseesssnssessesseeseess 162 C. The Trial Court’s Erroneous Refusal to Give the Requested Instructions Violated Appellant’s State and Federal Constitutional Rights .....ccssssecsessssssssssssesssessessasssssscsssssssessereeees 165 D. The Errors Require Reversal of the Death Judgment............00 169 THE TRIAL COURT COMMITTED REVERSIBLE ERROR AT THE PENALTY PHASE BY REFUSING APPELLANT’S PROPOSED INSTRUCTIONS REGARDING THE PROHIBITION ON DOUBLE-COUNTING AGGRAVATING FACTS AND FACTORSwueeceeteeeetesseseeseeeereeenes 172 A. The Trial Court Erroneously Refused Appellant’s Request to Instruct the Sentencing Jurors Not to Double-Count the Pacts Underlying the Special Circumstances ......ccssesseseeseeestenees 172 B. The Trial Court Erroneously Refused Appellant’s Requested Instruction Seeking to Limit the Sentencing Jurors’ Consideration of the Facts Used to Find First Degree Murdern.iecccccccsssessesresessssarssessssssenssescssesesseeseesssssessesssesessssnssenseeeens 175 9. 10. TABLE OF CONTENTS Page THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THEJURORS ON THE GENERAL PRINCIPLES OF LAW GOVERNING THE PENALTY PHASE AND ON THE DEFINITION OF “REASONABLE DOUBT”AS IT PERTAINED TO EVIDENCE OF OTHER CRIMES CONSIDERED DURING THE PENALTY PHASE uececcsecseseseeeeees 177 A. The Penalty Phase and the Trial Court’s Instructions... 177 B. The Trial Court Erred By Failing to Instruct the Jurors on All of the Principles of Law Necessary for the Jury’s Understanding of the Case and of the Penalty Phase DECISION worsssssessrsssssessensesssssesssssescssssnessseecssssenssssescsnseseanseseanesssaseasenseneess 178 C, The Trial Court Erred by Failing to Instruct the Jurors on the Definition of the Phrase “Reasonable Doubt” As Used in Section 190.3, Factor (D)...cssessesseesssescssecersrsseseressnessensetenseesees 180 D. The Trial Court’s Errors Violated Appellant’s Constitutional Rights ...cscsssscseesseeesscessssevessssesssssscssesneseasessessersscseesssessssssersesetassesesesesasess 181 E. The Death Sentence Must Be Reversed... esesssssseseesenentevenesees 183 THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ITS SENTENCING OF APPELLANT ON THE NONCAPITAL COUNTS AND THE GUN-USE ENHANCEMENTSwu. cccsssssssssessesstssssssscssssensssseeessesssesssasensesssnesssssassesecess 186 A. Procedural and Factual Backgrounnd.......iesssseseserseseeeesenerereseneees 186 B. The Trial Court’s Imposition of the Upper Term for Count 2 and the Upper Term for the Gun-use Enhancement Associated with That Count Violated Appellant’s Constitutional Rights.....scssessseseseesssecsessesssseessssessenesesseessssseseenees 188 C. The Trial Court’s Reliance on the Vulnerability of the Victim to Impose the Upper Term for Count 2 and the Upper Term for the Gun-use Enhancement Associated with that Count Was Improper ..cccssssessesssssssssesssssssssssesssersssssesssesssesssssseseeasereasensneesees 190 D. The Trial Court Erred in Imposing Consecutive Sentences....... 192 E, The Abstract ofJudgment Must Be Amendedto Reflect that the Court Stayed the Substantive Counts... 193 F, The Errors Were Prejudicial and Require a Remand for RESENtENCING wsecessecsssscssecsseecsecsessesssssseessssssassnssnesssssenesseanesseasarsseenetens 193 vi TABLE OF CONTENTS Page 11, CALIFORNIA’S DEATH,PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT'STRIAL, VIOLATES THE UNITED STATES CONSTITUTION...cecccessssssseessesssseeeesesesessseesescceeseessaseenesseaseaeseenseeness 196 A. Section 190.2 Is ImpermissiblyBroad... 196 B. The Broad Application of Section 190.3, Subdivision (a) Violated Appellant’s Constitutional Rights... 197 C. The Death Penalty Statute and Accompanying Jury Instructions Fail to Set Forth the Appropriate Burden of PLOOFesssesssesssesserseesssssesesscsnesssssnenssnsssseeessesstesssssseetscssasteraseasaneacensaneess 198 1. Appellant’s death sentence is unconstitutional becauseit is not premised on findings made beyond a reasonable OUD.esceessessesessesesnsesssesnsseessassneesssesssscssesssesssseassesestseasseseeneaseess 198 2. Some burden of proofis required, or the jury should have been instructed that there was no burden ofproof..... 200 3. Appellant’s death verdict was not premised on UNANIMOUS JULY FININGS ....ceceseeseesestensseeeeeeees Sevesessseneeees 201 4. The instructions caused the penalty determination to turn on an impermissibly vague and ambiguousstandard............ 204 5. The instructionsfailed to inform the jury that the central determination is whether death is the appropriate PUMISHMENEoseesesestsscneesseeeessreesessssesesesceesseressnetereesenesseneasetseeeeees 204 .6, The instructions failed to inform the jurors thatif they determined that mitigation outweighed aggravation, they were required to return a sentence oflife without the possibility Of parolesessceseersessesessesssasssesesssesssseseees 205 7. The penalty jury should be instructed on the Presumption Oflife...cessesresents teeenseeeraneseenees 206 D. Failing to Require that the Jury Make Written Findings Violates Appellant’s Right to Meaningful Appellate Review...... 207 E. The Instructions to the Jury on Mitigating and Aggravating Factors Violated Appellant’s Constitutional Rights«0... 207 1. The use of restrictive adjectives in the list of potential Mitigating faCtOLS wcsecesssecesseseseesesessensstssssveetereseseeetsnentseceness 207 2, The failure to delete inapplicable sentencing factors... 208 TABLE OF CONTENTS Page 3. The failure to instructthat statutory mitigating factors were relevantsolely as potential mitigators.......cseseeeseees 208 FP. The Prohibition Against Inter-case Proportionality Review Guarantees Arbitrary and Disproportionate Impositions of the Death Penalty ..secssesessssssersssceseesssssessesssseeseesersesesasseseeseeseans 209 G. The California Capital Sentencing Scheme Violates the Equal Protection Clause w.cccsssescssessesssssscscsssssesssessesssesssesseesensenes 209 H. California’s Use of the Death Penalty as a Regular Form of PunishmentFalls Short of International Norms«0...eee 210 CONCLUSIONocccccccssssssesseseestssseseeseessssesessesesseesessessessesssssnesssssaseneseseseaneassneens 211 CERTIFICATE AS TO LENGTH OF BRIEP...o.ecssesusssecsesserseseeeeseenseens 212 TABLE OF AUTHORITIES Page(s) CASES Federal Cases Abdul-Kabtr v. Quarterman (2007) 550 US. 233 vccssesseseectessessessssseesenes passim Apprendi v. NewJersey (2000) 530 US. 466 w.ccessseseseseeteneess 183, 188, 199, 203 Atkins v. Virginia (2002) 536 US, 304 cisescsesectecsscseseeessessseeseeeenseeasenees passim Ballew v. Georgia (1978) 435 U.S. 223 wossscsessseseesssnssesessssvsessersstesesveressessevearenes201 Beardslee v. Woodford (9th Cit.2004) 358 F.3d 560... sesssssccsseetssseesereensneens 125 Beck v. Alabama (1980) 447 U.S. 625.ssessesseesecesessnesrseeeesseeeeeesssenenens 104, 126 Blakely v. Washington (2004) 542 US. 296 weceseessssetesesnssesens 188, 199, 200, 203 Blystone v. Pennsylvania (1990) 494 U.S. 299.csesssseseetestsncseeresessesesseareetsseevsaeees205 Bollenbach v. United States (1946) 326 U.S. GOT.scceecsreseseeessnesenseseansenseeeees 125 Bouze v. City ofColumbia (1964) 378 U.S. 347 cc csstececsessseessscsssssenesssesesessesnsees 114 Boyde v. California (1990) 494 U.S. 370 vsessscsseenneeeeeesesneaes 161, 166, 170, 205 Brown v. Sanders (2006) 546 U.S. 212essereL 15, 128 Buchanan v. Angelone (1998) 522 U.S. 269 vecsseesssseseesesseessssssseasssssssseeseaneneees 182 Burks v. United States (1978) 437 U.S. Licsecsestasssesseessesesssesnenesesenenes 113, 124 Butler v. Curry (Sth Cit. 2008) 528 F.3d 624 ..cessssssesssescsssssssesesssseeeesesens 191 Cakfornia v. Brown (1987) 479 U.S, 538 wesscssesssesessesissssseessseessssessssenteneeseses 126 Carter v. Kentucky (1981) 450 U.S. 288wcssssesessssesesessenesssssensessees 146, 174, 199 Chapman v. California (1967) 386 US. 18 vescccssecsesssssssenesssseneensessssenees passim City of Cleburne, Tex. v. Cleburne Living Center (1985) 473 U.S. 432 vases 78, 80 Clark v. Brown (9th Cir. 2006) 450 F.3d 898 vcecssssccssessssssrssseesesessssees 126, 167 Clemons v. Massesseppt (1990) 494 U.S. 738 veccccsssesssssssssrsensssaseassesssseseseneaeees 167 Cunningham v. California (2007) 549 U.S, 270 wicseseseneeereeneen 188, 189, 199, 203 Delo v. Lashley (1983) 507 U.S. 272 eecsscssssesssseesessssesssecensssessesesseensssenaseessevensees206 Dey v. Scully E.D.N.Y. 1997) 952 F.Supp. 957 vecssessssesssssesseereseseenssneeeenenes 94 Drope v. Missouri (1975) 420 U.S. 162 ve cecsssesssssesseecesessseceeseneneareseseseseescueeneneers 134 Dunn v. United States (1979) 442 U.S. 100.scssseseseceeesssseeeseneersnencasersssnretesens 114 Eddings v. ORbahoma (1982) 455 U.S. 104.cesesecessteseesesesssssensseeresteesensaes passim TABLE OF AUTHORITIES Page(s) Exnmund v. Florida (1982) 458 U.S. 782...cescssssesesseseesseeseseeerseseaseseeeseeasseeneensaes 70 Estelle v. MeGuare (1991) 502 U.S. 62 cicccscsesessesesseceetecressseeeeeensenenseneees 126, 168 Estelle v. Walliams (1976) 425 U.S. 501 vicsesesesesesesecseneseesesesseetsseneensneneessees206 Faretta v. Cakfornia (1975) 422 US. 806...dececeedseaceeceasesscssenesssscensnsssessaseesens 134, 139 Ford v. Wainwright (1986) 477 U.S. 399 se sesnesnenessenenenseveneseeneenensesenes 93, 104, 185 Franklin v. Lynaugh (1988) 487 U.S. 164 cs esecssseesesessssrerssceesaceeasesatensanencenenes 156 Furman v. Georgia (1972) 408 U.S. 238 wee cscecesectesesssteseeesesterssteseseetsseeess 127, 196 Gardnerv. Florida (1977) 430 US. 349. eccccssseessssecssesesesnecstesensseseeseraeees 168, 195 Green 0, Georgia (1979) 442 U.S. 95 vc seesesesteseeseseenseetssseersessesssesesnsateresenensenees 167 Gregg v. Georgia (1976) 428 U.S. 153 vicscsesestesessessseessseesssseseessnenssesnee 182, 207 Harmelin v. Michagan (1991) 501 U.S. 957escsssesesssessstsesaeersnsesseneacensesarsneecess202 Heller v. Doe (1993) 509 U.S. 312 acc sceesscsseseeeeeesseecetensaessennsssenssseeessesenensssens 79 Hicks v, Okdahona (1980) 447 US. B43 cecccecesesesseeesersssssnsssesssenesesssaeseersenes passim Hitchcock v. Dugger (1987) 481 U.S. 393.ceeseeeseessecesnesneensesesness vesveee 146, 166 Holmes v. South Carolina (2006) 547 U.S. 319.seseneseetsseeeseetsnestenenesees 126, 167 In re Neville (5th Cir. 2006) 440 F.3d 220 ccescsesessssseteeseesssseeesseesseaeeesssnsees 70 In re Winship (1970) 397 U.S. 358, 364.esesesseeesseseeseeseeseseessesesesseeessseeseees 103 Indiana v. Edwards (2008) 554 U.S. 164, 128 S.Ct. 2379sss135, 139 Jackson v. Virginia (1979) 443 US. B07.eecssssesteseseeseseececessaseessensenerenees 113, 124 Johnson v. Massessippi (1988) 486 U.S. 578 ve cceeeeecssscseeecreesereeereararsssssseneees203 Kelly v. South Carolina (2002) 534 U.S. 246ccessssecessesseneeessssessseseesesrsnseeesenens 146 Kennedy v. Louisiana (2008) __ U.S. __, 128 S.Ct. 2641cesses 74,75 Lindsay v. Normet (1972) 405 U.S. SO. esssssssssessssssssssessseensesesssensussssssensseesess 103 Lockett v. Ohio (1978) 438 U.S. 586.eesesesseeeereeesescseeeeeetsesseessensssseeeseees passim Lowenfield v. Phetps (1988) 484 U.S. 231 veeescssssesseesseeessessssesseesessessacenesssseeens 127 Marshall v, Taylor Oth Cir. 2005) 395 F.3d 1058cesses139 Martner v. Court ofAppeal (2000) 528 U.S. 152 vecssesesseeeseeseesesneeseneeneessees 139 Mathews v. United States (1988) 485 U.S. 58 wiccssessesssseeesssseesunssseesesesens 126, 167 Maynard v. Cartwright (1988) 486 U.S. 356 cesccccssssssessessscsneasesssncesessenense 198, 204 McKaskle v. Wiggins (1984) 465 U.S. 168.scscseseecsssesessssesseessssesessesneseesseasens 141 x TABLE OF AUTHORITIES Page(s) McKinney v. Rees 9th Cir. 1993) 993 F.2d 1378 uoeessesseeeeseeessseserenseeneeneeess 93 McKoy v. North Carolina (1990) 494 U.S. 433 csscssseseueseneneseieieteeeeeee202 Menefield v. Borg (9th Cir.1989) 881 F.2d 696 se sessesacsecreaseavencenenessssoessaesnessensees 139 Mills v. Maryland (1988) 486 U.S. 367 escssssessssssessseesenseseveneseeess 166, 182, 207 Monge v. California (1998) 524 U.S, 721 sesetiehivtietiutiutieieietieieeteteneseieten202 Murtishaw v. Woodford (9th Cir. 2001) 255 F.3d 926...passim Myers v. Yist (9th Cir. 1990) 897 F.2d 417 vic eessesseessessessssesesssenseneens 168, 202 Nordlinger v. Hahn (1992) 505 U.S. 1 vccsessssessssesesssseessecessesessesssaceessensensesessesees 78 Ohio Adult Parok Auth. v. Woodard (1998) 523 U.S. 272secspassim Old Chief v. United States (1997) 519 U.S. V72csscssneessesneseeresssesseesseneenessssees 89 Oregon v. Ice (2009) __ US.129 S.Ct. TLcseessseeseeesneessserseseneeneenens 192 Patterson v. [lfinots (1988) 487 U.S. 285 wcesessessessssesssssesssenessssaseasseeesseneacseses 134 Payne v. Tennessee (1991) 501 U.S, 808 vecsessesssescssessassessssnesseseeessessseens 91, 93 Penry v. Johnson (2001) 532 U.S. 782 vesecsssssceecsnsessnneessseenneeesneeeesnnrennneetsannene 182 Penry v. Lynaugh (1984) 492 US. B02 wecsesseescesseessssscssssseesssseeseneeeseeess 93, 150 Peters v. Gunn (9th Cir. 1994) 33 F.3d 1190.essssseresessssseeseenesssessssessesneees 136 Planned Parenthood ofSoutheastern Pa. v. Casey (1992) 505 U.S. 833 vcseseeeees 79 Phler v. Doe (1982) 457 U.S. 202 veccscseesssssssssesssssesserssessssssssssessseesanseeeses 78, 168 Reno v, Flores (1993) 507 U.S. 292 ceccsesscssssssessessscssesesssssesseseneessasseesseeeseesensereeses 79 Ring v. Arizona (2002) 536 US. 584 vw esecsssessseresesseeessesessesesresssereesesssesseees passim Romer v. Evans (1996) 517 U.S. 620 vecssesessseeseeseesessesssssesesersesssssssseessarseessseeesans 79 Roper v. Stmzmons (2005) 543 US. 551 vsecsscstscsssseeserssssseveresensssnsneeesnssesees passim Sandstrom v. Montana (1979) 442 U.S. 510 vuiesesseesesscecseeseseesseessearensesenseeaes 126 Satterwhite v. Texas (1988) 486 U.S. 249 viccecsssscceessseessseesrsnssereseessscees 77, 151 Sawyer v. Whitley (1992) 505 U.S. 333 csesssscssssesessesesensssessrsenssnsesasersesssereerseees 182 Shafer v. South Carolina (2001) 532 U.S. 36.esses125 Smith v. Mullin (10th Cir, 2004) 379 F.3d 919.csscsseeescsssseetsssssentesenseenesees 160 Solem v. Hela (1983) 463 U.S. 277 viscsssessesscssssessssssssnsesessseeeseeeeeeeeaeeseneeseeseaneaes 70 Stringer v. Black (1992) 503 U.S. 222 ..ceccccccssecsecsseesseesescensseseenseaeneseeneneaeenseeseenes209 Sullivan v. Louisiana (1993) 508 U.S. 275csceceseeseseseesenseseeeneenn 103, 104, 126 xl TABLE OF AUTHORITIES Page(s) Tennard v. Dretke (2004) 542 U.S. 274 scsscsssssseneeeseceeaccesecceeneeseeessseeeees 69, 160 Tennessee v. Garner (1985) 471 U.S. Lisceesseeressectssestersssensssersssenessetsenenseeennes 79 Trop v. Dulles (1958) 356 U.S. 86 ..ccsccsesssesessssecnssessssresssensassnsenessesussessesssenssnssaes210 Tuilaepa v. California (1994) 512 US. 967 vscssssecssesesseseessstesseeessseen 113, 198 Ulbster County Court v. Allen (1979) 442 U.S. 140 secesesesesesenenentnentes 101, 103 United States v. Booker (2005) 543 US. 220 vicsessseceessessessesesssseesesesssssssseateersaes 189 United States v. DeStefano (18t Cir, 1995) 59 F.3d 1 on esssecssesteesssessessseeneeesens 169 United States v. Gaudin (1995) 515 U.S. 506 vuesessesescesecessseenserssseesseeees 103, 126 United States v. Long (Sth Cir. 2009) 562 F.3d 325.ceesessessssseerseeseeesseesnsees 75 United States v. McCullah (10th Cir. 1996) 76 F.3d 1087...eects175 United States v. Proctor (Ast Cit. 1999) 166 F.3d 396.sscssssssstsesssssesssenseteens 139 United States v. Rubio-Vallareal (9th Cir. 1992) 967 F.2d 294ees103 Vacco v. Quill (1997) 521 U.S. 793 vc cssecsesnscssneeesssscnssssesssssessssessessssecneenessassenenss 78 Vasque v. Hillery (1986) 474 U.S. 254 iv ccsseseeseenseenesssenesienee vaeesetensneenn 196 Victor v. Nebraska (1994) 511 U.S. Liisssessseesesseseccssessestsrsseeeareneereseeres 104, 185 Walton v. Arizona (1990) 497 US. 639ccesssecessesesnesssesssssssssccessseesscssensensensans 182 Weardius v. Oregon (1973) 412 U.S. 470. sessessesessesessestsseesnensenesensens 100, 103, 206 Washington v. Glucksberg (1997) 521 U.S. 702 cesecnssssesereessseseeneesensessseeeas 79, 81 Washington v. Recuenco (2006) 548 U.S. 212 vo ccessesesseseesseessesesssseesssereeessennes 193 Wolffv. McDonnell (1974) 418 U.S. 539 icsssssssssssetsssessssssetsesssenssseessessesees 81 Wong Sun v. United States (1963) 371 U.S. 471eesssssessseesssesesessesserseesessees 102 Woodson v, North Carolina (1976) 428 U.S. 280 ciscscsssesseeseers 76, 182, 201, 204 Zablocki v. Redbail (1978) 434 U.S. 374 vsssssssssecsseesssesssessssevensseseassasesssees 79 Zant v. Stephens (1983) 462 U.S. 862 wrcrscessesesserseseesessseseesenseseseessees 197, 205 State Cases In re Erri¢ J. (1979) 25 Cal.3d 522 vccsseseseeesesssssenssssnessessssseessssrsssesseneseesness 80 In re Gomez (2009) 45 Cal.4th 650 csceesesesesessessesssssessssssssessssessseeseseassees 189 In re Hawthorne (2005) 35 Cal.4th 40 vcseessssssssssscssssssssssssssessssesssensenneseeseacees 62 Tn re Martin (1987) 44 Cal.3d 1icsccsssssscsssecsssssesesssesscsssssssssesssenssarecesessseevens 167 In re Sheena K. (2007) 40 Cal.4th 875 ccscsssssessssssesssssssccsssessssssssssersssensess 113 xii TABLE OF AUTHORITIES Page(s) Tn re Smith (2008) 42 Cal.4th 1251 ov. escssessssccsesssesesssesesstssnesessssssrssessseereanses 79 Manduley v. Supertor Court (2002) 27 Cal.4th 537.sceceessssseneesseseeresesassesees 79 Marks v. Superior Court (2002) 27 Cal.4th 176 .ccecssseecsesseesessseeeesesensesencneeees 62 People v. Abilez (2007) 41 Cal4th 472.ccsseseevesssenensevevsneesssessenensanesenseens 98 People v, Ah Fung (1861) 17 Cal. 377 sssssessssvesesssssnssessstenetrstestnsisevetnsiee 170 People v. Allen (1986) 42 Cal.3d 1222.0. icessestsesseneeresenretsseestesssessneeessnsentey 114 People v. Anderson (1968) 70 Cal.2d 15.cessuessssssesssesssesstessesssssesssenseensesesseees 102 People v. Anderson (1987) 43 Cal.3d 1104. ccsessecseesesssssssnsseesssssssseesseessssees 128 People v. Anderson (2001) 25 Cal.4th 543 vvccsscssssseesesssesesesssseees 198, 199, 203 People v. Andrews (1989) 49 Cal.3d 200 wosccesesssesseescsseessserssessensesssseesseesssces 150 People v. Artas (1996) 13 Cal.4th 92 wisesessseseesesesssecceesssssessenees 201, 205, 206 People v. Ashmmus (1991) 54 Cal.3d 932. esccssesssssssereessscseersseesssssrsemsssseseesesssees 172 People v. Avila (2006) 38 Cal.4th 491 o.ecesssssssssssseessssesssssssssesssssssensesessseess208 People v. Avila (2009) 46 Cal.4th 680 .cseccsssssseseessesessseceseens sesosnesenen 149 People v. Avitia (2005) 127 CalApp.4th 185vcs88 People v. Ayala (2000) 24 Cal.4th 243... eessscsesssssssssssssssscssssssssseeseessenennserssees 173 People v. Babbitt (1988) 45 Cal.3d 660 v.ccessscesessssseessssssseersssssesseeeessaneseesesaes 178 People v, Bacigalupo (1991) 1 Cal.4th 103cscs99 People v, Bacigalupo (1993) 6 Cal.4th 457 wiccssscscssesssseseeesenessenne 110, 121, 205 People v. Barnett (1998) 17 Cal.4th 1044.ccscssssssssesssacssssssseevssssseens 136, 137 People v. Bean (1988) 46 Cal.3d 919 ucssesssssssesesssesssssesessssssssssssseenssensenes 70 People v. Beardslee (1991) 53 Cal.3d 68 v.cssssusssssssnssrsessssssseenssesseessesseesesssssies 125 People v. Belmontes (1983) 34 Cal.3d 335 ..cessssssessessssessssssseeevssseessessseseeseensess 192 People v. Bemore (2000) 22 Cal.4th 809 ..ecssssesessssssesssessssrsesesssssreessesnsenses 113 People v. Benavides (2005) 35 Cal.4th 69...scenes146, 178, 180, 181 People v. Benson (1990) 52 Cal.3d 754 v.cssesssssecssssseereesssrssssssssssssensscsacensssseseers 76 People v. Berryman (1993) 6 Cal.4th 1048 icc ccecccseseessnsessssensessensseenesnnseees 168 People v. Black (2007) 41 Cal.4th 799 oosessecsesectsnsereneessnerees 188, 189, 191, 192 People v. Blatr (2005) 36 Cal.4th 686 vesesesessseeesesssssceeeseesnesssecensssnnseees passim People v. Bloom (1989) 48 Cal.3d 1194.eesssssesessensesssstessersseetsseerseteass 137, 141 TABLE OF AUTHORITIES Page(s) People v. Bolin (1998) 18 Cal.4th 297 vsccsscssesessssssseresssestseesesesssseeseaeeres 90, 165 People v. Bonilla (2007) 41 Cal.4th 313 ooecssesseesssessesssrsseeeneecseessseensessneesenes 98 People v. Bonin (1989) 47 Cal.3d 808... secseesssessenecscssssesesecssensseeesseeseeerseensens 122 People v, Box (2000) 23 Cal.4th 1153. eccssessssnsseeceeeessssesssssserssesnsesesesarenssaseneeeses 91 People v. Boyer (2006) 38 Cal.4th 412 .ccscscsesstsesesesnisttntitisieietnteteteee 128 People v. Boyette (2002) 29 Cal.4th 381 vcessecsecessesssseensssesssseessesscnssseeseeasens 102 People v. Bradford (1997) 15 Cal.4th 1229.0 essesscessensseeseseseese 134, 138, 140 People v. Breaux (1991) 1 Cal.4th 281 vessessssessseenessensareeerees 163, 165, 204 People v. Brigham (1979) 25 Cal.3d 283... .ccscsssesecssseceeerssssenessssessssersasseeseseseese 185 People v. Brown (1988) 46 Cal.3d 432... esssssececessesesseeseerssneseessssssssteeeaee passim People v. Brown (2003) 31 Cal.4th 518 ooceesuseescseessesssesessensssenesesseeseseeseess 149 People v. Brown (2004) 33 Cal-4th 382 oo. ccssssesessesssennessensssersssssesssssssssersntess 198 People v. Burton (1989) 48 Cal.3d 843 vvvcscsssssessecsssssssseesssnssssessesseseeseesenseeees 139 People v. Canty (2004) 32 Cal.4th 1266... cscsessecsesescsseesenesssenssesseseessesaenseeeseens 114 People v. Cardenas (1982) 31 Cal.3d 897 w.ccscsssesessssssessssssnssssenseesesesenneeses 89 People v. Cardenas (2007) 155 CalApp.4th 1468... sccsssesssesssseesesssesesees 190, 194 People v, Carter (2003) 30 Cal.4th 1166 vcccssssmssssserccsecssssensssesssesatsness 179, 184 People v. Castro (1985) 38 Cal.3d 301 wcsessessseeseeesnessseesrsssssesssssseessensseeees 101 People v. Chatman (2006) 38 Cal.4th 344.csesescseeseetsestesserseeseeseeseeenes 174, 181 People v. Clark (1990) 50 Cal.3d 583 vccssccssssnsssssressesseessssseesesesenees passim People v. Coddington (2000) 23 Cal.4th 529.csesesssssssssssssssnssssessssesseseseeees 69 People v. Coleman (1989) 48 Cal.3d 112 vc ecccsesssvesrsesssessseesssssseusssessseseeeecsess 191 People v. Cook (2006) 39 Cal.4th 566...128, 207, 208, 210 People v. Cornwell (2005) 37 Cal.4th 50 vccsssesssssssssssesvsesssessssssssseesseseeseeeens 128 People v. Coxe (1991) 53 Cal.3d 618 vcccssscssesvssesesesssssssesuassensssecsseseesessasensasens 157 People v. Cudjo (1993) 6 Cal.4th 585 viicsscsssssssssssescsssssssesssereesersssenseeseeesesnes 126 People v. Daniels (1991) 52 Cal.3d 815 .ececsssecsesssssseesseeeseeressseesssenseeereenss 99, 178 People v. Danks (2004) 32 Cal4th 269 w.csesssersssssssesssssssssssssesssessssesseseess 137 People v. Davenport (1985) 41 Cal.3d 247csscssssesscssessesssseseessessseseees 146, 208 People v. Davenport (1995) 11 Cal.4th 1171 .ecsscesserseeessseensssesessearereeees 139 xiv TABLE OF AUTHORITIES Page(s) People v. Davis (1995) 10 Cal.4th 463 occeceeescseseneserseeessensserseesssesesenseees 123 People v. Davis (2009) 46 Cal.4th 539 icscccssecsesssssssseessssssesssesesseesssesesseens 149 Peopk v. Dent (2003) 30 Cal.4th 213.sessseeeeensesnesaeeneeeeseenensenseseesees 137, 142 People v. Doolin (2009) 45 Cal.4th 390 ..cccsseeeceseuetieestseeunetaseteetnseeete passim People v. Duncan (1991) 53 Cal.3d 955 vac seseeeeene seseneneseseesseeuesesusasaseesnserens 150, 206 People v. Dykes (2009) 46 Cal.4th 731 oo sccsccsesseesssecsesessssescssensenseseenssnsseens 125 Peophe v. Earp (1999) 20 Cal.4th 826 occssescsessceeresssensssseeresreassasseeessenteeces 176 People v. Edelbacher (1989) 47 Cal.3d 983.scssscsscssesersersscseeserenesseaees 89, 127, 196 People v. Edwards (1991) 54 Cal.3d 787 csssssesecsesssseensssesesssssesesssssnsensestsees 91 People v. Ervine (2009) 47 Cal.4th 745 vi ccssssesssssesssesseesssssessssssssenssnsesssseneees 150 People v. Estrada (1995) 11 Cal.4th 568occccceseeseseecessesessensssssssessesenenteness 180 People v. Ewoldt (1994) 7 Cal.4th 380 wcccesssssssssessssssessesessssessssseseverseseseseeeeeesees 89 People v. Fairbank (1997) 16 Cal.4th 1223 occsessssseseessesesssensesestereersceneneens 198 Peophe v. Falsetta (1999) 21 Cal.4th 903 wcsssseensseseeeeen sieeeees 93, 146 People v, Farell (2002) 28 Cal4th 381 vscessescssseenssenssssssseserssesssseesssssesseenees 187 People v. Farmer (1989) 47 Cal.3d 888 westerners 89, 90 People v. Fauber (1992) 2 Cal.4th 792 occesssscessesssesserssnssssssssesssseesseesessnseennes 157 People v. Feerra (1991) 1 Cal.4th 173 wicsescsesssessesessesnsesssessssssssssssesseseeseeeesees209 People v. French (2008) 43 Cal.4th 36 ..cccsscssssssessseesssssssescsssesssseensssessseenees 194 People v. Frye (1998) 18 Cal.4th 894 ocsscsseessesscsseseessssseersersesesasssssnsenenserseees 128 People v. Pudge (1994) 7 Cal.4th 1075 vissesssesssessssessessssesssssssessesrersssseaces 146 People v. Garrison (1989) 47 Cal.3d 746 ..ccsessesssscsseseessessessssessssssssssesssesesesseseess 123 People v. Gates (1987) 43 Cal.3d 1168... sesseseesstssessetssssssssensessssssessessssssecetens 122 People v. Gay (2008) 42 Cal4th 1195... ccsssscsssosssssessessssssssenssenssesseneess 125, 157 People v. Ghent (1987) 43 Cal.3d 739 wcsccsesssscesseseessseesssensseeserssenessesrsssecesseensees210 People v. Gonzalez (1990) 51 Cal.3d 1179.ececsssssesssecssssesscssssersssssensenseesnesn 125 People v. Green (1980) 27 Cal.3d 1 iceccscssersessesseesssessesneeees 113, 122, 124, 127 People v. Griffin (2004) 33 Cal.4th 536... ssssesesessssssssenssssstsnersssseeesees 139, 199 People v. Guerra (2006) 37 Cal.4th 1067 ...sesecscssssceceeessesssteneecsssscesenescsseesseees 122 People v. Gurule (2002) 28 Cal.4th 557 vscccussssssseseseeeseeressssesseeseessennes 113, 146 xXV TABLE OF AUTHORITIES Page(s) People v. Hall (1980) 28 Cal.3d 143 vvsecsssessccssescsseseeneessesssseseessenssssecsesseseees 146 People v. Hall (1986) 41 Cal.3d 826 w.sssssessccssecnssesssssessseesssesssssssssssseesceneesees 122 People v. Halvorsen (2007) 42 Cal.4th 379... sccecsssssecessenssensesssesseessssesstesseneneess 142 People v. Hamilton (1989) 48 Cal.3d 1142... scsssccsessssessessssenesenreasesesseeseeversees208 People v. Hardy (1992) 2 Cal.4th 86.sscssesvssceseressessetinesnsietntietneiesne 138, 140 People v, Harris (2008) 43 Cal.4th 1269...sessscscssseseessesseneeneesaveaeenessseneenes 123 People v. Harrison (2005) 35 Cal.4th 208 wscsscsesssssssesessssssssessesssessnsensssssscses 157 People v. Haskett (1982) 30 Cal.3d. 841csssessecsesseseenesessssnsssesssseeesessesenssvens 147 People v. Hawthorne (1992) 4 Cal4th 43 oc cecssecssesesecssrcesscsesssensssseeseseseceeees 198 People v. Hawthorne (2009) 46 Cal.4th 67 voc cecsscssssssesesnseeesseensseansssscseseseesey 92 People v. Hall (1998) 17 Cal.4th 800...ecessessesseseeesesveetesreneneeaseseessessneeneenees 168 People v. Hillhouse (2002) 27 Cal.4th 469...ecesessesseseesececneeseeessessensenssneenees208 People v. Hines (1997) 15 Cal.4th 997 vi icsesssessssssesssssesessssesssssesesssareaensnees 158 People v. Holt (1997) 15 Cal.4th 619 visecssctessessessseessessnessesseneess seesneeeneesees 182 People v. Horton (1995) 11 Cal4th 1068.eeceeersneesessessesssecasseees passim People v. Hovarter (2008) 44 Cal.4th 983 oo sseesseeessseceesrsescressessssssesseneess 180 People v. Howard (1992) 1 Cal.4th 1132.esssesssessesssscssesssesesseesssessesssseeees 114 People v. Howard (2008) 42 Cal.4th 1000 wo.ceseseneesseesereseesssees 98, 102, 181 People v. Hoyos (2007) 41 Cal.4th 872... sssssesesssesssssessreerssssssssssscsscesersesesseseess 114 People v. Hughes (2002) 27 Cal.4th 287 .ssssssssssssssesesssssseesenseness 125, 147, 149 People v. Jackson (2009) 45 Cal.4th 662 vcesessssssessseetsssesssessesesessssesssssees 62, 134 People v. Jenkins (2000) 22 Cal.4th 900.essessssseessssssssssnsssensseseesseseees passim People v. Joseph (1983) 34 Cal.3d 936 cescsecssscrsssessscssnesesssessanssssessseseeesssesses 135 People v. Kelly (1980) 113 Cal.App.3d 1005 wesccsssessseesssscsscsessressseessresreenes206 People v. Kelly (2007) 42 Cal.4th 763 ....cccssssesssssssessessesssssssssessssreseaseseeseessenes 124 People v. Kennedy (2005) 36 Cal.4th 595... .ccsssssssseseressesessnssesssssesessesesseesseensens 198 People v. Kipp (2001) 26 Cal.4th 1100... ccecssesessssssseessesseaserssssensseesesesrseres 88 People v. Kirkpatrick (1994) 7 Cal.4th 988 wcccscsssssessssessssseressesrsaseassssesenseaneess 138 People v. Kobrin (1995) 11 Cal.4th 416.essssescesssnsssssssscssesssssesssseerenvesseess 126 People v. Koontz (2002) 27 Cal.4th 1041 wcccccssssssesssesessssessesesseeseeeses 135, 136 xvi TABLE OF AUTHORITIES Page(s) People v, Lang (1989) 49 Cal.3d 991ccseeessssseserenessssseseassessssseeeesees 138, 141 People v. Lanphear (1984) 36 Cal.3d 163... essesssssesssseccssssensseesseeesassenses 148, 150 People v. Lara (2001) 86 Cal.App.4th 139... cicsssssesessessessseecssrenssesesensesers 135 People v. Lenart (2004) 32 Cal.4th 1107...essences201 People v, Leonard (2007) 40 Cal.4th 1370 . sesseseeeeseseaeseeveseseessseveneassesnessassnsareesenens 152 People v. Lewis (2001) 26 Cal.4th 334 viccccseesssessssseesssesssssseessssessssssnsseessseensees 100 People v. Lewis (2008) 43 Cal.4th 415 vieseeeseeseresessneeeeenseees 122, 178, 179 People v. Loker (2008) 44 Cal.4th 691 oc ccescsssssssesesessesnsssssersressenes 102, 181, 183 People v. Loudermilk (1987) 195 CalApp.3d 996wesc191 People v. Love (1960) 53 Cal.2d 843 vccsessessssenssesseessssesseeressssessssseseessenesssenseeass 89 People v. Lucas (1995) 12 Cal.4th 415 oc ccescssssscreesesesssssseesessessssrserereses 126, 167 People v. Manriquez (2005) 37 Cal.4th 547 w.ccecesssssssesessssseseeseseeresseseeresserennens210 People v. Marsden (1970) 2 Cal.3d 118 vceessseesecesesssessenecsesesesssssssensssereeseneesens 131 People v. Marshall (1996) 13 Cal.4th 799 vicsssssseesssssssesseesseenees seseasenneeaeeess 160 People v. Marshall (1997) 15 Cal.4th 1acsseecsssssseerssesenescesssssssseseensesssess passim People v, Martinez (1999) 20 Cal.4th 225 ocesscsseessssresesressssssevsssseensans 114, 122 People v. Mayfield (1997) 14 Cal.4th 668...ccccsecssesesseeeneesscnssseresseesessenees 138 People v. Medina (1995) 11 Cal.4th 694 vi icssssessersressesssssrscessneessssssevenseenss202 People v. Melton (1988) 44 Cal.3d 713 nic sescsessecsessssssseeseereesesssssssenaeeees 172, 174 People v. Memro (1985) 38 Cal.3d 658 ..essessscscesseccsessesesseessensssssessssssenssssnsenees 113 People v. Mendoza (2000) 24 Cal.4th 130 unccssssesceesseasssessssssseenssneseeseessenens 98 People v. Mendoza (2007) 42 Cal.4th 686 w..ccsssssssssesssssesesssssesssssssssesssssssnsens 180 People v. Miller (2008) 164 Cal.App.4th 653 vcecccssssessssesserensesesssssseerssessesseeses 189 People v. Mincey (1992) 2 Cal.4th 408... cscsssssessssessssrssssssssessseeesvsrsesessssensssseeees 99 People v. Mitchell (2001) 26 Cal.4th 181 vccssecsssssseesssnsssssstsssesssersessesseesereasens 187 People v. Monterraso (2004) 34 Cal.4th 743 vccceesssessessssssnssssssesessssssesevenssenenees 173 People v. Moon (2005) 37 Cal.4th 1issscsssecscsesescessseseessescnsessesreerseess passim People v. Moore (1954) 43 Cal.2d 517 cacccccsssecsssssesssecssscesseseeveesenseseneeneees 103, 206 People v. Morgan (2007) 42 Cal.4th 593 o.esscsssssseseecreeessssecsseseseeeenssessreneavenseeees 98 People v. Morris (1991) 53 Cal.3d 152 vicesscssssesesssseesessesseeseceeenseasseesseecareness 157 xvii TABLE OF AUTHORITIES Page(s) People v. Morrison (2004) 34 Cal.4th 698 viccccsscsssessessssrcssssssssesenssesensssescaes 183 Peophe v. Murtishaw (1989) 48 Cal.3d 1001... eccsssecsssecrsestesrssersersneereecesensneentene 66 Peophe v. Musselwhite (1998) 17 Cal.4th 1216...eesssssesesssensseseresenees 128, 139 People v. Nakahara (2003) 30 Cal.4th 705...ccssssssssesesseseesesssneeressesesenees 99, 100 People v. Nieto Benitez (1992) 4 Cal.4th 91ssssmssemmuestniemmseeteeiieeere 99 People v. Noguera (1992) 4 Cal.4th 599cccscsseessesssenessesssessseseseesenenssesseess 88 People v. Ochoa (1998) 19 Cal.4th 353.issesssescsssessesecssseenssssseesscsnsacensecseeesses 152 People v. Ochoa (2001) 26 Cal.4th 398... csssessscsssseessesssensssersesssssseeeeatssnseease 100 People v. Osband (1996) 13 Cal.4th 622 ooccescsssesseeneneeeneenee 148, 158, 193 People v. Page (2008) 44 Cali4th icccsesesseersssseesssenssesssessesssssssssssseassatensess 158 People v. Panah (2005) 35 Cal.4th 395 wiecsscsseessssenssessseesesssssescsnssssnsesensseens 99 People v. Partida (2005) 37 Cal.4th 428.esecsseseeseesssseessseessseeseenssenseess 93,95 People v. Payton (1992) 3 Cal.4th 1050... essesscesesesssssseescsesscsssecseeeesesesseessens 181 People v. Pensinger (1991) 52 Cal.3d 1210wissencssotoasaenenees 101 People v. Phillips (1985) 41 Cal.3d 29 .cccececesseesccsssnssssessssissesssneeveaseesessess 181 People v. Pokovich (2006) 39 Cal.4th 1240voces134 People v. Pollack (2004) 32 Cal.4th 1153... ceessesssssssssssseevsssesessessenssesescssseess 91, 92 People v. Pride (1992) 3 Cab.4th 195 vvicscessessscecsssesssssssesssseseessersssessenseseeresseseass 138 People v. Prieto (2003) 30 Cal.4th 226 wo. ececscsssecssesessstenssssnessssesnsarsneeneacens passim People v. Ramirez (2006) 39 Cal.4th 398 esssssessessessessessssesrssssensssssarsesesaeees 138 People v. Ray (1996) 13 Cal4th 313 viceccsessesssessssseseessseessessssssseeereeeseenes 148 People v. Rice (1976) 59 CalApp.3d 998 wiccesecsssesssessssesasssessesesseesessenseseeneens206 People v. Richardson (2008) 43 Cal.4th 959 v.cccsssesessesseeeseeeaseeseseassasseeesseneees 88 People v, Riel (2000) 22 Cal.4th 1153 voccesessseseesseeseeseeresessecssesseneseesesssesssneensens 122 People v. Riggs (2008) 44 Cal.4th 248 vu. cissssssssssesseeessessesseseeseesseeeeseesees 88, 90 Peoph v. Robertson (1982) 33 Cal.3d 21ecsssessessssserseseereeeenes 150, 160, 181, 185 People v. Robinson (1997) 56 CalApp.4th 363 w..cecsescssseeessseseseseerssneenseneennsers 136 People v. Roder (1983) 33 Cal.3d 491 .cscesssssessesesseressssesesseeseuesseseensensens 101, 103 People v. Rodriguez (1986) 42 Cal.3d 730 wsccsecsseeseesesesseessesesseetessessesees 110, 113 People v. Rogers (2006) 39 Cal.4th 826 wisssesessesessecsseesssessesssscesessessssesssnessee 181 TABLE OF AUTHORITIES Page(s) People v. Rogers (2009) 46 Cal.4th 1136.cccessesssssserserersssersessseaseeeseeeen 158 People v. Roldan (2005) 35 Cal.4th 646 wicccsccesseresessenscessssseessesssssersenssersensees 149 People v. Roybal (1998) 19 Cal.4th 481.sesecssseessesessssssnessssseseeesesseensess 87 People v. Salcido (2008) 44 Cal4th 93... cceccssesssnersnsesssnsesessesesnneess 91, 95, 163 People v. Sanchez (1995) 12 Cal.dth 1 smusemnmenenenetetnieieieieieimserteiee 158 People v. Sanders (1995) 11 Cal.4th 475 vuccssssssesessseesessssssssesesssrsseseeees 99, 146 People v. Sandoval (2007) 41 Cal4th 825 vic csceeessssesssssesssssseesees 188, 194, 195 People v. Scheid (1997) 16 Cal.4th 1 scscsessseresecneseereessssssesssvsnessseesnseeensanenees 86 People v. Schmeck (2005) 37 Cal.4th 240vicespassim People v. Scott (1994) 9 Cal.4th 331 icssscsssecssseessssssseesssesssssssssseeseessseeseees 193 People v. Sedeno (1974) 10 Cal.3d 703 wececsssssessesessereeseneeseeeeeseneceseenenssescasevesenees 199 People v. Sengpadychith (2001) 26 Cal.4th 316.sssssesessesessssssseeesssssseeeess210 People v. Smith (1979) 94 Cal.App.3d 433. .ccccscccsesseesssssessreescssssesereeneesessrees 191 People v. Smith (2003) 30 Cal.4th 581 oesceceseeecesssscsseressesescensseessrseesneessasen 165 People v. Smith (2005) 35 Cal.4th 334 viccccssessssceeseensssssssesssssesssserseees 69, 91, 169 People v. Smithey (1999) 20 Cal.4th 936 vscsscsesenessssssssreeneesees 66, 101, 125 People v. Snow (2003) 30 Cal.4th 43vices157, 210 People v. Stanley (1995) 10 Cal.4th 764 vu ccssecsscesssssssesnssssssresssesessensenserens 128, 197 People v. Stanley (2006) 39 Cal.4th 913 wiccecsscsecsssssesessessesessenssssenens 128, 134 People v. Stansbury (1995) 9 Cal.4th 824 vissessesssssesenesssssesssecseacsseessseseesenss 157 People v. Stanworth (1969) 71 Cal.2d 820... esssessssrsssessesesssessesssesessseeeassnsees 146 People v. Steele (2002) 27 Cal.4th 1230... ccscssssssescsesssssesessssssssssscesesssessssnsenes 179 People v. Stewart (2004) 33 Cal.4th 425 vcscssccssceeeeseersssssssessssssssssesesseseasesens 134 People v. Stately (2005) 35 Cal.4th 514. csececsscesseeesssessssssresssserssesesssessessesseess 193 People v. Superior Court (Engert) (1982) 31 Cal.3d 797 veces 109, 113, 121 People v. Taylor (1990) 52 Cal.3d 719.eeccseseesesseseeesesseseeseeeeneneeneseeneceaseeees 150, 202 People v. Taylor (2009) 47 Cal.4th 850 wecesessessssessseterensseeserscatsessesssessetsnsees 135 People v. Thompson (1980) 27 Cal.3d 303... cssessssssrsseseenseresesssasereassssserseeneers 122 People v. Thompson (1988) 45 Cal.3d 86... cssscscsesscsesesseessesssecssesesensneesatenens 157 People v. Thornton (2007) 41 Cal.4th 391 w.ieessecssssssessesssrseseenssrecssessensesennees 101 xix TABLE OF AUTHORITIES Page(s) People v. Tillotson (2007) 157 Cal.App.4th 517.cccecesssecsecsesseesesseesseseeessesseens 192 People v. Velasquez (2007) 152 CalApp.4th 1503...ceessssssessesesssseneeeses 191 People v. Visctotte (1992) 2 Cal.4th Licccsssseecseceseceerescsessseesceresseseaees 127, 182 People v. Wallace (2008) 44 Cal.4th 1032...ssececsseeserssesenesssessseatassseesen 86 People v, Ward (2005) 36 Cal.4th 186 sesvssussesssteseremetettusieieuanetee204 People v. Weaver (2007) 149 CalApp.4th 1301 vccicesscssssesseesseeessenreecsseeseens 191 People v. Webster (1991) 54 Cal.3d 411 viccsessscsseeensesseseessesesseeerssses 128, 183 People v. Weidert (1985) 39 Cal.3d 836...c.cssscecsesssrerseseseneessersseneess 113, 122, 124 People v. Welch (2004) 20 Cal.4th 701 ..ccsssccssessssnsssseecnsssessssssssnsssesnesssesensens 140 People v. Wharton (1991) 53 Cal.3d 522... secsseesssseecssesseenseees 113, 114, 147, 165 People v. Whisenbunt (2008) 44 Cal.4th 174...secsecsesesressssessesssesseenssesseens 149 People v. Whitehorn (1963) 60 Cal.2d 256 ou ecsesesescsessensesssenecsscesscensseeesscsseess 146 People v. Williams (1988) 44 Cal.3d 883 ossceccsessreressesessessssesrsssssssessteenessseses201 People v. Williams (2006) 40 Cal.4th 287ccesececcsceeessecneersesesnrersesvee161, 162 People v. Watson (2008) 44 Cal.4th 758 vcsscssesesssessssseesssesesssessssesseesssereessesens 194 People v. Windhama (19TT) 19 Cal.3d 121 vw oieccsesssteressssesessssecsssssserersseeees 138, 140 People v. Wright (1988) 45 Cal.3d 1126... ssceesesesesssssiscessesesssessseseeteees 99, 102 People v. Wright (1990) 52 Cal.3d 367 iessssssssssscessssecnssarsesssssesessserseeseenseeses 147 People v. Yeoman (2003) 31 Cal.4th 93 ..cccessecsctscesessessessesssecsesessessesseesescasenss 160 Price v. Supertor Court (2001) 25 Cal.4th 1046 oo cesseesessssessseenescansesneesseensss 69 Universal Engineering v. Ba. ofEqualization (1953) 118 Cal.App.2d 36 wee163 OtherStates Diaz v. State Fla. 2006) 945 So.2d 1136...ee ceecseseceeesseessssseeresssessesenseesseeeseees 70 Lewis v. State (Ga. 2005) 620 S.E.2d 778 viicseecccseeeresesseesstseesesssscssenssssenssessnes 70 Overstreet v, State Ind. 2007) 877 N.E.2d 144 cceccccssssssessssssseesesssesssecsessseseeeean 75 Rhodes v. State Fla. 1989) 547 So.2d 1201csccssessseesssetssesessssessesenseeseseeees 152 State v. Hancock (Ohio 2006) 840 N.E.2d 1032 wiccecsssssseeseeeesceeeseneseeesens 70 State v. Johnson (Mo. 2006) 207 S.W.3d 24 ccccecsecserssrssserssrseseessessseesneesesseeeseensens 70 State v. Ketterer (Ohio 2006) 855 N.E.2d 48...esseseeceeesnsssersesneeeienss 73, 76 State v. Nelson (N.J. 2002) 803 A.2d 1 viscera73, 78 XX TABLE OF AUTHORITIES Page(s) STATUTES Pen. Code § 187isceesssseseesesesscnseessssssssssssesscessnsssetseassassusssassesreasarsnsesssesseusssessensesieeesererseseenenens 3 § 1902ecseeesesestssseenessssesessessesserseeeenercssresssesensssssasssncssscareseeesssseessesesnenensens passim § 190.4 cevsisnssnstettnueitinistitistienenenaenestisnnetintintetenstieeieeeeneve 138 § 1905esessecsessssessesneetenesssersscsesecsusaeencsessetecsesssevsaesvsacencacanesesveseseasensessesnearsersscansineny 80 GQ QLDecsessssestssseessssessssersssssssassnssesssasesssnsssscssseserssssseassssessssnsscesesssensessssenesserseseeses 3 § 1Scesses ssseseensscersessesesvesssessssssesecssessnsassesnsaessnessasessesintessssarceresessceeassnsnsneessesees 3 § 21D eeesseseseesssrsneenevesssssserssscarsnssssesncssetsesseeesssesesscssareecsssoenertesieseseerensrensteetess 3, 188 § 4Decsensestssessnssssecnsssssessssssssssnesnsssseesesssseseenssnsarensassesssensssavsessnssesssseessensaseesens3,4 § AGO ne eeessssesseceesessesentensstenssncsesncaresesusssensscseessnessseesecssacansessnssesernsseensaarenssanssseerens 3,4 QOLceesecceseeesssessesssseseseasserssnenesnsecssensassesssnsevssescenssessseansesecsrevsesesacsessessseniessneeenes 188 § 4612eseeseesesessessesesessesesssssssersssreessesssessesessesecnssesetseseteesenssnsssnsenssssneseesseeseesens 3 § GO4 esssetecsnecrssecssnecnsasesnnecsnsescusecsuscessnsecnneccanesssusecsnccansssenseenetssnseeansccoeseqensensuesennanet 4 § LO9DBaesescessessssessserssssssesesssessssssessssssssessssssssnsssssssssseenssssssnsevseseventecsesassssntsesseeeeses 157 § 1096. ssesecsescsessecscssesssesessesesecersssencseessessassssersncsesesseasesessaeesssneseseaseensareeses 103, 181 QLQTececsesesessesessesseessenssnsssscsvessasensnsassseseecsssssenesseseseuqesssesssssessensesneasseserenseneneess 157 QLDCoiccsscssessssssssscnsssssssesssssssseesssesnsacessesscevssesssuseccssecnsacesseessssneseeesessesesaseneess 98, 146 § L138eesescssessenessesssessesssssscessnssserensssesseesesecacsesssscessesuaesessrsacacsesesenseensseessnsenseeens 125 QLDTO eeseseceesestssteseesssesseseesssssscsssearssesssssssssscessseseseenessseesssesssseseesesssssssess 188, 192 QBLceessseseesnevsresssseessesssessesenssessesscsessssseesesasaressersasssscesssssesssceesersateesey 81 § 1192.7 sessssscsseccnsssessetssansesnsseeessssssesessseecessesisistsssosesassnsecsaseeesasesssseevaetes 4 § 1203.06 vescscesssssecressssssesessoseessssessssssassaesensesscssssseseseessseessesssceeassssessesasserensesaeneseres 4 § 1239, eccesesssssrssssessesecseestsvsatsnessescsesssssessssssessessseersneessnesessesssssessaeessercntentenssnensenennes 1 § 1260... eseesessessesssrsssstsscssesvsssssssssessesssessscessensecessseesssesscacensseessasessssessusenssseeseessestseses 81 § 1B76. sesessestessssesscseenectsssascseessseseensneeassesscercarsessececasensaneesenescensesnssesarensnetssess 62, 80 J 12022.5 veessscsssesesssnsssesessssssssscsesssasessessseesesssseeacsessssesssaessseessrarsseensssenearsesereess 4,188 Evid. Code GQ Q1Oesetnssssesseseerestsssscsssssssseecstessereessesscsecsnsecsesessesestesnssrecneencateesaneesentets 86, 88 § BSDec ssesessesseseesecsvenvsssssessvssesaressssesessssnessesscssessssecansateneesssnsinesecsssesareneersesseessusseens 86 Xxl TABLE OF AUTHORITIES Page(s) § BOQeesseesscsnesescsescseceseenensteneatesusessessacsesensseseensseseaeseseasseasseesataeeeeeerseaeseaeseess 88, 89 § DOcssesesesesescssarersesesvseecsencsessecassseceesensccasaesvasiesesesasseaesssesesessseeesesssaseeseasetenees200 J OOFcseeccsescercessessstseeseecssscssersesssesseassesssesssesseassesssensseecscssseceeseusetesesesseasneseesnens 194 CONSTITUTIONS U.S. Const. Sth Amend,...escscssesssscessessseecssssecssssssceenssnssesesessssesssessesssssessesseessens 94, 126, 167, 169 Oth Amend... ccccccssssssscssssesessscsssssssssseessssesesesscssseseaesesessserseseesessessseeesesenseveesees passim Bth AMEN,we. ccccssscsessesssetessesssesesessesesssssesesessesesesesesesesetsecsesesseassessseseneeseseees passim 14th Amen. ..ccccccsecssssserssesssecessesescnesesesseseeseesesssesesssessseassesesesessseseasanersesees passim Const. ALC. 1, G7 ceesessesessescsecsessessssseseseesseesssssseessssssssesssseseeesssssesesetssesseseeseateseeseeeneenees passim Aft. 1, § 15 esceessesesessessssessseesssssssesasnsssseeseessseeessesassssenssesssenssentieentes passim ALt. 1, § 1G cesesessssesssesesssssessessesssssesssesssesseessssssessusssseesessesnsancsensseesaeesseessseanees passim ALT. 1, § 17 cc ecesesessessesseresessessseeseeessssseensssssessersersssensnesssssrssssesesansssinessapenseonsees passim ALt. T, § 24 ceesesessseesescseseerenssencsescenetenseseeseseseenssesecuesaseuserseasaseneeecesecesseneasenseeseets 79 AL. T, § 28cseesessessessscssscscseessuscessessacsvereusesecseaeasssssseseatseseeesesecseacsensereeesses 86, 167 OTHER AUTHORITIES Jury Instructions CALJIC No, 1.01 ccccccssssesrssensssessversassssssasersnsscarssercssesesessesensssssesessesseeseess 178, 179 CALJIC No. 1.02secssssssestensesscessesssesesseeenssssersesssssesssssesssesssersesseeseeesesseserees 177 CALJIC No. 1.03 neccccessceseessssesesnssssssessesssssssssssseessssesassssesessssecsssessesasseresnesens 179 CALJIC No. 1.05 ve ecccecssesssssressesssensssessesseseresscseseersssessesesceeesensetsaserssessntenseeees 179 CALJIC No. 2.00 cieeccccesesssserssesssessessssssessssssssssseensssseassesssessesasseersesseeseescens 100, 179 CALJIC No. 2.01 c.eceesesessesssessecssestsssarstsseesssssssssssssssesserseessssessetsessesesees 100, 179 CALJIC No. 2.02 cesseesssesseeesesesssssssssssnsssssesssasscssessssenessssersseensssensesseeseess 100, 179 CALJIC No. 2.03 veccccsesssesecsssesscneseessscnssnsscssscsesssssseacscessacssessvsssesenavsnssensens 99, 179 CALJIC No, 2.11 ecccsecssssessessssessssscessssssscsseasesssesscseessssesssessseeessssssesssseneeseesseseneees 179 CALJIC No. 2.13 vecccsssscsesescssseesessrssssesescsssssssssesssssessseesressscesesenessnscesseensacsesreees 179 CALJIC No. 2.20 visccececscscssssssssessssssssssssessseressesssssssessssssssssesesceseassseseenseerseseaneans 178 XX TABLE OF AUTHORITIES Page(s) CALJIC No, 2.22icessseseeseessetesssssssseseccasacssneseseeceseceseaeseesscerseeseaeacseneneneaseees 179 CALJIC No, 2.27 vccccsesssescnssecssesersessenecsesssseesenesessesssessnenseecsseeesasseseseesseessereeeeers 179 CALJIC No. 2.20.1eceesesessseesnenseecssseesesaeneseesesenssessesssesetesevecsessneeeassensseeesees 178 CALJIC No. 2.21.2essneeeeeeenteneessesseesasseanonseecatscnseenescarsensasnnesnnenseessnoeess 179 CALJIC No. 2.52csnsmnueuemesesinenenenenanansusianenenenanauanananeuseieen 97 CALJIC No. 2.60 ceccsscsscsssssssssssssersssssesssssseanessssrasseseeveessssesnsssetenasesteanseseeen 178 CALJIC No. 2.61 icecccscssesssestsssssssssssrsescerscscereressneeseeesesesienensesaseseeaneeesees 178, 181 CALJIC No, 2.80 coeeessssssssccssssssssvoncssescessestsesssseecersesterenseseeseesecsensicasneenersasneasess 178 CALJIC No, 2.81 cecsssssctcsseeeseseeresessssssessesssessesnssccesescaseeensnsetsrensaeerensansnsaeeons 179 CALJIC No. 2.82. ecesssssessesssssssneseessesseersacesessseesecaserseensseesenseessecensssneeeasentsenses 179 CALJIC No, 8.83 i ccsscscescsesseseressessensesessssssnsesssnssessetseseersesnsnsessasssasaeesersssencscnsens 100 CALJIC No, 8.85 vc ieecccsssseeesesssssrssenessesssssssescesssseereesrsesnsssacssacaeseseeraneeaseaeens passim CALJIC No8.86cc sesssesseresersssessssssnessesssessssssensssssssssasssssssssenessnsesnseresssseeetes 198 CALIC NO, 8.87 viccscssssscssescssscssessessssssscsssnssessesersesersesessasseeersaeesersees sesveene 198, 203 CALJIC No, 8.88 .ccccccssesssecssssesssseesensesssessssesssecstensssssesssssssasesesseesseensecseess passim CALJIC No, 8.80.1 cesscseesssseessssssssesssessnsesssssescecererecerseesssessnsecnssssesseenssnseseeees 118 CALJIC No, 8.84.1 ciccsessseesssessesseseassssssssecssessensassssesecssesesnssserseasesenees 177, 178 CALJIC No. 8.81.17 iiccccsesssssssesssessessesssensensessssssscnsessesseassnsesseassesasssassscesses passim CALJIC No. 8.81.7 viccsesessssssssssessssssesssecessesnsecsstsecerssseerseenssereessssensacscsssnesessesseees 108 CALJIC No. 8.81.8. eccsssesesssesssssssserssstscenssessatsseessssenersesseeesecscseasacesessessessscasens 108 CALCRIM No, 763... escesssssssesssesesscsscsesesesscsescssesseesseseseenesesesarssoreseseeesnsecaseeees 174 Texts & Law Reviews Douglass, Confronting Death Sixth Amendment Rights at Capital Sentencing (2005) 105 Colum. L.Rev. 1967 wiccicccsesscsssnstccssrsecsscneeesestsnssissssenisanensnense 167 Haney & Lynch, Comprehending Life and Death Matters: A Preliminary Study of Cakfornia’s Capital Penalty Instructions (1994) 18 Law & Hum.Behav. ALcececseestssseeseescsesseevsesssassssssssavcussessscessesssessssesessssessescsseonssesenensasensesacssenees 170 Haney,et al., Deciding to Take a Life: CapitalJuries, Sentencang Instructions, and the Jurisprudence ofDeath (1994) 50 (no. 2) J. of Social Issues 149.......170 LaFave, Substantive Criminal Law (2d ed. 2003)... aceesenctesseeererestenseteeeenss 102 xxiii TABLE OF AUTHORITIES Page(s) Note, Applying Atkins v, Virginia To Capital Defendants With Severe Mental THness (2005) 70 Brook. LuRev. 995.ecessecsssessssesssnsseessnsssessenserssessencessaseneneens 73 Note, Cakfornia's Determinate Sentenang Law: How California Got It Wrong woe Liptce (2008) 12 Chap, LRev. 87... cscsecsessssereneensseessensssessnseresssvsseesses 190 Note, Is The Death ofthe Death Penalty Near? The Impact ofAtkins and Roper on the Future ofCapttal Punishmentfor Mentally Il] Defendants (2007) 76 Ford, LuRev. 465... cessessessessessessessssessssseesessssessesssssssesssanssessesseessssssnsasesensesees 74,75 Note, The Presumption ofLife: A Starting Pointfor Due Process Analysis of Capital Sentencing (1984) 94 Yale L.J. 351 wcccsssssesssseseesesessseeeseseeneeneeeanes206 Poulos, The Lucas Court and the Penalty Phase ofthe Capital Trial: The Onginal Understanding (1990) 27 San Diego L.Rev. 521 veces170 Recommendationsofthe American BarAssociation Section ofIndividual Rights and Responsibilities Task Force on Mental Disability and the Death Penalty (2005) 54 Cath. U. L.Rev. 1115 vieesessesseesensecesssnnesesssenssnsersnssatssnsseeneees 73 Redding, The Brain-Disordered Defendant: Neuroscience and Legal Insanity in the Twenty-First Century (2006) 56 Am. U. L.Rev. 51vcs77 Slobogin, Mental Illness and the Death Penalty (2000) 1 Cal. Crim. L.Rev. 3.....80 Slobogin, WhatAtkins Could Meanfor People With Mental Illness (2003) 33 NLM. L.Rev. 293 vecccssssessscssstsssssssssensscsssssscesssssssseseesansessesssssnssessseseseeseaseersgeess 80 Winick, The Supreme Court's Evohing Death Penalty Jurisprudence: Severe MentalIllness as the Next Frontier (2009) 50 B.C. L.Rev. 785.....69, 73, 74, 77 Cal. Rules of Court TUE 4.406 esesssssesressesssssssessessssssesssssessesesseeessssssssssesnsssssesecsecessessessessseessesenees 192, 210 PUle 4.409 vo ceceesessssssssessssessessssssssssessesssssesseessssssvsevensseessssssanasseseeatenssersesesseanensseneees 194 TU) 4.421 viececsecnsesestecnseesvesssesesssssnssassnssssssssnsessnsssssscnssssassansssavesessseseesnenssesessees 191 LUE 4.425ee ecessesesssssessesessnssstevsssssessessessssssesssscsssssesssssscsvssessesssesssssseteesenseeseeneenens 193 LUE 8.630 .r.recessesessesscsessesressessssssscsncensssssessessesssssceussessesscssessssessvesesessnsenseessenseeseees212 XXIV IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE STATE OF CALIFORNIA, No. $092240 Plaintiff and Respondent, - Orange County Superior v. Court No. 97NF2316 KEVIN BOYCE, Defendant and Appellant. APPELLANT’S OPENING BRIEF STATEMENT OF APPEALABILITY This automatic appeal is from a final judgment imposing a death sentence. (Pen. Code, § 1239, subd.(b).) INTRODUCTION Mr. Boyce (appellant herein), a 40-year-old African-American man,is mentally retarded, organically brain damaged, episodically psychotic, and severely mentally ill. The evidence that he is brain damage conceded by the prosecution: [A]lthough we are not contesting the fact that Mr. Boyce has certain problems, and that are well documented.. . regarding his mental abilities, and from whatever source. If it is organic brain disease or whatever, and weare notfighting that. (11 RT 3807.) In August 1997, appellant (then age 27) and Andre Willis (then age 30), were charged with crimes relating to an armed robbery at a hair salon in Buena -1- Park, Orange County, on August 14, 1997, during which an off-duty, Los Angeles County Sheriff's Deputy -- Shayne York -- was shot and killed; and with crimesrelating to an armed robbery committed at a pizza restaurant in Yorba Lindalater that evening. Willis, after four changes of counsel, was ultimately represented by experienced defense attorney Milton Grimes, who notonly recognized that appellant was severely brain damaged, but feared the adverse effect that such a fact would have on Willis’s case: I can see the prosecution or even the other defense saying, you know, “Who was the shooter? Who was the brains behind this case[.]” Andit is going to fall on Mr. Willis because Mr. Boyceis about as puddin-head puddin-headas onecan get. (4 Pretrial RT 1107 [sealed].) Ultimately, Willis’s case was severed from appellant’s.! Willis was found guilty offirst degree murder, but the special circumstance allegations were not foundto be true. Thus, Willis’slife was spared. (See post, fn. 5.) Appellant, mentally retarded, brain damaged and psychotic, was sentenced to death. // 1. Appellantfiled with this Court a motion to unseallimited portions of the record on appeal. The Court granted the relevant portions of the motion. STATEMENT OF THE CASE On August 18, 1997, the Orange County District Attorney filed a complaint in the Orange County Municipal Court charging appellant and Andre Willis with four countsrelating to a commercial robbery on August 14, 1997, at the DeCutSalon in Buena Park. Count 1 alleged the murder of Shayne York, an off-duty Los Angeles County Sheriffs deputy. (Pen. Code,§ 187.) 2 Three special circumstances were alleged, including the killing of a peace officer in the performance ofhis duties; killing while engaged in the commission of robbery; and killing while engaged in the commission of second degree burglary. (§ 190.2, subds. (a)(7), (a)(17)(1) & (a)(17)(/).) Counts 2 and 3 alleged the second degree robbery ofJennifer Parish and Amy Parish. (§§ 211, 212.5, subd. (b), & 213, subd. (a)(2).) Count 4 alleged the second degree commercial burglary of the DeCut Salon. (§§ 459, 460, subd. (b), & 461.2.) The complaint also charged the defendants with seven counts relating to a commercial robbery that occurred later that evening at the Lamppost Pizza in Yorba Linda. Counts 5, 6, 7 and 8 alleged the second degree robbery of Rodney Tamparong, Edward Tharp, Mark Cook, and Christopher Pierce. (§§ 211, 212.5, subd. (b), & 213, subd. (a)(2).) Counts 9 and 10 alleged the 2. All further statutory references made herein are to the Penal Code, unless otherwise stated. In the Reporter’s Transcript, the salon is spelled both as “De Cut” and as “DeCut.”” Appellant follows the latter appellation. The record on appealis designated herein as follows: “RT”refers to the Reporter’s Transcript on Appeal; “CT” refers to the Clerk’s Transcript on Appeal; “Pretrial RT” refers to four volumes of proceedings that occurred before trial; “MCT”refers to the municipal court Clerk’s Transcript; “MRT” refers to the municipal court Reporter’s Transcript; and “QCT”refers to volumesofthe Clerk’s Transcript containing juror questionnaires and other documents. attempted second degree robbery of Ernest Zuniga and Sean Gillette. (§§ 664, 211, 212.5, subd. (b), & 213, subd. (a)(2).) Count 11 alleged the second degree commercial burglary of Lamppost Pizza. (§§ 459, 460, subd. (b), & 461.2.) The complaint also alleged that the offenses were serious felonies within the meaningofsection 1192.7, subdivision (c)(1); that both defendants personally used a firearm (§§ 1203.06, subd. (a)(1) & 12022.5, subd.(a)); and that both defendants had suffered several prior convictions. (Supp. CT 234- 238.) On August 18, 1997, the defendants madetheir first appearance in the Orange County Municipal Court. The Orange County Public Defender was appointed as counsel for appellant; private attorney Barry Post appeared in court to represent Willis. (MCT 1-2, 13; MRT 1-10.) 3 On November7, 1997, not guilty pleas were entered to all counts, and the special allegations were denied. (MRT 50-77; MRT 4.) On June 5, 1998, appellant and Willis waived a preliminaryhearing, and were bound over to superior court. (MCT 8; MRT 141-150; 3 CT 690-691.) On that date, the prosecution filed an information in the Orange County Superior Court charging them with the same counts alleged in the complaint, including the two felony-murderspecial circumstanceallegations; however, the special circumstance of killing a peace officer in the performanceof his duties (§ 190.2, subd. (a)(7)) was not alleged in the information. (3 CT 683- 689.) 3, In the course of the proceedings, Willis was represented by five different attorneys: Barry Post (August 18, 1997, until February 20, 1998); Peter Larkin (February 20, 1998, until June 15, 1998); the Orange County Associate Defender June 15, 1998, until March 30, 1999); Duane Folke (March 30, 1999, until December 23, 1999); and Milton Grimes and Early Hawkins (December 27, 1999, until Willis’s case was severed from appellant’s case in July 2000). On October 22, 1998, the defendants were arraigned on the information. (1 Pretrial RT 142-155; 3 CT 758-759.) As appellant personally objected to a continuance, the superior court denied defense counsel’s motion to continue the arraignment, and his counsel entered a not guilty plea. (1 Pretrial RT 144-147.) On November 16, 1998,the prosecution informed appellant and Willis of its intent to seek the death penalty. (6 CT 1275-1276.) On April 8, 1999, the prosecution filed a Notice of Aggravation. (5 CT 1442-1445.) An amended Notice of Aggravation wasfiled on June 29, 1999. (6 CT 1684.) OnJuly 30, 1999, the prosecution filed an amended information, adding the special circumstance allegation ofkilling a peace officer in the performanceofhis duties (§ 190.2, subd. (a)(7)). (7 CT 2098.) 4 The procedural history of this case is marked by numerous requests for a continuance, mostly made by Willis, by Willis’s several change of counsel, and by appellant’s motions to sever his case from Willis’s case. Ultimately, on July 24, 2000, the trial court granted Willis’s motion to continue, and granted appellant’s motion to sever his case from Willis’s. (4 Pretrial RT 1114-1131.) § Appellant’s trial began on July 25, 2000, before the Honorable Frank F. Fasel, of the Orange County Superior Court. Appellant was represented by Ronald Klar and Mark Davis of the Orange County Public Defender’s Office. 6 The People were represented by Orange County Deputy District Attorney 4. At trial, count 7 of the amended information,alleging the robbery of Mark Cook, was amendedto allege an attempted robbery. (7 CT 2100.) 5. Willis was subsequently found guilty of first degree murder. The two charged felony-murderspecial circumstance allegations, however, were found to be not true. (People v. Andre Wilks (Aug. 29, 2002, GO29110) [nonpub. opn.].) Appellant has filed a motion to take judicial notice of the nonpublished opinion in Mr. Willis’s case. 6. Mr. Klar is now a Commissioner of the Orange County Superior Court. _5- David Brent. On August 7, 2000, the guilt phase began. (4 RT 1761; 9 CT 2924- 2927.) On August 22, 2000, following eleven and one-half hours of deliberations over three days, the jury returned verdicts finding appellant guilty on all counts alleged in the amended information, and finding the special circumstances and the personal use of a firearm allegations to be true. (8 RT 2930-2944; 10 CT 3251-3275.) The penalty phase began on August 28, 2000. (9 RT 3016.) On September 7, 2000, after deliberating for four and one-half hours over two days, the jury determined that the penalty of death should be imposed. (12 RT 4056-4057; 10 CT 3508.) Thetrial court granted the prosecution’s motion to dismiss the prior conviction allegations. (12 RT 4059-4060; 10 CT 3572- 3573.) On September 29, 2000, the trial court denied appellant’s motion to reduce the sentence tolife without the possibility of parole. (12 RT 4064- 4127; 11 CT 3648.) The court sentenced appellant to death on count 1. On count 2, the robbery ofJennifer Parish, appellant was sentenced to the upper term of 5 years, and to the upper term of 10 years for the gun-use enhancementassociated with that count. On counts 3-11, appellant was sentenced to one-third of the middle term for each count; and to 16 months for each of the associated* gun-use enhancements. (12 RT 4120-4123; 11 CT 3653-3656.) The total sentence for the noncapital counts and enhancements was 34 years, 4 months. The court ordered these terms “‘to be served consecutivefly]” (12 RT 4120-4125; 11 CT 3653-3601, 3655-3601), and ordered that “the service of the additional years of imprisonment” on those counts “be stayed[.]” (12 RT 4123.) // STATEMENT OF FACTS A. Guilt 1. The Prosecution Case Jennifer Parish testified that, in August 1997, she was a Los Angeles County Deputy Sheriff, and was engaged to marry fellow Los Angeles County Deputy Sheriff Shayne York. Both worked at the Peter Pitchess Detention Center, colloquially known as “Wayside,” in Los Angeles. On August 14, 1997, a Thursday, they had plansto travel to Las Vegas for Parish’s birthday. After work, York withdrew $200 from a Wells Fargo ATM machine. Jennifer Parish and he then returned home,packed, and droveto a hair cutting salon -- the DeCut Salon -- in Buena Park, where Jennifer Parish’s sister, Amy Parish, worked. 7 York and Jennifer arrived at the salon at approximately 7:30 p.m. (4 RT 1803-1806; 6 RT 2285-2286.) At 8:00 p.m., the salon was empty except for Jennifer, her sister Amy, and York. York was seated at Amy’s work station having his hair cut, and Jennifer was in the process of having her hair colored, and was standing next to York, when she saw Amy’s facial expression change to fear. (4 RT 1807- 1811, 1843-1844.) Jennifer then saw a tall, Black man, wearing green, khaki pants and a black sweatshirt pulled up over his head, holding a gun in his right hand, pointed at Amy’s stomach. The gun was a semi-automatic, not a revolver, with a square barrel, and appeared to be “black to like a dark gray.” (4 RT 1812-1814, 1842, 1844, 1846.) § As the gunman moved around, Jennifer saw that he was wearing black leather boots, and that he was not 7. To avoid confusion, appellantrefers to Jennifer and Amy Parish by their given names. 8. The gun was similar to Exhibit 2, a gun that was subsequently recovered from the white Mustang that Willis was driving and in which appellant was a passenger whenarrested. (4 RT 1814-1815.) wearing gloves. (4 RT 1821-1822, 1860-1861.) The manyelled, “get the fuck on the ground, Whiteys.” Onthefloor, Jennifer’s head was within arm’s reach of Amy’s feet; York’s head crossed the lower portion ofJennifer’s body. (4 RT 1815-1818, 1854.) After a second manentered the salon,the first man told Amytoget to the ground; the second asked for the location ofthe cash register, On cross- examination, however, Jennifer stated that the first man asked for the money; and that the second manalso ordered them to the ground. Amy responded that the money wasin the drawerat the front.of the store. Jennifer heard two voices from the perpetrators; she never heard a third voice. (4 RT 1818-1819, 1834, 1855-1856.) The first man stood within several feet ofJennifer’s head; he paced around throughoutthe incident and remained within her “eye range.” (4 RT 1819-1820, 1853.) She could not see any part of the second man, nor his movements, but could hear his voice. (4 RT 1820-1821, 1849.) Jennifer did not know,but believed, that the second man wentto the cash drawer. (4 RT 1857.) He becameagitated when he discovered that there was no moneyin the cash drawer, and demanded,“Whereis the fucking money?” (4 RT 1821, 1823, 1858.) Amy had some cash on her person, but not very much, so the second manshifted his attention to York, while thefirst man kept his attention on Jennifer and Amy. (4 RT 1824, 1862-1863.) Jennifer could feel the second man’s presence over York. (4 RT 1860- 1862.) When the second man demanded York’s wallet, York complied and said “Here you go,sit.” York did nothing to provoke the men and waspolite throughoutthe ordeal. When the second man demanded more money, York said that he had $100 in his front pocket; he also offered his watch, althoughit was not taken. York generally carried his sheriff's badgein his left rear pocket, and his wallet in his right rear pocket. (4 RT 1824-1827, 1869.) _8- The second man next asked for York’s ATM card, then demanded the personal identification number (PIN). York apparently did not understand the request, and did not respond. The next thing Jennifer heard was the second man saying, “Whitey is a mother fucking pig.” (4 RT 1827-1828, 1869-1870.) Jennifer did not see the second man take out York’s sheriff's badge, but assumed that he had. (4 RT 1828-1829.) The second man asked: “Where the fuck you work at, Whitey?” York responded that he workedat the East Facility at “Wayside.” The man then asked Yorkif “he liked to treat nigger Cripslike shit in jail.” York responded,“No,sir.” The man replied, “No, I know you like to treat us nigger Cripslike shit in jail.” York again responded, “No,sit.” (4 RT 1829-1831, 1875-1876.) Jennifer heard the man kick York four or five times. (4 RT 1837-1838, 1861.) ° The man again asked for York’s PIN number, and again York did not understand. Jennifer explained that he wanted the access code for York’s ATMcard, and York said that it was “5545.” (4 RT 1830-1831, 1867-1870.) Jennifer testified that the man then madea “derogatory remark,‘fuck the Whitey,’ and the gun wentoff.” Jennifer felt York collapse, and felt his blood pouring on her legs. The second man then said somethingto the effect that he had always wanted to killa cop. (4 RT 1831-1832.) However, in her prior interviews by law enforcement, Jennifer had never mentioned such a statement. (4 RT 1877-1878.) The first man told Jennifer to remove her engagementring; she did so and he took the ring. At the time oftrial, it had not been recovered. He also told her to remove her watch; she complied and gave it to him. (4 RT 1832- 9, The parties stipulated that appellant had been incarcerated at Wayside for several months in 1994; and that Willis was booked at the Los Angeles County Jail on miscellaneous dates, but that there was no record that he had been incarcerated at Wayside. (8 RT 2885.) 1833, 1864-1866, 1871, 1888.) He went through Jennifer’s purse, found her badge, and said, “We’ve got another mother fucking pig in here.” He asked which one of the women was “the other fucking White pig.” Jennifer raised her handandsaid, “I am.” Thefirst man replied, “Don’t worry, bitch. We’re Not going to shoot you. You're a fucking woman.” (4 RT 1834-1835, 1883- 1884.) She directed the first man to her Kaiser Credit Union ATM card in her purse; she could not remember her PIN number, but it was written on the sleeve of the envelope containing the card. Attrial, she identified her Kaiser card, her Wells Fargo ATM card, and a Ford Citibank card issued to Shayne York. (4 RT 1835-1837, 1880-1881.) 1 The parties stipulated that York’s ATMcard was used to withdraw $200 from a California Federal bank in Yorba Linda at 9:41 p.m. on August 14th, 1997. (6 RT 2285.) The two men then told the women notto getup,andleft the salon. Jennifer checked the front door to ensure that the men hadleft, then returned to York, who was bleeding from his nose, ears, mouth and neck. (4 RT 1837- 1839, 1884.) She did not see the perpetrators’ vehicle. (4 RT 1885.) After Amycalled 911, Jennifer placed a 911 call. A tape-recording ofJennifer’s 911 call was played for the jury. (4 RT 1839-1840; Exh. 11.) "! On cross-examination, Jennifer admitted that during a prior interview with law enforcement, she stated that she could nottell who fired the shot; and that the second man did not appear to care about the moneyafter discovering that York was an officer. (4 RT 1873-1877.) She also 10. According to subsequenttestimony, those cards were recovered from the white Mustang which Willis was driving, and in which appellant was a passenger, when arrested. (5 RT 1975-1977, 1986-1988.) 11. A transcript ofJennifer’s 911 call, Exhibit 10, is present in the record on appeal at QCT 3768-3771, and was provided to the jurorsattrial. (4 RT 1839-1840.) -10- acknowledged that when she wasinterviewed by law enforcement after the shooting, she described the gun held by the first man as a “Glock or a Smith & Wesson,” that was either blue steel or black in color, and as having a square barrel. (4 RT 1845-1847.) She could nottell whether Exhibit 2 was the same gun usedin the salon incident. (4 RT 1847-1848.) Amy Parish testified that on the evening of August 14, 1997, she was working as a beautician at the DeCut Salon, and had plansto cut Jennifer’s and York’s hair. Jennifer and York arrived at the salon shortly before 8:00 p.m. As Amy wasfinishing cutting York’s hair, she saw two people inthe parking lot, then saw two Black men carrying guns enter the salon. (6 RT 2149-2150.) The first man was oversix feet tall, perhaps 220 pounds, wearing khaki green pants, a black knit hat, a black sweatshirt pulled aroundhis face, and thick lace-up boots. He was carrying what she assumedto be a semi- automatic gun that was “silver steel gray” with a square barrel. The gun was similar to Exhibit 2, (6 RT 2150-2151, 2197, 2199.) Amy did not’see the second man as clearly; he was smaller than the first, perhaps with lighter gray pants and a darker shirt, and was carrying a gun. (6 RT 2152, 2199-2200.) @ Both menyelled “get on the fucking ground.” Amy gotto her knees and put her head down;Jennifer and York immediately lay down on the floor next to her. (6 RT 2152-2153.) Amyheard a voice ask for money and the location of the “box.” She replied that they had no box. One of the men approachedher and asked where the money was; she took between $20 and $30 from her pocket and gave it to him. The men becameangrier, and again asked where the box was. Amyreferred them to the front desk area. (6 RT 2155-2156.) She could not distinguish between the two voices; she did not 12. At the time of the crime, Willis was three years older than appellant, and waslarger than appellant. (6 RT 2152; 7 RT 2634.) -11- have much experience “listening to Black males speaking slang[.]” (6 RT 2156, 2191-2192.) Nor did she know to whom she handed her money. She then lay on the floor, while one of the men wentto the front-desk area and retrieved the cash drawer. He became angry because it contained only $11. (6 RT 2156-2157.) Oneofthe men continued to demand money, and York offered the money in his pocket, saying “Here’s $100,sir.” The man near Amy’s hip leaned over York and removedhis wallet. One of the men said, “Oh, we have us a pig here.” (6 RT 2158.) Whoever was speaking to York asked where he worked, and Yorkreplied, “Wayside.” When asked where at Wayside, York replied, “East.” The man then asked: “{I]s this how you talk to the fucking niggers in jail? Is this how youtreat the nigger Crips?” York waspolite throughout the ordeal. (6 RT 2159.) The gun went off once, and the man said, “Good, I hope this one dies.” Amy could smell the blood and hearit pumping out of York’s body. (6 RT 2160.) Atthis point, Jennifer was crying and one of the men was demanding her wallet, ATM card, and PIN number. He asked Jennifer how much money she had in the bank, and she replied $300 or $400. (6 RT 2160-2162.) One of the men found her badge and asked “who the other pig was.” Jennifer immediately raised her hand and said, “I am.” Jennifer was crying hard; the man told her to calm down,that they were not going to kill any women,“Just the White man.” The men told them to stay down,then left. (6 RT 2162- 2163.) After the men left, Amy called 911. A tape-recording ofthe call was played for the jury. (6 RT 2166-2167; Exh. 71.) 8 Later that evening, Amy was taken to Highway 91 for a “field show- 13, A transcript of Amy’s 911 call, Exhibit 70, is present in the record on appeal at QCT 3772-3776, and was providedto the jurors at trial. (6 RT 2166.) -12- up.” She could notpositively identify the subject as the first man in the salon, although shefelt that it was him. He had been wearing a knit cap, and his shirt had covered his face. In December 1997, she attended a lineup at the jail, and identified Willis as one of the perpetrators. (6 RT 2163-2165, 2176.) On cross-examination, Amytestified that she did not know whether the second man had a gun;and that the first man’s gun had slide that was darker than the rest of the gun. (6 RT 2195-2196, 2198-2199.) Amywas also cross-examined onseveral prior interviews she gave to law enforcement. During those interviews, she stated that, on the evening of the incident, the second suspect was dressed similarly to the first, wearing dark pants and a dark shirt; several days later, she again told law enforcementthat the second suspect was wearing dark clothing. (6 RT 2201-2103.) On August 16, 1997, several days after the incident, she told law enforcementthat she did not know for sure whether the shooter was thefirst or second man; the first man “did everything”; she felt that the first man was responsible for the shooting; and, the second man was morein the front of the salon or roaming around. (6 RT 2177-2182, 2186-2189, 2190-2191.) Exceptfor the initial entry into the salon, she heard the same voice the entire time; only one person was speaking. (6 RT 2191-2192.) On May 5, 1998, Amy wasinterviewed by Orange County District Attorney Investigator Douglas Kennedy. (6 RT 2167-2169, 2201.) She was given police reports to review, and made markings on a crime scene diagram, although the diagram was not an accurate representation of the salon. Her markings represented the positions of the personsin the salon at the time that the gun went off. The second man was behind her head when the gun went off. (6 RT 2170-2176, 2185.) 4 14, The parties stipulated that the diagram of the DeCut Salon made by Footnote continued on nextpage... -13- On redirect examination, Amy agreed that the color of the pants and shirt taken from appellantat the jail after his arrest (Exhibits 24 and 25) was not inconsistent with her statements to law enforcementthat the clothing was dark. On the evening of the crime, she described the first man’s gun as “being a gray dull-finished semi-automatic handgun,possibly a nine millimeter, .45 millimeter with a four-inch barrel,” and confirmed that Exhibit 2 looked like the gun. (6 RT 2215-2216.) At the August 16 interview, she was in the hospital, sad and exhausted; and York wasstill on life-support. (6 RT 2217- 2218.) At the May 5, 1998, interview, she felt that the second man fired the gun based on her analysis of the first-aid given to York and the placement of the entry wound at the back of his head. (6 RT 2218-2220.) On recross- examination, she confirmed having told law enforcement on August 16 that she could nottell for certain who had fired the shot. (6 RT 2220-2222.) Several witnesses testified regarding an armed robbery at the Lamppost Pizza in Yorba Linda which occurred two hours after the salon incident. Edward Tharp testified that, on the evening of August 14, 1997, he and several other members of a rugby team were at the Lamppost Pizza. At approximately 10:00 p.m., Tharp saw the manager -- Rodney Tamparong-- go outside to empty the trash, then saw Tamparong come back through the door in a hurry, trying to push it shut. (5 RT 2055-2058.) A man pushed through the door, was agitated, and had his hands under his shirt; he yelled, “Get on the floor, mother fuckers.” (5 RT 2058-2061, 2070-2071.) The man was approximately six feet tall, 180-200 pounds, wearing dark clothing, dark shoes or boots, and gloves. (5 RT 2061, 2073-2075, 2088.) Thefirst man opened the door and a second man entered, wearing a AmyParish during her interview with Investigator Kennedy on May5, 1998, was “representative of the way the people weresituated at the time a shot was fired.” (7 RT 2407-2408; Exh. K [diagram].) -14- dark sweatshirt with a tee shirt underneath, light blue pants, and dirty white sneakers. (5 RT 2060, 2063, 2072-2073, 2088-2089.) 15 The first man left the immediate room with a store employee to check the cash drawer and open the safe. (5 RT 2066, 2077-2078) The second man remained with Tharp and the others. He was not shouting orders and wasnotparticularly agitated. Instead, he sat on a bench and was mumbling to himself. Heinitially tried to cover his face with his sweatshirt, but then let the shirt drop. He mumbled something andsaid, “Gotcha boys.” Tharp testified that the man seemedto betalking to himself, seemedlike he was trying to work himself up into a state where he could get agitated or be that way.” The man wascarrying a gun in his pants, which he removed and brandished. Tharp testified that the gun wassimilar to Exhibit 2. Several days after the crime, Tharp described the gun as a semi-automatic with a “stainless steel chromesilver type finish[.]” (5 RT 2063-2065, 2074- 2076, 2078-2079, 2081-2082.) ‘ After sitting on a bench, the second man jumpedup, and asked them to empty their pockets. (5 RT 2079-2080, 2086) Tharp testified that “instead of barking out orders to everyone in general, it was more personal. He come talk to us in somewhatlow tones, each individual person.” (5 RT 2068.) For no apparent reason that Tharp could see, however, the second man kicked him hard between and on the legs. (5 RT 2066-2067.) He took Tharp’s wallet, which had $80 in cash and a numberofcredit cards. Tharp was not asked for his PIN number. (5 RT 2067-2069, 2080-2081.) Towards the end of the robbery, the second man asked whether any of the people in the 15. Later that evening, Tharp was taken to a location on Highway 91 and identified Willis as the first man and appellant as the second. In December 1997, at two jail lineups, he again identified Willis and appellant. (5 RT 2061- 2064.) -15- restaurant were “cops.” Mark Cook quickly answered that they were teachers, and said that he taught Special Education. At that point the tension lessened. (5 RT 2068-2069, 2083.) Rugby team member Mark Cooktestified that he saw Tamparong comeback through the door, with his hands up, followed by a man whotold everyone to get down onthefloor and not look at him. A second man entered carrying a gun similar to Exhibit 2. The second man used profanities (“get down on the floor mother fuckers”), and said “lookat all the White boys that we got on the floor.” (5 RT 2089-2091.) The first man was nervousand agitated, and started barking out orders. He wanted to know who the manager was, and the location ofthe safe. (6 RT 2097-2098.) While the first man was with a store employee, the second man told the others to take out their wallets and cash, and turn their pockets out. He kicked Cookin the ribs, kicked Chris Pierce, and put the gun to Sean Gillette’s head. (6 RT 2091-2092.) The second man was “kind oflike mean and a real bully, and he seemedto betrying to test us to get something out of us.” Yet, when interviewed by the police, Cook said that the second man “didn’t seem tobe really, really mad. He seemed tobelike acting tough.” (5 RT 2096, 2099-2100.) While the second man was not looking, Cook took the money from his wallet and put it down his pants; thus, no property was taken from him. (5 RT 2092.) The man then asked if any of them were “cops.” Cooksaid, “No, we're teachers.” The man asked whathe taught, and Cook responded “Special Ed.” The man responded,“Really? I was in Special Ed class.” (5 RT 2093, 2102.) At that point, Cookfelt, “the whole place was deflated. Everything was kind of, I knew right then that everything was going to be okay.” (5 RT 2095, 2102-2103.) As the two robbers were leaving, the second manalso asked what they were doing there so late, and Cooksaid that they had rugby -16- practice. The second man responded, “that European sport that White guys play?” (5 RT 2100-2102.) Rugby team member Sean Gillette testified that one of the Lamppost Pizza managers took out the trash, then came back through the door, followed by a Black man. A second manentered and told everyone to get down on the floor and to pull out their wallets. Gillette did not have his wallet with him. (5 RT 2104-2107.) The second man asked what they were doing theresolate and whether any of them were “cops.” Cook said that they were teachers. The second man asked what they taught, and Cook said Special Education. The second respondedthat “he was in Special Ed.” (5 RT 2107.) After that, the second man walked around, asking for their wallets, and said, “Empty your pockets, mother fucker.” The man pushed the gun to Gillette’s cheek, causing an injury. Gillette had a backpack, and told the manthat he only had paperwork in it. No property was taken from Gillette. (6 RT 2108-2110.) On cross-examination, Gillette testified that the first man quickly took over the situation, yelling “hit the deck” or “get on the ground, mother fuckers,” and told them not to look at him. The second man entered after everyone was on the floor (5 RT 2118-2120), and carried a gun in his right hand. Gillette was somewhat familiar with guns, and described the gun as a semi-automatic. The finish on the gun was notblack, and was not dull: it was “shiny”like steel or chrome. (5 RT 2111-2114.) Thefirst man wastaller than the second, and had his hand beneath hisshirt or jacket. He went with a manager and asked about the register and the safe. (5 RT 2114-2117.) The two Lamppost Pizza employees who were presentat the crime also testified at trial. Ernest Zuniga testified that, on August 14, 1997, he was a manager of the restaurant, and at approximately 10:00 p.m. that evening, he . was in the restaurant with fellow employee Rodney Tamparong. (5 RT 2122- 2123.) Zuniga saw Tamparongtake out the trash, then come backpedaling -17- 333fast, his hands in the air “kind of going ‘whoa, whoa.” A first man entered and stated “get on the ground, mother fucker. This is a stickup.” A second man entered about 20 or 30 secondslater, and asked whether any of them were “cops.” (5 RT 2123-2125.) One of the rugby players said, “No, we’re teachers.” The first man,after identifying Zuniga as the manager, took him to the cash register, and removed approximately $60. (5 RT 2125-2126, 2132, 2135.) He then directed Zuniga to the “back office” area, and had Zuniga open the store safe. The man removed approximately $400 from thesafe. Zuniga was then returned to the eating area. No money was taken from Zuniga personally. A later accounting showedthatthetotal loss to the restaurant was $483. (5 RT 2127-2128, 2133-2136.) Rodney Tamparongtestified that he was a manager of Lamppost Pizza on August 14, 1997. At approximately 10:00 p.m., he took the trash out the back door and noticed a white Mustang backed upin the parking stall, with two Black men standing by it. One of the men beckoned Tamparongover. Thesituation did notfeel right, so Tamparongsaid “no,” and threw out the trash. When the man standing at the driver’s door ran after him, Tamparong backpedaled through the door, with his hands up, saying “whoa, whoa.” The man grabbed the door and walked in, then said “everybody on the ground.” (5 RT 2137-2140, 2144.) After a second man entered the restaurant, the first man asked who was the manager. Zuniga said that he was, and was taken to the register and the back of the restaurant. (5 RT 2140-2142.) The second man asked if any of the others were “cops,” and one of the customersreplied, “No, we are teachers.” Tamparong was a park ranger at the time, and removed his wallet containing his identification from his pants, and hid it underneath the table. When the first man returned, he asked Tamparong where his wallet was. When Tamparongsaid he did not have one,the first man searched him, then moved on. No personal property was taken from - 18 - Tamparong. That evening, Tamparong was taken to Highway 91 for an in- field lineup, where he identified Willis as the first man who entered the restaurant. (5 RT 2142-2144.) Fullerton Police Officer Nathan Marple testified that on August 14, 1997, at approximately 10:40 p.m., he was on duty and heard a radio broadcast to be on the lookoutfor a white, convertible Mustangpossibly involved in an armed robbery. (4 RT 1894, 1911.) He saw that make of car heading northbound on Harbor Boulevard, then head westbound on Highway 91, and gave pursuit. After radioing for assistance, and he madea “felony stop” of the car. (4 RT 1894-1897, 1907-1913, 1916.) The parties stipulated that Willis was driving the Mustang. (4 RT 1897.) After the-stop, Willis and-appellant were removedfrom the car, handcuffed, and taken into custody. (4 RT 1902- 1903, 1915-1916, 1918-1919.) Marple and another officer looked in the car but saw no weapons. (4 RT 1903-1906.) Buena Park Police Officer Roger Powell testified that, on the evening of August 14, 1997, he also participated in the felony stop of the white Mustang driven by Willis. (5 RT 1960-1961, 1965-1966.) Willis and appellant were handcuffed andplacedin the back seat of his patrol car, and transported to the Buena Park Police Department. (5 RT 1966-1970.) At trial, Powell authenticated photographs of Willis and appellant taken the night oftheir arrest. (5 RT 1961; Exhs. 19 & 20.) He also participated in the seizure of Willis’s and appellant’s clothing: Willis was wearing a black shirt, black boots, green pants, and belt; appellant was wearing a sweatshirt and gray pants, white leather tennis shoes, and a belt. (5 RT 1962-1964.) Buena Park Police Department Officer Michael Quam testified that, on August 14, 1997, while working at the Buena Park Jail, he searched Willis and appellant and seized the folowing items. Willis had $557 in his left sock; $51 in his right sock; $48.40 in currency and coin, and a pager in his right front -19- pocket; $100.26 in currency and coin, and keys in his left pants pocket; and a Guess watchin his left rear pants pocket. Appellant had $200in his left sock; a blue bandana, and a right-hand, green glove in his right rear pocket; a left- hand, green glove in his left rear pocket; $53.25 in currency and coin,lipstick, cigarettes, and a plastic bag in his right front pants pocket; and keys in his right shoe; and a single brown right-hand glove in his left rear pants pocket. (5 RT 1995-2003.) Willis had a total of $756.66; appellant had $253.25. (5 RT 2000-2001.) Buena Park Police Officer Gregory Pelton testified that the dayafter the homicide, he searched the white Mustang andseized a numberofitems, including a black sweatshirt, a baseball cap, gray knit gloves, and a black watch cap. (5 RT 1970-1975, 1985-1986.) He also found a small Phillips screwdriver in the center console area by the emergency brake and, after removing the ashtray and the center console, a Kaiser Permanente Federal Credit Union card in the name of Jennifer Parish with the PIN numberwritten on its sleeve, a Wells Fargo Express card in the name of Jennifer Parish, and a Ford Citibank Visa card in the name of Shayne York. (5 RT 1975-1977, 1986- 1988.) After finding a long screw on the back seat, Pelton used the Phillips screwdriver to remove the remaining screws from the speaker at the back-seat passenger area. He found and removed two handguns behind the passenger- side speaker. One handgun, a semi-automatic, had the hammercocked back and was loaded with a clip in the magazine. (5 RT 1977-1979, 1988-1989, 1992; Exh. 2.) The other was a revolver, and was loaded with roundsin the cylinder, and one expended roundlined up with the barrel. (6 RT 1979-1980, 1992-1993; Exh. 37.) He did not recall which he removedfirst, nor whether he wore gloves when heseized the handguns. (5 RT 1989-1992.) Buena Park Police Officer Richard Nuneztestified that he also _ 20 - searched the white Mustang. Secreted in the lining of the trunk, he found papers indicating that the car was registered to Willis; and a black address book containing a DeCut Salon business card, an ATM card belonging to Shayne York, and Willis’s driver’s license. The business card had the numbers “5545” written on the back. Nunez did not find a ring, either in the car or during a search of the shopping center adjacent to the ATM machine,nordid he find a Glock semi-automatic handgun in the car. (4 RT 1924-1929, 1930- 1931), Dr. David Katsuyama, a pathologist in private practice (5 RT 2046), testified that he performed an autopsy on the victim, and recovered “a fairly large gray metal piece of [a] somewhat distorted bullet,” as well as a distorted portion “ofa thin copper base jacketing ofthe bullet,” and “several tiny particles of metal fragments.” (5 RT 2050.) It was difficult to determine the entry wound dueto efforts by the surgeonsto save the victim’s life, but Dr. Katsuyama found remnants of a rounded opening on the back of thescalp. He found no evidence of charring or powder marks which might indicate the relative closeness of the weapon; there was no evidence of a contact or near- contact wound. He could not determine the positions of the shooter or the victim, although the bullet pathway was consistent with a person standing over and firing straight down into the skull. The gunshot was the cause of death. (5 RT 2051-2054.) Buena Park Police Department Criminalist Kenneth Patrick testified that he took photographs at the DeCut Salon crime scene, and found two badges on the floor. (5 RT 2016-2019.) He took possession of the cash drawer and tray from the salon; althoughlatent fingerprints were found on the drawer, those fingerprints did not match either Willis or appellant. (5 RT 21 - 2019-2020, 2029.) 16 With regard to the revolver found in the Mustang, Patrick found a single latent fingerprint on the side of the weaponthathepositively identified as appellant’s fingerprint. (5 RT 2021-2025, 2030-2032; Exhs. 37 & 52.) On the Ford Citibank card in the name of Shayne York,he found a latent fingerprint that positively matched Willis’s fingerprint. (6 RT 2025-2028, 2030; Exhs. 54 & 55.) 7 Sheriff's Department Criminalist Loren Sugarmantestified that she examined the revolver that had been located in the Mustang, and determined that the spent casing foundin the revolver had been fired by the revolver. (5 RT 2035-2038) Sugarmantest-fired the revolver into a tank of water and examined the test bullets to look for marks that might be useful for identification. She compared thetest bullets to the projectile fragments removed from the victim’s brain: a piece of lead; a piece of copper; and two smaller pieces of lead. The copper fragment wassufficiently intact for her to opine that it had been fired from the revolver found in the Mustang. (6 RT 2038-2045.) Orange County District Attorney Investigator Cecil Reece testified and authenticated a videotape that was taken at a Shell gas station near the Lamppost Pizza. (6 RT 2288-2291.) 18 He also monitored a conversation 16. The parties stipulated that the comparison of knownfingerprints by Patrick were the actual fingerprints of Willis and appellant. (8 RT 2885.) 17. California Highway Patrol (CHP) Officer Irene Portillo testified that, on August 19, 1997, she was working on the truck scales on Highway 91 when a trucker turned in Edward Tharp’s wallet. After searching along the freeway near Buena Park, she found other items belonging to Tharp, and gave them to Patrick. (4 RT 1920-1922.) 18. The parties stipulated that Exhibit 75 was a video of theinterior of the Shell station, taken between 9:19 and 9:20 p.m. (8 RT 2885.) The videotape Footnote continued on nextpage... 22 - between appellant and Willis that occurredat thejail after their arrest and that was covertly audiotaped. Appellant and Willis whispered at times, and used gestures. (6 RT 2291-2293.) Reece later had a laboratory remove “some of the background noise and the things that madeit more difficult to hear” and prepared a transcript of the conversation. The audiotape was played for the jury. (6 RT 2293-2294; Exh. 80.) ¥ | During the conversation, Willis informed appellant that the police were testing the guns, had witnesses who identified them in the crimes, and found property belonging to the victims in the Mustang. (QCT 3882; see also QCT 3886.) When appellant asked what they could do, Willis told him to “[flight this motherfucker.” (QCT 3883.) Willis continued: We ain’t gonna say nothing, we’re gonnaride this shit out man, but (***) shit man,it’s over, man. § But, uh, when the mother fuckers comeandtalk, Pll put it on a third person. Some body they don’t need to (***) I ain’t going down for no mother fucking watch coward.I'll put it on a third person. (QCT 3884.) 20 When appellant asked whothe third person was, Willis responded: I already know who wasthe driver. I already know there was two people that went in. (***) whoop de whoop whoop (***) the gun, gonna show whohad, when they come back with the gun, who did the shooting, whoop, whoop, whoop.Uh... damn. (QCT 3884.) The following exchange then occurred: Boyce: Do you know whatthis crime is, or something? apparently shows appellant purchasing cigarettes. (4 RT 1767-1768.) 19, Exhibit 79 -- Reece’s transcript of the covert taping -- is present in the record on appeal at QCT 3881-3889, and was provided to the jurorsattrial. (6 RT 2296.) 20, The asterisks appear in the transcript and apparently represent incomprehensible portions of the conversation. Ellipses shown as “...” also appearin thetranscript. 23 - Willis: Huh? Boyce: What this crimeis?. (***) (***) I ain’t doing (***) I sure ain’t doing it for no mother fuckin’ watch coward. Willis: Both of us. 9 (***) watch coward. Attempted murder. (***) mother fuckin’ (***). Think again. How do I know what crimeit is; your [si] a real nigger. What I’m askin’ you, I’m gonna ride it out, man. ¥ I’m telling youthis, I’m gonnarideit out, ok. But, in the end result in trial time (***) both of us don’t need to go to hell for this shit. Boyce: Keep it down. Popoissittin’ right there. Man, two strikes, that’s 25 anyway. We're totally fucked. ¥ I ain’t done shit. (***) So far as we know (***) goddamn witnesses (***) whatwith that shit. (QCT 3885-3886.) Willis stated: “Now I’m just saying, Cuzz (***) I don’t see no mother fuckin’ way to getthe hell out of this shit. You know what Pm saying?” He continued: “(***) I mean, you know (***) both ofus ... you know whatI’m saying (***).” (QCT 3867.) Appellant replied that “[t]hey can’t prove nothing,” and repeated, “T still don’t see what’s going on.” (QCT 3887.) Afterstating “I’m gonnatry to fight this shit,” appellant reiterated that he did not understand “this shit.” (QCT 3888.) Willis responded: Yo, yo, yo mama, yo what are your feelings cuzz? I mean, being real, When weride this shit out as long as we can. When wesee this shit ain’t going away, you know. Don’t take it wrong, man. But whatI’m speaking is what’s on my mind. I’m notsaying these people’s are (***). I’m gonnaride this all the way out, Cuzz. I’m gonnaseeif there’s any changes... they got evidence. Know what I’m saying? (***) Cuzz, you know whatI’m saying? Gonnalet both of us take this attempt murder charge? [...9]...] After we ride this shit out, you still ain’t gonna say anything. We both real niggers. I want to know yo... yo opinion, Cuzz. (QCT 3888.) Appellant asked: “how can they put this shit on somebody, though? Whothe nigga supposed to attempted murder anyway?” Willis _ 24 - responded: “Some mother fuckin’ male, police.” Appellant exclaimed: “Male police? What mother fucker that bold? I didn’t kill no police.” (QCT 3888.) Willis finished bystating: Nah, you know whatI’m saying, I’m trying to talk to you man. We might not get a chanceto talk in a while. You know what I’m saying? I also know that, you know what I’m saying? How, nigger, if, how I would doit, how niggers, all niggers don’t doit like that. We’re true niggers, Cuzz. Pll come at you real. In your .. in your head full of lead, two mother fuckers. (***) You know that, you knowthat cold. (QCT 3889.) Appellant replied, “This shit’s all fucked up.” (QCT 3889.) Buena Park Police Officer Daniel Binyon testified that he was African- American and worked in the “gang detail.” Based on his upbringing, he was familiar with “street slang that’s used among African American males.” (6 RT 2263-2264.) Binyon listened to the covertly audiotaped conversation between Willis and appellantat the jail, and noted several slang words and phrases. (6 RT 2264.) Hetestified that the term “watch coward”is slang for a correctionalofficer; the phrase “take out” may refer to a handgun or hurting someone (6 RT 2264-2265); the phrase “peep out”is used to direct someone to look at something; “popo”is slang for a police officer; the phrase “whoop, dewhoop, whoop”is a sentencefiller similar to “et cetera, et cetera, et cetera”; and the term “cuz” refers to fellow Crip gang members (6 RT 2269-2270).2 Orange County District Attorney Investigator Douglas Kennedy testified that an investigator named Gomezinterrogated appellant on August 15, 1997, but that evidence of that interrogation had been destroyedorlost. 21. During Binyon’s testimony, appellant spoke out and called Binyon a “traitor,” and said, “You don’t know,youlyin.” The trial court admonished the jury “not to consider any statements made by anybodyin the courtroom. Your jobisstill to listen to the evidence, following the law, make your own decisions.” (6 RT 2265-2266.) _25- On August 17, 1997, Kennedy and Buena Park Homicide Investigator Ruben Gomez interrogated appellant at the Buena Park Police Department. The later interrogation was tape-recorded, and the recording was played for the jury. (6 RT 2223-2230; Exh. 72.) 2? During the interrogation, appellant initially maintained his innocence, but acknowledgedthat, as a general matter, he would “take the rap” for Willis. (QCT 3783-3801.) Appellant then asked what he had to do “to get up outta this?” (QCT 3802.) He then stated: “T tell, I tell ya what happened. Lemme smokeonecigarette.” (QCT 3802.) Kennedyreplied that he could not smoke in the room, but agreed to provide him with a cigarette later. (QCT 3802- 3803.) Appellant then said: “T tell you everything that happen. See I gota split personalities.’ (QCT 3804.) He said that his true name was Osiris, “King of the Underworld, Lord of the Dead.” (QCT 3804.) When asked why Osiris would rob a hair salon, appellant responded: “Guess Osiris musta had too much, um,the devil juice or as alcohol, his drugs.” He followed: “I can’t tell ya exactly what happened. All I rememberis a pow ya and I waslike, damn.” (QCT 3805.) He thoughtthe shot “missed” and recalled that everyone was on the floor. (QCT 3806.) He proceeded to claim full responsibility and soughtto absolve Willis: “But I, I did everything. Robbed the pizza place by myself. Did everything. Mr. Willis didn’t do nothin’. He had nothin’ to do with it.” (QCT 3806.) He admitted to the salon and restaurant robberies, but the details he gave did not match or were often inconsistent with the crime scene facts or the witness statements. (QCT 3806- 3880.) 22. A transcript of the interrogation, Exhibit 74, is present in the record on appeal at QCT 3777-3880, and was providedto thejurors attrial. _ 26 - 2. The Defense Case Defense counsel, in his opening statement, conceded that appellant was involved in the DeCut Salon and LamppostPizza incidents, and that appellant was guilty of first degree felony murder for his involvementin the salon incident. However, counsel did not concede that appellant fired the fatal shotthatkilled York. Instead, counsel suggested that a third person was involved. With regard to the special circumstanceallegations, counselstated that York was killed not to further the goals of the burglary and robbery, but rather because he was a peace officer. (4 RT 1781-1783.) The defense first called Buena Park Police Officer Kenneth Coovert, whotestified that, in August 1997, he was assigned to “press information” and was also responsible for the department’s volunteer program. Approximately one week after the salon incident, he helped coordinate 65-70 volunteers who searched several different areas, including Highway 91, for Jennifer Parish’s missing engagement ring. No ring was found. (7 RT 2409-2414.)3 Buena Park Police Department Officer Robin Sells testified that, in August 1997, she was in charge of coordinating the investigation into the salon incident. As with Officer Coovert, Sells searched different locations for the engagement ring. No ring was found; nor was any property found belongingto the pizza incident victims. (7 RT 2415-2420.) Christopher Pierce, another rugby team player who was present at the pizza restaurant robbery,testified essentially the same as the other team player witnesses. (7 RT 2421-2438.) During the robbery, Pierce was not asked for his PIN number; his wallet was never recovered. (7 RT 2432-2433, 2436- 2437.) 23. Defense counsel introduced testimonythat the ring was never located in, an effort to show that a third person was involved in the crimes. _27- Kara Cross, Ph.D., testified that she was a licensed clinical psychologist with a doctorate in clinical psychology, and that she often performed neuropsychological examinations both in the forensic andclinical settings. Neuropsychology is a specialized branch of psychology that employs a numberoftests from which clinician can measure brain damage, and the degree of problemsthat an individual withbrain damage has in everyday functioning. (7 RT 2485-2491, 2494-2495.) Dr. Cross reviewed appellant’s records and met with him 6 times totaling 10 hours. (7 RT 2504-2506, 2518-2521, 2535.) The records showed that, at age 7, appellant was administered the Peabody Picture Vocabulary Test, from which an intelligence quotient IQ) of 83 was derived. Also at age 7, appellant was administered the Slosson Intelligence Test, and scored a derived IQ of 114. (7 RT 2506-2508.) The discrepancy between those two test results indicate that something was errant in either the administration of the test or in the scoring. (7 RT 2509-2510.) The errancy was in the scoring. In 1979, the Slosson test was found to be “over-inflating 1Q’s quite dramatically.” (7 RT 2508.) Around 1980, the Peabody test was foundto be inflating IQ’s slightly. (7 RT 2512-2513.) After the tests were “renormed,” they were again administered to appellant (he was nearly age 13). At that time, his IQ on the Slosson test was 80; on the Peabodytest, it was 70. He was diagnosed as borderline retarded. (7 RT 2511-2512.) Dr. Cross also administered six different neuropsychological tests on appellant, and received the following results. On the Stroop Test, a screening device that measures how well an individual is able to filter out outside input and focus on a task, appellant’s results placed him in the bottom 2 percent of the population, with a 98-percent probability of brain damageto the frontpart of the brain. (7 RT 2523-2528.) On the Wisconsin Card Sorting Test, a - 28 - screening device that evaluates a person’s problem-solving ability and is highly sensitive to frontal lobe brain damage, appellant was in the bottom 1 percent of the population. This, too, indicated organic brain damage in appellant’s frontal lobes. (7 RT 2530-2534.) A working memory test placed appellant in the bottom .2 percent of the population. (7 RT 2547-2549.) His “processing speed”placed him in the bottom 2 percent. (7 RT 2549-2550.) During the tests, in addition to loose associations, appellant demonstrated “tangential thinking” and an “odd personalization of questions.” (7 RT 2521-2523.) Dr. Cross administered the Wechsler Adult Intelligence Scale, a test which measuresglobal intellectual functioning. Appellant’s full scale IQ measured at 69, which is in the mentally retarded range. (7 RT 2543-2544.) 24 She also administered the Luria-Nebraska Test, which consists of a battery of items, and localizes brain dysfunction. (7 RT 2563-2564, 2577- 2578.) The results on this test showedsignificant damageto the right side of appellant’s brain, and mild brain damageto theleft side of his brain. (7 RT 2550-2553, 2570-2572.) She concludedthat the results of her testing were consistent with appellant’s prior test results, and that his brain damage had existed since early childhood. (7 RT 2506, 2554-2560.) On cross-examination, Dr. Cross acknowledged, as she had on direct examination (7 RT 2517-2518), that appellantis able to know the difference between right and wrong, and to understand cause and effect. When asked whether she agreed that appellant was able to make choices, she responded, “Notas a global statement. As a qualified, yes.” (7 RT 2578-2580.) The defense also presented the testimony of Richard Leo, Ph.D., a professor of criminology and psychology at the University of California at 24. Appellant scored a verbal IQ of80, whichis close to the borderline range; and a performance IQ of68, whichis in the mentally retarded range. (7 RT 2538-2543.) _ 29 - Irvine, and an expert on police interrogation practices, and the statements, admissions, and confessions that result from police interrogation. He had testified as an expert in these areas in over 30 cases. (7 RT 2444-2446, 2454.) Dr. Leo described in general the different interrogation techniques used by law enforcement. Hetestified that interrogations can and sometimes do result in false statements or false confessions being made;certain interrogation techniques, such as those that “contain[ ] an implicit suggestion or promise ofleniency or implicit threat of harsher punishment. . . can induce false statements or admissions.” (7 RT 2457-2462, 2470-2474.) Researchers are able to evaluate the reliability of statementselicited during an interrogation. (7 RT 2463-2464, 2477-2480.) Dr. Leo was hired by the defense to review the interrogation of appellant by Investigator Kennedy. (7 RT 2463-2465.) He observed that Kennedy used several different interrogation techniques on appellant, including confronting him with proofofhis guilt, and inventing a different scenario for how the underlying act occurred to make appellanteither feel less morally culpable or less legally culpable. (7 RT 2466-2468.) It is possible for these techniques to transform an interrogation into an inducementofsorts. (7 RT 2476-2477.) There is a correlation between the corroboration offacts during the interrogation andthereliability of the statementselicited. If the suspect’s knowledge of the crimefacts fits the actual facts, that is an indicium of reliability; if it does notfit, it is indicitum of unreliability. (7 RT 2478-2480.) On cross-examination, the prosecutor asked about the effect of a suspect’s experience with law enforcement on the possibility of a false confession. Dr. Leo testified that such personsare less likely to waive their tights, but that even people with such experience have made “false statements or false confessions.” (7 RT 2482-2484.) Orange County Public Defender Investigator Cathy Clausentestified - 30 - that she had worked on appellant’s case and, in response to a request by counsel, wentto the jail and obtained writing samples from appellant, without informing him that she was doing so. (7 RT 2597-2599.) Several weekslater, she obtained a secondset of handwriting samples from appellant, again without informing appellant that she was doing so. She sent those samples to Terrence Pascoe. (7 RT 2600-2603.) Terrence Pascoetestified that he had been a forensic document examiner and handwriting expert for 35 years at the DepartmentofJustice. (7 RT 2607-2611.) In this case, the “questioned document” wasthe business card with the numbers “5455”written on it. Pascoe compared that document to the numbers written by appellant and- obtained by Clausen. (7 RT 2615- 2616.) He concluded that it was highly probable that the writer of the numbers “5455” on the back of the business card was not the author ofthe sample (appellant). (7 RT 2618-2621, 2624-2625.) He was not provided with a handwriting sample from Willis. (7 RT 2633.) During deliberations, the jury sent three requests to the trial court. First, it asked to havethe first half ofJennifer Parish’s testimony reread. (9 CT 3163; 8 RT 2911.) Second, with regardto the peace officer special circumstance,it asked: Clarification/Interpretation on page 51 and 52 of the jury instructions dealing with the retaliation specifics and on page 53. {| Does the peace officer have to perform a duty at the time of the crime[?] (9 CT 3175; 8 RT 2911.) % In discussing the matter with counsel, the trial court proposed to answerin the negative. (8 RT 2912.) The defense objected. 25. Page 51 of the instructions refers to CALJIC No.8.81.7; page 52 refers to CALJIC No.8.81.8; page 53 to CALJIC No. 8.81.17. (9 CT 3136- 3138.) -31- (8 RT 2912-2914.) The court nonetheless instructed the jury that the answer to its question was “No.” (8 RT 2916.) The court also informed the jury that page 53 ofthe instructions was notrelated to the peace officer special circumstance. (8 RT 2916.) . The following day, the jury askedits third question: Re: Page 53, Part 2 of the jury instructions. Question: If first degree murder is committed as a consequenceofor results from the intent or commission of armed robbery and/or burglary, is this sufficient to establish the special circumstance cited? (9 CT 3164.) Defense counsel initially argued that the correct response was, “No.” (8 RT 2918-2919.) Counsel then agreed with the court that “the question that they are asking is begging an interpretation of whatthe facts really mean.” (8 RT 2921.) With counsel’s concurrence, thetrial court answered the question as follows: “[I]t depends upon what thejury finds to be the facts[.]” (8 RT 2924.) The court then reread CALJIC No.8.81.17 regarding the felony-murder special circumstance. (8 RT 2924-2925.) The jury returned a general verdictfinding appellant guilty offirst degree murder; and returned guilty verdicts on all the other counts in the amendedinformation. It also found true the three special circumstance allegations and the personal use of a firearm allegations. (8 RT 2930-2944; 10 CT 3251-3275.) B. The Penalty Phase 1. The Prosecution’s Case Damani Graytestified for the prosecution that in 1987, when he was 12-years old, he was waiting at a bus stop in Los Angeles, when a person approached and asked what “set” or gang he was from. Gray said that he was not from any gang, and the person asked whether he wanted to be part ofthe “Rollin’ 60’s” crip gang. When Gray said no, the person started punching him on the face and knocked him unconscious. When Gray awoke, the “school _ 32 - police” were arresting the person. Several months before the capital trial, Gray was showna set of photos, and selected appellant as the person who had assaulted him. (9 RT 3064-3066.) Appellant was 16- or 17-years old at the time. (9 RT 3018.) On cross-examination, Gray was impeached with evidence that, in 1995, he assaulted his wife, Kamille Flores, and lied about that assault in statements to law enforcement. (9 RT 3074-3084.) He also admitted that in 1994, he was arrested for making a telephonecall to someone during which he stated: “I have your dog and you will see your dog again if you pay me 500 bucks[.]” (9 RT 3084-3086.) On redirect examination, Graytestified that he wasstill married to Ms. Flores; over appellant’s objection, he testified that he worked full time at a hospital, and wasa full-time engineering student. (9 RT 3086-3088.) Robert Jonestestified that, on November 11, 1987, he was a police officer working for the Los Angeles Unified School District, and wrote a report regarding the incident between appellant and Damani Gray. He authenticated that report at trial, but hadlittle recollection of the incident. He recalled that Gray was the victim and that appellant was arrested. (9 RT 3089- 3090.) Over defense objection (9 RT 3091-3092), Jones read a quote from his report, allegedly made by appellant, “that he is going to fuck up the punk who had him arrested when hegets outofjail[.]” (9 RT 3092.) On cross- examination, Jones admitted that his report attributed the quote to Gray. (9 RT 3093-3094.) On redirect examination, Jones agreed that he meant to write “subject Boyce”instead of “subject Gray.” (9 RT 3094-3095.) The prosecution offered documentary evidence that appellant had suffered two prior convictions: thefirst, for robbery, in January 1989; the second, for being a felon in possession of a firearm, in 1994. Both exhibits were admitted without objection. (9 RT 3097-3098; Exhs. 81-82.) -33- The prosecution presented victim-impact testimony from four witnesses. Brandon York, Shayne York’s younger brother,testified that they grew up doing things together, and had greatrelationship. His brother was his best friend, enjoyed sports, especially baseball, and always did his best to help someoneout. Brandon wasnotified by telephonethat his brother had been shot. When asked how his brother’sdeath had affected him, Brandon stated that “one of the biggest parts of my life is gone.” They had planned on watching their children grow up. What he missed most was “just being able to talk to him.” (9 RT 3098-3103.) Jennifer Parish testified that she was to be married to York in June of the year following the crime. Shedescribed their relationship: We woke together every morning, we workedside by side for eight hours, and we went home together. He was mybestfriend. He made my sun rise in the morning and my moon go downat night. And there is nothing I wouldn’t have done for him and him for me. (9 RT 3104.) She thought about him every day, “what he lookedlike that night and what somebody did to him and put him through.” She wore York’s badge number. (9 RT 3105.) I just miss him. I miss his touch. I miss combing his hair every day for him because he didn’t know how to do the new style my sister had gave him. And he would stand on his knees and-- every morning, and hold my waist and I would combhis hair for him. {| And his smile. Everybody loved his smile so much. It is just his mere presence. I wish he wasthere. (9 RT 3105-3106.) York’s father, Daniel York,testified that he had a great relationship with his sons, and did everything with them as they grew up. Shayne was loving and caring. He was in Las Vegas when he found out that Shayne had been shot. His son’s death affected him deeply: “Half of mylife is gone. My life surrounded mysons.” He had been a Los Angeles County Sheriff's 34. Deputy for 18 years, and had worked at the samefacility as his son; his son would often call and ask questions about work. He missed his son’s smile and love for others. His son never judged anybodybytheir color or nationality, but only by their person; he often helped the inmates. His son taught him to care for others. (9 RT 3107-3109.) York’s mother, Patricia Steele, testified that her son was 26-years old when he waskilled. They had a very close bond. She divorced York’s father when her sons were young, and for ten years they were her entire life. (9 RT 3110-3111.) His death affected her deeply: It’s left such a void. I mean,it just rips your heart out. He-- it’s left such an impact on everything. It’s -- one thing -- it’s just like a stone that dropsandit just spreads. It affects every aspect of yourlife from -- mostofthe time,I just feel like I go through the motionsofliving from one dayto the next. (9 RT 3111.) Her son wantedto be a police officer from a young age. She had looked forward to trips together, and regretted that her son Brandon’s child would never know Shayne. (9 RT 3111-3112.) She concluded: And I know that I will never ever be the same. There is a part of youthat -- it just has this void. In my mind, I know this has happened. But, in my heart, I just don’t wantto believe that he is not going to be there to shareall these things with us. (9 RT 3112-3113.) 2. The Defense Case Appellant presented two witnesses regarding Damani Gray’s credibility. Los Angeles Police Officer Maria Gholizadehtestified that, in April 1995, she was told by Gray’s wife that Gray had punchedherin the face, choked her, dragged her outside, and threatenedto kill her if she called the police. 9 RT 3123-3128.) Los Angeles Police Officer Andrew Monsuetestified that, in April 1995, he spoke to Gray’s wife regarding her spousal abuse complaint, and reviewed Officer Gholizadeh’s report of the incident. Gray’s wife confirmedthe details of the report. That same day, Gray called Officer _35- Monsueand was very angry; he deniedstriking his wife, admitting only that he pushed her. (9 RT 3198-3203.) Trudith Bell testified that she had lived and been a school teacher in Gaston County, North Carolina for 30 years. In the late 1970’s, she taughtat Rhyne Elementary School in the small, rural town of Gastonia, North Carolina, when appellant was a student there. Before trial, defense counsel went to North Carolina and showed Bell a photograph of appellant. She recognized him as having been in her first grade class, and as one of her most challenged students “educable-wise.” (9 RT 3203-3209.) Appellant repeated kindergarten, something that was quite unusual. He was placed in a program for delayed language acquisition and stuttering. (9 RT3210-3213-3214, 3225, 3241.) The records also noted that, although he failed a vision test, no referral to an optometrist was made. (9 RT 3241-3242.) Bell conferred with an employee at the mental health department about appellant and his mother. In February 1978, she met with his mother, and explained appellant’s problemsat school. (9 RT 3228-3230.) He was “in over his head”in first grade. Bell feared that appellant’s mother would not approve requiring appellant to repeat the first grade. (9 RT 3231-3232.) Appellant’s mother, Vertis Boyce, 26 began her testimony by denying that she drank alcohol before appearing in court. She denied not wanting to cooperate with the defense in this case, and denied testifying by a subpoena.2” 26. To avoid confusion, appellant refers to Vertis Boyce and other family membersby their given names. 27. In his penalty phase opening statement, defense counsel informed the jurors that if appellant’s parents appeared in court, “they will be here largely for one reason and one reason alone and that’s because we subpoenaed them and they have been ordered to be here.” (9 RT 3029.) The prosecutor subsequently stipulated that Vertis Boyce “was brought to court under a subpoena.” (11 RT 3756-3757.) - 36 - werntseSanTSBecMaUOARSaSin taryeaeds rgee megeNERAe mEREEMASSESMEARNMEaeer ost She first testified that she did not love her son, then stated that she did love him. (9 RT 3131-3132, 3134-3136.) Vertis testified that appellant was born in 1970, in Grand Rapids, Michigan, and that her daughter Michelle was born in 1972. (9 RT 3128-3130, 3133-3134.) When asked theidentity of appellant’s biological father, she replied: “You said it wasn’t Terry, so youtell me whohis fatheris.” She then stated that Terry Boyce was his biological father. She deniedtelling relatives that Terry was not the father: “They all lying on me because theyall hate me.” (9 RT 3136.) She denied that Cleveland Moore was appellant’s biological father. She denied having a relationship with Cleveland Moore or even knowing him. (9 RT 3136-3137.) When defense counsel asked again whether she knew Moore,she replied: “I can’t recall. I can’t recall 30 years. I can’t recall. I am an alcoholic, remember? I had a nervous breakdown. I can’t recall 30 years ago. I can’t recall. Ali he came from, Ali he will return to.” (9 RT 3137.) She acknowledged having oncelived in Grand Rapids,but could not recall when. She repeated: “It has been 30 years. I can’t remember. Ali he came from, Ali he return to.” (9 RT 3138.) Vertis was born in Clayton, Louisiana. At one point she exclaimed: “Shit. Get the shit straight.” After appellant was born, she returned to Louisiana, then moved to Mississippi. (9 RT 3138-3139.) Hersister Evelyn and her motherwereliving in Louisiana at the time. She asked defense counsel: “You know all this, why you asking me.” After defense counsel explained, she replied: “I am acting ugly, aren’t I, Kevin? I am sorry.” Appellant then stated “You know my name,” and Vertis replied “Osiris.” Appellant then said, “Hum dela.” (9 RT 3139.) Vertis then stated: “I am acting ugly, I know. I am letting the White folks destroy me.” (9 RT 3140.) In Louisiana, her mother took care of appellant while Vertis worked. She married Terry Boyce in 1971, after appellant was born. Theyfirst lived in _37- Berlin, Germany; after a year, they returned to Louisiana and lived with Vertis’s family. As of that time, appellant had not hadseizures or fevers. (9 RT 3142-3144.) When appellant was about two-years old, he moved with Vertis and Terry to Gastonia, North Carolina. In both Clayton, Louisiana, and Gastonia, North Carolina, the family lived in a rural, slow-paced, quiet neighborhood. (9 RT 3145-3147, Vertis did notrecall appellant ever having seizures. He did have fevers, however, including one incident when his skin peeled as a result. (9 RT 3147- 3148.) She did not take him to the doctor because “we hadn’t paid the bill and the doctor say he couldn’tsee it.” (9 RT 3149.) She did not recall saying that she believed in “Dr. Jesus.” She repeated that “Ali brought him here and he is going back to Ali.” (9 RT 3150.) She did not recall appellant having a 105-degree fever. (9 RT 3150-3151.) 28 She denied that appellant stopped talking at two years of age; deniedtelling defense counsel that he had speech problems from ages two to four; and denied that he hada stuttering problem later in childhood. Shethentestified that everyone in Clayton, Louisiana stuttered, and that appellant hadstuttered his entire life. (9 RT 3151-3153, 3176.) As achild in North Carolina, Kevin was a very loving person. He cared about everybody. He loved his mother, he loved his father, he loved his sister, he loved his cousins. He was a very loving, caring person. I don’t know why youall putting me through this. He was a very loving person. He loved his dog, he loved the cat, he loved everybody. 28. When defense counsel pressed, Vertis blurted out: “Yeah, do you take your kids -- I forgot. You are a faggot, right, so you don’t got no kids.” That “answer” was ordered stricken by the court. (9 RT 3151.) Shortly after that, she stated, “Yeah, yeah, I am lookingat all you all,” and that statement, too, was stricken by the court. (9 RT 3152.) ~ 38 - (9 RT 3154.) Appellant “would givelife, he don’t takelife.” (9 RT 3154.) At one point, when counseltried to clarify Vertis’s family history and apologized for making a mistake, she exclaimed: “Yeah, youare full of them. You ate one big mistake.” Asthe trial court asked the jury to go the jury room,she stated: “I am just listening to this man. Youall get the fuck out of my face.” The court then addressed her outside the presence of the jury, reminding her that the rules require that she answer counsel’s questions and not volunteer information; and directing her not to attack the lawyers. (9 RT 3156-3158.) She then asked the coutt: Why do you people haveall the false information? You don’t know me. [...9...] You don’t know my child. What are you people -- you had three years. [...{]...] Why do you havethis false information? (9 RT 3158.) 2 Vertis could notrecall whether appellant attended first grade at Rhyne Elementary. Appellant was held back in kindergarten, but that was becausehe was immature. In her opinion, he was singled out at Rhyne because he was Black, and because the teacher did notlike him. Vertis did not think that he had learning problems. (9 RT 3166-3169.) Vertis could notrecall whether appellant had been quiet and reserved his entire life: “I can’t remember. Like yousay, it is 30 years ago and I had a nervous breakdown and you say I am an alcoholic, so I really can’t remember 29. Following a break, the prosecutor placed on the record that Vertis Boyce “looked at me and called me a fucking asshole. I was goingtolet that go. Then,she looked straight over, about a minute later, at Jennifer Parish sitting in the first row and called her a lying bitch.” (9 RT 3159-3160.) The defense asked the court to exclude Ms. Boyce from the courtroom after her testimony because “[w]e can’t have her here when other family members testify. They are intimidated andsheis going to spoutoff.” (9 RT 3160-3161, 3197.) - 39 - stuff.” (9 RT 3169-3170.) Appellant had a few friends at Rhyne Elementary, but generally kept to himself. When asked if appellant was a leader or a follower, she stated: “Kevin is Vertis’ child. Heis a leader.” (9 RT 3171,) She did not recall any school conferences in North Carolina regarding her son’s problems. (9 RT 3172-3173.) She denied that her sister Evelyn took care of appellant in North Carolina. (9 RT 3155.) Vertis moved the children to South Central Los Angeles in 1978, when appellant was seven-years old. Her husband Terry movedthere in 1979. (9 RT 3166, 3173.) The new school referred appellantto special education services. The family then moved to Huntington Beach. (9 RT 3175.) The defense introduced a card written by appellant when he was a studentin Huntington Beach: “Goodboy,like a human being,sleepy, tired, Kevin.” (9 RT 3164.) Vertis explained why he wrote that: Because those people at the school, they made him feel incompetent. That’s not the word he used. Those White.folks, they did it to him. And they told him he was a bad boy. Hesaid, “T am a goodboy, treat me like I am a human being, I am sleepy and I am tired.” (9 RT 3164.) Appellant was upset with the predominantly White schoolat Huntington Beach, where the children sometimes called appellant racial slurs. Vertis told him that if he could not adjust to “those White folks at Huntington Beach,” she would take him to South Central Los Angeles. (9 RT 3164-3165.) After Huntington Beach, the family moved back to South Central because her husbandlost his job. Theyfirst lived with Vertis’s mother, then got their own place. At somepoint, they lived with her sister Evelyn, who helped with the children. Because both Vertis and her husband worked, there were times when appellant would arrive home from school and no one was there to watch him. (9 RT 3177-3179.) Appellant had a close relationship with his grandmother andgreat- grandmother. He was loving and respectful towards them, and cared for them 40 - when they wereill. He hurt when they died, and was particularly affected by the death of his grandmother, who died at a young age and suffered before her death. (9 RT 3179-3182.) Vertis admitted that appellant was in a special education program, but she had never heard the schools refer to him as retarded. She thought that appellanthadleft the special education program when he attended Horace Mann Junior High School in Los Angeles. (9 RT 3182-3184.) He attended a numberof different schools in Los Angeles. (9 RT 3185-3187.) Vertis denied knowing that appellant was becoming involved with gangs. He wore baggy pants because “his butt was too big so he wanted to dip his pants.” (9 RT 3187.) He did not go out “gang banging” with his friends, (9 RT 3187-3188.) She denied that her brother “Rusty” was in a gang, and denied that he had a negative influence on appellant. (9 RT 3188.) Appellant never had a job (“Why should he? His parents could take care of him.”) In his mother’s view, he had everything he needed. (9 RT 3191-3192.) After being sent to prison, appellant began referring to himself as “Osiris,” the Greek mythological god. Vertis continued: “But, hereally didn’t know what it meant. You know whoOsiris was? Osiris was killed by his brothers because he slept with his sister and they caught him.” (9 RT 3192- 3193.) Appellant has a daughter named Kevonna, who wassix-years old at the time oftrial. He had cared for her when she was a baby. Shevisited appellant in jail, She loves him and heloves her. (9 RT 3193-3195.) Vertis was asked to recall her fondest memories of her son: “He loved me. I love him. Remember the dog? You took care of the dog. You took care of Snyder. Heis a wonderful, loving, caring person and he would never ever kill anybody.” (9 RT 3195.) When asked how his death would affect her, she stated: _ 41 - We will be hurt. We will be empty. I can never touch my son again. I love him more than I loved anybodyin the whole wide world, I can’t ever touch him again. And he told me not tocry. Hesay, “Don’t you cry, McCraney, don’t you cry.” [»] (9 RT 3195-3196.) Tony Boyce, appellant’s older, first cousin, testified that helived in Kings Mountain, North Carolina. When appellant was in the first grade in North Carolina, Tony often saw him. He described appellant as a quiet and shy child, who seemeddistant and kept to himself. (9 RT 3248-3256.) When appellant was young, his mother moved him to Los Angeles: Vertis just “up and left” suddenly. (9 RT 3252-3253.) Years later, in 1983, when appellant was 13-years old, Tonyvisited the family at their residence on 4th Avenuein Los Angeles. Appellant was wearing baggy pants. (9 RT 3257-3259.) In late 1986, when appellant was approximately 15-years old, Tony lived with appellant’s family for over a year, and shared a room with appellant. Appellantwasstill quiet, polite, and respectful to his elders, and did not go out much at night. The family lived in a Crip neighborhood, and appellant was beginning to be involved with gangs. When Tony asked why, appellant respondedthat“‘it is like something to do. I mean,it is like, you know, family.” (9 RT 3261-3266.) According to Tony, appellant’s Uncle Rusty wasclose in age to appellant and was involved with gangs. Appellant looked up to and followed him. Several times a month, appellant and Rusty would “hitthestreets.” When Tony returned to North Carolina, he asked appellant to join him. Los Angeles was full of helicopters and gunshots; North Carolina was slower and safer. (9 RT 3266-3271.) Tonytestified that Vertis was drinking alcohol every day in Los 30. Vertis Boyce’s maiden name was McCraney. (9 RT 3029.) _42- Angeles. (9 RT 3260-3261, 3271, 3273.) She had mood swings: when sober, she was “hell”; when drinking, she was happier. (9 RT 3275-3276.) In Tony’s opinion, appellant’s sister Michelle was spoiled. Terry was very close to Michelle, and appellant’s parents had greater expectations of her than they did of him. (9 RT 3273-3277.) Tonytestified that appellant’s death would “hurt him inside.” (9 RT 3280-3281 ) On cross-examination, Tonytestified that, although Vertis did notlay a hand on appellant, she would hit Michelle. (9 RT 3282.) Appellant told Tony that he was a memberofthe Rollin’ 60’s gang. (9 RT 3282.) Appellant’s aunt, Brenda Boyce,testified that she had been a school teacher for 33 years and lived in Gastonia, North Carolina. She was married to Jerry Boyce, Terry Boyce’s twin brother, and had known appellant’s mother since 1972, when appellant was two-years old. When Brenda met her husband Jerry, Terry was in the military in Germany. (9 RT 3284-3287.) When appellant was young, in Gastonia, he was quiet, shy, and “not very expressive,” but “was a delightful, rambunctious young boy [who] did things that other kids, normal kids, would doat his age.” (9 RT 3289, 3294- 3295.) However, in Brenda’s opinion, he had obvious learning problems. In kindergarten, he stuttered, mumbled his words, and did not use complete sentences. Vertis was concerned that he had repeated kindergarten, and wanted Brenda’s opinion as to whether he should repeatfirst grade. Vertis did not want him labeled as a slow learner, and did not want him to repeatfirst grade. (9 RT 3290-3291, 3294-3295.) Brenda noticed that appellant’s younger sister, Michelle, began reading before he did, and seemedto be a “star pupil.” Vertis never accepted that appellant had learning handicaps, and wasin denial over his problems. Before appellant could repeat the first grade, Vertis suddenly left Terry and moved with the children to Los Angeles, (9 RT 3292- 3293, 3296-3298.) - 43 - Terry Boyce was shocked and devastated when Vertis moved to Los Angeles. (9 RT 3299-3300.) Eventually, he met another woman,Hazeline Smith. Sometimelater, after appellant visited North Carolina in the summer, Vertis came to get him and Terry returned to California with her. (9 RT 3301- 3303.) In 1980, Brenda visited Vertis at her apartment in Huntington Beach. Appellant, who wasnine-years old, wasstill quiet and subdued, but played with the other children. (9 RT 3303.) In 1985, Brenda saw Vertis and the children at a family reunion in Texas. Appellant waspolite, but was quiet and kept to himself, wore baggy pants, and seemedafraid to go outside. Shortly thereafter, Brenda was told by her nephewsthat baggy pants were worn by gang members. (9 RT3304-3305.) That wasthe last time that she saw appellant before thetrial. (9 RT 3312.) Terry had disputes with Vertis over disciplining appellant. Vertis protected appellant. Terry went to church frequently; Vertis did not go as much. Appellant did not like church, but Terry would take him, (9 RT 3307- 3310.) Brenda described Gastonia as slow and laid-back, with wide streets and yards to play in. She would prefer to raise a child there, as opposed to Los Angeles. (9 RT 3309-3310.) When asked what effect the death of appellant would have on her, Brendastated: “It is like a light would be gone out. It is a light that has been flickering for a long time, and no onebothered to see why that light was flickering. Onceit goes out, no one really know whyit flicker.” (9 RT 3312.) Hazeline Smith testified that, in the late 1970’s, she wasliving in Gastonia, North Carolina, when she met and becameinvolved with appellant’s father, Terry Boyce, who was separated from Vertis at the time. (9 RT 3313- 3315.) In 1979, Terry’s children, Michelle and appellant (then eight-years old), spent the summerin North Carolina, and Smith saw them several times a 44. week. (9 RT 3316-3318.) Michelle quickly adjusted to Smith and herchildren, and was expressive. Appellant, however, stayed close to his father, and was not outgoing, but rather stayed “in his shell, or to himself.” (9 RT 3318-3320.) He was quiet, and stuttered when he spoke; the other children made fun of him. Terry treated appellant differently; he would yell at Michelle, but not at appellant. Over time, appellant warmed to Smith and begantocling to her. At the end of the summer, Terry took the children to California without telling Smith. (9 RT 3321-3325.) Smith recalled appellant as: a little boy that was actually -- seemedlike he was scared, or within himself. You know, he wasn’t self-confident. You know, he didn’t have that confidence to speak out or play with the other kids or do, you know,things like that. (9 RT 3325.) Ann Mootetestified that in 1969, she met Vertis in Grand Rapids, Michigan. Vertis was in her twenties, and was highly opinionated, very judgmental, and very religious; she did notlike bad language, drinking, or playing cards. (9 RT 3325-3330.) Ann introduced Vertis to her husband’s brother, Cleveland Moore. Vertis and Cleveland Moore had a romantic relationship for several months. Vertis became pregnant and told Ann that Cleveland was the father. Vertis had the baby and named him Kevin. When the baby was six-weeks old, Vertis told Moore that she planned onleaving Grand Rapids to marry someone else. Moore begged her notto do so, but Vertis said she was returning to Clayton, Louisiana. (9 RT 3330-3335.) Years later, when appellant was 13-years old, Vertis brought him to Michigan. He spent a week with Moore and her husband; then several weeks with Cleveland Moore in Lansing, Michigan. Cleveland Moore was married, hadfive boys, andlived in a nice area of Lansing. (9 RT 3335-3338.) There had beentalk of appellant remaining with his biological father in Michigan for a year. However, Vertis had an “attitude” about Cleveland’s _ 45 - wife, whom she did not wantdisciplining appellant. After a few weeks, appellant left. (9 RT 3341-3343.) Several years later, Vertis called Moore and said that she was concerned with appellant’s behavior and that he was involved with gangs and the wrong people. Later, when Vertis visited Michigan, Ann expected to see the church-going woman she had known, Instead, Vertis was drinking brandy and beer. (9 RT 3344-3346.) Cleveland Mootetestified that he was appellant’s biological father. He met Vertis in the fall of 1969, in Grand Rapids, Michigan. She was in her twenties, was very smart, very religious, and opinionated, and did not use alcohol. (9 RT 3347-3349.) They were romantically involved for about a month and a half. When Vertis told Moore that she was pregnant with his child, he wanted to marry her. She agreed to marry, but said that they would have the marriage annulled after six months because her fiancé (Terry Boyce) was in the service and she was waiting on him. Before the baby was born, Moore movedto Lansing and married another woman. Subsequently, he heard from Vertis by phone, several times a year. (9 RT 3349-3354.) Until 1983, Moore had no contact, either personal or by phone, with appellant. He did not want to get involved in appellant’s life, and thoughtthat Terry Boyce had married Vertis. In 1983, when appellant was thirteen-years old, he came to Michigan and stayed with Moore and his family for two weeks. Appellant was quiet and kept to himself, but got along fine with the family. Before leaving, appellant told Moore that he wanted to stay and did not wantto return to his mother. (9 RT 3354-3358.) In 1986, Vertis telephoned andsaid that she was having problems with appellant getting involved with gangs. She asked Mooreto take appellant back to Michigan, and Moore agreed. But he heard nothing from Vertis after that telephonecall. (9 RT 3358-3359.) Orange County Public Defender Investigator John Depkotestified that 46 - he was assigned to appellant’s case and,in July 1998, interviewed Vertis and Terry Boyce in Compton for several hours. (9 RT 3361, 3366.) Depko described Vertis as extremely controlling and cantankerous, and as one ofthe mostdifficult parents of a defendant that he had worked with in 24 years. (9 RT 3366-3367.) Vertis refused to tell Depko whereappellant was born; she did not want appellant’s lawyers digging up her past. She did disclose that, when appellant was two- or three-years old, he had a fever so bad thatit blistered his skin. She failed to notice the fever for several days, until she saw him “padding back and forth to the bathroom to get drinks of water[.]” She did not seek medical attention, in part because she did not believe indoctors. The fever occurred at about the time when appellant was beginning to speak. Afterward, he stopped speaking for two years, and did not start again until he was four- or five-years old. At that time, he developed a stutter. Vertis she insisted that appellant repeat the first grade because he had not“mastered” that grade. (9 RT 3362-3367.) School records showed that appellant seemed to be confident when playing sports, particularly basketball, (10 RT 3512-3513, 3530, 3542, 3554.) However, Vertis told Depko that she refused to allow appellant to play organized sports because she was afraid that he might be injured, and thereby exacerbate his “mental development.” (9 RT 3362-3367.) At some point, appellant began to wear baggy pants and began having troubles with the law. Vertis told Depko that she did not think that her son was in a gang, however; nor did she think that he was taking drugs. (9 RT 3367-3368.) Vertis also told Depkothat, at one point, after appellant came homefrom being in custody, “he started yelling that he was Osiris,” a mythological Egyptian figure who was “Lord of the Underworld.” He then slept for several days. From that point on, appellant continued to make 47. statements proclaiming himself to be Osiris. (9 RT 3368-3369.) Reverend Jeff Barber testified that he was associated with the House of Family First Baptist Church in Los Angeles. Since the early 1970’s, he had known Vertis Boyce’s grandmother in Louisiana and her mother in Los Angeles. He met Terry Boyce at the church in the early 1980's, and became familiar with appellant and Michelle. As achild, appellant attended church with his grandmotherand his father. Reverend Barber described appellant as a well-behaved, and quiet child, who did not participate much with the other children and seemed sad. Vertis did not attend church except for “special occasions” and was “‘standoffish,” (10 RT 3566-3573.) Evelyn Collier Dixon, Vertis’s sister, testified she had known appellant his entire life. Dixon was a registered nurse, and Director of Surgical Services at St. Bernard Hospital in Chicago. Her daughter La Rhonda, with whom appellant was close growing up, has mental infirmities and is developmentally retarded. Appellant was somewhat shy and quiet, but would openup with his cousin. He had compassion for her, and would protect her; she was fond of appellant, and would laughat the things that he did. (11 RT 3591-3598, 3629- 3630.) Appellant was born in Michigan and was brought to Louisiana in August 1971, when he wassix-weeks old. Vertis had a job 75 miles away, in Mississippi, and left appellant in Louisiana in the care of her mother and Dixon. In Decemberof that year, Dixon moved to California. When appellant was eight-monthsold, his mother moved him to Germany, where Terry Boyce was in the military. (11 RT 3599-3600, 3604-3605.) In Louisiana, appellant was an average infant. When he wasthree to four-monthsold, he had an upperrespiratory illness, including a fever thatled to a seizure. He was taken by Dixon’s motherto a doctor. Their grandmother Hattie raised Dixon and Vertis with thebelief that, whenever - 48 - they had a medical problem,they did not have to go to a medical doctor because “‘we had Dr. Jesus as our doctor.” Vertis was strong in this belief. She was also overly protective with her family, especially with appellant. (11 RT 3607-3610.) Vertis was extremely puritanical: she did not like the nightlife, did not drink and did not smoke. However, shortly before Michelle was born, Vertis became more aggressive, outgoing, and dominating, and began drinking more alcohol. She attended church in North Carolina. By the time that she moved to Los Angeles, however, she did not attend church. (11 RT 3600-3603.) After Germany, Vertis and the children moved to Gastonia, North Carolina. Dixon lived in Louisiana but visited North Carolina often. Fora month, Dixon became appellant’s caretaker while his parents were working. Appellant was less than two-years old, was quiet, reserved, and affectionate, and always clung to his mother. (11 RT 3611-3614.) He also had a speech impediment. While Vertis thought that appellant wasjust imitating an uncle whostuttered, appellant’s speech impediment continued when the uncle was not around. Appellant was hyperactive from an early age: Vertis had him ina harness on a “leash.” (11 RT 3615-3618.) When appellant was a child, he developed a fever of 104 degrees. Vertis did not want to take him to the doctor because they did not have medical coverage. Dixon was covered, so she took appellant to the doctor under the nameof her child, Sean. Appellant developed a rash due to an allergic reaction to penicillin. (11 RT 3619-3621.) Vertis told Dixon that Cleveland Moore, not Terry Boyce, was appellant’s biological father. Appellant was nottold abouthis biological father until 1984, when, at age 13, he went to Michigan to meet Terry. He could not accept that Terry was not his father. (11 RT 3630-3632, 3634-3635.) Shortly after Dixon movedto California in 1977, Vertis moved from _ 49 - North Carolina to California, where she and the children stayed with Hattie in Compton and with their grandmotherNellie in Watts. (11 RT 3636-3638.) Laterin life, appellant looked up to and wanted to be aroundhis uncles, Rusty, Greg, and Terry. Dixon was naive about gangs, but noticed that Rusty was wearing baggy clothes; at some point, appellant did as well. Vertis was aware that there was an issue about appellant and gangs. (11 RT 3624- 3625.) At one point, Vertis’s mothertold.her that appellant needed psychiatric care. Vertis replied: “No, because nothing is wrong with my child[.]” (11 RT 3634.) Inwardly, however, Vertis was disappointed in appellant’s slowness. (11 RT 3636.) Appellant got along well with his sister, Michelle, and was protective of her. Dixonrelated that, in August 1993, during a boating trip on the ocean, Michelle fell overboard and appellantrisked his life by jumping in after her, and bringing her back to the boat. (11 RT 3626-3628.) Appellant was very fond of his grandmother Nellie and hisgreat- grandmother Hattie, whoalso lived in the house. In the late 1980’s, he took care of Hattie when she becameill: he washed her clothes and made sure that she had food. He cared for her until the month before her death. (11 RT 3638-3640.) Appellantalso had a close relationship with his grandmother, Nellie, and helped her with chores. When Hattie died in 1994, appellant was a pallbearer at the funeral. He was devastated by her death, and became more withdrawn, Seven monthslater, Nellie died at age 63. Appellant may have been in jail at the time. (11 RT 3640-3643.) Dixon spoke to Vertis about appellant’s incarceration. Vertis was devastated bythe fact that she waslosing the people she loved the most. From around 1985, Vertis began drinking more. Laterin life, she admitted that she had a problem,but she never got help. (11 RT 3645-3648.) Dixon saw appellant on August 4, 1997, 10 days before the crimes, - 50 - when she wasvisiting California. She noted that every time he would go out, “even though he wasfully grown and I am thevisitor, he would always let me know where he was going.” He wasstill polite and respectful, and stayed at home many of the evenings. (11 RT 3621-3622.) When asked what appellant’s death would mean to her, Dixonstated: “Oh,please, Jesus. Please don’t do that to me. Heis -- please don’t ask me that.” (11 RT 3649.) Walter White testified that he had known appellant since 1992, when appellant began dating White’s daughter, Chavon. When they met, Chavon had a child named Charday who wasfive-years old. Chavon and appellant also had a daughter together, Kevonna. (11 RT 3708-3711, 3718.) White testified that appellant was different from the other men that Chavon dated: he showed a great deal of respect to older people, never used profanity, and was “very good with the kids[.]” (11 RT 3711-3713.) Chavon and appellant were involved with each other for several years, including living together, until 1994, Appellant treated Chavon well and was respectful towards her. The only complaint Chavon had was that appellant seemed unrealistic and aimless, and would not get a job. He liked to watch cartoons and wrestling. While Chavon worked, appellant watched and played with the children, and took care of the house. He was a goodfather, kind and gentle to both children. At the timeoftrial, appellant’s daughter was seven-years old, and lived with White because Chavon wasin jail. (11 RT 3713-3723.) As set forth above, Dr. Kara Crosstestified for the defenseat the guilt phase regarding appellant’s brain damage and mental retardation. Several experts testified for the defense at the penalty phase. Samuel Benson, M.D.,testified that he was a physician specializing in psychiatry, and also had a Ph.D.in physiology and pharmacology. (10 RT 3439-3442, 3785-3786.) He hadtestified for both the prosecution and the -51- defense in a numberof cases, and had consulted with the California Departmentof Corrections. (10 RT 3442-3446.) Dr. Benson was contracted by the defense in this case to perform an evaluation of appellant. He was provided with and reviewed numerousrecordsrelating to appellant’s history, including a neurological report by Dr. Kenneth Nudleman,the neuropsychological report by Dr. Cross, school records, a residence history, and interview reports from numerouswitnesses. (10 RT 3447-3452, 3549- 3550.) He met with appellant 6 different times, for 90 minutes each time, and prepared a report. (10 RT 3449, 3454, 3550, 3560-3561; 11 RT 3803-3804.) 3 In 1997, Dr. Nudleman administered to appellant a type of electroencephalogram (EEG)that tests for brain damage. The results were abnormal. Dr. Benson concluded that appellant had brain damage, a conclusion that was consistent with the findings reported by Drs. Nudleman and Cross. (10 RT 3460-3464.) Appellant’s history of speech difficulties, stuttering, and learning disabilities is symptomatic of and consistent with organic brain damage. (10 RT 3483-3485.) School records from Clayton, Louisiana in 1977 indicated that appellant repeated first grade. (10 RT 3523-3524.) North Carolina school records from 1978 showed that appellant was evaluated by a child psychiatrist, who found problems in communication andthathis intellectual functioning was in the borderline range of mental retardation. Huntington Beach school records from 1980, when appellant was 9-years old and in the fourth grade, indicated that he was withdrawn and immature, and had difficulty adjusting and keeping up with his peers. (10 RT 3520-3523.) In 1982, in the fifth grade, Los Angeles school records showed that appellant’s fine motor skills were 31. Dr. Benson’s reportis in the record on appeal at Clerk’s Transcript pages 3398-3429, but was not introducedin evidence. _52- delayed; that he had visual perceptual problems; and that he had a vocabulary well below what was notmal forhis chronological age. (10 RT 3524-3526.) In 1983,a “psychoeducational case study” on appellant indicated that he “experienced great frustration due to his low academic functioning,” was passive and withdrawn, and wassensitive to beinglabeled “retarded.” He showedsignificant delays in intellectual functioning, delayed speech development, delayed gross and fine-motorskills, and learning disabilities. (10 RT 3529-3530.) The school records consistently indicated reading and learning dysfunction. (10 RT 3526, 3531.) Dr. Benson diagnosed appellant as follows: psychosis from organic brain damage; learning disabilities, secondary to organic brain disease; schizotypal personality disorder; and substance abuse disorder, including phencyclidine. (10 RT 3468-3470, 3480.) 32 Appellant’s history showed hallucinations and delusions, including the belief that he was the mythical figure “Osiris.” (10 RT 3501-3504, 3507.) The most likely cause of the brain damage was the “high fevers, the seizures, inadequate medical care” from when appellant was two-years old. Fevers and seizures are associated with brain damage; if not appropriately treated, the damageto the brain can be exacerbated. (10 RT 3472-3475, 3516-3518, 3545-3547.) With regard to the diagnosis of schizotypal personality disorder, a disorder that affects a person’s perception of the world, appellant demonstrated odd beliefs or magical thinking, odd perceptual experiences, odd thinking and speech that did not makesense, and paranoid ideation. (10 RT 3535-3539, 3471, 3563-3564.) 32. Dr. Bensontestified that phencyclidine wasoriginally designed as a large animal tranquilizer, caused hallucinations in humans, and can exacerbate pre-existing psychiatric conditions,in particular schizotypal personality disorder. (11 RT 3786-3788.) 53 - Appellant related to Dr. Benson a psychotic episode he had when he was 10-years old, that included a “‘trance-like state in which he headed or commanded God’s army against evil[.]” (11 RT 3793-3794.) The hallucinatory experiences appearedto be real to appellant. Vertis Boyce teported that appellant began making bizarre commentsabout his special position in the afterlife concerning Osiris.In Dr. Benson’s opinion, these hallucinations and delusions originated in appellant’s brain damage. (11 RT 3794-3796.) On cross-examination, Dr. Benson acknowledged that appellant’s school records showed some positive comments regarding, inter alia, sports. (10 RT 3540-3542.) The prosecution also elicited that the incidence of antisocial personality disorder in the United States ranges from three to ten percent of the population; schizotypal personality disorder affects from one to three percent of the population. (10 RT 3561.) Onredirect examination, Dr. Bensontestified that appellantdid not have antisocial personality disorder. (10 RT 3564-3565; see also 10 RT 3480- 3483.) Nor was there evidence that appellant was malingering during the psychological testing. The EEG andthe neuropsychological tests establish that appellant suffered from “abnormal brain activity or organic brain psychosis[.]” (10 RT 3563.) Dr. Benson was subsequently recalled andtestified that during the examination, appellant “appear[ed] to be internally preoccupied by auditory hallucinations causing him to demonstrate some paranoia and suspicion|.]” (11 RT 3788.) People with brain damage often develop delusions. Appellant’s “Osiris” delusion began in 1986, after he spenttime in juvenile hall: he claimed that he wasa reincarnation of the Egyptian god Osiris, Lord of the Dead, and had beenfirm in that belief ever since. Chavon White, the mother of appellant’s child, indicated in an interview that appellantoften referred to - 54 - himself as Osiris, and referred to her as his queen. (11 RT 3788-3791.) When Dr. Benson interviewed him, appellant stated that he first began hearing voices at the age of three or four. Appellant interpreted the voices as “the powerofspecial forces[.]” (11 RT 3792-3793, 3806.) The hallucinations were related to the damageto appellant’s brain. (10 RT 3518-3519.) On recross-examination, Dr. Bensonaffirmedthat appellant told him of joining a gang at age 15. He also told Dr. Benson that he was sent to a high security prison in Pelican Bay for assaulting a police officer while he was in custody. (11 RT 3801-3802.) According to Dr. Benson, most people with antisocial personality disorder do not have brain damage, and are usually “smarter, trickier, more intellectual, capable” than appellant. (11 RT 3797.) Moreover, a diagnosis of antisocial personality disorder requires a diagnosis of a conduct disorder by the age of 15, That diagnosis was not made in appellant’s case. (11 RT 3799.) Clinical psychologist and Professor Joseph Cervantes, Ph.D., testified that he was trained and had practiced for manyyears as a child psychologist, and specialized in child and adolescent development. Hetestified generally about human developmentissues. Human development encompasses developmental milestones such as speech and language,fine gross motor issues, intellectual functioning, and interpersonal functioning. These early milestones are interrelated and have ramifications for future development. (11 RT 3724-3733.) With regard to speech, first words typically occur bythe first year, sentences by 15 months, and “meaningful dialogue” by two years. By age four, children begin to develop peer relationships and are ready for socialization and school challenges. A developmental deviationat this early stage suggests possible retardation or learning disabilities. (11 RT 3737-3740.) Seizures or febrile activity at an early age “can compromise the brain and can be a precursor to later problems.” Dr. Cervantes noted that: ~ 55 - There tends to be a strong relationship between febrile seizures activities in young infants and young children andlater difficulties with academic functioning, with learning disabilities, and with attention deficit disorder are some of the primary outcomes. (11 RT 3741.) A damaged neurological system may “skew” how a child perceives the world, and set a pattern for future development, (11 RT 3741-3742.) A developmental deviation results in a domino effect which makes it more difficult for a child to “catch up”to the next milestone. (11 RT 3734, 3750- 3751.) “Someone being shy, being a loner, quiet, withdrawn,reserved, stand- offish can be a symptom of milestone issues.” (11 RT 3736.) Compromised speech and language functioning skews the way a person perceives the world, and changes how the world affects that person. (11 RT 3745-3746.) Family stability is important to child development. Children who have a developmentaldifficulty are more challenged by family instability, which will have “a significant impactin one child’s ability to be able to stabilize” andfeel normal. (11 RT 3749-3750.) When speechorintellectual functioningis compromised, impulsivity or aggression may be present. (11 RT 3746-3747.) James Johnson,Jr., Ph.D., testified that he held a doctorate in urban social geography and taught at the University of North Carolina, Chapel Hill. His research focused on understanding human behavior and family dynamics in inner-city communities. (11 RT 3650-3653, 3666-3667.) Dr. Johnson had grown up in rural North Carolina, and had studied communities in Los Angeles for 14 years. (11 RT 3695-3696.) He had testified as an expert several dozen times. (11 RT 3654-3658.) Dr. Johnson’s studies had focused on the experiences of young African-American males in South Central Los Angeles, and the effect of adverse economic changes in the 1980’s on families. Plant closings and job losses during that period led to disruption and dissolution of families. (11 RT - 56 - 3659-3661.) His research had shown that when there wasa stable labor market for manufacturing jobs, African-American males in South Central Los Angeles would “grow out of gangs” and focus on work and forming families. In the 1980’s, however, jobs that enabled young persons to form and maintain stable families did not exist in their communities. As a result, there were higher rates of unemployment and idleness, and young males did not “grow out” of the gangs. In turn, the idleness and unemploymentcaused family problems. At the same time, community resources to support youth disappeared. The timing of those events “devastated those communities.” Thus, gangs becamean institution in the community. (11 RT 3661-3663, 3694-3695.) Based on his review of appellant’s school and other records, Dr. Johnson madeseveral findings and formed an opinion as to how appellant’s family dynamics andsituation reflected the events that had occurred in South Central Los Angeles during the time when he grew up. (11 RT 3663-3664, 3667-3668.) The prosecution objected that Dr. Johnson was not qualified to give such opinions. The court indicated thatit “tend[ed] to agree” and that a different expert was needed for such opinions. (11 RT 3664-3666.) Dr. Johnsontestified that children are less likely to succeed in their developmentif their parents do not have the proper parenting skills. Even if the parents do have goodskills, however,living in a community bereft of “mediating institutions,” that is, institutions that encourage children to pursue mainstream avenues of social and economic mobility and discourage them from engaging in dysfunctional and antisocial behaviors,is a factor in whether a child will succeed in life. Chronic residential moves and school movesare particularly detrimental because the children cannot “place down roots and build up a dense network of institutional resources and key individuals that can make a difference”in their lives. (11 RT 3669-3671.) _57- Dr. Johnson saw this disruptive process in appellant’s frequent residential and school moves. Between his birth and age 17, appellant moved residences 17 times; the average family moves 5 timesin its entire lifetime. He went to 23 different schools through grade 10. (11 RT 3671, 3700-3701.) Dr. Johnson described the importance of “bridging social networks”: in economically devastated communities with few resources, some parents would connect their children with institutions outside of the community. That action leads to success for the children. (11 RT 3687-3688.) “[C]hild-rearing is notsolely a family responsibility, but it is a community responsibility.” (11 RT 3689.) Strong and consistent emotional support from parentsis a necessary prerequisite for raising a healthy child. (11 RT 3690-3691.) Dr. Johnson had researched high school and junior high school completion and dropoutrates in South Central Los Angeles in the 1980's. That research showedthatforall individuals who entered predominantly Black high schools in South Central Los Angeles in 1984, between 60 percent and 79 percent did not graduate in 1988, when appellant was 17-years old. (11 RT 3691-3693.) He had also studied gangs in South Central Los Angeles. (11 RT 3693-3694.) The role models for children in the 1980’s were the idle men, some of whom were connected with gangs. (11 RT 3698.) Alex Alonso, a doctoral student in human geographyat the University of Southern California, testified regarding the history of, andterritoriality among, African-American street gangs in Los Angeles. (10 RT 3376-3381.) The defense provided Alonso with information concerning appellant’s residential addresses and schools, from which Alonso created several maps overlaid with gangterritories. (10 RT 3416-3417.) Gangactivity in Los Angeles began in the late 1960’s, Between 1972 and 1996, there wasa rise in African-American gang activity and gang membership, and in gangrivalries. (10 RT 3393-3399.) In 1972, there were - 58 - 18 African-American gangs in Los Angeles; by 1978, that number had more than tripled to 60; by 1982, that number had swelled to 155; by 1996,the total number of gangs was 274 (200 Crip gangs, including the Rollin’ 60’s, and approximately 74 Blood gangs). (10 RT 3399-3404, 3410-3412.) Gangterritories include playgrounds, parks and schools. Children that live in such areas have “mental maps” about the gang boundaries: “[J]ust going to school, walking in a neighborhoodfor several years, you learn the boundaries and you learn where to go, where not to go, and that just becomes part of what wecall in geography your mental map.” (10 RT 3391-3392, 3408-3410.) The phrase “you got to be from somewhere” meansthat a person has to be-a memberofor associated with a gang to be accepted in the neighborhood and at school. (10 RT 3415.) In 1979, when appellant was 8-years old, helived at East 75th street, an area that was controlled by several different gangs. There was gang activity at the Parmelee Avenue Elementary Schoolin that neighborhood. (10 RT 3418- 3420.) In 1981, when appellant was 10-years old, the 96th Street Elementary School was in a gang territory. (10 RT 3421.) In the mid-1980’s, the Horace Mann School was dominated by the Rollin’ 60’s gang; the Foshay Middle School was dominated by the Rollin’ 30’s gang. Audubon Middle School was dominated by the Rollin 40’s crip gang in 1985. When appellant lived on 4th Avenue, he had to cross numerousrival gangterritories to reach those schools; taking public transportation was no guarantee of safety. (10 RT 3424-3427,) . On cross-examination, Alonso acknowledged that young people may be motivated to join a gang for protection, to earn money,or for status. A person motivated by status may commit a moreserious crimeto increase his status. (10 RT 3433-3435.) Although gangs do notget along with the police, only a small minority would be willing to kill a police officer. Such a crime 59 - would “perhaps” confer great status to a gang member. (10 RT 3436-3438.) The defense completed its case with the testimony of Hattie Wilson, appellant’s aunt. Shefirst met appellant in Los Angeles, when he was 5 or 6- years old when her mother,hersisters, including Vertis Boyce and her children (appellant and Michelle), movedfrom Louisiana to Los Angeles. Terry Boyce was not with them at the time. Vertis and the children stayed with Wilson for several months. (11 RT 3819-3822.) As a child, appellant was quiet, shy, respectful, and obedient. He stuttered “all the time.”’ Michelle was outgoing and studious. Wilson took appellant and Michelle under her wing because she had no children at that time. (11 RT 3823-3824.) When appellant was approximately 10-years old, he had a fever and hersister Jean checked him in to the hospital. He had an allergic reaction to penicillin and went into a coma. (11 RT 3826-3827.) Vertis and Hattie have two brothers: Jesse James Henry Washington, nicknamed “Rusty”; and Greg Washington. Rusty is two or three ‘years older than appellant; Greg is about eight years older. They lived in Los Angeles in 1978 when Vertis and the children moved there. The family saw each other on a regular basis until Vertis moved with the children to Huntington Beach. (11 RT 3825-3826.) In 1988, when appellant was 17-years old, Wilson had morecontact with him. He wasstill quiet and respectful, and loved his aunt. Rusty and Greg had becomeinvolved in gangs, and appellant was very close with his Uncle Rusty. Rusty was charismatic, outgoing, and confident; appellant was none ofthose things. (11 RT 3827-3829.) Appellant started drinking alcohol and taking drugs; in particular, he was smoking phencyclidine, which was common in South Central Los Angeles at the time. Wilson would see appellant spaced out, staring off into space, and having a “conversation with objects,” such as talking to trees and walls; he started referring to himself as - 60 - Osiris. (11 RT 3830-3833.) Wilson’s mother, Nellie, moved to Los Angeles in 1977. Appellant had a “beautiful relationship” with his grandmother; he loved her, and she loved him. He ran errandsfor her; at times, they went downtownto help feed the homeless. Appellantalso had closerelationship to his great-grandmother, Hattie, who moved to Los Angeles in 1982, and wassick with cancer. Appellant took care of her, helped her to the bathroom,cleaned, and fixed meals, At Hattie’s funeral, he was a pallbearer. (11 RT 3836-3839) Wilson described appellant as “[q]uiet, respectful, loving.” She recalled that, in 1986, after she had surgery, he saw her in the hospital and “told me | was going to be okay, just go ahead and handle it, and he was praying for me.” (11 RT 3839-3840.) Appellant helped Wilson with her own drug addiction by being supportive and loving, and discouraging her from using drugs. (11 RT 3833-3835.) When asked the effect on herlife not to have appellant around, Wilson testified: It would be devastating. Devastating to not having life. It is just -- it just would hurt me so bad. Don’t take my nephew. Please don’t take him from me, please. Please don’t take my nephew,please. Just don’t take him from me,please. Please don’t take him from me,please. [f]...{]] I love Kevin as my child. I love you so much, Kevin. I love you. (11 RT 3840-3841.) As the court called a recess, Wilson cried out: “Please don’t take him from me. Please don’t take him from me.” (11 RT 3841)) // -61- 1. IN LIGHT OF APPELLANT’S SIGNIFICANTLY IMPAIRED INTELLECTUAL FUNCTIONING, BRAIN DAMAGE, AND SEVERE MENTAL ILLNESS, THE DEATH SENTENCEIS CRUEL AND UNUSUAL IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTSOF THE FEDERAL CONSTITUTION AND THE PARALLEL PROVISIONS OF THE STATE CONSTITUTION, AND VIOLATES THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE STATE AND FEDERAL CONSTITUTIONS A. Introduction In Atkins v. Virginia (2002) 536 U.S. 304, 321, decided after appellant’s trial, the high court held that the Eighth and Fourteenth Amendmentsbat the execution of the mentally retarded. Inthis case, there is clear and convincing evidence in the record on appeal that appellant is mentally retarded within the meaning ofA¢kins. He has significant impairments in intellectual functioning (a full-scale IQ of 69), and significant limitations in adaptive functioning, and has been so impaired from a very early age. (See § B, post; Atkins, at pp. 309, fn, 3, 318; see also § 1376, subd.(a).) This Court has held that postconviction Akins claims, meaning cases in which the death penalty has already been imposed,should beraised by petition for writ of habeas corpus. (In re Hawthorne (2005) 35 Cal.4th 40, 47; People v. Jackson (2009) 45 Cal.4th 662, 679-680.) Pursuant to Hawthorne and Jackson, appellant’s Atkins claim is not raised herein on direct appeal. 35 However, the record on appeal also showsclear and convincing evidence that appellantis significantly brain damaged and severely mentallyill, and that the impairmentsresulting from those conditions, and from his 33, Appellant is currently unrepresented for purposes of habeas corpus/postconviction claims. (See Marks v. Superior Court (2002) 27 Cal.4th 176, 183-184 [discussing this Court’s capital case policies on the appointment of separate counsel for purposes of habeas corpus proceedings].) -62- impaired intellectual functioning, are severe and longstanding. That evidence, unrefuted and for the most part conceded by the prosecution, establishes that appellant’s culpability for the capital offense is substantially diminished, and that executing him would make no measurable contribution to retribution and deterrence, the only acceptable goals of capital punishment. Thus, the record on appealestablishes that the death sentence meted out to appellant violates the Eighth and Fourteenth Amendments. B. Appellant Is Mentally Retarded, Brain Damaged, and Severely Mentally Ill The defense presented evidence of appellant’s significantly impaired intellectual functioning, brain damage, and severe mentalillness at both the guilt and penalty phases. At the guilt phase, neuropsychologist Dr. Kara Crosstestified that appellant has a full-scale IQ of 69. (7 RT 2543-2544.) Although two IQtests administered to appellant when he was young showed higher numbers, the tests used in those cases were subsequently found to overstate IQ and were “re-normed.” (7 RT 2506-2509, 2512-2513.) Once re-normed,the results on the prior tests are consistent with the full-scale IQ measurement of 69 obtained by Dr. Cross. (7 RT 2558-2560.) Dr. Cross also testified that appellant suffers from organic brain damageto his frontal lobes,parietal occipital lobes, and temporal lobes. (7 RT 2534, 2570-2572.) The amount of impairmentresulting from that damageis “significant.” (7 RT 2571-2573.) Appellant scored in the bottom one or two percent on most of the tests that she administered. (7 RT 2533-2534, 2557.) His intellectual processing, logic, problem-solving, and reasoningabilities are all impaired. (7 RT 2575-2576.) His brain damage has existed since early childhood. (7 RT 2506, 2554-2561.) There was no sign that he was malingering. (7 RT 2561-2563.) The prosecutor’s cross-examination of Dr. Cross was exceptionally - 63- brief, and did not attack her findings and conclusions regarding appellant’s 1Q and brain damage. Dr. Cross acknowledged that appellant knew right from wrong, When asked whether he had the ability to make choices, she opined: “Not as a global statement. As a qualified, yes.” (7 RT 2578-2580.) In his guilt phase closing argument, the prosecutoressentially conceded the correctness of Dr. Cross’s conclusions: [T]here is no point in challenging her results, especially in light of the fact that the defendant had similar results from the time he was very young, okay? I have seen those records. I don’t challenge those. I didn’t get up there and say, “You made those up. That’s baloney. He didn’t have them.” [§] I didn’t say that those aren’t real words. He performed better when he was younger. Andshecriticized some of thetests as not having been given correctly. And, frankly, I don’t know that they were.I don’t knowif the criticism is valid or not, but I will accept it. She knows more aboutit than I do. (8 RT 2729.) At the penalty phase, psychiatrist Dr. Samuel Bensontestified and confirmed that appellant suffers from organic brain damage. (10 RT 3463, 3472-3473.) An E.E.G. performed on appellant before trial was abnormal, consistent with brain damage; the neuropsychological testing administered by Dr. Cross was also consistent with brain damage. (10 RT 3460-3464.) Appellant has been brain-damaged for mostof his life. (10 RT 3473.) Dr. Bensonalso diagnosed appellant as psychotic. Appellant’s psychosis results from his brain damage, is episodic, and includes auditory and visual hallucinations and delusions,including his belief that he is Osiris, an Egyptian god. (10 RT 3468-3469, 3480, 3502-3504, 3519, 3564; 11 RT 3788, 3792-3793, 3795-3796.) Dr. Bensonalso diagnosed appellant as having schizotypal personality disorder, a mental disorder characterized by ideas of reference, oddbeliefs, magical thinking, unusual perceptions, perceptual experiences, odd thinking - 64 - and speech, suspiciousness or paranoid ideation, inappropriate or restricted affect, and odd behavior. (10 RT 3468, 3470-3471.) Appellant exhibited each of these symptoms. (10 RT 3533-3539.) Appellant also has learning disabilities and speech defects, secondary to his brain damage. (10 RT 3472, 3485.) He does not meetthecriteria for antisocial personality disorder. (10 RT 3480-3483.) There was no evidence that he was malingering. (10 RT 3562-3563.) Dr. Benson’s report, present in the record at Clerk’s Transcript pages 3398-3428, further illuminates appellant’s brain damage and severe mental illness. The report states that appellantis “sane with periods of episodic psychosis,” and has “symptomsofauditory and visual hallucinations, delusions of grandeur and persecution,illogical and magical thinking, poor vision, and limited reality testing.” (10 CT 3398-3399.) His thought processes are “grossly distorted,” paranoid, and delusional. (10 CT 3399, 3419.) “His mental state fluctuates at times and he appearsto be internally preoccupied at times by auditory hallucinations causing him to demonstrate paranoia and suspicion.” (10 CT 3399.) His speech was “‘mainly coherent, but overtime [sec] loses its logic and coherence.” (10 CT 3399.) The report also noted that appellant’s “impaired mental state has fluctuated and deteriorated further” during the 15 months that Dr. Benson saw him. (10 CT 3422.) During that period, appellant demonstrated: paranoia, delusional and grandiose thinking with auditory hallucinations which have compromisedhis ability to adequately test reality on a consistent basis. His psychosis appears to have both thought process (sequencing and association) and thought content (fantasy and delusion) components. (10 CT 3422.) The prosecutor’s cross-examination of Dr. Benson did not attack the doctor’s conclusions, but rather focused on somepositive aspects shown in appellant’s records (10 RT 3539-3542), and on certain of the interviews and -65- records that formed the bases for the doctot’s conclusions (10 RT 3542-3561; 11 RT 3799-3807, 3817-3818). Dr. Benson acknowledged that he had not reviewed the police reports or appellant’s statements concerning the crime, and that appellant did not wish to discuss the circumstances of the capital offense. (10 RT 3555-3557; 11 RT 3803.) The prosecutoralso questioned whether appellant met the criteria for an antisocial personality disorder; Dr. Benson again testified that appellant did not. (10 RT 3554-3558;see also 10 RT 3563-3565.) Appellant’s impairments were clearly evident to his early school teachers, School records show that at age seven, he was diagnosed as “borderline retarded.” (7 RT 2511; 10 RT 3520-3521.) A teachertestified at the penalty phase that appellant repeated kindergarten and was in “over his head”in first grade. (9 RT 3231-3232.) At age 13, a psychoeducational case study showedthat he hadsignificant delays in intellectual functioning, delayed speech development, delayed gross and fine-motorskills, and learning disabilities. (10 RT 3527-3531.) Appellant’s impairments were evident to the experienced defense attorney for co-defendant Willis: “Mr. Boyce is about as puddin-head puddin- head as one can get.” (4 Pretrial RT 1107 [sealed].) At the penalty phase, the prosecution in effect conceded that appellant was brain-damaged and mentally impaired. The prosecution presented no mental health experts either at guilt or penalty. (Cf. People v. Smithey (1999) 20 Cal.4th 936, 1015; People v. Murtishaw (1989) 48 Cal.3d 1001, 1008-1009, 1030.) Thus, there were no “dueling experts” or divergent opinions regarding appellant’s significantly impaired intellectual functioning, brain damage, and mentalillness. During a sidebar conference, the prosecutor madeclear that: [W]e are not contesting the fact that Mr. Boyce has certain problems, and that are well documentedrelying -- regarding his mental abilities, and from whatever source. If it is organic brain - 66 - disease or whatever, and weare notfighting that. (11 RT 3807-3808.) In his penalty phase closing argument, the prosecutor again conceded that the records and testimony showedthat appellant had “problems with learning and problemson I.Q.tests[.]” (12 RT 3918-3919.) But, he argued that appellant had the ability to choose and knew right from wrong. (12 RT 3915.) He also arguedat length that thecriteria for antisocial personality disorder were present and that the jury could “fit” that with appellant. (12 RT 3935-3937.) As noted, Dr. Bensontestified several times to the contrary. (10 RT 3564-3565, 3480-3483.) Finally, the prosecutor addressed the problem of appellant’s “organic brain syndrome.” (12 RT 3940.) He once again rejoined that appellant was not incapable of choice, but rather chose to be violent. (12 RT 3941.) In its ruling on the automatic motion to modify the verdict,the trial court stated that it had considered and weighed the opinions of Drs. Cross and Benson regarding appellant’s “brain defect.” (12 RT 4075.) But, while tracking the sentencing factors set forth in section 190.3, the court stated that: Despite the evidence presented in mitigation, this court does not find that this offense was committed while the defendant was underthe influence of extensive or nonextensive mental or emotional disturbance. Further, this court finds that the defendant did not have such a mental disease or defect to such a degree that the time-- that at the time the offense was committed he didn’t appreciate the criminality of his conduct or wasn’t able to conform his conduct to the requirements of the law. Nothing affected the defendant’s ability to choose a course of action. (12 RT 4077-4078.) 34 34, These statements track imperfectly two of the sentencing factors set forth in section 190.3: In determining the penalty, the trier of fact shall take into Footnote continued on next(page... _67- C. The Death Sentence Meted Out to Appellant Violates the Eighth and Fourteenth Amendments The evidence set forth above clearly and convincingly establishes that appellantis significantly impaired intellectually (that is, mentally retarded), brain-damaged, and severely mentally ill. That evidence was unrefuted and for the most part conceded bythe prosecution. The trial court’s statements made duringits ruling on the automatic motion to modify the verdict are not inconsistent with that evidence. 35 The court’s initial statement, regarding whether or not appellant was under the influence of extreme mental disturbanceat the time of the offense,is unclear: “this court does not find that this offense was committed while the defendant was under the influence of extensive or nonextensive mental or emotional disturbance.” (Emphasis added.) Assuming, however, that the court meant that appellant was not underthe influence of an extensive mental disturbance at the time ofthe capital offense, that statement was consistent with the evidence showing that appellant is episodically psychotic and that his damaged mental state “fluctuates.” (10 RT 3564; 11 RT 3788; see also 10 CT 3398- 3399, 3406.) The effects of severe mentalillness are often intermittent. account any ofthe following factors if relevant: [J]. . .| (d) Whether or not the offense was committed while the defendant was underthe influence of extreme mental or emotional disturbance.[J .. .] (h) Whether or not at the time ofthe offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conductto the requirements of law was impaired as a result of mental disease or defect, or the effects of intoxication. 35. Thetrial court made nocredibility findings regarding the testimony of Drs. Cross and Benson. Indeed,it relied, in part, on Dr. Cross’s testimony to deny appellant’s pre-penalty phase motion to proceed without counsel, (8 RT 2960-2961.) - 68 - (Winick, The Supreme Court's Evolving Death Penalty Jurisprudence: Severe Mental Tilness as the Next Frontier (2009) 50 B.C. L.Rev. 785, 788, fn. 35.) The court’s statement may have simply recognized that, notwithstanding appellant’s severe mental impairments, he was not psychotic at the time of the capital offense. Nonetheless, evidence of appellant’s brain damage and retardation was proper mitigating evidence even if those conditions did not cause the capital crime. (See Tennard v. Dretke (2004) 542 U.S. 274, 283-287; People v. Smith (2005) 35 Cal.4th 334, 359.) Thetrial court’s second statement, that appellant knew right from wrong and wasable to choose his behaviorat the time of the offense, was acknowledged by the defense at both the guilt and penalty phases and was consistent with the defense’s case. (7 RT 2578-2579; 12 RT 3965.) That statement, and the defense, were consistent with the fact that a person can be mentally retarded or mentally ill, and still know the difference between right and wrong. (See Atkins v. Virginia, supra, 536 U.S. at p. 318; People'v. Coddington (2000) 23 Cal.4th 529, 608, overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) In reality, the trial court’s statements were directed at holding appellant responsible for his actionsat the time of the capital offense. (Cf. Akznsv. Virginia, supra, 536 US.at p. 306 [“mentally retarded persons who meet the law’s requirementsfor criminal responsibility should be tried and punished when they commit crimes’’].) Neither statement, however,is inconsistent with the clear and unrefuted evidence that appellantis significantly impaired intellectually, brain damaged, and severely mentally ill. The evidence of appellant’s severe brain impairments establishes that the death sentence imposed in this case violates the state and federal - 69 - constitutions. 36 The Eighth Amendmentforbids a punishmentthatis disproportionate to a defendant’s “personal responsibility and moral guilt.” (Enmund v. Florida (1982) 458 U.S. 782, 801; see also Roper v. Stamons (2005) 543 U.S. 551, 560; Arkins v. Virginia, supra, 536 US. at p. 311; Sokm v. Helm (1983) 463 U.S. 277, 286-292, 303). Capital punishment must “be limited to those offenders ... whose extreme culpability makes them ‘the most deserving of execution.” (Ibzd., quoting Arkins, at p. 319.) The Eighth Amendment applies with “special force” to capital cases. (Roper, at p. 568.) The high court has not addressed whether the Eighth and Fourteenth Amendments bar the execution of a person, such as appellant, whois significantly impaired intellectually, significantly brain-damaged and_severely mentally ill. 37 However, two decisions from the high court, issued after appellant’s case was tried -- Atkins v. Virginia, supra, 536 U.S. 304, and Roper »v, Simmons, supra, 543 U.S, 551 -- establish that the death sentence in his case violates the federal Constitution. In Atkins, the high court concluded that the Eighth and Fourteenth Amendments bar the execution of mentally retarded persons. (A¢kins v. Virginia, supra, 536 U.S. 304 at p. 321.) The Court found that a national 36. The following arguments also apply to appellant’s claim that his execution would violate the prohibition against cruel or unusual punishment foundin article I, section 17 of the California Constitution. (Cf. People v. Bean (1988) 46 Cal.3d 919, 957-958.) 37. A numberof courts have thus far refused to extend Atkins to the mentally ill. (See In re Neville (5th Cir. 2006) 440 F.3d 220, 223; Diaz v. State (Fla. 2006) 945 So.2d 1136, 1150-1151; Lewzs v. State (Ga. 2005) 620 S.E.2d 778, 786; State v. Johnson (Mo. 2006) 207 S.W.3d 24, 51; State v. Hancock (Ohio 2006) 840 N.E.2d 1032, 1059-1060.) Noneofthose cases involved a defendant, such as appellant, who presented clear, convincing, and unrefuted evidence of brain damage,significant impairments in intellectual functioning, and severe mentalillness. -70 - consensus existed against the execution of the mentally retarded. (Jd atpp. 311-317.) It also examined the moral culpability of mentally retarded persons and determined that, because of their impairments in reasoning, judgment, and control of their impulses, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. (Id at pp. 317-320.) The Court also examined the acceptable goals served by the death penalty -- retribution and deterrence -- and concluded that, in light of the impairments and resultant diminished culpability of mentally retarded persons, a serious question exists as to whether the execution of such persons would measurably further those goals. (Id at pp. 318-320.) The Court concludedthat the lesser culpability of the mentally retarded “does not merit” a death sentence. (Id. at p. 319.) In Roper, the Court applied a similar analysis and concluded that the Eighth and Fourteenth Amendments bar the execution of persons who were juveniles at the time of their crimes. (Roper v. Simmons, supra, 543 U.S. 551 at p. 578.) In addition to finding a national consensus against the execution of juveniles (éd. at pp. 564-567), the Court noted that juveniles are generally less mature and have an underdevelopedsense of responsibility and, as a result, tend to act impulsively and may make decisions without considering the consequences. They also tend to be more vulnerable to outside influences and negative pressures,including peer pressure, because they haveless control, or less experience with control, over their surrounding environment. (Id. at pp. 569-570.) Based on those differences, and others, the Court concluded that the irresponsible behavior of juveniles could not be considered as “‘morally reprehensible as that of an adult.” (Id. at p. 569.) The Court further concluded,as it had in Az&zns, that in light of the diminished culpability of juveniles, “the penological justifications for the death penalty apply to them -71- with lesser force than to adults.” (Id. at p. 571.) 38 Applying the principles set forth in _Azkius and Roper to this case, the following conclusions must be reached: the death sentence meted out to appellant -- brain-damaged,significantly impaired intellectually, and severely mentallyill -- is incompatible with this nation’s evolved standards of decency, is excessive and disproportionate to appellant’s diminished culpability, and makes no measurable contribution to any acceptable goals of capital punishment. First, the death sentence imposed on appellant is incompatible with this nation’s evolved standards of decency. Both Arkins and Roper stressed that the meaning of the Eighth Amendment’s prohibition on excessive or disproportionate punishmentis not static: rather, it “draw[s] its meaning from the evolving standards of decencythat mark the progress of a maturing society.” (Atkins v. Virginia, supra, 536 US. at pp. 311-312,internal quotation marks omitted.) The Court ascertains those standards, in part, by assessing whether a national consensus exists against the execution of certain individuals. (Id. at pp. 311-317; Roper v. Simmons, supra, 543 U.S. at pp. 563- 567.) Appellant’s impaired intellectual functioning,a full-scale 1Q of69,is significant and has existed since he was a child. Atkins recognized that a national consensus exists against the execution of such defendants. (See Atkins v. Virginia, supra, 536 U.S, at p. 316.) Heis also significantly brain-damaged andseverely mentally ill. There 38. In Kennedy v. Louisiana (2008) __ US. __, 128 S.Ct. 2641, the Supreme Court followed the principles set forth in Arkins and Roper, and held that the Eighth Amendmentprohibits the death penalty for the rape of a child where the crime did not result, and was not intendedto result, in the death of the victim. (Id. at pp. 2649-2651, 2664.) 72 - is no legislative consensus against the execution of the severely mentallyill. Only onestate that utilizes the death penalty (Connecticut) categorically bars the execution of such persons. (See Note, Apphing Atkins v. Virginia To Capital Defendants With Severe Mental Illness (2005) 70 Brook. L.Rev. 995, 1005.) However,legislative action is not the sole evidence of the nation’s evolving standards of decency; evidence ofa professional consensus against the execution of certain personsis also relevant. (See Atkins v. Virginia, supra, 536 USS.at p. 316, fn. 21; Roper v. Simmons, supra, 543 U.S, at pp. 575-578.) In this regard, subsequentto the high court’s decision in Arkins, the American Bar Association (ABA) Section of Individual Rights and Responsibilities (RR) established a Task Force on Mental Disability and the Death Penalty. The Task Force ultimately recommended exempting those with severe mental illness from capital punishmentin certain circumstances. (See Recommendations ofthe American BarAssociation Section ofIndividual Rights and Responsibilities Task Force on Mental Disabihty and the Death Penalty (2005) 54 Cath. U. L.Rev. 1115.) Those recommendations have been adopted in whole or in part by a number of professional organizations. (The Supreme Court's Evoluing Death Penalty Jurisprudence: Severe Mental Illness as the Next Frontier (2009) 50 B.C. L.Rev. 785, 789-790, fn. 37.; see also State v. Ketterer (Ohio 2006) 855 N.E.2d 48, 86-87, 106 (conc. opn. of Lundberg Stratton,J.).) Other indicia of a national consensus against the execution of the severely mentally ill include a 2002 Gallup poll, where 75% of those sutveyed opposed executing such persons. (See State v. Ketterer, supra, 855 N.E.2d at p. 85 (conc. opn. of LundbergStratton, J.) [providing Gallup poll data].) That poll is consistent with the actions of sentencing juries, another indicium of this nation’s evolved standards of decency: In State v. Nelson (N.J. 2002) 803 A.2d 1, Justice Zazzali, in a concurring opinion, observed that an examination of jury verdicts in New Jersey capital sentencing trials showed a “growing 73 - reluctance to execute those whose mental disease . . . contributes to their difficulty in reasoning about whatthey are doing.” (Id at pp. 42-43 (conc. opn. of Zazzali, J.).) A broader social consensus against the execution of defendants with severe mental illness is evidenced by the fact that international human rights norms condemn,and customary international law prohibits, the death penalty for such persons. (See Winick, supra, 50 B.C. L.Rev. at pp. 818-819; Note, Is The Death ofthe Death Penalty Near? The Impact of Atkins and Roper on the Future of Capital Punishmentfor Mentally IM Defendants (2007) 76 Ford. L.Rev. 465, 505-507.) International law provides “significant confirmation” of a social consensus against the execution of a person whois brain-damaged andseverely mentally ill. (Roper v. Simmons, supra, 543 US.at p. 578; Atkins v. Virginia, supra, 536 US. at p. 316,fn. 21.) Thus, not only does a national consensus exist against the execution of the mentally retarded, it also exists against the execution ofthe severely mentally ill. Appellant is both. Second, Akins and Roper clearly establish that the presence or absence of consensusis not dispositive; ultimately, the Court must bring its own judgmentto bear on the issue. (4¢kins v. Virginia, supra, 536 USS.at p. 313; Roper v. Simmons, supra, 543 U.S. at p. 5@3; see also Kennedy v. Louisiana (2008) __ US. __, 128 S.Ct. 2641, 2650-2651, 2658-2660.) When that judgmentts brought to bear on appellant’s case, only one reasonable conclusion can be reached: the impairments caused by appellant’s brain damage, significantly impaired intellectual functioning, and severe mental illness are, for Eighth Amendment purposes,either identical to or more severe than the impairments associated with the mentally retarded and juveniles. The impairments resulting from appellant’s impaired intellectual functioning -- a full scale IQ of69 -- are identical to those found in the mentally retarded, including impairments in the areas of reasoning, judgment, -74- communication, control of impulses, and the ability to understand and process information. (See Atkins v. Virginia, supra, 536 U.S. at pp. 309, 315-320.) The impairments resulting from appellant’s brain damage are similar to those suffered by mentally retarded persons. (See zd. at pp. 306-307, 317-320; see generally Snodgrass & Justice, “Death Is Different”: Limits On The Imposition Of The Death Penalty to Traumatic Brain Injuries (2007) 26 Dev. Mental Health L. 81.) The impairments from appellant’s severe mentalillness are similarto, if not worse than, those found in the mentally retarded. Appellant is episodically psychotic, and suffers symptomsofhallucinations and delusions. Histhought processes are grossly distorted and impaired, and are paranoid, delusional and not reality-based. His diagnosis of schizotypal personality disorder is a severe mental disorder. (See United States v. Long (Sth Cir. 2009) 562 F.3d 325, 334- 336; Overstreet v. State Ind. 2007) 877 N.E.2d 144, 172-174.) %° Given that the impairments from which appellant suffers are identical to or worse than the impairments suffered by the mentally retarded and juveniles, his culpability for the capital offense is diminished to the same extent as, if not more than, those persons. Third, both Akins and Roper stressed that a death sentence is excessive under the Eighth and Fourteenth Amendmentsif it makes no “measurable contribution”to either of the acceptable goals of capital punishment: retribution and deterrence of capital crimes. (Atkins v. Virginia, supra, 536 US. at p. 319; see also Kennedy v. Louisiana, supra, 128 S.Ct. at p. 2661.) Neither goal is measurably furthered in appellant’s case. Retribution is inappropriate and 39. The American Psychiatric Association defines “severe mental illness” as including “disorders with psychotic features that are accompanied by some functional impairment and for which medication or hospitalization is often required.” (Note, supra, 76 Ford. L.Rev. at p. 488 & fn. 187.) Appellant clearly meets this definition. -75- deterrence would be ineffective for a person such as appellant, who suffers from impairmentsin intellect, reasoning, judgment, and control, is episodically psychotic, suffers symptomsofhallucinations and delusions, and possesses thought processes that are grossly distorted, paranoid, delusional, and not reality-based. (See Atkins v. Virginia, supra, 536 US.at pp. 318-320; Sémmonsv. Roper, supra, 543 US. at pp. 571-572; see also State v. Ketterer, supra, 855 N.E.2d at pp. 84-85 (conc. opn. of Lundberg Stratton,J.).) The Eighth and Fourteenth Amendments provide an additional justification for precluding the state from executing appellant. Because death is qualitatively different from any other kind of punishment, both the state and federal constitutions require a heightened degree ofreliability “in the determination that death is the appropriate punishmentin a specific case.” (Woodson v. North Carolina (1976) 428 U.S. 280, 305; Peopke v. Horton (1995) 11 Cal.4th 1068, 1134-1135.) Concomitantly, the federal Constitution does not tolerate a “risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty[.]” C4tkins v. Virginia, supra, 536 US.at p. 320, quoting Lockett v. Ohio (1978) 438 U.S, 586, 605 (plur. opn.); see also People v. Benson (1990) 52 Cal.3d 754, 801 [the Eighth Amendmentbars “the use of procedures that create a constitutionally unacceptable risk” of disproportionate penalties].) In Akins, the high court considered the risks inherent whenthestate seeks the death penalty against the mentally retarded. Such defendants “may be less able to give meaningful assistance to their counsel andare typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes.” (Atkins v. Virginia, supra, 536 U.S.at pp. 320-321.) Mental retardation can also be “a two-edged sword that may enhancethelikelihood that the aggravating factor of future dangerousnesswill be found bythe jury.” (Ud. at p. 321.) _ 76 - These samerisks exist here due to appellant’s impairments. As in Atkins, his significantly impaired intellectual functioning, although raised as a mitigating factor, risked being considered by the jurors as aggravation; in particular, as evidence of future dangerousness and lack of remorse. The same is true of his brain damage: many of the symptomsresulting from frontal-lobe brain damage are consistent with the symptoms of antisocial personality disorder, a strong aggravating factor. (See Atkins v. Virginia, supra, 536 USS.at p. 310; Satterwhite v. Texas (1988) 486 U.S. 249, 252-253; see also Redding, The Brain-Disordered Defendant: Neuroscience and Legal Insanity in the Twenty-First Century (2006) 56 Am. U. L.Rev. 51, 73.) Indeed, the prosecutor here argued, in the face of Dr. Benson’s contrary diagnosis, that appellant“fit” the diagnosis of antisocial personality disorder, including a lack of remorse. (12 RT 3935-3937.) If prosecutors are susceptible to mistaking brain damage and severe mentalillness for sociopathy, then capital sentencing jurors, particularly when urged to do so by the prosecutor, are at risk of making the same mistake. (See Atkins v. Virginia, supra, 536 U.S. at pp. 320-321; Roperv, Simmons, supra, 543 US. at pp. 572-573; see also Winick, supra, 50 B.C. L.Rev. at p. 816 & fn. 227.) In Avkins, the high court also noted the risk that even a persuasive showing of mental retardation would not be able to overcome the aggravating factors in a capital case. (Atkins v. Virginia, supra, 536 US.at p. 320.) Similarly, in Roper, the Court concludedthat a “likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth|[.]” (Roper v. Simmons, supra, 543 US.at p. 573.) That same risk exists here. The circumstances of the capital offense for which appellant was convicted were, as the trial court stated, horrific and brutal. (12 RT 4078-4079.) In the face of such aggravating circumstances, a substantial risk exists that the aggravating factors overpowered appellant’s case _77 - forlife. The question under the Eighth Amendmentclaim raised herein is whether, apart from the brutality of the crime, appellant’s culpability for the capital offense is sufficiently reduced due to the fact that he is brain-damaged, significantly impaired intellectually, and severely mental ill. (See State v. Nelson, supra, 803 A.2d at pp. 41, 49 (conc. opn. of Zazzali, J.) [“in some instances a defendant’s diminished cognitive or reasoning capacities may bar the weighing of aggravating and mitigating factors because the defendant’s diminished culpability, by itself, removes execution as a possible punishment’].) As in Atkins and Roper, appellant’s culpability for the capital offense is so limited by his brain damage, significantly impaired intellectual functioning,and severe mental illness, that the death sentence is disproportionate and excessive, and makes no measurable contribution to the acceptable goals of capital punishment. That sentence violates the Eighth and Fourteenth Amendments. D. The Death Sentence Violates Appellant’s Rights under the Due Process and Equal Protection Clauses of the State and Federal Constitutions The death sentence meted out to appellant also violates appellant’s tights to due process and equal protection underthe state and federal constitutions. The Equal Protection Clause of the Fourteenth Amendmentessentially requires that like cases be considered alike. (See Vacco v. Quill (1997) 521 USS. 793, 799; City of Cleburne, Tex. v. Cleburne Living Center (1985) 473 U.S. 432, 439; Phyker v, Doe (1982) 457 U.S. 202, 216.) Classifications by state actors are not prohibited by that clause, but the state is forbidden from “treating differently persons who are in all relevant respects alike.” (Nordlinger v. Hahn (1992) 505 US.1, 10.) The Due Process Clause of the Fourteenth Amendmentcontains,in addition to a procedural component, a substantive componentthat protects 78 - fundamental rights from infringement by the states no matter what processis provided, unless the infringementis narrowly tailored to serve a compelling state interest. (See Reno v. Flores (1993) 507 US. 292, 301-302; Planned Parenthood ofSoutheastern Pa. v. Casey (1992) 505 U.S. 833, 846-850.) The California Constitution provides similar protections. (Cal. Const., art. I, §§ 7, 15 & 24.) . This Court has held that the federal and state guarantees of equal protection are substantially equivalent and are analyzed in a similar fashion. (Manduley v. Superior Court (2002) 27 Cal.4th 537, 571-572.) In addition,the analysis of substantive due processclaimsis substantially similar to the analysis applied to equal protection claims. (See Zablocki v. Redhail (1978) 434 U.S. 374, 395 (conc. opn. of Stewart, J.); People v. Jenkins (2000) 22 Cal.4th 900, 1053.) Therefore, the following analysis applies to both claims. When state action burdens a fundamentaltight or targets a suspect class, that action receives heightened scrutiny under the Fourteenth Amendment’s Equal Protection Clause. (Romer v. Evans (1996) 517 US. 620, 631; see also Washington v. Glucksberg (1997) 521 U.S. 702, 720-721 [Due Process Clause “provides heightened protection against government interference with certain fundamentalrights andliberty interests”); In re Smith (2008) 42 Cal.4th 1251, 1262-1263.) In this case, the interest or right involved is fundamental: appellant’s life. (U.S. Const. 8th & 14th Amends.; see Ohio Adult Parole Auth. v. Woodard (1998) 523 U.S. 272, 288 (conc. opn. of O’Connor,J.); Tennessee v. Garner (1985) 471 U.S.1, 9.) 40 40. In Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S.at pages 442 through 447, the high court concluded that mentally retarded persons were not a quasi-suspectclass for equal protection purposes. In Heller v. Doe (1993) 509 U.S. 312, 319-321, the Court rejected an equal protection attack on a statute that allows commitmentof persons with mental retardation on lesser Footnote continued on nextpage... _79 - PRRRaatTRRERomRipetTAERA TY ogyEo To succeed on an equal protection claim, a person must show that“the state has adopteda classification that affects two or mote similarly situated groups in an unequal manner.” (In re EricJ. (1979) 25 Cal.3d 522, 530, emphasisin original; see also City of Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S. at p. 439.) In this case, the classification involveseligibility for the death penalty. A person such as appellantwhois brain-damagedandseverely mentally ill is eligible to be sentenced to death; a mentally retarded person or a juvenile is not, both by statute and by judicial decision. (See Atkins v. Virginia, supra, 536 US. at p. 321; Roper v. Simmons, supra, 543 U.S. at pp. 578-579; §§ 190.5, subd.(a), 1376.) For purposes of equal protection and due process, this unequal treatment cannotsurvive any standard of review becauseit is not rationally based: as argued above, a person with brain damage and severe mentalillness, particularly when diagnosed as psychotic, has the same or worse impairments than a mentally retarded person or juvenile. (See Slobogin, WhatAtkins Could Meanfor People With Mental I/ness (2003) 33 N.M. L.Rev. 293, 303-306.) “Although ... there are psychological differences between people with mental retardation and people with mentalillness, there are no significant, legally relevant differences between these two groups, or between them and children.” (Slobogin, Mental I/ness and the Death Penalty (2000) 1 Cal. Crim. L.Rev. 3, 7.) The culpability and deterrability of all three groupsis equally diminished. Thus, there is no rational, legitimate, or compelling interest advanced bythestate’s disparate death-eligibility treatment of defendants who are brain-damaged and severely mentally ill, Permitting the state to execute a brain-damaged and severely mentally ill person, such as appellant, while barring the state from executing the mentally retarded andjuveniles, violates standard of proof than persons with mentalillness. - 80 - appellant’s right to equal protection and due process underthe state and federal constitutions. (See Cleburne v. Cleburne Living Center, Inc., supra, 473 US, at p. 439; Washington v. Glucksberg, supra, 521 U.S. at pp. 720-721; Wolf». McDonnell (1974) 418 U.S. 539, 558 [The touchstone of due processis protection of the individual against arbitrary action of government”].) E. Appellant’s Death Sentence Must Be Reversed The death sentence meted out to appellant is excessive, disproportionate to his culpability, and makes no measurable contribution to retribution and deterrence. It also violates appellant’s rights to due process and equal protection. That sentence must be reversed, and the judgment modified to life imprisonment without possibility of parole. (See §§ 1181, subd. 7, & 1260.) // - 81 - 2. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY PERMITTING THE PROSECUTION TO PLAY FOR THE JURY TAPE-RECORDINGSOF THE 911 CALLS MADE BY THE TWO SURVIVING VICTIMS OF THE SALON INCIDENT A. Procedural and Factual Background After the two perpetrators left the DeCut Salon, as Shayne Yorklay bleeding from a gunshot to the head, Amy Parish and Jennifer Parish each telephoned 911 for help. Both calls wereat least partially tape-recorded. # The audiotapes, while brief, are emotionally devastating. (Exhs. 11 & 71.) Amy,in her 911 call, informed the dispatcher that the victim had been shot in the back of the head, but was still breathing, and that “there’s stuff coming out of his nose.” Shestated: “It’s two black men. They each have a gun.” There followed a series of questions and answers concerning care for the victim. (Exh, 71; see 11 CT 3773-3776.) Jennifer, clearly distraught and frantic, yelled that her “husband’s been shot in the head”and cried for help. (Exh, 11; see 11 CT 3769.) . Appellant filed a motion in limine seeking to exclude the tape- recordings of the 911 calls at both the guilt and penalty phases. That motion cited both statutory and constitutional groundsin arguing that the 911 tape- recordings were irrelevant and unduly prejudicial. (6 CT 2374-2378.) The prosecution filed an opposition, arguing that the tape-recording of Jennifer Parish’s 911 call 42 was relevant because it showed that she was present at the scene of the crime, contained a “first hand description” of the shooting and events that followed, showed malice by indicating that the victim 41. The transcript ofJennifer Parish’s 911 call indicates that there was an “unknowntechnical difficulty with the tape.” (11 CT 3771.) 42. Although appellant’s motion was clearly directed at both 911 calls, the prosecution’sinitial opposition was limited to Jennifer Parish’s call. - 82 - was shot in the back of the head, and provided a description ofthe killers and their mode of transportation. (7 CT 2564-2567.) The opposition conceded that the tape-recording ofJennifer’s 911 call was “unpleasantto listen to because it conveys so much humansuffering,” but argued that “human suffering is an inherentpart ofthis trial,” and that the jurors would learn of Jennifer’s suffering, in any case, through her testimony. (7 CT 2567.) The opposition also claimed that the tape-recording should be admittedat the penalty phase undersection 190.3, factor(a), “regardless of prejudice to the defendant.” (7 CT 2567-2568.) Thetrial courtinitially heard argument on the motion on December 17, 1999. (3 Pretrial RT 810-815.) Defense counsel urged that the 911 tape- recordings were not relevant to any disputed factual issue (3 Pretrial RT 810- 811), and described the contents as follows: It is the most emotional thing I have ever heard in mylife. I am not going to pull any punches there. It is clear. The prosecutor by his own language may sink his own ship -- and maybe I should havesaid this first. The language -- the tape shows, quote, so much humansuffering, unquote. (3 Pretrial RT 812.) The prosecutor argued that the tape-recordings were “valuable, first, for their immediacy,” and that: They show thetruth and fresh recollection of the witness. And, also, I think they are going to draw the juror’s attention in that they are so immediate and they are something that actually happenedthe day of the crime, rather than something that’s been later recounted. (3 Pretrial RT 814.) After a recess, the court informed the prosecutorthat the audiotapes did not match the transcript provided to the court by the prosecution. (3 Pretrial RT 868.) On June 29, 2000, the prosecution filed corrected transcripts of the two 911 calls. (8 CT 2770-2777.) On July 14, 2000,the trial court again heard argumenton the admissibility of the 911 tape-recordings. (4 Pretrial RT 1021-1028.) Defense _ 83 - counselreiterated that the tape-recordings had no relevance or probative value, and were prejudicial. (4 Pretrial RT 1024-1025.) The prosecutor argued: What you have is you have [Jennifer and Amy]talking about two black men with guns. These are issues that the prosecution has to prove. They go to 1.D. Theygoto their credibility as having that impression fresh in their mind, contemporaneouswith the murder and robbery. (4 Pretrial RT 1025-1026.) Defense counsel replied that the defense was not disputing those facts, and that, in light of the fact that the witnesses were going to testify that the two men were Black and had guns,the tape- recordings were‘‘further removed and we have more prejudice and no value at all.” (4 Pretrial RT 1026.) The prosecutor retorted that, unless the tape- recordings were more prejudicial than probative, “I ought to be able to prove it the way I want to proveit.” (4 Pretrial RT 1026-1027.) Thetrial court observed that while there did not appear tobe an issue as to the location of the wound,there did appear to be an issue as to the identification of the perpetrators: I know we don’t have location of the wound issues, but there certainly is some statements made by one of the defendants regarding accidental shooting. {| There appears to be an issue as to whether there is one defendant or two -- one person or two personsinside this salon whenthis killing occurs, That impacts a whole slew ofissues, it would appearto this court, regarding identification, guilt, assuming the people sustain their burden as relates to issues -- (4 Pretrial RT 1027.) Defense counsel interjected that there was no issue as to identification: There is no issue that I can see that involves whether there is one person or two people in the salon. Thereis no issue as to whetherthere is two -- they are African Americans. There is no issue like that. So that’s what the tape addresses, two male blacks, I think it says, or two blacks with guns. It is not in dispute. §] That’s all I can address, There isn’t an I.D.issue with _ 84 - respectto that atall. (4 Pretrial RT 1027-1028.) The court denied appellant’s motion: I don’t know,I -- the court is going to overrule the objection. I do see somecredibility/believability issues. I see someclassic 2.20 CALJIC issues [43] that go to these people’s, what I am going to assume is going to be proffered testimony. And I think the people have a right to put that on; put that evidence on outfront, so to speak, as opposedto reserving and waiting and seeing whether you can rehabilitate somebody. (4 Pretrial RT 1028.) The court stated thatit had “done the weighing process, and the probative value outweighs any prejudicial effect[.]” (4 Pretrial RT 1028.) In his guilt-phase opening statement, the prosecutor previewed the admission of the 911 tape-recordings: The two killers, the robbers, the cowards,at that point left the salon, and actually both sisters ended up calling 911. You’re going to hear the 911 tape. We will give you little transcriptto follow along with when weget to thosepoints oftheir call in to 911. The evidence will show they held Shayne andjust sat there and watched him die. (4 RT 1766.) At the guilt phase, both 911 tape-recordings were played for the jury, and the jurors were provided with transcripts of those recordings. (4 RT 1839-1840; 6 RT 2166-2167; Exhs, 11 & 71; QCT 3768-3771, 3772-3776). At the penalty phase, the jury was instructed to consider “all the evidence which has been received during any part of thetrial of this case.” (12 RT 4039.) 43, CALJIC No. 2.20 informsthe jury that it is the sole judge of the credibility of a witness, andlists factors that the jury may consider in determining credibility. The jury here was given thatinstruction at both the guilt and penalty phases. (9 CT 3097; 8 RT 2872-2783; 10 CT 3434-3435; 12 RT 4034-4035.) - 85- B. The Trial Court Erred in Permitting the Prosecution to Introduce the 911 Tape-Recordings into Evidenceat the GuiltPhase 1. The 911 Recordings Were Not Relevant to Any Disputed Fact at the Guilt Phase Evidenceis relevantif it has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination ofthe action” (Evid. Code, § 210), 4 and is admissible “unless excluded under the federal or California Constitution or by statute” (People v. Scheid (1997) 16 Cal.4th 1, 13; see also Cal. Const., art. I, § 28, subd. (d); § 351). “The test of relevance is whether the evidence tendslogically, naturally, and by reasonable inference to establish material facts such as identity, intent, or motive.” (Scheid, at p. 13, internal quotation marks omitted.) A trial court has broad discretion in determining the relevance of evidence. (Id at p. 14.) On appeal, a trial court’s ruling on relevance is reviewed under the abuse-of-discretion standard. (People v. Wallace (2008) 44 Cal.4th 1032, 1057-1058.) The 911 tape-recordings were not relevant to any disputed or material fact of consequenceat the guilt phase. First, as the trial court correctly concluded, mostof the theories offered by the prosecution did not establish relevance. There was no disputed fact regarding the location of the fatal gunshot wound to the victim. (4 Pretrial RT 1025-1027.) Similarly, although unstated by the court, there was no dispute that Jennifer and Amy Parish were “present at the scene of the crime.” (7 CT 2565.) Second,the theory of relevancerelied upon bythetrial court -- that the tape-recordings were relevant to an identification issue -- was erroneous. There was no question that two African-American men with guns committed 44, All further statutory references madein this argumentare to the Evidence Code, unless otherwise stated. - 86 - the salon robbery and killing. The defense concededin its opening statement that appellant was involved in both incidents: “There is no question that Kevin Boyce was involved in the robbery at the salon. There is no question he was involved in the robbery at the pizza establishment. We concede that.” (4 RT 1781-1782.) Both Amy and Jennifer Parishtestified that two African- American men with guns committed the salon offenses. (4 RT 1812-1813, 1843, 1855, 1893; 5 RT 2097, 2199.) Neither 911 call purported to identify anyone. Thus, neither tape-recording was relevant to an identification issue. Thefacts that were in dispute in this case involved whether appellant was the shooter, and whether the special circumstance allegations were proved beyond a reasonable doubt. Onthose factualissues, the 911 tape-recordings had nothing to say. In its written opposition to the defense motion, the prosecution cited to this Court’s opinion in Peopk v. Roybal (1998) 19 Cal.4th 481, where this Court addressed whethera trial court erred in admitting a tape-recording of a 911 call by the victim’s husbandafter discovering her body. (Id. at p. 515.) The lower court concluded, and this Court agreed, that the tape-recording was relevant to show the husband’s “initial reaction to the discovery of his wife’s body and dispel any suggestion that he was involved in the murder; [it] also described the scene ofthe crime.” (Id. at pp. 516-517.) Neither of those theories of relevance is present in the instant case: there was no suggestion that the victims were involved in the crime; and, the tape-recordings do not describe the scene of the crime. 45 45. Several other cases involving 911 calls are also inapposite. In Peopk v, Snow (2003) 30 Cal.4th 43, the defendant soughtto introduce a 911 tape- recording in an attempt to show the existence of a police conspiracy to manufacture evidence against him. The trial court concluded, and this Court agreed, that the tape-recording wasirrelevant because it had “no tendencyin Footnote continued on nextpage... _ 87 - A trial court has zo discretion to admit irrelevant evidence. (People v. Rages (2008) 44 Cal.4th 248, 289.) Because the 911 tape-recordings here were irrelevant to any disputed or material fact at the guilt phase, the court erred in admitting those recordings. 2. Even If Marginally Relevant, the 911 Tape-Recordings Should Have Been Excluded As More Prejudicial Than Probative Even if the 911 tape-recordings were marginally relevant to a disputed or material fact, the trial court clearly erred in concluding that their probative value outweighed “any prejudicial effect.” (4 Pretrial RT 1028.) Undersection 352, a trial court should exclude otherwise relevant evidence when its probative valueis substantially outweighed by the danger of undue prejudice. (See People v. Riggs, supra, 44 Cal.4th at pp. 289-290; Peopée v. Richardson (2008) 43 Cal.4th 959, 1001.) A trial court’s ruling under section 352 is reviewed for an abuse ofdiscretion. (Peopé v. Kipp (2001) 26 Cal.4th 1100, 1121.) . Here, as argued above, the 911 tape-recordings were irrelevant to any disputed or material fact in the case; by definition,irrelevant evidence has no probative value. (See § 210.) If marginally relevant to the identification of appellantas a perpetrator, any such probative value was minimal. Factors affecting the probative value of evidence include whether that evidenceis “unnecessary because it was offered on an undisputed issue” (Peopk v. Avitia (2005) 127 Cal.App.4th 185, 193), or whether it is cumulative to an issue that reason” to show such a conspiracy. (Id. at pp. 90-92, quoting § 210.) In Peopk v. Noguera (1992) 4 Cal.4th 599, this Court concluded that statements made by a coconspirator during a 911 call were properly admitted for a nonhearsay purpose: to establish the existence of a conspiracy. (Id. at pp. 624-625.) In this case, by contrast, the tape-recordings were admitted for the truth of the statements made during the 911 call. (See 4 Pretrial RT 1027-1028.) - 88 - was not reasonably subject to dispute (People v. Ewoldt (1994) 7 Cal.4th 380, 405-406; see also Peopk v. Cardenas (1982) 31 Cal.3d 897, 904 (plur. opn.)). In addition, the probative value of evidence is diminished by the availability of alternative means of proof. (See Od Chief v. United States (1997) 519 US, 172, 184 [discussing federal rules of evidence]; People v. Farmer (1989) 47 Cal.3d 888, 903-904.) : In this case, the only statement on the 911 tape-recordings that was even arguably relevant -- describing the perpetrators as “black men” with guns -- was unnecessary since that fact was undisputed and was cumulative to the testimony by Jennifer and Amy Parish. Moreover, other meansofproof,in particular, a transcript of the 911 tape-recordings, were readily available. On the other hand, the danger of undue prejudice from the admission of the 911 tape-recordings was a near certainty. Prejudice in the section 352 context refers to evidence which is “likely to engender sympathy for the victim ... [or] to arouse the emotionsofthe jurors” (Peopk v. Edelbacher (1989) 47 Cal.3d 983, 1016) or which “uniquely tends to evoke an emotional bias against the defendant” (People v. Doolin (2009) 45 Cal.4th 390, 439, internal quotation marks omitted). The prosecution here conceded that the tape-recordings were “unpleasant” because they conveyed “so much humansuffering.” (7 CT 2567.) But they were much more than that. An experienced defense attorney described them as “the most emotional thing I have ever heard in mylife.” @ Pretrial RT 812.) They are a distraught, frantic and devastating depiction of the surviving victims’ cries and pleas for help. (Exhs. 11 & 71.) By filling the courtroom with the surviving victims’ frantic and distraught pleas for help, the tape-recordings clearly engendered sympathy for the victims, and could only have inflamed the jurors’ emotions. (See Peopk ». E:delbacher, supra, 47 Cal.3d at p. 1016; Peopk v. Love (1960) 53 Cal.2d 843, 856- 857.) Indeed, the prosecutor here revealed his true intent when he argued that - 89 - “Ms. Parish will testify during the trial and the jury will necessarily learn of her suffering: they will learn what she went through as herfiancee [sc] lay dying on thefloor of the hair salon,” (7 CT 2567.) In other words, the tape- recording was offered to show Jennifer Parish’s suffering. Her suffering, however, was notat issue at the guilt phase. At the sametime,the tape- recordings created a clear danger that “thejurors’ desire to see someone broughtto justice for this crime might interfere with their duty to meticulously appraise the evidence.” (People v. Farmer, supra, 47 Cal.3d at p. 907;see also People v. Dookn, supra, 45 Cal.4th at p. 439.) Here, that someone was appellant. The 911 tape-recordings were neither “neutral” nor dispassionate. (Cf. People v. Rages, supra, 44 Cal.4th at p. 291; Peopke v. Bolin (1998) 18 Cal.4th 297, 320.) They were inherently and patently inflammatory, and served no legitimate purpose other than to inflamethe passionsofthe jurors deciding appellant’s fate, The admission of those tape-recordings “pose[d] an intolerable risk to the fairness of the proceedings or thereliability of the outcome.” (Rages, at p. 290, internal quotation marks omitted.) The trial court erred in not excluding those tape-recordings at the guilt phase. C. The Trial Court Erred in Permitting the Jurors to Consider the 911 Tape-Recordingsat the Penalty Phase As Aggravation As noted above,at the penalty phase, the jury was instructed to consider “all the evidence which has been received during any part ofthe trial of this case.” (12 RT 4039.) Thus, the jury presumably considered the 911 tape-recordings in making its penalty determination. In its opposition to the defense motion, the prosecution argued that “the undue prejudice aspect of Evidence Code Section 352 does not apply to 90 - Penal Code Section 190.3 (a) evidence[.]” (7 CT 2568.) 4 That argumentis clearly wrong. In People v. Smith (2005) 35 Cal.4th 334, this Court observed that it has “rejected the Attorney General’s contention that Evidence Code section 352 did not apply to evidence offered under factor (a)[.]” (Id at p. 357, citing Peopk v. Box (2000) 23 Cal.4th 1153, 1201; see also People v. Salado (2008) 44 Cal.4th 93, 158.) 47 : The prosecution also argued that the Jennifer Parish 911 tape- recording “demonstrate[d] the circumstances of the crime by describing the scene shortly after the shooting,” and showed“the specific harm done by appellant “by displaying Jennifer Parish’s suffering at the death of her fiancee [scc].’ (7 CT 2568.) It is true that the Eighth Amendmenterects no perse bar to the admission of certain victim impact evidence, and that, under California law, such evidence is admissible at the penalty phase under Penal Code section 190.3, factor (a), as a citcumstanceofthe crime. (See Payne v. Tennessee (1991) 501 U.S. 808, 825-827; People v. Edwards (1991) 54 Cal.3d 787, 835-836.) However, both the United States Supreme Court and this Court have cautioned that the admission of such evidence may be “so unduly prejudicial that it renders the trial fundamentally unfair,” in violation of due process. (Payne, supra, at p. 825; see also People v. Pollack (2004) 32 Cal.4th 1153, 1180 victim impact evidence may not be “so inflammatory as to elicit from the jup y ry ry 46. Penal Codesection 190.3, factor (a) provides that, in making its sentencing decision at the penalty phase ofa capital trial, the jury must take into account the circumstances of the crime and the existence of any special circumstances found to betrue. 47. This Court has cautioned, however, that a trial court’s “discretion to exclude evidence regarding the circumstances ofthe crime as unduly prejudicial is more circumscribed at the penalty phase than at the guilt phase ofa capital murdertrial, because the sentencer is expected to weigh the evidence subjectively.” (Peopk v. Sakido, supra, 44 Cal.4th at p. 158.) -91- an irrational or emotional response untethered to the facts of the case”].) | This Court addressed the admissibility of a tape-recording of a 911 call from a surviving victim at the scene of a killing in Peop/e v. Hawthorne (2009) 46 Cal.4th 67. This Court concluded that the tape-recording was relevant as showing the immediate impact and harm caused by defendant’s criminal conduct on the surviving victim. (Id at p.1 02.) There can be no gainsaying the fact that a tape-recording of a 911 call from a surviving victim atthe scene of a killing is a unique form ofvictim- impact evidence. The aggravating weight of such evidence is enormous. The potential for that evidence to overwhelm the jurors’ emotionsis patent. The potential for that evidenceto bluntornullify the jurors’ reasoned consideration of the mitigating evidenceis patent. In Hawthorne, the juty was cautioned notto allow its emotional response to the 911 tape-recordings to “subvert their reasoned evaluation of the evidence.” (Id. at p. 103.) Here, however, the jury was merelyinstructed in general termsthat: Sympathyfor the family of the victim is not a matter you may consider in aggravation. Evidence, if any, of the impact of the victim’s death on family members should be disregarded unlessit illuminates some positive quality of the victim’s background and character. (10 CT 3445; 12 RT 4043) It is not clear that this instruction refers to victim- impact evidencerelated to Jennifer or Amy Parish; Jennifer was the victim’s fiancée, not technically a family member. Noris it clear that the instruction tefers to the 911 calls as opposedto their testimony. In any case, the jurors here were not given a specific, explicit admonition, as in Hawthorne, to constrain their emotional response to the 911 tape-recordings. The tape-recordings introduced in this case were so inflammatory as to have posed a risk that the juty’s attention was diverted from its proper role and invited an irrational response. (See People v. Pollack, supra, 32 Cal.4th at p. 92 - 1180.) In short, that evidence was “so unduly prejudicial that it renders the trial fundamentally unfair,” in violation of due process. (Payne v. Tennessee, supra, 501 U.S. at p. 825.) In these circumstances, those recordings should not have been introduced and considered in aggravation at the penalty phase. D. The Error Violated A ellant’s State and Federal Constitutional Rights ~~ The admission of evidence thatis “so prejudicial as to render the defendant’s trial fundamentally unfair” violates due process. (People v. Falsetta (1999) 21 Cal.4th 903, 913; see also U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7 & 15; People v, Partida (2005) 37 Cal.4th 428, 439; McKinney v. Rees Oth Cir. 1993) 993 F.2d 1378, 1380-1385.) Here, the 911 tape-recordings were emotionally devastating, and filled the courtroom with the victims’ frantic cries and pleas for help. (See Exhs. 11 & 71.) They were inherently and patently inflammatory, and served no legitimate purpose other than to inflamethe passions of the jurors against appellant. Their admission rendered appellant’s trial fundamentally unfair. (See Payne v, Tennessee, supra, 501 US. at p. 825.) For similar reasons, the admission of the 911 tape-recordingsalso violated appellant’s right to a reliable, individualized, and nonarbitrary guilt and penalty determination under the Eighth and Fourteenth Amendments, and the parallel provisions of the California Constitution. (U.S. Const., 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16, 17; Ford v. Wainwright (1986) 477 USS. 399, 411; People v. Horton (1995) 11 Cal.4th 1068, 1134-1135.) The tape- recordings had minimal, if any, probative value at the guilt phase, and served no purpose other than to inflame the passions ofthe jurors against appellant. At penalty, the tape-recordings were so inflammatory that they diverted the jury from a “reasoned moral response to the defendant’s background, character, and crime.” (Penry v. Lynaugh (1984) 492 US. 302, 328.) They served to unfairly enhance the prosecution’s aggravating evidence, and to - 93 - improperly diminish the defense’s mitigation. Further, to the extent that state law wasviolated, appellant’s rights to due process, equal protection,a fair trial by an impartial jury, and a reliable death judgment were violated by the arbitrary withholding of a right provided by state law. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. 1, §§ 7, 15, 16; see Hicks v. OR/ahoma (1980) 447 USS. 343, 344-347.) He also had a life interest under the Eighth and Fourteenth Amendments (see Ohio Adult Parole Auth. v. Woodard (1998) 523 U.S, 272, 288-289 (conc. opn. of O’Connor, J.)), and the parallel provisions of the state Constitution, in having unduly prejudicial andirrelevant evidence excluded from his capitaltrial. E. The Trial Court’s Erroneous Admission in Evidence of the 911 Tape-Recordings Requires Reversal of the Special Circumstance Findings and of the Ensuing Death Judgment Although defense counsel here conceded that appellant was guilty of first degree felony murder, he did not concede that the special circumstance allegations were true. For the following reasons, the trial court’s erroneous admission in evidence of the 911 tape-recordings requires reversal of the special circumstancefindings. The showing required to find a violation of due process -- that the evidence was so prejudicial as to render the defendant’strial fundamentally unfair -- necessarily subsumesany test for prejudice. (See Dey », Scully (E.D.N.Y. 1997) 952 F.Supp. 957, 975-976.) Under any standard, however, the special circumstance findings must be reversed. The truth of those findings was not a foregone conclusion. Thejury sent out two questions with respect to the special circumstanceallegations. 48 48. During deliberations, the jury sent a note specifically directed to the peace-officer-killing special circumstance: Footnote continued on nextpage wae 94 - The 911 tape-recordings created a dangerouslikelihood that the jurors’ desire to see someone broughtto justice would interfere with their duty to catefully assess the evidence in determining whetherthe special circumstance allegations were true. Had the error not occurred,it is at least reasonably probable that one or more ofthe jurors would not have foundthe special circumstance allegations to be true. (See People v. Partida, supra, 37 Cal.4th at p. 439; see also People v. Saltido, supra, 44 Cal.4th at p. 159.) Accordingly, the special circumstance findings must be reversed. In the absence of a valid special circumstance, the death judgment mustbe reversed. (Pen. Code, § 190.2, subd. (a); People v. Marshall (1997) 15 Cal.4th 1, 44.) With regard to the effect of the error at the penalty phase,the state cannot show,as it must, that the error was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24; People v. Brown (1988) 46 Cal.3d 432, 448.) The mitigating evidence in this case was undeniably strong. Most significantly, the defense presented clear, convincing, and unrebutted evidence of appellant’s mental retardation, brain damage, and severe mental illness. The evidence also showed that appellant had speech and learning disabilities from a very early age. He wasraised by an alcoholic Clarification/Interpretation on page 51 and 52 of the jury instructions dealing with the retaliation specifics and on page 53, Doesthe peace officer have to perform a duty at the time of the crime|[?] (9 CT 3175; 8 RT 2911; see Arg. 4, post.) It also sent a note regarding the felony-murder special circumstanceallegations: Re: Page 53, Part 2 of the jury instructions. Question: If first degree murder is committed as a consequenceofor results from the intent or commission of armed robbery and/or burglary,is this sufficient to establish the special circumstance cited? (9 CT 3164; ; see Arg. 5, post.) -95- mother whodid not believe in and neglected appellant’s medical needs, did not inform appellant that his stepfather was nothis biological father until appellant was approximately 13-years old, and withheld him from organized sports because ofa fear of injury. Moreover, as a child, appellant’s family changed residences numerous times, and he wasultimately raised in gang- infested, south central Los Angeles. . Underthese circumstances,it is at least reasonably possible that one or more jurors would have voted for life without parole absent the error. The death judgment mustbe reversed. // 96 - 3. THE SPECIAL CIRCUMSTANCE FINDINGS AND THE ENSUING DEATH JUDGMENT MUST BE REVERSED BECAUSE THE TRIAL COURT ERRONEOUSLY AND PREJUDICIALLY INSTRUCTED THE JURY TO CONSIDER APPELLANT’S PUTATIVE FLIGHT IN DECIDING HIS CULPABILITY A. Factual Background At the guilt phase, appellant admitted his identity as one of the perpetrators (4 RT 1781-1782), and disputed only the special circumstance allegations (8 RT 2831-2833). At the guilt phase instructional conference, the prosecution requested thetrial court to instruct the jury with CALJIC No. 2.52, regarding “flight after crime.” (9 CT 2880.) After appellant objected that the instruction was not applicable, the prosecutor argued that there were “two flights” (from the hair salon and from the pizza restaurant). Hestated: “T don’t think ‘flight’ means they aren’t found for a day or two. It means they don’t stick around and own upto the crime.” (7 RT 2640-2641.) The defense countered that “[e]very crime hasflight, assuming they are not caught inside the business or inside the place that they are doing something in,” and that “it’s acts over and above the commission of the crime and leaving the scene that the police aren’t involved that’s really reflective of a guilty state of mind.” (7 RT 2642.) The prosecutor reiterated his argumentthat the instruction applies whenever a person “whodoesan act, who rather than calling the police or rendering aid or doing any of those things which would show a non- guilty state of mind does something that showsa guilty state of mind by leaving the scene, by not sticking around, by not rendering aid....” (7 RT 2642-2643.) The court took the matter under submission (7 RT 2643) and, the following day, overruled the defense objection (8 RT 2657). Accordingly, the jury was instructed that: The flight of a person immediately after the commission of a _97 - crime or after he is accused of a crimeis not sufficientin itself to establish his guilt, but is a fact which, if proved, may be considered by you in lightof all the other proved facts in deciding whether a defendantis guilty or not guilty. The weight to which this circumstanceis entitled is a matter for you to decide. (9 CT 3105; 8 RT 2875.) B. The Trial Court Erred in Instructing the Jury to Consider Appellant’s Putative Flight in Deciding His Culpability 1. There Was No Factual Basis for the Flight Instruction Understate law, a flight instruction is proper where the jury could reasonably infer that the defendant’s flight reflected consciousnessof guilt. (§ 1127c; see People v. Howard (2008) 42 Cal.4th 1000, 1020-1021; People v, Abilex (2007) 41 Cal.4th 472, 521-522.) However, “[e]vidence that a defendantleft the sceneis not alone sufficient; instead, the circumstances of departure must suggest ‘a purpose to avoid being observedorarrested.’ [Citation.]” (Peoph v. Bonilla (2007) 41 Cal.4th 313, 328.) In this case, the evidence showed only that appellant left the scene of the crimes. That evidence wasinsufficient to show that appellant’s decision to leave was motivated by a desire to avoid detection or apprehension for the murder. (People v. Bonilla, supra, 41 Cal.4th at p. 328.) Accordingly, the trial court erred in giving the flight instruction because there was no factual basis for that instruction. ([bid.) 2. The Flight Instruction Unduly Favored the Prosecution, and Was Argumentative and Unnecessary Theflight instruction given here unduly favored the prosecution by highlighting and emphasizing the weightof a single piece of the prosecution’s circumstantial evidence; i.e., the instruction was an improper “pinpoint” instruction. This Court has rejected this claim. (See People v. Howard, supra, 42 Cal.4th at p. 1021; People v. Morgan (2007) 42 Cal.4th 593, 621; Peopk v. Mendoza (2000) 24 Cal.4th 130, 180.) Pursuant to People v. Schmeck (2005) 37 Cal.4th - 98 - 240, 303-304, appellant respectfully urges this Court to reconsider that holding, and concludethat the flight instruction is an improper pinpoint instruction. Moreover, the instruction was argumentative. A trial court must refuse to deliver argumentative instructions (Peopk v. Panah (2005) 35 Cal.4th 395, 486; People v. Sanders (1995) 11 Cal.4th 475, 560), defined as those that “invite the jury to draw inferences favorable to one ofthe parties from specified items of evidence.’ [Citations.]” (Peopk v, Mincey (1992) 2 Cal.4th 408, 437.) Even if neutrally phrased, an instruction is argumentativeifit “ask[s] the jury to consider the impact of specific evidence” (Peopke v. Daniels (1991) 52 Cal.3d 815, 870-871) or “impl|ies] a conclusion to be drawn from the evidence” (People v. Nieto Benitez (1992) 4 Cal.4th 91, 105, fn. 9). Judged by this standard,the flight instruction was impermissibly argumentative. Except for the party benefited by the instructions,there is no discernible difference between the instructions this Court has upheld(see,e.g., People v. Nakahara (2003) 30 Cal.4th 705, 713; People v. Bacigalupo (1991) 1 Cal.4th 103, 123 [CALJIC No, 2.03 “properly advised the jury of inferences that could rationally be drawn from the evidence”], vacated on other grounds, Bacigalupo v. Cakfornia (1992) 506 U.S, 802) and a defense instruction held to be argumentative because it “improperly implies certain conclusions from specified evidence” (Peopk v. Wright (1988) 45 Cal.3d 1126, 1137). Accordingly, appellant respectfully urges this Court to reconsiderits prior decisions, and conclude thatthe flight instruction was impermissibly argumentative. (See Peopk v. Schmeck, supra, 37 Cal.4th at pp. 303-304.) In People v. Nakahara, supra, 30 Cal.4th 705, this Court rejected a challenge to consciousness-of-guilt instructions based on analogy to Mincey, supra, holding that Mzncey was “inapposite for it involved no consciousness of guilt instruction” but rather a proposed defense instruction that “would have -99 . invited the jury to ‘infer the existence of [the defendant’s] version ofthe facts, rather than his theory of defense.’ [Citation.]” (Id at p. 713.) However, this holding does not explain why twoinstructions that are identical in structure should be analyzed differently or why instructions that highlight the prosecution’s version of the facts are permissible while those that highlight the defendant’s version are not. To ensure fairness and equal treatment(see Wardtus v. Oregon (1973) 412 U.S. 470, 474 [the Due Process Clause is meant to protect the balance of forces between the accused andthestate]), this Court should reconsiderits decisions and hold that the flight instruction given here was impermissibly argumentative. Moreover, the instruction on flight was unnecessary. This Court has heldthat specific instructionsrelating to the consideration of evidence that simply reiterate a general principle upon which the jury already has been instructed should not be given. (See Peopk v. Ochoa (2001) 26 Cal.4th 398, 454- 455, disapproved on anotherpoint in Peopée v. Prieto (2003) 30 Cal.4th 226, 263; People v. Lewis (2001) 26 Cal.4th 334, 362-363.) In this case, the trial court instructed the jury on circumstantial evidence with the standard CALJIC Nos. 2.00, 2.01, 2.02, and 8.83. (9 CT 3092-3094, 3139; 8 RT 2869-2871, 2890.) These instructions informed the jury that it may draw appropriate inferences from the circumstantial evidence. There was no needto repeat this general principle in the guise of a permissive inference of consciousnessofguilt. 3. The Flight Instruction Should Not Be Given When, As Here, Identity Is Conceded The flight instruction was also improper because appellant admittedhis identity as one ofthe perpetrators (4 RT 1781-1782), and disputed only the special circumstanceallegations (8 RT 2831-2833). Because any putative flight by appellant following the crimes had nological tendency to resolve those issues, the instruction allowed the jury to infer, on an arbitrary basis, that the special circumstanceallegations were true. - 100 - This Court has repeatedly rejected this claim. (See People v. Thornton (2007) 41 Cal.4th 391, 438; People v. Smithey (1999) 20 Cal.4th 936, 982; People v. Pensinger (1991) 52 Cal.3d 1210, 1245.) Appellant respectfully urges this Court to reconsider its prior decisions, and concludethat the flight instruction should not be given whenidentity is conceded. (See People v. Schmeck, supra, 37 Cal.4th at pp. 303-304.) : 4. The Flight Instruction Permitted the Jury to Draw an Impermissible Inference Concerning Appellant’s Culpability Theflight instruction suffers from an additional defect: by permitting the jury to infer one fact, appellant’s guilt, from anotherfact, flight, it created an improper permissive inference. The Due Process Clause of the Fourteenth Amendment“demandsthat even inferences -- not just presumptions-- be based on a rational connection between the fact proved and the fact to be inferred.” (Peopke v. Castro (1985) 38 Cal.3d 301, 313; see also People v. Rader (1983) 33 Cal.3d 491, 503-504.) For a permissive inference to be constitutional, there must be a rational connection between the facts found by the jury from the evidence and the facts inferred by the jury pursuantto the instruction. (Udster County Court v. Allen (1979) 442 U.S. 140, 157.) A rational connection is not merely a logical or reasonable one;rather, it is a connection that is “morelikely than not.” (Id. at pp. 165-167 & fn. 28.) This test is applied to judge the inferenceasit operates underthe facts of each specific case. (Id. at pp. 156, 162-163.) In this case, the defense conceded that appellant was guilty of first degree felony murder; the sole issues at the guilt phase were whether the special circumstance allegations were true. (4 RT 1781-1782; 8 RT 2745- 2746.) Although consciousness-of-guilt evidence, such as flight, may bear on a defendant’s state of mind after a killing, such evidenceis ot probative of his state of mind immediately prior to or during the killing. (See People v. Anderson - 101 - (1968) 70 Cal.2d 15, 32-33.) In particular, “[c]onduct by the defendant after the killing in an effort to avoid detection and punishmentis obviously not televant for purposes of showing premeditation and deliberation as it only goes to show the defendant’s state of mind at the time and not before or during the killing.” (2 LaFave, Substantive Criminal Law (2d ed. 2003), § 14.7(a), pp. 481-482, emphasis in original: see also Wong Sun v. United States (1963) 371 US. 471, 483, fn. 10 [we have consistently doubted the probative value in criminal trials of evidence that the accused fled the scene of an actual or supposed crime”’)].) This Court has previously rejected the claim that the flight instruction creates unconstitutional permissive inferences concerning the defendant’s mental state. (E.g., People v. Loker (2008) 44 Cal.4th 691, 705-707; People v. Howard, supra, 42 Cal.4th at p. 1021; Peopk v. Boyette (2002) 29 Cal.4th 381, 438- 439.) Appellant respectfully asks this Court to reconsider those cases and hold that the flight instruction given here permitted the jury to draw an’ impermissible inference, and thereby violated his state and federal constitutional rights. (See Peopk v. Schmeck, supra, 37 Cal.4th at pp. 303-304.) C. The Error Violated Appellant’s State and Federal Constitutional Rights Theflight instruction given here deprived appellant of his rights to due process, equal protection, a fair jury trial, and a fair and reliable jury determination of the special circumstance allegations and penalty. (U.S. Const., 6th, 8th & 14th Amends. ; Cal. Const., art. I, §§ 7, 15, 16, &17.) The instruction violated state law by presenting the jury with a partisan argument disguised as a neutral, authoritative statement of the law. (See People v. Wright, supra, 45 Cal.3d at pp. 1135-1137.) The instruction unduly favored the prosecution by highlighting and emphasizing the weight of a single piece of the prosecution’s circumstantial evidence. This unnecessary instructional benefit to the prosecution violated both the Due Process and Equal - 102 - Protection Clauses of the Fourteenth Amendment, andthe parallel provisions of the California Constitution. (See Wardius v. Oregon, supra, 412 US. at p. 479 [holding that state rule that defendant mustreveal his alibi defense without providing discovery of prosecution’s rebuttal witnesses gives unfair advantage to prosecution in violation of due process]; Lindsay v. Normet (1972) 405 US. 56, 77 [holding that arbitrary preference to particularlitigants violates equal protection]; People v. Moore (1954) 43 Cal.2d 517, 526-527 [There should be absolute impartiality as between the People and defendantin the matter of instructions”’].) The error also constituted an arbitrary and unfair deprivation of appellant’s state-created liberty interest in legally-correct and applicable jury instructions, in violation of the Due Process Clause of the Fourteenth Amendment. (See Hicks v. Oklahoma (1980) 447 U.S. 343, 346; Murtishaw v. Woodford (9th Cir. 2001) 255 F.3d 926, 969-970.) By creating an impermissible inference, the instructional error lessened the prosecution’s burden of proof with regard to the special circurnstance allegations and, as a result, violated appellant’s rights under the state and federal constitutions, which “require criminal convictions to rest upon a jury determination that the defendantis guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” (United States v. Gaudin (1995) 515 U.S, 506, 509-510, citing Sudzvan v. Louisiana (1993) 508 U.S. 275, 277-278; see also Ulster County Court v. Allen, supra, 442 US. at p. 157; In re Winship (1970) 397 U.S. 358, 364; Peopk v. Roder, supra, 33 Cal.3d at pp. 503- 504; United States v. Rubio-Villareal (9th Cir. 1992) 967 F.2d 294, 298-300 (en banc); Cal. Const., art. I, §§ 7, 15 & 16; § 1096.) Further, the instructional error violated appellant’s rights under the Eighth and Fourteenth Amendments,and the parallel provisions of the California Constitution, which require that the procedures that lead to a death sentence must aim for a heightened degree ofreliability. (U.S. Const., 8th & - 103 - 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16 & 17; Ford v. Wainwright (1986) 477 US. 399, 411; Beck v. Alabama (1980) 447 U.S. 625, 637-638; Peopke v, Horton (1995) 11 Cal.4th 1068, 1134-1135.) By instructing the jury with an unfairly partisan and argumentative instruction that permitted the jury to draw an irrational permissive inference about the truth ofthe special circumstance allegations, the trial court diminished the reliability of the deliberations and the special circumstance findings, and created a substantial risk that those findings were unfair and unreliable. Neither is acceptable whenlife is at stake. Gee E:ddings v. Oklahoma (1982) 455 U.S. 104, 118 (conc. opn. of O’Connor,J.).) D. Reversal of the Special Circumstance Findingsand the Ensuing Death JudgmentIs Required Because the erroneous instruction permitted conviction on a standard of proofless than proof beyond a reasonable doubt, the error was structural and requires reversal of the special circumstance findings. (Sudhvan v. Louisiana, supra, 508 U.S. at pp. 280-282.) Even if the error is not reversible per se, because the instruction violated appellant’s federal constitutionalrights, reversal of the special circumstance findings is required unless the state can show that the error was harmless beyond a reasonable doubt. (See Vector v. Nebraska (1994) 511 U.S. 1, 6; Chapman v. Cakfornia (1967) 386 U.S. 18, 24.) The state cannot make that showing in this case. It is virtually certain that the jury found the prosecution-favored flight instruction to be applicable. Under these circumstances, the instructional error, whether considered alone or in conjunction with the other instructional errors set forth in this brief, was not harmless beyond a reasonable doubt. Accordingly, the special circumstance findings must be reversed. In the absence ofa valid special circumstance finding, the ensuing death judgment mustalso be reversed. (§ 190.2, subd. (a); People v. Marshall (1997) 15 Cal.4th 1, 44.) // - 104 - 4. THE KILLING OF A PEACE OFFICER IN RETALIATION FOR THE PERFORMANCEOF HIS OFFICIAL DUTIES SPECIAL CIRCUMSTANCE FINDING MUST BE SET ASIDE BECAUSE THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THAT ALLEGATION AND BECAUSE THAT SPECIAL CIRCUMSTANCE IS UNCONSTITUTIONALLY VAGUE, AND, AS A RESULT, THE DEATH JUDGMENT MUST BE REVERSED A. Procedural and Factual Background The complaint filed on August 18, 1997, alleged three special circumstances, including that the victim was a peace officer who was intentionally killed either while engaged in the performance ofhis duties, or in retaliation for the performance ofhis official duties. (§ 190.2, subd. (a)(7); 1 CT 234.) In the information,filed in June 1998,the killing-of-a-peace-officer special circumstanceallegation was notalleged. (2 CT 586.) On June 29, 1999, the defense, aware that the prosecution intended to allege the peace-officer-killing special circumstance in an amended information, filed a “demurrer and/or nonstatutory motion”arguing, inter alia, that section 190.2, subdivision (a)(7) failed to give adequate notice of the nature and cause of the accusation,violated an accused’s right to a unanimous jury verdict, and was unconstitutional on its face. (6 CT 1654-1670.) # In its amended information on July 30, 1999, the prosecution alleged the peace- officer-killing special circumstance, but modified it to include only the retaliation clause: “[the victim] was a peace officer who wasintentionally killed in retaliation for the performanceof his duties... .” (7 CT 2098-2099.) 49. The defense motion presented state and federal legal bases forits claims, including “all such rights being guaranteed by the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, sections 1, 7, 13, 15, 16, 17 and 22 of the California Constitution.” (5 CT 1555.) - 105 - On August 12, 1999, the prosecutionfiled a response to appellant’s motion. It confirmed thatit was “proceeding only on that portion of the special circumstance that applies to a peace officer being intentionally killed in retaliation for the performanceofhis official duties” (7 CT 2170), and argued that the retaliation portion ofthe special circumstance was notconstitutionally infirm (7 CT 2170-2176), | At a pretrial hearing on the defense motion, defense counsel argued that the peace-officer-killing special circumstance allegation should still be stricken, notwithstanding the fact that the prosecution was proceedingsolely on the “retaliation” portion of section 190.2, subdivision (a)(7). (2 Pretrial RT 568) Counsel continued: So nothing is delineated out in the CALJIC instructionsthat showsthat retaliation applies to just killing a police officer simply because that individual is a police officer over the years or was a retired one. What I am actually saying is: In other words, theretaliation for performance of his duties must be somethingin the past that that person has doneto this particular individual, hasto relate to this particular instance or the performance ofhis duties on that particular date that heis killed by this individual. But, something related in both instancesto this individualeither past or present. Notjust because heis a police officer. (2 Pretrial RT 569-570.) The prosecution countered that the defense was attemptingto artificially limit the conceptofretaliation: [BJut there is really nothing in the language of the statute noris there anything logically that would place limitations on this concept. Retaliation is merely a matter of getting back at someone. § And whetherit is getting back at them becausein the case of an officer they put him in prison for ten years because they investigated a case and madea case against him, or whether it is because they were just one of a bunch ofofficers who happened to be respondingto a riot or something, but they were involved with and they were upset that this was one ofthe officers that appeared, or whetherthey are just doing it in retaliation because -- for the fact that this person is an officer and - 106 - has performed the duties of an officer, it really shouldn’t and doesn’t matter under the languageofthestatute. The statute simply covers the situation where a personis killed in retaliation for doing their duties as a police officer. Andthere is no reason to believe that that has to be limited to any specific duty or any specific time. It makes no logical sense to limit it that way, and no court has ever limited it that way. (2 Pretrial RT 572-573.) The court overruled the motion without explanation. (2 Pretrial RT 575.) Attrial, both Jennifer and Amy Parishtestified regarding statements and actions purportedly made by appellant during the salon incident. Jennifer Parish testified that the second mansaid, “Whitey is a mother fucking pig” (4 RT 1827-1828, 1869-1870), and asked: “Where the fuck you work at, Whitey?” Shayne York responded that he worked at the “Wayside.” 5° The man then asked Yorkif “he liked to treat nigger Cripslike shit in jail.” York responded, “No, sit.” The man replied, “No, I know youlike to treat us nigger Crips like shit in jail.” York again responded,“No,sir.” (4 RT 1829-1831, 1875-1876.) According to Jennifer, the man then made a “derogatory remark,‘fuck the Whitey,’ and the gun went off.” The second man then said something to the effect that he had always wantedto killa cop. (44 RT 1831-1832.) However,in her numerousprior interviews by law enforcement, Jennifer had never mentioned this statement. (4 RT 1877-1878.) AmyParish testified that the man near to her hip leaned over York and removed York’s wallet. One of the men said, “Oh, we have us a pig here.” (6 RT 2158.) Whoever was speaking to York asked where he worked, and York replied, “Wayside.” When asked where at Wayside, York replied, “East.” Then, there was talk of “is this how you talk to the fucking niggers in jail? Is 50. “Wayside” is the colloquial term for the East Facility compound ofthe Peter Pitchess Honor Farm in Los Angeles. (4 RT 1804.) - 107 - this how you treat the nigger Crips?” (6 RT 2159.) The gun wentoff once, and the mansaid, “Good, I hopethis one dies.” (6 RT 2160.) Atthe instructional conference, the prosecutor requested that the jury be instructed with CALJIC Nos. 8.81.7 [defining the killing-of-a-peace-officer special circumstance], and 8.81.8 [defining “performance of official duties”). (9 CT 2880.) With regard to CALJIC No.8.81.7, the pattern instruction was redacted to refer solely to the retaliation portion of section 190.2, subdivision (a) (7): To find that the special circumstance referred to in these instructions as murder of a peace officer is true, each of the following facts must be proved: 1. The person murdered was a peace officer; and 2. The person murdered wasintentionally killed in retaliation for the performance ofhis duties, (9 CT 3136; 8 RT 2889.) With regard to CALJIC No.8.81.8, the pattern instruction was redacted to define “in the performanceofhis duties”as including two possibilities: Any lawful act or conduct while engaged in the maintenance of the peace and security of the community or in the investigation or prevention of crime; Guarding or transporting any person lawfully underarrest or undergoing imprisonmentin any city or county jail or in any prison orinstitution underthe jurisdiction of the California Department of Corrections or California Youth Authority. (9 CT 3137; 8 RT 2889-2890.) At closing argument, the prosecutor read aloud CALJIC No.8.81.8, then argued: [T]he bottom lineis that although Shayne York was not on duty as a peace officer at the time that the murder took place, it was because Mr. Boyce was angry at the fact that he found out that Shayne York had -- was a guard at Wayside, a place where Mr. Boyce had been incarcerated. And I am going totalk aboutthat a - 108 - little bit later. So it is in retaliation for that, and that’s the lawful performance. (8 RT 2683-2684.) Defense counsel’s closing argumentstressed that York was killed simply because he wasa police officer, not because of his duties at Wayside: Deputy York was killed for one reason and one reason alone. He was killed because he was a police officer. He wasn’t killed because he worked at Wayside. He wasn’t killed for any of those reasons. He was killed strictly because he wasa police officer. (8 RT 2831.) During deliberations, the jury sent a note specifically directed to the peace-officer-killing special circumstance: Clarification/Interpretation on page 51 and 52 of the jury instructions dealing with the retaliation specifics and on page 53. Doesthe peace officer have to perform a duty at the time of the crime|[?] (9 CT 3175; 8 RT 2911) Thetrial court, during discussion with counsel, proposed to answer the question in the negative. (8 RT 2912.) The defense objected. (8 RT 2912-2913.) The court nonetheless instructed the jury that the answerto its question was “No.” (8 RT 2916.) 5! The jury then returned a verdict finding that the victim “was intentionally killed in retaliation for the performanceofhis duties.” (10 CT 3275; 8 RT 2944.) B. The Evidence Was Legally Insufficient to Establish That the Killing Was in Retaliation for the Performance of the Victim’s Official Duties Section 190.2 sets forth “special circumstances” which,if found true, make a defendanteligible for the death penalty. (Peopk v. Superior Court (Exngert) (1982) 31 Cal.3d 797, 803.) Under California law, special circumstances are 51. The court also informed the jury that page 53 of the instructions was not related to the peace officer special circumstance. (8 RT 2916.) - 109 - intended to “guide and channel jury discretion bystrictly confining the class of offenderseligible for the death penalty” (Peopée v. Bacgalupo (1993) 6 Cal.4th 457, 467, internal quotation marks omitted), as required under the Eighth and Fourteenth Amendments to the federal Constitution. Section 190.2, subdivision (a)(7) provides for death eligibility where the victim was a “peace officer” who: : while engaged in the course of the performanceofhis or her duties, was intentionally killed, and the defendant knew, or reasonably should have known,that the victim was a peace officer engaged in the performanceofhis or her duties; or the victim was a peace officer... or a former peace officer... , and was intentionally killed in retaliation for the performanceofhis or her official duties. The purpose ofthis special circumstanceis “to afford special protection to officers whorisk their lives to protect the community[.]” (People v. Jenkins (2000) 22 Cal.4th 900, 1021, citing People v. Rodriguez (1986) 42 Cal.3d 730, 781.) There is no issue in this case regarding the first clause of section 190.2, subdivision (a)(7), the killing of an officer who was “engaged in the course of the performance of”his duties. The victim here wasclearly not engaged in the performance ofhis duties at the time ofthe killing, as the prosecutor conceded both in its opposition to the defense motion (7 CT 2170) and at argument: “Shayne York was not on duty as a peace officer at the time that the murder took place[.]” (8 RT 2683-2684.) Accordingly, the jury was not instructed on that portion of section 190.2, subdivision (a)(7). (9 CT 3136; 8 RT 2889.) The instant case involves the “retaliation” clause of section 190.2, subdivision (a)(7), which requires the prosecution to prove the following elements beyond a reasonable doubt: (1) that the victim was a peace officer; and (2) that the victim was intentionally killed in retaliation for the - 110- performanceofhis official duties. (§ 190.2, subd. (a)(7).) It was undisputed in this case that the victim was a deputy sheriff, who had been assigned to the Waysidefacility, and that appellant had been incarcerated at that facility for several months in 1994, before the victim had been employed there. (4 RT 1804 [Jennifer Parish testimony; 6 RT 2285-2286 [stipulation].) There was no real dispute that appellant knew or should have known that the victim was a deputy sheriff. (See 8 RT 2745, 2830 [defense counsel’s closing argument].) This Court addressed theretaliation clause of section 190.2, subdivision (a)(7) in Peopk v. Jenkins, supra, 22 Cal.4th 900. In Jenkins, the victim was a peace officer investigating a robbery case against the defendant, and was killed while picking his child up from day-care. While the victim was not “on duty”at the time ofthe killing, the evidence showed that the killing wasclearly in retaliation for the performance ofthe officer’s official duties: his criminal investigation of the defendant. The defendant, on the other hand, presented evidence that the officer was not acting lawfully in his investigation. (Id. at pp. 932-935.) On appeal, the defendantin Jen&ins argued thatthe trial court erred in failing to instruct the jury that, to find the special circumstance to betrue,it must find that “defendantretaliated against the officer with the subjective intent to exact revenge for the officer’s lawful performance ofhis duties.” (Ia. at pp. 1019-1020.) This Court rejected that argument, noting that the rule cited by the defendant-- that the officer’s lawful conduct mustbe established by objective fact -- does not establish any requirement with respect to the defendant’s mentalstate. Ud at p. 1020.) The Court noted, however, that the special circumstance does require a “subjective purposeto retaliate for -111- performanceofofficial duties[.]” (Ibzd. ) 52 Jenkins presented the straightforward case for which the retaliation clause ofthe special circumstanceclearly applies: the peace officer was engagedin an investigation of the defendant himself; and the defendant killed him in retaliation for that investigation. The act of retaliation was both logically and temporally related to the officer’s performanceofhis official duties. In the present case, by contrast, the victim’s official duties were not directly related, either logically or temporally, to appellant. The victim’s performance ofhis duties at Wayside occurred years after appellant had been incarceratedat that facility. It is factually and legally impossible for appellant to have “retaliated” for something that occurred after he was no longer at Wayside. Indeed,in his penalty phase closing argument, the prosecutor argued for death because ofthestatus of the victim: “This man, because of the status of the victim, because of what he was. Not because of anything he did, not because of anything Shayne York said, but of what he was.” (12 RT 3945-3946.) Underthese facts, appellant’s conduct does not fall within the ambit of the special circumstance set forth in section 190.2, subdivision (7): there was insufficient evidence that appellant’s actions were motivated by a subjective 52. Alternatively, Jenkins argued that the jury should have been instructed that the officer would not be performinghis official duties if he were manufacturing a case against Jenkins in the robbery prosecution. (Peopk v. Jenkins, supra, 22 Cal.4th at p. 1020.) With regard to this claim, this Court noted thatthe jury was instructed that the phrase “performance of duties” meant “any lawful act or conduct while engaged in the maintenance ofthe peace and security of the community or in the investigation or prevention of crime.” This Court concluded that the jury would have understood that “egregious misconduct on the part of an officer” would not constitute a lawful performance of duties. Ud. at pp. 1021-1022.) - 112 - purposeto retaliate for the victim’s performance ofhis official duties. (Cf. People v. Bemore (2000) 22 Cal.4th 809, 843 [torture-murder special circumstance does not apply where there is no connection between the murder and the torture].) Accordingly, the peace officer special circumstance finding must be set aside. (See Jackson v. Virginia (1979) 443 U.S, 307, 314- 315, 319; People v. Green (1980) 27 Cal.3d 1, 62.) Moreover, further proceedings on this allegation are “barred by the doublejeopardy clause.” (People v. Weidert (1985) 39 Cal.3d 836, 842; Burks v. United States (1978) 437 US. 1, 16-18.) C. The Peace-Officer-Killing Special Circumstance As Applied Here Is Unconstitutionally Vague and Fails to Provide Adequate The standards of specificity applicable to criminal statutes also apply to special circumstanceallegations. (People v. Memro (1985) 38 Cal.3d 658, 703, citing People v. Superior Court (Engert), supra, 31 Cal.3d at p. 803; see also Peoplev, Weidert, supra, 39 Cal.3d at p. 854.) Special circumstances are subject to vagueness challenges under the Eighth and Fourteenth Amendmentsto the federal Constitution (see Twélaepa v. California (1994) 512 U.S. 967, 972; Peopke v. Gurule (2002) 28 Cal.4th 557, 637), and are subject to notice or “‘fair warning” challenges under the Due Process Clause of the Fourteenth Amendment, and the parallel provision of the state Constitution (see People v. Wharton (1991) 53 Cal.3d 522, 586; see also In re Sheena K. (2007) 40 Cal.4th 875, 890). In this case, section 190.2, subdivision (a)(7) provides for death eligibility where a peace officer is killed in retaliation for the performance of his official duties, The statute is unclear as to the meaning of the phrase “in retaliation for the performanceofhis or her official duties.” More specifically, the statute is unclear as to whetherthe officer’s performance of his official duties must relate to the defendant. The average juror would be unable to ascettain and apply the meaning ofthat phrase. (Cf. People v. Rodriguez, supra, - 113 - 42 Cal.3d at pp. 780-783.) That conclusion is borne out here, where the jury asked for further elucidation of the meaningofthe statutory language. (9 CT 3175; 8 RT 2911) “[Llanguage in a penal statute that truly is susceptible of more than one reasonable construction in meaning or application ordinarily is construed in the mannerthatis more favorable to the defendant.” (People v. Canty (2004) 32 Cal.4th 1266, 1277.) In other words, questions concerning the ambit of a criminal statute are resolved in favor of lenity. The rule is not simply a maxim of statutory construction, but rather is rooted in fundamental principles of due process. (Dunn v. United States (1979) 442 U.S, 100, 112.) As applied here, that rule requires that the retaliation portion of section 190.2, subdivision (7) be interpreted to require some connection or relationship between the defendant and the peace officer’s performance ofhis duties. A failure to so interpret that language here would constitute a forbidden retroactive application of an ‘unexpected’ or “unforeseeable judicial enlargement of a criminal statute.” (People v. Wharton (1991) 53 Cal.3d 522, 586, quoting Bowze v. City of Columbia (1964) 378 US. 347, 353, 354; see also People v. Hoyos (2007) 41 Cal.4th 872, 890; People v. Martinez (1999) 20 Cal.4th 225, 238.) D. The Errors Require That the Peace-Officer-Killing Special Circumstance Finding Be Set Aside and That the Ensuing Death Judgment Be Reversed Theerrors require that the peace-officer-killing special circumstance finding be set aside. (See Peopke v. Howard (1992) 1 Cal.4th 1132, 1180-1181 [financial-gain special circumstance]; Peopk v. Allen (1986) 42 Cal.3d 1222, 1273-1274 [witness-killing special circumstance].) It also requires reversal of the death judgment. Appellant has argued separately herein that the remaining two special circumstances-- felony- murder burglary, and felony-murder robbery -- must beset aside. (See Arg.5, post.) In the absence of a valid special circumstance, the death judgment must -114- be reversed. (§ 190.2, subd. (a); People v. Marshall (1997) 15 Cal.4th 1, 44.) Even if one or both of the felony-murder special circumstance findings were upheld, the errors raised here require reversal of the death judgment. Assuming that the evidence relevant to the felony-murderspecial circumstances was relevant under section 190.3, factor (a), the questionis whetherthe invalid special circumstance finding caused distortions “beyond the mere addition of an improper aggravating element.” (Brown v. Sanders (2006) 546 U.S, 212, 220,fn. 6.) The prosecutor, in his closing argument, madeclear that his case for death was based onthe circumstances ofthe crime and,in particular, the status of the victim as a peace officer: Now, am I going to tell you to impose the death penalty on Kevin Boyce because of [factors] b and c? No. I am going to ask you for one reason only. Because he murdered Shayne York. I am going totell you that right now,that’s why he deserves the death penalty, and I am goingto get to that. (12 RT 3903; see also 12 RT 3943-3944.) He continued: Theseare all things that came from the testimony. “Get the fuck on the ground, Whiteys.” “Where is the fucking money?” “We have got a mother-fucking pig.” “Whitey is a mother-fucking pig.” “Where the fuck you work at, Whitey?” “Do you like to treat niggercrips like shit in jail?’ “No, I know youliketo treat us nigger cripslike shit in jail.” Right before the gun goesoff. “Fuck the Whitey. I always wanted to kill a cop. Good, I hope this one dies.” § And so this man in an already highly escalated ageravated robbery. This man, because of thestatus of the victim, because of what he was. Not because of anything hedid, not because of anything Shayne York said, but of what he was. (12 RT 3945-3946.) The prosecutor’s reliance at closing argument on the existence ofthe invalid special-circumstance finding caused distortion in the jury’s weighing process by arguing in essence that the law attaches special weight to the peace officer special circumstance, and by inviting the jurors to overweigh the -115- aggravating factors. That distortion -- in effect, an unlawful bias in favor of death -- violated the Eighth and Fourteenth Amendmentsto the federal Constitution. Moreover,there is a reasonable possibility that one or more of the capital sentencing jurors overweighed the aggravating factors by assuming that the law attaches special importance to the peace-officer-killing special circumstancefinding. . Noris the error harmless beyond a reasonable doubt. (See Chapmanv. Cakfornia (1967) 386 U.S. 18, 24; cf. People v, Brown (1988) 46 Cal.3d 432, 447- 448 [state law error at the penalty phase tested by the “reasonable possibility” test].) Although the capital crime was serious, the mitigating evidence was especially strong. The defense presented substantial, unrebutted evidence of appellant’s mental retardation, brain damage, and severe mentalillness. He was raised by an alcoholic mother who did not believe in and neglected appellant’s medical needs, did not inform appellant that his stepfather was not his biological father until appellant was approximately 13-years old, and withheld him from organized sports because of a fear of injury. As a child, appellant’s family changed residences numeroustimes, and he wasultimately raised in gang-infested, south central Los Angeles. In light of the strong mitigation in this case, the errors identified herein cannot be deemed harmless. The death sentence must be reversed. // - 116 - 5. THE TWO FELONY-MURDER SPECIAL CIRCUMSTANCE FINDINGS, AND THE ENSUING DEATH JUDGMENT MUST BE REVERSED DUE TO INSUFFICIENT EVIDENCE AND THE TRIAL COURT’S FAILURE TO CLEAR UP THE JURY’S CONFUSION REGARDING THE ELEMENTS OF THOSE SPECIAL CIRCUMSTANCES, AND BECAUSE THE FELONY- MURDERSPECIAL CIRCUMSTANCEIS UNCONSTITUTIONAL > A. Procedural and Factual Background The amended information filed on July 30, 1999, in additionto alleging a special circumstance that a peace officer was killed in retaliation for the performanceofhis duties (see Arg. 4, ante), alleged two felony-murder special circumstances: killing while engaged in the commission of robbery; and killing while engaged in the commission of second degree burglary. (§ 190.2, subd. (a)(17); 7 CT 2098-2099.) With regard to the felony-murder special circumstance allegations, the jury was instructed in accordance with CALJIC No.8.81.17: To find that the special circumstance, referred to in these instructions as murder in the commission of robbery or burglary, is true, it must be proved: Number one, the murder was committed while a defendant was engaged in or was an accomplice in the commission or attempted commission of the robbery or burglary; and, Numbertwo, the murder was committed in order to carry out or advance the commission of the crime of robbery or burglary or to facilitate the escape therefrom or to avoid detection. In other words, the special circumstance referred to in these instructionsis not established if any robbery or burglary was merely incidental to the commission of the murder. (9 CT 3138; 8 RT 2890.) 53 53. The jury was also instructed on robbery, attempt, conspiracy, aiding and abetting, and burglary. (9 CT 3118-3119, 3129, 3141-3146; 8 RT 2880- Footnote continued on nextpage... -117- At closing argument, both parties focused sharply on the second paragraph of CALJIC No. 8.81.17. Defense counsel conceded that appellant was guilty offirst degree felony murder, but denied that the felony-murder special circumstanceallegations were true. (8 RT 2832-2833.) He argued that Deputy York was killed “for one reason and one reason alone. He waskilled because he wasa police officer.” (8 RT 2831.) Counsel pointed out that the prosecutor, in his opening argument, had acknowledged that appellant killed the victim out of anger that he was a peace officer. (8 RT 2831-2832.) That acknowledgement, counsel argued, “undercut[]” the prosecution’s theory on the felony-murder special circumstances: The theory on the other special circumstances is that Deputy York was killed during the commission of a robbery, burglary, and that it was done, I guess, in furtherance of the robbery or the burglary. That’s not true. [{]] The D.A. even alluded to you don’t get hung up on this. You have a good reason to get hung up on this, because the D.A.’s theory that he was killedstrictly 2882, 2886, 2891-2894) In addition, the jury was instructed with CALJIC No. 8.80.1, whichstates, in part: Unless an intentto kill is an elementofa special circumstance,if you are satisfied beyond a reasonable doubtthat the defendant actually killed a human being, you need notfind that the defendant intended to kill in order to find the special circumstanceto betrue. If you find that a defendant was notthe actual killer of a human being, or if you are unable to decide whether the defendant was the actual killer or an aider and abettor or co-conspirator, you cannotfind the special circumstanceto be true as to that defendant unless you are satisfied beyond a reasonable doubtthat such defendant, with reckless indifference to humanlife and as a major participant, aided, abetted, counseled,or assisted in the commission of the crime of robbery or burglary which resulted in the death of a human being, namely Shayne Daniel York. (9 CT 3134; 8 RT 2887-2889) - 118 - because he was a police officer also sort of tends to undercut that he waskilled in furtherance. (8 RT 2832.) Counsel explained that CALJIC No. 8.81.17 required that the killing be “committed in order to carry out or advance the commission of the crime of robbery or burglary.” (8 RT 2833.) He then focused on the “merely incidental” portion of the instruction, and‘argued that insofar as the victim was killed because he was a peace officer, the special circumstance “would not be true.” (8 RT 2833-2835.) The prosecutor, in his closing argument, directly addressed CALJIC No.8.81.17 and the argument made by defense counsel. After explaining the difference between a burglary and a robbery and arguingthatthe salon burglary was over the momentthe perpetrators entered the establishment (8 RT 2842-2843), the prosecutor directed the jury’s attention to the second paragraph ofthe instruction (8 RT 2842), and subsequently read the instruction: the first part of paragraph 2, the first sentence says, “the murder was committed in order to carry out or advance the commission of the crime of robbery orto facilitate the escape therefrom or to avoid detection.” (8 RT 2845.) He then argued that, under that instruction: the perpetrator can have two different reasons. He can have-- could have more than two. But in this case could have two different things going on. There is nothing that excludes one from the other. (8 RT 2845.) The prosecutor then focused on the “merely incidental” language in CALJIC No.8.81.17: That sentence is then, in fact, sentence one of No. 2 is then,in fact, interpreted. We are given what this means, becauseit says “in other words.” “In other words, the special circumstance referred to in these instructionsis not established if the robbery was merely incidental to the commission of the murder.” Merely incidental, a side thought. - 119 - Mr. Davis [defense counsel] gave an example. I’m going to play on that example. If I know that you’re in your house and I hate you, and I wantto kill you, and I go into your house with the intent to kull you, and while I’m in your houseI see a nice television set and I decide to myself I’m going to take that, ’m going to kill you, but I’m going to take that set, too, that robbery is incidental to the main purpose was[si¢], isn’t it? It’s clearly incidental at that point. It’s incidental. It’s a minor part of what the purpose was here. That’s not what we havehere. The primary purposein this case was robbery. It was a robbery before, and a burglary, and it was before the murdertookplace, and it didn’t end with the murder. It kept on going. (8 RT 2846-2847.) Onthe third day of jury deliberations, the jury asked the following question regarding the second paragraph of CALJIC No.8.81.17: Re: Page 53, Part 2 of the jury instructions. Question: If first degree murder is committed as a consequenceofor results from the intent or commission of armed robbery and/or burglary,is this sufficient to establish the special circumstance cited? - (9 CT 3164.) With defense counsel’s concurrence,the trial court answered the question as follows: “[I]t depends upon whatthe jury finds to bethe facts].]” (8 RT 2924.) The court then reread CALJIC No. 8.81.17. (8 RT 2924-2925.) Shortly thereafter, the jury returned guilty verdicts on all counts, and found true the three special circumstanceallegations. (8 RT 2930-2944; 10 CT 3251- 3275.) 54 54. The felony-murder special circumstance findingsrefer to a killing “while engaged in the commission of” burglary and robbery, but make no mention of whetherthe killing was committed “in order to carry out or advance” the commission of the crime of robbery or burglary. (10 CT 3273- 3474.) - 120 - B. The Two Felony-Murder Special Circumstance Findings Must BeSet Aside 1. The Felony-Murder Special Circumstance Findings Must Be Set Aside Because the Evidence Clearly Shows That the Killing Was Not Committed in Order to Advance the Independent Felonious Purpose of Robbery or Burglary Section 190.2 sets forth “special citcumstances” which,if found true, make a defendanteligible for a death sentence. (Peopk v. Bacigalupo (1993) 6 Cal.4th 457, 467-468; People v. Superior Court (Engert) (1982) 31 Cal.3d 797, 803.) Section 190.2, subdivision (a)(17), the felony-murder special circumstance, provides for death eligibility where: The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, the following felonies: (A) Robbery in violation of Section 211 or 212.5, i... (G) Burglary in the first or second degree in violation of Section 460. At the time of thetrial in this case, the pattern instruction for the felony-murder special circumstance, CALJIC No. 8.81.17, as read to the jury, required the prosecution to prove beyond a reasonable doubtthat: (1) the murder was committed while the defendant was engaged in or was an accomplice in the commission of the applicable felony; and (2) the murder “was committed in orderto carry out or advance the commission of the applicable felony, or to facilitate the escape therefrom or to avoid detection. As set forth above, the jury was so instructed here. (9 CT 3138; 8 RT 2890.) The second paragraph of CALJIC No.8.81.17 is derived from this - 121 - Court’s decision in People v. Green (1980) 27 Cal.3d 1, 59-62, 55 which addressed the meaning of the phrase “during the commission” under the then-current version of section 190.2. This Court concluded that the felony-murder special circumstance could be applied to a person who killed “in order to advance an independent felonious purpose” (7d. at p. 61), but was not applicable where he intended to kill and only “incidentally committed oneofthe specified felonies while doing so.” (Peopk v. Clark (1990) 50 Cal.3d 583, 608; see also Peopke v. Thompson (1980) 27 Cal.3d 303, 322-325.) Subsequent to the Green decision, CALJIC No.8.81.17 was revised by the addition of the second paragraph. (People v. Gates (1987) 43 Cal.3d 1168, 1193.) In People v. Weidert (1985) 39 Cal.3d 836, this Court, relying on Green, affirmed that “where an accused’s primary goal was not to kidnap butto kill, and where a kidnapping was merely incidental to a murder but not committed to advance an independentfeloniouspurpose, a kidnapping-felony-murder special citcumstance finding cannotbe sustained.” (Id. at p. 842, emphasis added.) In Peopke v. Bonin (1989) 47 Cal.3d 808, this Court held that a felony-murder special circumstanceallegation “requires the trier of fact to find,inter alia, that the defendant committed the act resulting in death in order to advance an independentfeloniouspurpose.” (Id. at p. 850, emphasis added.) Over the past 20 years, this Court has repeatedly affirmed that the felony-murder special circumstance requires that the defendant must commit the act resulting in death in order to advance an independentfelonious purpose. (See, e.g., People v. Lewis (2008) 43 Cal.4th 415, 464-465; Peopk v. Guerra (2006) 37 Cal.4th 1067, 1133; People v. Prieto (2003) 30 Cal.4th 226, 256- 257; People v, Riel (2000) 22 Cal.4th 1153, 1201; People v. Davis (1995) 10 Cal.4th 55. Green was overruled on other points by People v. Hall(1986) 41 Cal.3d 826, 834, footnote 3, and Peopke v. Martinez (1999) 20 Cal.4th 225, 241. - 122 - 463, 519, fn. 17; People v. Garrison (1989) 47 Cal.3d 746, 791.) 56 Here, the evidence affirmatively shows-- and the People below conceded-- that the killing was mot committed to advanceeither the burglary or the robbery. As the defense correctly arguedat trial, the victim waskilled simply because he was a peace officer, and for no other reason. (8 RT 2831- 2835.) The prosecutor, in his guilt phase opening statement, averred that the reason for the shooting was that appellant wasa racist and a bigot who did not like peace officers. (4 RT 1762.) In his penalty phase closing argument,the prosecutor conceded as much: This man, because ofthe status of the victim, because of what he was. Not because of anything he did, not because of anything Shayne York said, but of what he was. (12 RT 3945-3946.) In other words, the prosecution properly conceded that thekilling was not committed to advanceeither the burglary or the robbery. Thus, even when viewed “‘in the light most favorable to the judgment below,” the evidenceis insufficient to support the felony-murder special circumstance 56. This Court has held that the “second paragraph of the instruction does notset out a separate elementof the special circumstance;it merely clarifies the scope of the requirement that the murder must have taken place ‘during the commission’ of a felony.” (Peope v. Harms (2008) 43 Cal.4th 1269, 1299.) However, even if not technically deemed an “element” of the special circumstance, the Green-Thompson requirement “‘is the functional equivalent of an element of a greater offense than the one covered bythe jury’s guilty verdict” and, as such, must be foundtrue by the jury beyond a reasonable doubt. (See Apprendi v. NewJersey (2000) 530 U.S. 466, 494, fn. 19; accord, Reng v. Arizona (2002) 536 U.S, 584, 609.) “The fundamental meaning ofthe jury- trial guarantee of the Sixth Amendmentis that all facts essential to imposition of the level of punishmentthat the defendantreceives -- whether the statute calls them elements of the offense, sentencing factors, or Mary Jane -- must be found by the jury beyond a reasonable doubt.” (Rzng, supra, at p. 610 (conc. opn. ofScalia, J.).) - 123 - findings, (See People v. Kelly (2007) 42 Cal.4th 763, 787-788; People v. Jenkins, supra, 22 Cal.4th at p. 1022.) The error requires that the two felony-murder special circumstance findings be set aside. (See People v. Green, supra, 27 Cal.3d at p. 62; Jackson v. Virginia (1979) 443 U.S. 307, 314-315, 319.) Moreover, further proceedings on these allegations “are barred by the double jeopardy clause.” (People v. Weidert, supra, 39 Cal.3d at p. 842, citing Green, supra, at p. 62; Burks v. United States (1978) 437 USS. 1, 16-18.) 2. The Trial Court’s Erroneous Responseto the Jury’s Question Requires That the Felony-Murder Special Circumstance Findings Be Set Aside As noted above, on the third day of jury deliberations, the jury asked the following question regarding the second paragraph of CALJIC No. 8.81.17: Re: Page 53, Part 2 of the jury instructions. Question: If first degree murder is committed as a consequence ofor results from the intent or commission of armed robbery and/or burglary,is this sufficient to establish the special circumstance cited? (9 CT 3164.) Defense counselinitially argued that the correct response was, “IN]o, because you need part two, which is what we argued.” (8 RT 2918- 2919.) Defense counsel further noted that “the answerreally is no unless element two is met. It is an ‘and’ proposition, that’s what we feel.” (8 RT 2919.) Counsel then agreed with the court that “the question that they are asking is begging an interpretation of what the facts really mean.” (8 RT 2921.) Ultimately, the trial court answered the question as follows: “[I]t depends upon whatthe jury finds to be the facts[.]” (8 RT 2924.) The court then reread CALJIC No. 8.81.17. (8 RT 2924-2925.) Thetrial court’s response to the jury was error. Thejury here expressed its confusion over the second paragraph ofthe instruction, the key issue at the guilt phase. Thetrial court’s response -- “it depends upon what the jury finds to bethe facts”-- did nothingto alleviate that confusion. Under - 124 - both state and federal law, when a jury expresses confusion over the instructions,the trial court has a duty to “clear up” that confusion. (Peopk »v. Gonzalez (1990) 51 Cal.3d 1179, 1213; see also Bollenbach v. United States (1946) 326 U.S. 607, 612-13; People v. Gay (2008) 42 Cal.4th 1195, 1225-1226; Peopée v. Smithey (1999) 20 Cal.4th 936, 984-985; Beardslee v. Woodford (9th Cir.2004) 358 P.3d 560, 574-575; § 1138.) The court did nothing more than “figuratively throw up its hands andtell the jury it cannot help.” (Peopé v. Beardslee (1991) 53 Cal.3d 68, 97.) Moreover, the court’s response was misleading, if not legally incorrect. The jury essentially asked the court whetherthe special circumstance could be found trueif only the first paragraph of CALJIC No. 8.81.17 were found true: “Tf first degree murder is committed as a consequenceofor results from the intent or commission of armed robbery and/or burglary,is this sufficient to establish the special circumstance cited?” The answer properly should have been “no” because, as this Court has repeatedly held, the felony-murder special circumstance requites that the defendant must committhe act resulting in death in order to advance an independent felonious purpose. This Court has held that if the original instructions are complete and accurate, then a trial court has discretion “to determine what additional explanations are sufficient to satisfy the jury’s request for information. [Citation.]” (People v. Dykes (2009) 46 Cal.4th 731, 802.) However,ifit becomesapparentto thetrial court “that the jury is in need of further definition, then of course such elaboration should be provided.” (Peopk ». Hughes (2002) 27 Cal.4th 287, 379; see also Shafer v. South Carolina (2001) 532 USS. 36, 53.) Here, the jury’s note indicated that it was confused and in need of clarification. Thetrial court’s failure to clear up the jury’s confusion was error understate and federal law. Thetrial court’s failure to clear up the jury’s confusion regarding a - 125 - contested element of the felony-murderspecial circumstanceallegations, and its misleading response to the jury’s question, violated appellant’s right to due process, to trial by jury, and to proof beyond a reasonable doubt of each elementofthe special circumstances, andtheright to have the jury reach the requisite findings. (U.S. Const., 5th, 6th & 14th Amends.; Cal. Const., art. I, §§ 7, 15 & 16; see United States v. Gaudin (1995) 515 U.S. 506, 509-510; Sudivan v, Louisiana (1993) 508 U.S. 275, 277; Sandstrom v, Montana (1979) 442 U.S. 510, 521-526; Peopk v. Kobrin (1995) 11 Cal.4th 416, 423-428.) Thetrial court’s error also violated appellant’s rights under the Sixth and Fourteenth Amendments to the federal Constitution, and the parallel provisions of the state Constitution, to present a complete defense (See Holmes v. South Carokna (2006) 547 U.S. 319, 324; People v. Lucas (1995) 12 Cal.4th 415, 456), including the right to complete and accurate instructions that allow thejury to consider the defense (Mathews v. United States (1988) 485 U.S. 58, 63; Clark v. Brown (9th Cir, 2006) 450 F.3d 898, 916). In addition,thetrial court’s failure to clear up the jury’s confusion regarding a contested elementof the felony-murder special circumstance allegations, and its misleading response to the jury’s question, resulted in an arbitrary and unpredictable administration of section 190.2, subdivision (a)(17), in violation of the Eighth and Fourteenth Amendments. (See California v. Brown (1987) 479 U.S. 538, 541.) That error, and the subsequent use ofthe special circumstances at the penalty phase, denied appellant his right to a fair and reliable capital trial, both at guilt and at penalty (see Beck »v. Alabama (1980) 447 U.S. 625, 638; People v. Cudjo (1993) 6 Cal.4th 585, 623); rendered the proceedings fundamentally unfair in violation of the Due Process Clause of the Fourteenth Amendment(see Estelle v. McGuire (1991) 502 US. 62, 72); and arbitrarily deprived appellant ofhis state-created liberty interest, and his fundamentallife interest under the Eighth and Fourteenth - 126 - Amendments, in having a jury that is not confused asto a key instruction in a capital case (see Ohio Adult Parole Auth. v. Woodard (1998) 523 U.S, 272, 288- 289 (conc. opn. of O’Connor,J.); Hicks v. Oklahoma (1980) 447 US. 343, 346; Murtishaw v. Woodford (9th Cir. 2001) 255 F.3d 926, 969-970.) 3. The Felony-Murder Special CircumstanceIs Unconstitutional, Both on Its Face and as Applied Here The Eighth and Fourteenth Amendments to the federal Constitution require that a death penalty scheme must “narrow[] the class of defendants whoareeligible for the death penalty” (Peopk v. Visceotta (1992) 2 Cal.4th 1, 74), and must provide a principled basis “for distinguishing between those murderers who deserve to be considered for the death penalty and those who do not” (People v. Green, supra, 27 Cal.3d at p. 61; see also Lowenjfield v. Phelps (1988) 484 U.S. 231, 244; Furman v. Georgia (1972) 408 U.S. 238, 313 (conc. opn. of White, J.); People v. Edelbacher (1989) 47 Cal.3d 983, 1023). To the extent that this Court concludes that the felony-murder special circumstance does not require that the killing was committed in order to advance the independent felonious purpose of the underlying felony, then the special circumstance, both facially and as applied here, violates the federal Constitution because,inter alia, it: fails to provide a meaningfulbasis for narrowing death eligibility, i.e., fails to narrow the class of “death eligible” defendants to a smaller subclass more deserving of the death penalty than those notso included;fails to meet minimal Eighth Amendmentdeath penalty standards; improperly imposes deatheligibility on those whokill unintentionally during the commission of a felony; fails to require a finding of premeditation or deliberation or any other morally qualifying intent; and makes a muchlarger class of murderers -- those who kill with premeditation but not in the commission of a qualifying felony -- not subject to the death penalty. (U.S. Const., 8th & 14th Amends.) This Court has repeatedly rejected these challengesto theeligibility - 127 - process in California’s death penalty scheme. (E.g., People v, Stanley (2006) 39 Cal.4th 913, 968; People v. Cook (2006) 39 Cal.4th 566, 617; People v. Boyer (2006) 38 Cal.4th 412, 483; People v. Cornwell (2005) 37 Cal.4th 50, 102; People v. Frye (1998) 18 Cal.4th 894, 1028-1030; People v. Musselwhite (1998) 17 Cal.4th 1216, 1265-1266; People v. Stanley (1995) 10 Cal.4th 764, 842-843; People v. Webster (1991) 54 Cal.3d 411, 455-456; Peopée v. Anderson (1987) 43 Cal.3d 1104, 1147.) Appellant respectfully requests this Court to reconsider those decisions and to strike down section 190.2, both facially and as applied here. (See Peopk v. Schmeck, supra, 37 Cal.4th at pp. 303-304.) C. Reversal of the Felony-Murder Special Circumstance FindingsRequires That the Death Judgment Be Reversed Reversal of the two felony-murder special circumstances requires reversal of the death judgment. Appellant has argued separately herein that the remaining special circumstance finding -- the killing of a peace officer -- must also be set aside. (See Arg. 4, ante.) In the absence ofa validspecial circumstance, the death judgment must be reversed. (§ 190.2, subd. (a); Peopk v. Marshall (1997) 15 Cal.4th 1, 44.) Even if the peace-officer-killing special circumstance finding were upheld on appeal, the errors related to the felony-murder special circumstance findings -- both the legal insufficiency of the evidence andthetrial court’s erroneous responseto the jury’s question -- require reversal of the death judgment. Assumingthat the evidence relevant to the felony-murder special circumstances was relevant under section 190.3, factor (a), the questionis whetherthe invalid special circumstance findings caused distortions “beyond the mere addition of an improper aggravating element.” (Brown v. Sanders (2006) 546 U.S. 212, 220,fn. 6.) Here, the prosecutor, in his closing argument, madeclear thathis case for death was based onthe circumstances of the crime (12 RT 3903), and stressed the presence of felony-murder special circumstances: - 128 - And you get back then, you comebacka little bit to the hair salon. Three special circumstances were committed, three of them. The burglary. That hair salon back by itself, tucked away. Talked about this before. Tucked away,it is dark,it is at night. That serious felony of entering a building with intent to commit a felony, that’s a special circumstance. Why? Theriskit puts people at, people whofeel -- who.are disarmed, whoare in the building. It is not a residence. It is not a home, I understand that, butstill a structure, a business. You let your guard down. That’s what was happening with these people, with Jennifer and Amyand Shayne. Theyare just there for a haircut. The guard completely down. The robbery. That’s a special circumstance. The mannerofthis robbery was especially atrocious. Oh,there is a robbery when you run up to somebodythat’s carrying a purse andripit off their arm and run. There is a robbery. Thereare all kinds of robberies. (12 RT 3943-3944.) The prosecutor’s reliance at closing argument on the existence of the invalid special circumstance findings caused distortion in the jury’s weighing process by arguing in essence that the law attaches special weight to the felony-murder special circumstance findings, and by inviting the jurors to overweigh the aggravating factors. That distortion -- in effect, an unlawful bias in favor of death -- violated the Eighth and Fourteenth Amendmentsto the federal Constitution. Noris the error harmless beyond a reasonable doubt. (See Chapman v. Cakfornia (1967) 386 U.S. 18, 24; cf. People v. Brown (1988) 46 Cal.3d 432, 447- 448 [state law error at the penalty phase tested by the “reasonable possibility” test].) Although the capital and other crimes were serious, the mitigating evidence was especially strong. The defense presented substantial, unrebutted evidence of appellant’s mental retardation, brain damage, and severe mental illness. The evidence also showed that appellant had speech andlearning disabilities from a very early age. He was raised by an alcoholic mother who - 129 - did not believe in and neglected appellant’s medical needs, did not inform appellant that his stepfather was not his biological father until appellant was approximately 13-years old, and withheld him from organized sports because of a fear of injury. As a child, appellant’s family changed residences numerous times, and he was ultimately raised in gang-infested, south central Los Angeles. In light of the strong mitigation in this case, the errors identified herein cannot be deemed harmless beyond a reasonable doubt. The death sentence must be teversed. // - 130 - 6. THE DEATH JUDGMENT MUST BE REVERSED BECAUSE APPELLANT WAS DENIED HIS RIGHT TO SELF- REPRESENTATION AT THE PENALTY PHASE A. Appellant’s Request to Discharge Counsel Shortly after the jury returnedits guilt verdicts on August 22, 2000,the trial court set August 28, 2000, as the start of the penalty phase. (10 CT 3357; 8 RT 2930-2945, 2950.) Defense counsel then informedthetrial court that appellant requested a hearing pursuant to Peopke v, Marsden (1970) 2 Cal.3d 118 (8 RT 2952), and an in camera hearing was held with defense counsel and appellant. (8 RT 2953-2962 [sealed].) 57 At the hearing, appellantinitially confirmed that he was seeking substitute counsel, but when asked whetherhefelt that counsel had not properly represented him, he madeclear that he had no complaint about counsel’s “job”at the guilt phase. Instead, he wanted counsel “removed” because “TI don’t want them putting no defense for me on the penalty phase....” He confirmed that he was not seeking substitute counsel: “No,I don’t want no other attorney.” (8 RT 2953-2954.) However, when the court asked whether appellant wanted to represent himself, appellant responded, “No, I just want the prosecutor to puthislittle -- what he want to put up.” (8 RT 2954.) The court explained that it had to be one or the other: “{I]t is either a lawyer representing you... or you are in pro per; that is, you are representing yourself.” It then asked, “It soundslike you are telling me you wantto represent yourself. Is that correct?” Appellant responded with a question: “If I represent myself, I could just be quiet then, right?” The court replied, “Well, yeah, you could do pretty much whatyoufeel is appropriate to do with 57. Appellant filed with this Court a motion to unseal limited portions of the record on appeal. The Court granted the relevant portions of the motion. - 131 - respect to the penalty phase of thetrial.” (8 RT 2954-2955.) Appellantagain reiterated that he wanted to discharge counsel(“I just want Mr. Davis and Ron Klar movedoff my case”), and that he did not want substitute counsel (“I don’t want no new lawyers”); but he also twice stated “I don’t wantto represent myself.” He wanted “the prosecutor to dotherest of his little job and I will go on my way.” (8 RT 2955.) The court then turnedits attention to counsel, asking: “is this a Faretta hearing or Marsden?” (8 RT 2955.) Defense counsel Davis responded: I don’t think that’s really whatit is. The problem, such asit exists between Mr. Boyce and Mr. Klar andI, is simply that Mr. Boyce does not want us to present any evidence in mitigation. He does not want us to fight whatever the D.A. puts on in aggravation, and he doesn’t want us to put on anything in mitigation that might.affect a jury’s determination that life without possibility of parole is the appropriate sentence. We havetalked about that. I have told Mr. Boyce that I respect his opinion andhis position about why hefeels the way he does, and honestly I do. But, I have a responsibility, Mr. Klar has a responsibility, and our responsibilities -- I don’t know that you would say that they are for higher cause or whatever, but our responsibilities are notto just roll over in a situationlike that, and we don’t intendto. So I supposethe real crux ofthesituation is that Mr. Boyce and Mr. Klar and are at loggerheads over whether or not any evidence should be produced. We have witnesses. We want to put that evidence on and Mr. Boyce doesn’t want us to do that. It is my understanding of the law, when it comes to that kind of a dilemma,is that essentially it is the attorney’s call to make and that I am making a call that Mr. Boyce may not agree with, but that I think is in his best interests in the long run. (8 RT 2956.) Thetrial court, after having the attorneys state their experience in criminaltrials (8 RT 2957), observed: - 132 - I recognize the fact that this is a Marsden hearing, but I can’t help but address some of the court’s inquiry as relates to Faretta. What that means, Mr. Boyce,is that -- we have talked aboutthis a few minutes ago, and that is that it is a little bit difficult for the court to figure out whether you wantto represent yourself. Think that’s what you are saying because youare telling me you don’t want another lawyer appointed and you wantthe court to relieve Mr. Klar and Mr. Davis. So, let me just ask you a couple of questions. (8 RT 2958-2959.) The court attempted to summarize appellant’s desire: “You basically just want to sit there during the penalty phase andlet the D.A. put on his evidence without anybody asking those people any questions?” Appellant responded, “You know, your Honor,if I could have it my way,I don’t want to be here at all. I wantto stay in the jail. You could notify me of the outcome.” (8 RT 2959.) The court then asked appellant abouthis education level (according to appellant, he stopped going to school in the 10th Grade), his employment history (appellant had never had a job outside of prison), and whether he had represented himself in any criminal proceeding (he had not). Finally, the court inquired, “I don’t suppose you know anything aboutthe law, the rules of evidence or anything like that?” Appellantreplied, “I sure don’t.” (8 RT 2959-2960.) The court ruled as follows: With respect to any Faretta issues, the court finds that Mr. Boyce is not qualified to represent himself for the reasons ofthe answers that he just gave to the court regarding his educational background andlack thereof. Andalso, with respect to some of the evidence that the court heard during the guilt phase of the trial, specifically [Dr. Cross]. The court considers that as well. Plus, from a procedural standpoint, the request to go pro per, which in effect the court deemsthis to be part and parcel of a Marsden request, I don’t think that portion ofit is technically - 133 - timely made. But, just rather than a procedural denial, the court wanted to make inquiry of Mr. Boyce’s ability to represent himself. {] So his request to go pro peris denied. (8 RT 2960-2961.) The court also denied the Marsden motion,finding that defense counsel “have properly represented you and they will continue to do so.” (8 RT 2961.) B. Appellant’s Constitutional Right to Self-Representation at the Penalty Phase WasViolated Appellant had a right underthe Sixth and Fourteenth Amendmentsto proceed attrial without counsel (Faretta v. Cahifornia (1975) 422 U.S. 806, 835- 836), including, according to this Court, at the penalty phase of a capitaltrial (People v. Blair (2005) 36 Cal.4th 686, 736-740; People v. Bradford (1997) 15 Cal.4th 1229, 1364-1365; People v. Clark (1990) 50 Cal.3d 583, 617-618). A trial court must grant a defendant’s request to proceed without counsel if three conditions are met: (1) the defendant is competent and made the request knowingly andintelligently, having been apprised of the dangers of self-representation; (2) the request is made unequivocally; and (3) the request is timely, (People v. Jackson (2009) 45 Cal.4th 662, 689; People v. Stanley (2006) 39 Cal.4th 913, 931-932.) Each of these conditions was metin this case. 1. The Trial Court Failed to Inquire Into Whether Appellant’s Request Was Knowing,Intelligent, and Voluntary A defendant must be competent to waive the right to counsel. (People v. Stewart (2004) 33 Cal.4th 425, 513) Although the trial court here made no findings regarding appellant’s competency, the court never expressed a doubt about appellant’s competenceto standtrial. (See Drope v. Missouri (1975) 420 USS. 162, 180; People v. Pokovich (2006) 39 Cal.4th 1240, 1245.) A defendant’s request for self-representation mustalso be knowing, intelligent, and voluntary. (See Faretta v. Cakfornia, supra, 422 U.S. at p. 835; Patterson v. Illinois (1988) 487 U.S. 285, 298; People v, Koontz (2002) 27 Cal.4th - 134 - 1041, 1069-1070; Peopke v. Joseph (1983) 34 Cal.3d 936, 943.) In this case, the trial court made an inadequate inquiry into whether appellant’s request was knowing, intelligent, and voluntary. It simply denied the request because,it concluded,appellant was “not qualified to represent himself[.]” (8 RT 2960.) The court’s failure adequately to inquite into whether appellant’s request was knowing,intelligent, and voluntary was anabuse of discretion. (See Peopk », Lara (2001) 86 Cal.App.4th 139, 165.) 58 2. The Trial Court Erred in Concluding That Appellant Was “Not Qualified to Represent Himself” At the hearing, the trial court questioned appellant about his education level and employmenthistory, and whether he had represented himself in any criminal proceeding. The court also inquired, “I don’t suppose you know anything aboutthelaw, the rules of evidence or anything like that?” Appellant replied, “I sure don’t.” (8 RT 2959-2960.) The court found that appellant “Twas] not qualified to represent himself for the reasons of the answers that he just gave to the court regarding his educational backgroundandlack thereof.” The court also noted that it had considered the testimony given by Dr. Cross at the guilt phase of the trial. (8 RT 2960-2961.) This inquiry was constitutionally flawed. A trial court errs whenit refers to a defendant’s educational background in denying a requestforself- representation. (Peopv. Dookn (2009) 45 Cal.4th 390, 454.) Nor maya trial court “measure a defendant’s competence to waivehis right to counsel by 58, The trial court appears to have relied upon the testimony by neuropsychologist Dr. Cross in denying appellant’s request. This, too, was error. Dr. Cross’s testimony did not address appellant’s competency. The high court’s recent decision in Indiana v. Edwards (2008) 554 US. 164, 128 S.Ct. 2379 does notalter this conclusion. “While Edwards makescleat states may set a higher or different competence standard forself-representation than for trial with counsel, California had not done so at the time of defendant’s trial.” (Peopk v. Taylor (2009) 47 Cal.4th 850, 866.) - 135 - evaluating the defendant’s technical legal knowledge[.]” (Idd, internal citation and quotation marks omitted; see also Peters v. Gunn (9th Cir. 1994) 33 F.3d 1190, 1192 [“Lack of legal qualifications alone cannotbe a basis for refusing a defendant’s pro se request”’].) Similarly, appellant’s employmenthistory was irrelevant: “A defendant need not have a certain educationallevel or particular work experience in order to invokethe right to self-representation.” (See People v. Robinson (1997) 56 Cal.App.4th 363, 372.) Thetrial court here denied appellant’s request not because his decision to discharge counsel was unknowing,unintelligent or involuntary, but rather because the court believed that appellant was “not qualified to represent himself[.]” That was in improper basis upon which to deny appellanthis right to proceed at the penalty phase without counsel. (See People v. Koontz, supra, 27 Cal.4th at p. 1070 [a “trial court may not determine a defendant’s competency to waive counsel by evaluating his ability to present a defense’’].) 3. Appellant’s Request Was Not Equivocal An accused must make an “unequivocal assertion”of the rightto self- representation in order to invoke that constitutional right. (People v. Barnett (1998) 17 Cal.4th 1044, 1087; see also People v. Marshall (1997) 15 Cal.4th 1, 21- 25.) In this case, appellant asked to discharge counsel, buthe also twice stated that he did not wish to represent himself. Those statements, however, do not establish that the request was equivocal. Appellant madeclear to thetrial court that he did not want counsel to put on a defenseat the penalty phase. (8 RT 2953-2955.) Trial counsel confirmed that this was appellant’s intent, but made clear that counsel was nevertheless intent on presenting mitigating evidence overtheir client’s objection. Given that counsel and appellant were at “loggerheads over whether or not any evidence should be produced,” appellant sought to effectuate /is intent by discharging counsel. (8 RT 2956.) Indeed, that was the - 136 - erneepeitican 2 eitaeireiRRARRtecatEtcgMteee ae Hoge tenti antetetecte RUG “trantOMEUhrediroesSitnn only way that he could have effectuated that intent under the circumstances. Moreover, thetrial court’s responses to appellant’s request indicate that the request was not equivocal. Although the court observed that“itis a little bit difficult for the court to figure out whether you wantto represent yourself,”it interpreted appellant’s request to be that he did not wantdifferent counsel and did wantthe court to discharge his trial attorneys. It therefore proceeded to conduct an inquiry directed at whether appellant was “qualified to represent himself.” (8 RT 2958-2959.) A reviewing court “is not bound by the trial court’s apparent understanding that the defendant was making a motion for self-representation” (Peopk v. Barnett, supra, 17 Cal.4th at p. 1087); but a trial court’s understanding or interpretation of the requestis certainly relevant to determining whether a request is unequivocal (see People v. Danks (2004) 32 Cal.4th 269, 296; People v. Dent (2003) 30 Cal.4th 213, 218-219). Here, where the only means by which appellant could have foregone presenting a case at the penalty phase was by discharging counsel, the court correctly interpreted his request as one essentially to represent himself at the penalty phase. Accordingly, appellant’s request was not equivocal. 4. Appellant’s Request Was Timely With regard to the timing of the request,thetrial court stated: “I don’t think that portion ofit is technically timely made.” But, the court continued, “rather than a procedural denial, the court wanted to make inquiry of Mr. Boyce’s ability to represent himself.” (8 RT 2960-2961.) This statement makesclear that the trial court did not rely on any putative untimeliness of the request in denying that request. This Court has concludedthat, once trial has commenced,the right to self-representation loses its constitutional basis andis “based on nonconstitutional grounds,” subject to the trial court’s discretion. (Peopée ». Bloom (1989) 48 Cal.3d 1194, 1220; see also People v. Doon, supra, 45 Cal.4th at - 137 - p. 453; People v. Bradford, supra, 15 Cal.4th at p. 1365; People v. Mayfield (1997) 14 Cal.4th 668, 809; People v. Windham (1977) 19 Cal.3d 121, 127-129.) Further, this Court has held that, for purposes of determining whether a requestfor self-representation is timely in a capital case, the guilt and penalty phases of a capital trial are considered “unitary.” (Doolin, supra, at p. 454; People v. Pride (1992) 3 Cal.4th 195, 252,citing § 190.4, subd. (a); People v. Hardy (1992) 2 Cal.4th 86, 193-195.) Accordingly, this Court deems a request for self- representation madeafter the guilt phase verdicts have been returned to be untimely. (Id. at pp. 194-195 [request made after the guilt phase, and one week before penalty]; see also Mayfield, supra, at pp. 809-810 [request made after the penalty verdict]; People v. Kirkpatrick (1994) 7 Cal.4th 988, 1006-1007 [request made near the end ofthe guilt phase].) For the following reasons, appellant respectfully requests this Court to reconsider its decisions concluding that, for purposesof the righttoself- representation in a capital case, a request madeafter trial has begun but before the penalty phase is untimely as a matter of law. . First, this Court’s conclusion is inconsistent with a defendant’s right to exercise actual control over his penalty-phase case, including the right not to present mitigating evidence at the penalty phase. (People v. Ramirez (2006) 39 Cal.4th 398, 468; People v. Blair, supra, 36 Cal.4th at pp. 736-737; People v. Clark, supra, 50 Cal.3d at pp. 617-618; People v. Lang (1989) 49 Cal.3d 991, 1030- 1031.) Until the jury returns a verdict of guilty offirst degree murder, and finds a special circumstanceto betrue, there is no certitude that a penalty phase will occur. Moreover, a conflict between the defendant and counsel over the control of the penalty-phase case may notbeclear until shortly before the commencementof the penalty phase. Second, althoughit is true that the Legislature has evinced a strong legislative preference for a “unitary” jury, use of that legislative preference to ~ 138 - deny a pre-penalty phase requestfor self-representation as untimely is eeeoverbroad and improper. 5° The timeliness requirementexists ““to prevent a defendant from misusing the motion to delay unjustifiably thetrial or to obstruct the orderly administration of justice.”’ (People v. Dookn, supra, 45 Cal.4th at p. 454, quoting People v. Horton (1995) 11 Cal.4th 1068, 1110;see also People v. Burton (1989) 48 Cal.3d 843, 852)If a trial court is concerned with delay that may result from a request to discharge counsel, then it should inquire into the reason why the request was not made sooner, and whether the request would in fact occasion a delay. Thetrial court here did not doso. Third, this Court’s conclusion is inconsistent with the right to self- representation itself. Although the United States Supreme Court has not directly addressed the timing of a request to proceed attrial without counsel (see Marshall v. Taylor (9th Cir. 2005) 395 F.3d 1058, 1060-1061), the high court has notheld that the right loses its constitutional basis if made during trial. The right to counsel may beasserted at any time before or duringtrial withoutlosing its constitutional basis. (See United States v. Proctor (1st Cir. 1999) 166 F.3d 396, 401-402; Menefield v. Borg (9th Cir.1989) 881 F.2d 696, 700-701.) The right to self-representation is similar to the right to counselin 59, California’s capital-case scheme, and indeed every capital-case scheme upheld by the United States Supreme Court, involves “bifurcated” proceedings-- that is, proceedings that are separated or divided into two. (See People v. Musselhite (1998) 17 Cal.4th 1216, 1266-1267.) There can be no denying the fundamental differences between the guilt and penalty phases of a capital trial. (See People v. Davenport (1995) 11 Cal.4th 1171, 1224, abrogated on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) 60. In Faretta, a noncapital case, the request was made weeks beforetrial. (Faretta v. California, supra, 422 U.S. at p. 835.) In Indiana v. Edwards (2008) 554 USS. 164, 128 S.Ct. 2379, 2383, another noncapital case, the request was made “Sust before” a retrial. (Ud. at p. 2382.) In Martinez v. Court ofAppeal (2000) 528 US. 152, the Court observed simply that “most courts” require a defendant to make the request “in a timely manner.” (Id at pp. 161-162.) ~ 139 - that both are fundamentalrights. (People v. Bradford, supra, 15 Cal.4th at p. 1364.) The right to self-representation should not and cannotloseits constitutional basis if first requested before the penalty phase of a capital case. 5. Even if Appellant’s Request Were Untimely, the Trial Court Erred in Denying the Request Assumingthat appellant’s requestwas untimely, the trial court abused its discretion in denying that request. In exercisingits discretion, a trial court should consider, inter alia, the following factors: the defendant’s prior proclivity to substitute counsel; the reasons for the request; the length and stage of the proceedings; and the disruption or delay which might reasonably be expected to result were the motion to be granted. (See Peoph v. Windham, supra, 19 Cal.3d at pp. 128-129; see also People v. Hardy, supra, 2 Cal.4th at p. 195.) 6 In this case, there was no “prior proclivity to substitute counsel” because the request in issue was the first made by appellant. Noris there any indication that appellant intended to disrupt the proceedings, or any “reasonable basis” for concluding that granting the request would create disruption. (See People v. Welch (2004) 20 Cal.4th 701, 734.) The request was made one week before the penalty phase wasset to begin, and thereis no indication that granting it would lead to a delay in the penalty phase. To the contrary, appellant wanted to expedite that proceeding. One Windham factorthat the trial court did not expressly consider in denying the request is the reason for the request. Appellant made clear that the reason for the request was to control his penalty-phase defense. This he had an unequivocal right to do: 61. A trial court should also consider the quality of counsel’s representation of the defendant. Here, there was no question in the court’s mind that defense counsel had adequately represented appellant. - 140 - Notwithstanding the state’s significantinterest in a reliable penalty determination, a determination best made by a fully informed sentencer, a defendant’s fundamental constitutional right to control his defense governs. The defendanthasthe right to present no defense and to take the stand and both confess guilt and request imposition of the death penalty. It follows that the state’s interest in ensuring a reliable penalty determination may not be urged as a basis for denying a capital defendant his fundamentalright to control his defense by representing himself at all stages ofthetrial. (People v, Clark, supra, 50 Cal.3d at pp. 617-618,internal citations omitted.) Thetrial court erred in not considering the reason for appellant’s request, and abusedits discretion in denying appellant’s request. C. Appellant’s Constitutional Right to Control His Own Defense at the Penalty Phase Was Violated The core of the Fareta right is a defendant’s ability to retain “actual control over the case he chooses to presentto the jury.” (McKaskke v. Wiggins (1984) 465 U.S, 168, 178-179.) Concomitantly, the defendant’s right to exercise actual control over the case he chooses to present extendsto the penalty phase. (Peopk v. Lang, supra, 49 Cal.3d at pp. 1030-1031.) This control encompasses the decision not to present mitigating evidence at the penalty phase. (Peopke v. Blair, supra, 36 Cal.4th at pp. 736-737 [a rule requiring a pro se defendantto present mitigating evidence would be unenforceable andself-defeating”’]; Peopk v. Bloom, supra, 48 Cal.3d at pp. 1221-1224.) Here, appellant sought to control his own defense by foregoing the presentation of a penalty-phase case. He had a right to do so. Thetrial court’s failure to protect that right by granting appellant’s requestfor self- representation waserror. D. The Error Requires Reversal of the Death Judgment The erroneous denial of a defendant’s request to discharge counselis reversible per se. (See McKaskie v. Wiggins, supra, 405 U.S.at p. 177, fn. 8; People - 141 - v. Dent, supra, 30 Cal.4th at pp. 217-222.) Where the erroneous denial of such a request relates to the penalty phase, the death judgment mustbe reversed. (People v. Halvorsen (2007) 42 Cal.4th 379, 434.) Accordingly, the death judgmentin this case mustbe reversed. // - 142 - 7. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING A NUMBER OF PENALTY-PHASE JURY INSTRUCTIONS REQUESTED BY THE DEFENSE A. Factual Background Appellant requested a number of penalty-phase instructions that were necessary to guide the jury adequately in their consideration of the mitigating and aggravating factors, in their weighing of those factors, and in their making the constitutionally-required, individualized moral assessmentof the appropriate penalty to impose. (10 CT 3458-3484.) Thetrial court instructed the jury with three of those instructions: An individual juror may consider something as a mitigating factor even if none ofthe other jurors considered that fact to be mitigating. There is no need for the jurors to unanimously agree on the presence of a mitigating factor before consideringit. Whatis a mitigating circumstance or not and the weight to be given the existence or nonexistence of any circumstance is up to each individual juror. (10 CT 3448; 12 RT 4045; Def. proposed instruction no.5.) You are further instructed that you must assumethat the sentence you impose will be the sentence thatis carried out. (10 CT 3440; 12 RT 4038; Def. proposed instruction no, 11.) In deciding whether death orlife imprisonment without the possibility of parole is the appropriate sentence, you may not consider for any reason whatsoever the deterrent or nondeterrent effect of the death penalty on persons other than the defendant, or the monetary cost to the state of execution or maintaining a prisoner forlife. (10 CT 3439; 12 RT 4038; Def. proposed instruction no. 20.) Appellant also requested the following instruction, regarding sympathy for the family of the victim and ofthe defendant: Sympathy for defendant’s family is not a matter that may be considered in mitigation, nor can sympathyfor a victim’s family be considered in aggravation. However, testimony of a defendant’s family members maybe considered in mitigation to - 143 - the extent that it illuminates somepositive quality of the defendant’s backgroundor character or reveals circumstances which extenuate the gravity of the offense. (10 CT 3484; Def. proposed instruction no. 19.) The court refused that instruction (11 RT 3872), and instead gave the following two instructions: Sympathy for the family of the defendantis not a matter that you may consider in mitigation. Evidence, if any, of the impact of an execution on family members should be disregarded unlessit illuminates some positive quality of the defendant’s background or character. Sympathyfor the family of the victim is not a matter you may consider in aggravation. Evidence, if any, of the impact of the victim’s death on family members should be disregarded unlessit illuminates some positive quality of the victim’s background and character. (10 CT 3444-3445; 12 RT 4042-4043.) The court refused the other instructions requested by appellant, and instructed the jury in accordance with CALJIC Nos. 8.85 and 8.88, as follows: In determining which penalty is to be imposed on the defendant, you shall considerall the evidence which has been received during any partof the trial of this case. You shall consider, take into account and be guided by the following factors, if applicable. A, the circumstances of the crime of which the defendant was convicted in the present proceeding, and the existence of any special circumstances foundto betrue; [J]... J] K,any other circumstance which extenuates the gravity of the crime even thoughit is not a legal excuse for the crime, and any sympathetic or other aspect of the defendant’s character or record that the defendantoffers for a basis for a sentence less than death, whether or not related to the offense for which heis ontrial. (10 CT 3442-3444; 12 RT 4039-4042.) It is now your duty to determine which of the two penalties, death or confinement in the state prison for life without the possibility of parole, shall be imposed on the defendant. After having heardall the evidence and after having heard and - 144 - considered the arguments of counsel, you shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed, An aggravating factor is any fact, condition or event attending the commission of a crime which increases its guilt or enormity, or adds toits injurious consequences which is above and beyond the elements of the crimeitself. A mitigating circumstance is any fact, condition or event which does not constitute a justification or excuse for the crime in question, but may be considered as an extenuating circumstance in determining the appropriateness of the death penalty. The weighing of aggravating and mitigating circumstances does not mean a mere mechanical counting of factors on each side of an imaginary scale, or the arbitrary assignment of weights to any of them. You are free to assign whatever moral or sympathetic value you deem appropriate to each andall the various factors you are permitted to consider. In weighing the various circumstances, you determine under the relevant evidence which penalty is justified and appropriate by considering the totality of the aggravating circumstances with the totality of the mitigating circumstances. To return a judgment of death, each of you must be persuaded that the aggravating circumstancesare so substantial in comparison with the mitigating circumstances that it warrants death instead oflife withoutparole. (10 CT 3453-3454; 12 RT 4048-4050.) B. The Trial Court Erred in Refusing the Penalty-Phase Instructions Requested by Appellant A capital sentencing jury must be free “to reject death if it decides on the basis of any constitutionally relevant evidence or observation that it is not the appropriate penalty.” (Peopk v. Brown (1988) 46 Cal.3d 432, 468, internal quotation marks omitted.) A trial court’s penalty-phase instructions must permit the jurors to consider and give full and meaningful effect to any proper evidence or argumentthat the defendantproffers as a basis for a sentence less - 145 - than death. (See Abdul-Kabir v. Quarterman (2007) 550 U.S. 233, 246-248, 258- 261, 263-265; Hitchcock v. Dugger (1987) 481 U.S. 393, 398-399; Eddings v. Oklahoma (1982) 455 U.S. 104, 110; Lockett v. Ohio (1978) 438 U.S. 586, 604 (plur. opn.).) “Special instructions are necessary when the jury could not otherwise give meaningfuleffect to a defendant’s mitigating evidence.” (Abdul-Kabtr, supra, 550 U.S. at p. 254, fn. 14: see also Kelly v. South Carolina (2002) 534 U.S. 246, 256; Carter v. Kentucky (1981) 450 U.S. 288, 302-303.) Understate law, a trial court must instruct the jury at the penalty phase “on general principles of law that are closely and openly connected to the facts and that are necessary for the jury’s understanding of the case.” (Peopk ». Benavides (2005) 35 Cal.4th 69, 111; see also Peope v. Stanworth (1969) 71 Cal.2d 820, 841.) Moreover, a defendantis entitled at the penalty phase “to instructions that pinpoint the theory of the defense case.” (People v. Gurule (2002) 28 Cal.4th 557, 660; see also People v. Davenport (1985) 41 Cal.3d 247, 281-283 (plur. opn.); § 1127.) ‘ A trial court may refuse an instruction thatis “an incorrect statement of law, is argumentative, or is duplicative.” (People v. Gurule, supra, 28 Cal.4th at p. 659; see also People v. Sanders (1995) 11 Cal.4th 475, 559-561.) However, the trial court should correct ortailor requested instructions, particularly when a defendant’s life is at stake. (See People v. Whitehorn (1963) 60 Cal.2d 256, 264- 265; see also Peopk v. Falsetta (1999) 21 Cal.4th 903, 924; People v. Fudge (1994) 7 Cal.4th 1075, 1110; People v. Hall (1980) 28 Cal.3d 143, 159.) The instructions requested by appellant were necessary to guide the jury adequately in their consideration of the mitigating and aggravating factors, in their weighing of those factors, and in their making the constitutionally- required, individualized moral assessmentof the appropriate penalty to impose. As none ofthe requested instructions was an incorrect statement of law, argumentative, or duplicative, the trial court erred by refusing to give - 146 - those instructions. 1. The Trial Court Erred in Refusing Appellant’s Requested Instructions Regarding the Jurors’ Consideration of Compassion and Mercy At the penalty phase, appellant requested several instructions regarding the jurors’ consideration of mercy, compassion, and sympathy. First, the defense requested the following instruction: A juroris further permitted to use mercy, sympathy and/or sentimentin deciding what weight to give each mitigatingfactor. (10 CT 3465 [Def. proposed instruction no. 2, { 3].) & At the instructional conference, the prosecutor argued that “the case law indicates that juries are not required to be instructed in terms of sympathy and mercy. I think sympathy or someversion thereofis included in the CALJIC instruction.” (11 RT 3860.) Thetrial court ruled: “For most of those [reasons], the court concurs. It is refused.” (11 RT 3861.) Thetrial court erred in refusing this instruction. In People v. Wharton (1991) 53 Cal.3d 522, 600-601, this Court found that the language in the proposedinstruction was “consistent with Eighth Amendmentguarantees.” A sentencing juror is “permitted to use mercy, sympathy and/or sentiment”in assessing the mitigating evidence, and determining the appropriate sentence, (See People v. Hughes (2002) 27 Cal.4th 287, 403 [referring to jurors’ “obligation to take into account mercy”); People v. Wright (1990) 52 Cal.3d 367, 442; People v. Haskett (1982) 30 Cal.3d. 841, 864.) The defense also requested that the jury be instructed with the following language: 62. The first two paragraphs of defense proposed instruction number 2 relate to the jurors’ consideration of mitigating circumstances. (10 CT 3465.) Issues arising from thetrial court’s refusal to instruct the jurors with those paragraphsare discussed in subsection 4, post. - 147 - A mitigating circumstance does not constitute a justification or excuse for the offense in question. A mitigating circumstanceis a fact about the offense, or about the defendant which in fairness, sympathy, compassion or mercy maybe considered in extenuating or reducing the degree of moral culpability or which justifies a sentence less than death, althoughit does notjustify or excuse the offense. (10 CT 3466 [Def. proposed instruction no, 3].) The prosecutor objected, arguing that “it is covered by factor k and CALJIC 8.88.” The trial court agreed and refused the instruction. (11 RT 3861.) Thetrial court erred in refusing this instruction: a similar instruction has been cited with approval by this Court. (See People v. Osband (1996) 13 Cal.4th 622, 705-706; Peopk v. Ray (1996) 13 Cal.4th 313, 354-355 & fn. 20.) % Third, the defense requested the following instruction: If a mitigating circumstance or aspect of the defendant’s background or his character arouses mercy, sympathy, empathy or compassion such as to persuade you that death is not the appropriate penalty, you must act in response thereto and impose a sentenceoflife withoutpossibility of parole. (10 CT 3467 [Def. proposed instruction no. 4].) The prosecutor argued that the instruction was argumentative and covered by CALJIC No.8.85. The court agreed and refused the instruction. (11 RT 3861-3862.) Thetrial court erred in refusing this instruction, as it is taken nearly verbatim from this Court’s opinion in Peopk v. Lanphear (1984) 36 Cal.3d 163, 167, describing California’s death penalty scheme. That language has been 63. In Peopke v. Carter, supra, 30 Cal.4th at pp. 1229-1230 & fn. 25, where the trial court refused a similar instruction, this Court concludedthat: Althoughthetrial court would not have erred in giving the requestedinstruction, its refusal to do so did not constitute error. The pattern instruction adequately defined the concept of mitigation for the jury, and the requested instruction thus would have been largely duplicative. - 148 - noted with approval by this Court. (See People v. Roldan (2005) 35 Cal.4th 646, 740-741; People v. Prieto (2003) 30 Cal.4th 226, 271 & fn. 18.) Nor was the proposedinstruction argumentative. In People v. Brown (2003) 31 Cal.4th 518, where thetrial court refused an instruction substantially similar to those refused here (“Mercy, or compassion you feel based on the evidenceis appropriate for you to consider in deciding whether to sentence [the defendant] to death”), this Court concludedthat the instruction was not argumentative. (Ud at pp. 569-570.) This Court has concluded that instructions similar to those proposed by appellant are “duplicative” insofar as CALJIC Nos. 8.85 and 8.88 suffice to conveyto the jury that it may consider or exercise mercy, sympathy, and compassion. (See People v, Avila (2009) 46 Cal.4th 680, 722 & fn. 17; People v. Davis (2009) 46 Cal.4th 539, 621-622; Peophe v. Whisenhunt (2008) 44 Cal.4th 174, 226; People v. Brown, supra, 31 Cal.4th at p. 570; People v, Hughes, supra, 27 Cal.4th at p. 403.) For the following reasons, appellant respectfully requests the Court to reconsider this conclusion. Noinstruction given at the penalty phase mentioned the terms “mercy” or “compassion.” Instead, the jurors were instructed in the language of CALJIC No. 8.85 to consider, inter alia, “any sympathetic or other aspect of the defendant’s character or record that the defendant offers as a basis for a sentence less than death, whether or notrelated to the offense for which heis on trial.” (10 CT 3442-3444; 12 RT 4039-4040.) The jurors were also instructed in the language of CALJIC No.8.88, in part, as follows: “Youare free to assign whatever moral or sympathetic value you deem appropriate to each andall the various factors you are permitted to consider.” (10 CT 3453- 3454; 12 RT 4049.) 6 64, Two other instructions mention the concept of “sympathy”in Footnote continued on nextpage... - 149 - Sympathy, mercy, and compassion are separate moral responses to mitigating evidence. (See Penry v. Lynaugh (1989) 492 U.S. 302, 328; People v. Taylor (1990) 52 Cal.3d 719, 746; People v. Lanphear, supra, 36 Cal.3d at pp. 166- 167; People v. Robertson (1982) 33 Cal.3d 21, 57-58 (plur. opn.).) Sympathy refers to an understanding of the defendant’s suffering aroused by the mitigating evidence. By contrast, compassion and mercy are considerations that jurors superimpose over the balance ofstatutory factors in aggravation versus those in mitigation in order to determine whether death is an appropriate penalty notwithstanding the defendant’s culpability in the commission of the murder (see People v. Lamphear, supra, 36 Cal.3d at p. 169), and also offer a vehicle for the jury to deliver a just verdict even if they fail to find any mitigating factors as defined by the Legislature and presented by the defendant (see People v. Duncan (1991) 53 Cal.3d 955, 979 [The jury may: decide, even in the absence of mitigating evidence, that the ageravating evidence is not comparatively substantial enough to watrant death”). Or, as Justice Mosk saw it, mercy “is the power to choose life over death -- whether or not the defendant deserves sympathy -- simply becauselife is desirable and death is not.” (People v. Andrews (1989) 49 Cal.3d 200, 236 (dis. _opn. of Mosk,J.) Here, instructional guidance on the concepts of compassion and mercy was necessary for the jury to consider and give meaningful effect to appellant’s case in mitigation. While much of the mitigating evidence introduced by the negative terms: the jurors were instructed not to consider sympathyfor the family of either appellant or the victim. (10 CT 3444-3445; 12 RT 4042-4043.) 65. This Court recently concluded that mercy and compassion “are synonymousin this context|.]” (Peopk v. Ervine (2009) 47 Cal.4th 745, 802.) In this case, the jurors were not instructed that they could consider compassion for appellant. - 150 - defense here may have evoked sympathy from the jurors,significant aspects of appellant’s background and character can besaid to have little or no sympathetic value, nor do they extenuate the gravity of the crime: for example, the evidence that he was raised by an alcoholic mother whodid not believe in and neglected appellant’s medical needs, who did not inform appellant that his stepfather was nothis biological father until the defendant was approximately 13-years old, and withheld him from organized sports because ofa fear of injury. Moreover, the evidence that, as a child, appellant’s family changed residences numeroustimes, and that he was ultimately raised in gang-infested, south central Los Angeles would not necessarily have been considered by the jurors as sympathetic evidence. Indeed, even the evidence of mental retardation and brain damage may be viewed by sentencing jurors as “a two-edged sword that may enhancethelikelihood that the aggravating factor of future dangerousness will be found|[.]” (Atkins v. Virginia (2002) 536 USS. 304, 320-321.) Similarly, many of the symptomsresulting from frontal- lobe brain damageare consistent with the symptomsofantisocial personality disorder, a strong aggravating factor. (See A/kins v. Virginia, supra, 536 U.S. at p. 310; Satterwhite v. Texas (1988) 486 U.S. 249, 252-253.) Indeed, the prosecutor here argued, in the face of Dr. Benson’s contrary diagnosis, that appellant “‘fit” the diagnosis of antisocial personality disorder, including a lack of remorse. (12 RT 3935-3937.) If prosecutors are susceptible to mistaking brain damage and severe mentalillness for sociopathy, then capital sentencing jurors, particularly when urged to do so by the prosecutor,are at risk of making the same mistake. (See Arkins v. Virginia, supra, 536 U.S. at pp. 320- 321; Roper v. Simmons (2005) 543 US. 551, 572-573.) Yet, a juror could reasonably have relied on the mitigating evidence to determine that, despite the relative weight of statutory aggravating and mitigating factors, death was not appropriate for appellant. The standard jury - 151 - instructions, in which mercy and compassion are conspicuousbytheir absence, were insufficient for the jurorsto give full mitigating effect to evidence not necessarily displaying sympathetic aspects of appellant’s background and character but nevertheless warranting the jurors’ merciful and compassionate response. The prosecutor’s closing argumentexacerbated the error. He warned the jurors that the defense would “ask you to feel sympathy and some amount of mercy for their client” (12 RT 3896), and directed them to answer the following question: “In considering whether or not this defendant deserves sympathy, ask yourself what sympathy did he show Shayne York? What mercy did he show Shayne York?” (12 RT 3897.) This argument, which other courts have described as an improper and unnecessary appeal “to the sympathies of the jurors, calculated to influence their sentence recommendation” (Rhodes v. State Fla. 1989) 547 So.2d 1201, 1206; but see People v. Leonard (2007) 40 Cal.4th 1370, 1418; People v. Ochoa (1998) 19 Cal.4th 353, 464-465), was clearly intended to eliminate any possibility that the jury would consider and give effect to compassion and mercy. 66. Defense counsel, in his closing argument, attempted to respondto the prosecutor’s diminishment of mercy: Mercyties in with sympathetic factors and the k factor. But, by the prosecutot’s logic, murder -- mercy could never be used or applied in any murder, and that’s wrong. That’s flawed. | Does the entirety of Kevin’s life suggest to you or justify being merciful? Merciful by what? Banishment, a prison number, years and years and years in prison. Constantlife of survival. That’s metcy. (12 RT 4030.) Counsel also listed “some things that you can be sympathetic about and merciful about.” (12 RT 4030-4031.) - 152 - 2. The Trial Court Erred in Refusing Appellant’s Requested Instructions Regarding the Jurors’ Consideration of Lingering Doubt At the guilt phase, appellant contested whether the evidence showed beyond a reasonable doubt that he was the shooterat the salon. (8 RT 2746 [defense counsel’s guilt-phase closing argument].) The jury found appellant guilty of murder and found that he “personally used a firearm” during the commission of the killing, (10 CT 3251, 3262.) With regard to the special circumstance of the killing of a peace officer in the performanceofhis duties, the jury was instructed that “[i]f you find that the defendant was notthe actual killer of a humanbeing, or if you are unable to decide whether the defendant was the actual killer, you cannotfind this special circumstanceto be true as to the defendant.” (9 CT 3136; 8 RT 2889.) The jury foundit to be true that “a peace officer was intentionally killed in retaliation for the performanceofhis duties.” (10 CT 3275.) At the penalty phase, appellant requested four instructions relating to lingering doubt: While you may not now acquit Kevin Boyce of either murder or the special, you may evaluate the evidence presentedin light of determining which punishmentshall be imposed. This includes any doubts you may entertain on the question of guilt or the circumstances of the defendant’s involvementandparticipation in the crimes, including but, not limited to,the issue of the identification of the actual person who shot Mr. York. Thisis called lingering or residual doubt. The conceptoflingering or residual doubt exists somewhere between absolute truth and reasonable doubt. You were previously required to find each elementofthe charges and the special circumstances beyond a reasonable doubt. However, as you were instructed previously, reasonable doubtis not a mere possible doubt; because everything relating to human affairs and depending on moral evidence is open to some possible or imaginary doubt. Thus you may have had a doubt as to his guilt or the appropriate participation or involvementand - 153 - therefore culpability level in the crimes, but concluded it was not a reasonable doubt. Before determining the appropriate penalty to be imposed upon Kevin Boyce you may determineif the People have proven the case based upon a higher standard than reasonable doubt. Only you are the judges of what standard of proof must be met before imposing a sentence of death in lightof all of the instructions the court has given you. However, you may determine, aside from any other mitigation evidence presented, that there is some doubt, and based uponthat finding imposea sentenceoflife without possibility of parole. (10 CT 3477 [Def. proposed instruction no.12].) The adjudication of guilt is not infallible and any lingering doubts you entertain on the question of guilt or culpability level may be considered by you in determining the appropriate penalty, including the possibility that at some time in the future, facts may come to light which have not yet been discovered. [§]] It may be considered as a factor in mitigation if you have lingering doubt as to the guilt or culpability level of the defendant. (10 CT 3478 [Def. proposed instruction no. 13].) The adjudication ofguilt is not infallible, and any lingering doubts you entertain on the question ofguilt, or level of participation and involvementin the crimes, or the circumstances of defendant’s participation and involvementin the crimes may be considered by you in determining the appropriate penalty. The weight such lingering doubts shouldcarry, if any, is for you to determine. (10 CT 3479 [Def. proposed instruction no.14].) Eachindividual juror may consider as a mitigating factor residual or lingering doubt as to whether defendantintentionally and/or personally killed the victim. Lingering or residual doubt is defined as the state of mind between beyond a reasonable doubt and beyondall possible doubts. [§]] Thus, if any individual juror has a lingering or residual doubt about whether the defendant intentionally and/or personally killed the victim, he or she must consider this as a mitigating factor and assign to it the weight you deem appropriate. (10 CT 3480 (Def. proposed instruction no. 15].) - 154 - At the instructional conference, the prosecutor argued that the trial court was not required to give those instructions. (11 RT 3867.) In particular, the prosecutor argued that, while the defense may argue lingering doubt, case law established that “the language offactor k is sufficient to cover that area.” (11 RT 3867.) Defense counsel responded, “Submit it.’ (11 RT 3868.) Thetrial court refused the instructions, stating: Well, I think Mr, Mulgrew [the prosecutor] correctly states the law. Although, I note some courts have given the instructions. Andin reviewing whetheror not this court should give any one of the proposedlingering doubtinstructions submitted by the defense, I think some of those cases dealt with circumstantial evidence type of cases where the instructions were given. And I know we don’t have a-confession of Mr. Boyce here, but we have an admission; although, there was evidence to cast doubt on that. In any event, I think that the -- you know, as someofthe cases indicated the broad definition of factor k evidence, especially delineating it is sufficient, and counsel can argue that in more specifics. So the requested four instructions are refused.. (11 RT 3868.) In his penalty phase closing argument, the prosecutor argued that the jurors had “found [appellant] is the trigger man. You know thatheis the trigger man. Heis the trigger man.” (12 RT 3912-3913.) Defense counsel argued, however, that there was evidence suggesting that appellant was notthe shooter: [W]e certainly feel strongly that the evidence regarding Kevin not being the shooter of Mr. York was valid and it was supported. But, if there is some, no matter howlittle, lingering question or doubt in any of your minds, individually or collectively, relating to that question of whothe actual shooter of this gentleman was, if any of you ate somewhere beyond a reasonable doubt and beyondall doubtatall, absolute surety, if it is not totally fully resolved for you yet, then that alone is reason to considerlife without parole. That is mitigation and thatis important. Because life without parole does go to the issue of what? Of blame. Of involvement. Of role. Of whatrole was played - 155 - beyond anything I have talked about andwill talk about. There has to be something within you as a humanbeing, as a caring and compassionate people, that says it has to be a moralcertainty he is the shooter, absolute moral certainty. Somethinginside ofit. Death must be the only moralor just thing, based on that elementalone,as well as everything else I have talked about. Moralcertainty. It is beyond beyond a reasonable doubt. Recognize the difference between proof beyond a reasonable doubt and beyond any doubt, surety, moral certainty in that issue of who the shooter was. After-- if after you have heard all the evidence from both phases, you have entertained somelingering doubt, no matter how light, then use that. You are allowed to use that as mitigation. Asto the degree ofhis participation. Shayne York’s memory is not minimized by using that or doing that. We don’t suggest it should be. But another death is not the answer here. If we are not totally sure on who the shooter actually was. And we haveissuesthere. It does not changeit in mitigation even if you think without a doubt and you are not evenlistening to my last comments on lingering doubt. Even if you think absolutely he is the shooter, motal certainty, there isn’t even a doubt,it is the most certain thing you have ever been through in your head, can’t get any higher. It doesn’t change the mitigation we have. It doesn’t changethe life course and path. It doesn’t change thatlife without parole is appropriate. It just means that if there is any doubt, lingering or whatever from those two hard days of deliberation you must have spent regarding whothe shooteris, then you use that individually or collectively. (12 RT 3966-3967,) Thetrial court erred in refusing the defense’s proposed lingering doubt instructions. Although there may be no requirementthat capital-sentencing jurors be instructed on lingering doubtin every capital case (Frankin pv. Lynaugh (1988) 487 U.S. 164, 174 (plur. opn.)), a trial court’s instructions must permit the jurors to consider and give effect to any proper evidence or argument that the defendant proffers as a basis for a sentence less than death, (See Abdul-Kabir v. Quarterman, supra, 550 US. at pp. 246-248, 258-261, 263- - 156 - 265.) The high court has concluded that “[s]pecial instructions are necessary when the jury could not otherwise give meaningful effect to a defendant’s mitigating evidence.” (Id. at p. 254, fn, 14.) This Court has long madeclear that evidence and argumentrelating to lingering or residual doubts about a defendant’s guilt are relevant to the jury’s sentencing determination. (See Peopk »v, Gay (2008) 42 Cal.4th 1195, 1218- 1221; People v. Fauber (1992) 2 Cal.4th 792, 864.) Thus, capital sentencing jurors may not be precluded from considering and giving effect to such considerations. (See People v. Cox (1991) 53 Cal.3d 618, 676-677, disapproved on other groundsin Peopk v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) This Court has also recognized that a lingering doubt instruction may be called for by the evidence in any particular case. In People v. Cox, supra, 53 Cal.3d 618, this Court noted thata trial court “may be required to give a properly formulated lingering doubt instruction when warranted by the evidence.” (Id. at p. 678, fn. 20; see also People v. Thompson (1988) 45 Cal.3d 86, 134; §§ 1127, 1093, subd. (f).) Indeed, in People v. Morris (1991) 53 Cal.3d 152, overruled on another point by People v. Stansbury (1995) 9 Cal.4th 824, 830, footnote 1, the jury was instructed on lingering doubt in terms nearly identical to those proposed byappellant: [t]he adjudicationof guilt is not infallible and any lingering doubts you entertain on the question of guilt may be considered by you in determining the appropriate penalty, including the possibility that at some time in the future, facts may cometo light which have not yet been discovered.” (People v. Morris, supra, 53 Cal.3d pp. 218-219, brackets in original.) This Court characterized that as a “straightforward instruction [that] allowed the jury to consider any remaining uncertainty as to defendant’s guilt.” (Id. at p. 219; see also People v. Harrison (2005) 35 Cal.4th 208, 256; People v. Snow (2003) 30 Cal.4th 43, 125.) Nonetheless, this Court has repeatedly held that a lingering doubt - 157 - instruction is not constitutionally required at the penalty phase ofa capital case. (See People v. Rogers (2009) 46 Cal.4th 1136, 1176; People v. Sanchez (1995) 12 Cal.4th 1, 77, disapproved on other groundsin Peopke v. Dookn, supra, 45 Cal.4th at p. 421, fn 22.) In support of this conclusion, this Court has generally reasoned thatfactors (a) and (k) in CALJIC No.8.85 includethe conceptoflingering doubt, andthat, therefore, no separate instruction on the subject is necessary. (E.g., People v. Page (2008) 44 Cal.4th 1, 55; Peopée v. Hines (1997) 15 Cal.4th 997, 1068; Peopke v. Osband, supra, 13 Cal.4th at p. 716.) Appellant acknowledges these holdings, but does notbelieve that the wording of factors (a) and (k) would lead a reasonable juror to understand that any lingering-doubtthe juror has as to guilt can be given effect through factors (a) and (k). Factor (a) directs itself to circumstances of the crime. While that factor may be broad enoughto include lingering doubt, it encourages a juror to focus on the crimeitself, and not on therelative culpability or guilt of the persons who may have committed the crime. In other words,this factor relates to the manner in which the crimeitself was effectuated, and not necessarily to the defendant’s involvementin the crime. Thus, where a defendantrelies on lingering doubt at the penalty phase, the standard instruction on factor (a) does notsufficiently inform thejury that such evidence can be a mitigating circumstance, In the presentcase,thetrial court refused any lingering doubt instruction based on the theory that the instruction on factor (k) -- any circumstance which extenuates the gravity of the crime, and any sympathetic or other aspect of the defendant’s character or record that the defendant offers -- adequately included lingering doubt. But that language does not clearly relate to lingering doubt of whether appellant was the shooter, as the defense argued. The actual homicide committed here would be noless grave if appellant established a lingering doubt that he was the shooter. - 158 - Accordingly, the instruction on factor (k) in this case did not allow the jury to give full effect to appellant’s lingering doubt defense. In light of the foregoing, there is a reasonable likelihood that a juror would not have used factors (a) and (k) to give full effect to lingering doubt. Because ofthis, appellant’s requested instruction, which would have provided a methodfor thejury to give effect to such lingering doubt, should have been given bythe trial court. 3. The Trial Court Erred in Refusing Appellant’s Requested Instruction Regarding the Jurors’ Consideration of Mental and Emotional Disturbance The record here showsclear and convincing evidence that appellant is mentally retarded, significantly brain-damaged and severely mentally ill, and that the impairments resulting from those conditions, and from his impaired intellectual functioning, are severe and longstanding. Appellant requested the trial court to instruct the penalty jurors as follows: A person may be under the influence of mental or emotional disturbance even though his mental and emotional disturbance was not so strong as to preclude deliberation or premeditation. Mental and emotional disturbance may result from any cause or may exist without apparentcause. For this mitigating circumstance toexist, it is sufficient that the defendant’s mind or emotions were disturbed, from any cause, whether from consumption of drugs, mental illness, or other cause, and that he was underthe influence of that disturbance when he killed. A person would be underthe influence of mental of emotional disturbance if a mental or emotional condition existed which influenced his conduct so as to makeit different than it otherwise would havebeen. So,if you are satisfied from the evidence that defendant was under the influence of mental or emotional disturbance, from any cause, then it would be your duty to find this a mitigating circumstance. (10 CT 3483; Def. proposedinstruction no. 18.) - 159 - At the instructional conference, the prosecutor objected to the proposedinstruction as duplicative, argumentative and possibly misleading. He arguedthat the evidence of the circumstances of the crime “[did] not indicate that he was hallucinating at that point.” He acknowledged that appellant’s “mental or emotional disturbances” would be mitigating evidence, but argued that such evidence was covered by section 190.3, factor (h). (11 RT 3870-3871.) Thetrial court refused the instruction “for those reasons.” (11 RT 3871.) The court erred in refusing appellant’s proposed instruction. The instruction accurately stated the law: a defendant’s mental or emotional disturbanceis a strong factor in mitigation. (See Abdul-Kabir v, Quarterman, supra, 550 US, at p. 241; Tennard v. Dretke (2004) 542 US. 274, 288; Eddings v. Oklahoma, supra, 455 US at pp. 115-116; People v. Robertson, supra, 33 Cal.3d at pp. 59-60; Smith v. Mulkn (10th Cir. 2004) 379 F.3d 919, 942-943.) Mental disturbance, although insufficient to negate premeditation,is a mitigating factor, and may result from one or more causes, including drugs, alcohol or mental illness. (See Peopk v, Marshall (1996) 13 Cal.4th 799, 857.) Contrary to the prosecutor’s argument, that mitigating factor may be present even though the defendantis not hallucinating at the time of the crime. (See People v. Yeoman (2003) 31 Cal.4th 93, 145.) In this case, it cannot be doubted that appellantintroducedsignificant evidence of his brain damage and mental illness, both at the guilt and the penalty phases. Nor was the proposed instruction duplicative of other instructions. The jury was instructed to consider, inter alia: D, whetheror not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance; [... 4]... .] H, whether or notat the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired - 160 - as a result of mental disease or defect or the effects of intoxication|.| (12 RT 4041.) Neither of those instructions informed thejurors that mental and emotional disturbance “may result from any cause or may exist without apparent cause”orthatif appellant ‘‘was underthe influence of mental or emotional disturbance, from any cause, then it would be your duty to findthis a Mitigating circumstance.” Nor, contrary to the trial court’s conclusion, does factor (k) justify the trial court’s refusal to give appellant’s proposedinstruction. Factor(k) instructs the jurors to consider, inter alia, “any sympathetic or other aspect of the defendant’s character or record that the defendantoffers as a basis for a sentence less than death, whether or notrelated to the offense for which he is ontrial.” That instruction’s reference to “the defendant’s character” does not clearly cover the evidence of brain damage and mentalillness introduced by appellant. There is, accordingly, a reasonable likelihood that the jury applied the instruction in a way that prevented the consideration of appellant’s constitutionally relevant evidence. (Boyde v. California (1990) 494 U.S. 370, 380.) Appellant acknowledges that in People v. Williams (2006) 40 Cal.4th 287, the trial court refused a proposed instruction similar in part to the instruction requested here. (Id. at pp. 325-326.) 6? This Court concluded thatthetrial 67, The instruction requested by the defendant in Wi/Zams provided: Mental or emotional disturbance mayresult [from] any cause or may exist without apparent cause. Forthis mitigating circumstanceto exist, it is sufficient that... the defendant’s mind or emotions were disturbed, thatis, interrupted or interfered with, [from] any cause whether [from] consumption of drugs, mental illness, or other cause, and that he was underthe influence of that disturbance when he killed Ms. Breck. A person would be Footnote continued on nextpage... - 161 - court did not err because there was “nothing in the above rather confusing instruction that would haveclarified the instruction already given pursuant to section 190.3, factor (h).” (Id. at p. 326.) The proposedinstruction in Wilkams was confusing to the extent thatit utilized the phrase “included his conduct” instead of“influenced his conduct.” That confusion wasnotpresent in the instruction proposed by appellant. The trial court here erred in refusing the instruction. 4, The Trial Court Erred in Refusing Appellant’s Requested Instructions Regarding Mitigating Evidence and Factors and the Weighing Process Appellant requested several instructions regarding the jurors’ consideration of mitigating evidence. First, the defense requested the following instruction: “Substantially” as discussed in this instruction means considerably, essentially or materially. (10 CT 3463 [Def. proposed instruction no. 1].) The prosecutor noted that the term used in CALJIC No 8.88is “‘substantial,” 8 and not “substantially,” under the influence of a mental or emotional disturbanceif a mental or emotional condition existed which included [s7¢] his conduct so as to makeit different than it otherwise would have been. ["]] So if you are satisfied from the evidence that at the time of the murder of Ms. Breck, the defendant was under the influence of [a] mental or emotional disturbance, from any cause, it would be your duty to find this as a mitigating circumstance. (People v. Wilkams, supra, 40 Cal.4th at pp. 325-326, brackets andellipses in original.) 68. Defense counsel clarified that the requested definition related to the term “substantial.” (11 RT 3859.) CALJIC No.8.88 provides, in part: To return a judgmentof death, each of you must be persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants death instead oflife without parole. Footnote continued on nextpage... - 162 - and objected to the proposedinstruction: I think that’s just a word of common knowledge that doesn’t need amplification. Further, I don’t think the amplification that they propose really would be of anyassistance to the jury here. [{]] I don’t really think what weare talking about in terms of substantial is essential or material. What we are talking aboutis size considerable, and I think that the word “substantial” conveysthat. (11 RT 3858-3859.) Thetrial court refused the instruction,stating: I think it is a commonly understood term, and I am notreal sure this instruction giving someotheralternative definitions would assist the jury in translating or forming a definition. (11 RT 3859-3860.) The court erred in refusing this instruction. The definition proposed by the defense was accurate. (See Universal Engineering v. Bd. ofEquahzation (1953) 118 CalApp.2d 36, 42.) Although, as the trial court stated, the term “substantial” may be commonly used,that term is vague, overbroad, and ambiguous, and is capable of multiple meanings. Use of a term with such imprecision and vagueness cannot be countenanced when that term is used to decide life versus death. Appellant recognizes that this Court has repeatedly rejected this claim (e.g., Peopke v. Sakido (2008) 44 Cal.4th 93, 163; People v, Breaux (1991) 1 Cal.4th 281, 316 & fn. 14), but respectfully requests this Court to reconsider that conclusion. (See People v. Schmeck, supra, 37 Cal.4th at pp. 303-304.) Second, the defense requested the following instruction: The mitigating circumstances that I have read for your consideration are given merely as examples of someofthe factors that a juror may take into accountas reasons for deciding not to impose a death sentence in this case. A juror should paycareful attention to each of those factors. (10 CT 3453-3454; 12 RT 4048-4050) - 163 - Any one of them maybesufficient, standing alone, to support a decision that death is not the appropriate punishmentin this case. But a juror should notlimit his or her consideration of mitigating circumstances to these specific factors. A juror mayalso consider any other circumstancesrelating to the case or to the defendant as shown by the evidence as reasons for not imposing the death penalty.... Any mitigating circumstance may outweigh all the ageravating factors. ~ (10 CT 3465 [Def. proposed instruction no. 2].) The prosecutor objected: Muchofit, I think, is argumentative. I would -- well, I can point out numerous examples in there, but I think that the material in there is really covered by 8.88, and is done so in a much more neutral fashion than this instruction. There is language -- I think the last sentence in particular of paragraph oneis overbroad. I think the terminology in paragraph two, where it says “careful attention,” “a juror should not limit” is argumentative. The last sentence in paragraph twois argumentative.[f]...] Then, as to the authority that is cited for this, the Wharton case, in that case an instruction similar to this was given bythe trial coutt. The opinion does not approvethe instruction or recommendit. The opinion just, interestingly, addresses the issue of whether from a defense standpointit was error to give it because of a potential misinterpretation of the instruction that the defense came up with on appealin that case. So, the most you can say about the Wharton caseis that it found that from a defense perspective it was not error to give it. The [Béystone v. Pennsylvania| case, the U.S. Supreme Court case, doesn’t support the giving of this instruction. In fact, it refers to the Lockett vs. Ohio type terminology, which is the exact terminology that’s covered in the CALJIC instruction. So we are opposed to this instruction for many different reasons. (11 RT 3860-3861.) Thetrial court concurred with “mostof those” arguments, and refused the instruction. (11 RT 3861.) Similarly, the defense requested the following instruction: The mitigating circumstances which I have read for your consideration are given to you merely as examples of some of the - 164 - factors that you maytake into accountas reasons for deciding not to impose a death sentence on Mr. Boyce. You should notlimit your consideration of mitigating circumstances to these specific factors. You may also consider any other circumstances presented as reasons for not imposing the death sentence. § This includes, but is not limited to, any other circumstance which extenuates the gravity of the crime even thoughit is not a [sz¢] excuse for the crime, and any other factor proffered by the defendantas a factor in mitigation of the penalty. (10 CT 3481 [Def. proposedinstruction no. 16].) The prosecutor objected that the instruction was “overbroad in a couple of instances” and was “covered by the CALJIC instructions.” (11 RT 3868.) Thetrial court refused the instruction. (11 RT 3868.) Thetrial court erred in refusing these instructions. They are nearly identical to the instruction given in People v. Wharton, supra, 53 Cal.3d at pages 600-601 and footnote 23, wherein this Court concluded that the instruction was “consistent with Eighth Amendmentguarantees.” (Id at p. 601.) In Peophe v. Smith (2003) 30 Cal.4th 581, 638, this Court concluded that similar language in a proposedinstruction (“One mitigating circumstance may outweigh several aggravating circumstances, or one aggravating circumstance may outweigh several mitigating circumstances’) was not argumentative. Although this Court has concluded that such instructions are unnecessary in light of the standard CALJIC instructions (Peopke v, Smith (2003) 30 Cal.4th 581, 638; People v. Bokn (1998) 18 Cal.4th 297, 343; People v. Breaux, supra, | Cal.4th at p. 317), appellant respectfully requests that it reconsider that conclusion. (See People v. Schmeck (2005) 37 Cal.4th 240, 303-304.) C. The Trial Court’s Erroneous Refusal to Give the Requested Instructions Violated Appellant’s State and Federal Constitutional Rights Thetrial court’s erroneous refusal to give the requested instructions violated appellant’s rights to a fair trial and a reliable, nonarbitrary, and individualized penalty determination under the Eighth and Fourteenth - 165 - Amendments, and the parallel provisions of the California Constitution, “T|he Eighth and Fourteenth Amendments require that the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances ofthe offense that the defendant proffers as a basis for a sentence less than death.” (Eddings v. Oklahoma, supra, 455 US. at p. 110, quoting Lockett v. Ohio, supra, 438 US. at p. 604.) Any barrier to the sentencer’s ability to consider and give full meaningful effect to relevant mitigation, whether by statute, an evidentiary ruling, or instruction by the court, violates the Eighth and Fourteenth Amendments to the United States Constitution. (Mills v, Maryland (1988) 486 US, 367, 374-376; Hitchcock v. Dugger, supra, 481 U.S. at pp. 395-399; Skipperv. South Carolina, supra, 476 U.S. at pp. 4-7; Peopk v. Mickey, supra, 54 Cal.3d at pp. 692-693.) A penalty phase instruction is unconstitutional if there is a reasonable likelihood that the jury applied the instruction in a way that prevents the consideration of constitutionally relevant evidence. (Boyde v. Cakifornia, supra, 494 U.S. at p. 380.) As argued above, thereis a reasonable likelihood that one or more of the penalty jurors here applied the sentencing factors and instructionsin a mannerthat prevented the full consideration of mitigating evidence relevant to the penalty determination. The instructions requested by appellant were necessary to guide the jury adequately in their consideration of mitigating and ageravating factors, their weighing of those factors, their ability to consider mercy and sympathy in making their life-or-death decision, and their making the constitutionally-required, individualized moral assessment of the appropriate penalty to impose. Theinstructional errors here resulted in a reasonable likelihood that the jury deliberated withouta full understanding of its responsibility for its individualized penalty determination. (U.S. Const., 6th, 8th & 14th Amends. ; Cal. Const., art. 1, §§ 7, 15 & 17.) The instructional ~ 166 - errors also resulted in a substantial and unacceptable risk that the death sentence was imposedin spite of factors calling for the lesser sentence, in violation of the Eighth and Fourteenth Amendments, andthe parallel provisions of the California Constitution. (U.S. Const., 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16 & 17; Abdul-Kabir v. Quarterman, supra, 550 US. at pp. 264-265; Lockett v. Ohio, supra, 438 US. at p. 605; Peopk v. Horton (1995) 11 Cal.4th 1068, 1134-1135.) Moreover, the instructional errors violated appellant’s right to present a defense under the state and federal constitutions. (U.S. Const., 5th, 6th, 8th & 14th Amends. ; Cal. Const., art. I, §§ 7, 15, 28, subd. (b); Holmes v, South Carolina (2006) 547 U.S. 319, 324-327; People v. Lucas (1995) 12 Cal.4th 415, 456). Capital sentencing proceedings, too, must “satisfy the dictates of the Due Process Clause.” (Clemons v, Mississippi (1990) 494 U.S. 738, 746.) Accordingly, most of the rights encompassed within the right to present a defense apply at the penalty phase of a capital trial. (See Stmmons v. South Carolina (1994) 512 U.S. 154, 160-169; za at p. 174 (conc. opn. of Ginsburg, J.); Green v. Georgia (1979) 442 US. 95, 95-97; People v. Blair (2005) 36 Cal.4th 686, 737-738; see generally Douglass, Confronting Death Sixth Amendment Rights at Capital Sentencing (2005) 105 Colum. L.Rev. 1967.) These rights are guaranteed by the parallel provisions of the California Constitution (Cal. Const., art. I, §§ 7, 15 & 16; In re Martin (1987) 44 Cal.3d 1, 30 [the state constitutional right to present a meaningful and complete defense must be deemedto be at least as broad and fundamental as the federal].) Theright to present a defense includes theright to accurate instructions on the defense theory of the case. (See Clark v. Brown (9th Cir. 2006) 450 F.3d 898, 904-905; see also Mathews v. United States (1988) 485 USS. 58, 63.) The errors here deprived appellant of his right to present a defense because, without the requested instructions, there is a reasonable likelihood - 167 - that the jury failed to give appropriate weight to appellant’s mitigating evidence, gave too much weightto the aggravating evidence, and failed to understand how it was to weigh those factors in arrivingatits life-or-death decision. Therefusal of the trial court to give appellant’s requested instructions also violated the Due Process Clause of the Fourteenth Amendment because the omission ofthe instructions rendered the penalty proceedings fundamentally unfair (U.S. Const., 14th Amend.; see Estelle v. McGuire (1991) 502 US. 62, 72), and arbitrarily deprived appellant of his state-created liberty interest in having correct, nonargumentative instructions given to the jury (see Hicks v. Oklahoma (1980) 447 U.S. 343, 346). “A defendant has a legitimate interest in the character of the procedure which leads to the imposition of the sentence.” (Murtishaw v. Woodford (9th Cir. 2001) 255 F.3d 926, 969-970,citing Gardner v. Florida (1977) 430 U.S. 349, 358.) He also had life interest, under the Eighth and Fourteenth Amendments (see Ohio Adult Parole Auth. v. Woodard (1998) 523 U.S. 272, 288-289 (conc. opn. of O’Connor,J.)), in having the jury adequately and accurately instructed as to the meaning ahd scope of mitigating and aggravating evidence,its consideration and weighing of that evidence, andits ability to consider mercy and sympathy in reachingits life-or- death decision. Further, the denial to appellant of a state-created right granted to other capital defendants violated the Equal Protection Clause of the Fourteenth Amendment. (See Cleburne v. Cleburne Living Center, Inc, (1985) 473 US. 432, 439 [the Equal Protection Clause is “essentially a directionthatall personssimilarly situated should betreated alike”’]; Par v. Doe (1982) 457 U.S. 202, 216; Myers v. Y/st Oth Cir. 1990) 897 F.2d 417, 425.) This Court has rejected these claims. (See, e.g., People v. Berryman (1993) 6 Cal.4th 1048, 1104, fn. 29, overruled on another point by Peopk v. Hil/ (1998) 17 Cal.4th 800, 823, fn. 1.) Appellant respectfully requests this Court to reconsider those - 168 - decisions. (See People v. Schmeck, supra, 37 Cal.4th at pp. 303-304.) In sum,the trial court’s refusal to give the above instructions to the penalty jurors, both individually and cumulatively, violated appellant’s right to a decision by a properly-instructed jury, his right to due process and equal protection,his right to a fair trial, and his right to a fair and reliable capital penalty determination. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16 & 17.) D. The Errors Require Reversal of the Death Judgment Reversal of the death judgmentis required under any standard of review. First, “when the jury is not permitted to give meaningfuleffect or a ‘reasoned moral response’ to a defendant’s mitigatingevidence-becauseit is forbidden from doing so bystatute or a judicial interpretation ofa statute-the sentencing process is fatallyflawed.” (Abdul-Kabir v, Quarterman, supra, 550 U.S. at p. 264, emphasis added.) Reversal is also required under the standard of review for federal constitutional errors set forth in Chapman v. Cakfornia (1967) 386 USS. 18, 24, under which reversal is required unless the state proves beyond a reasonable doubtthat the error did not contribute to the death verdict (see People v. Smith (2005) 35 Cal.4th 334, 367); and under the standard of review for state-law errors at the penalty phase, under whicha trial court’s erroneousrefusal of a defendant’s properinstruction requires reversal of the death judgmentif there is a reasonable possibility that the failure to give the instruction affected the jury’s verdict (see People v. Brown, supra, 46 Cal.3d at pp. 446-448). Clear, accurate, easily understood jury instructionsare “vitally important in assuring that jurors grasp subtle or highly nuancedlegal concepts.” (United States v. DeStefano (1st Cir. 1995) 59 F.3d 1, 4.) Nowhere is this more important than at the penalty phase of a capitaltrial: Thoughinstructions are essential for the jury’s fact-finding and law-applying functions in every criminal case, the uniqueness of - 169 - the sentencing jury’s task makes it even more important that the jury be instructed at the penalty phase “with entire accuracy.” (Poulos, The Lucas Court and the Penalty Phase ofthe Capital Trial: The Original Understanding (1990) 27 San Diego L.Rev. 521, 627, footnote omitted, quoting People v. Ah Fung (1861) 17 Cal. 377, 379.) The defense’s concerns aboutthe jurors’ ability to glean the scope of factor (k) have been confirmedin a study of California jurors who had actually served in capital cases. The study found that many of the jurors who were interviewed simply dismissed mitigating evidence that had been presented during the penalty phase because they did notbelieveit “fit in” with the sentencing formula that they had been given bythe judge, or because they did not understand that it was supposed to be considered mitigating. (Haney,et al., Deciding to Take a Life: CapitalJuries, Sentencing Instructions, and the Jurisprudence ofDeath (1994) 50 (no. 2) J. of Social Issues 149, 167-168; see also Haney & Lynch, Comprehending Life and Death Matters: A Prekminary Study of Cahfornia’s Capital Penalty Instructions (1994) 18 Law & Hum.Behav. 411, 418-424.) Appellant’s proposed instructions were both necessary and appropriate to guide the jurors adequately in their consideration of mitigating and aggravating factors, their weighing ofthose factors, their ability to consider mercy and sympathy in makingtheir life-or-death decision, their making the constitutionally-required, individualized moral assessment of the appropriate penalty to impose,andto alleviate confusion engendered by the pattern CALJIC instructions given to the jury. Because there is a reasonable likelihood that the jury applied the penalty-phase instructions in a way that prevented the consideration of constitutionally relevant evidence (see Boyde», Cakfornia, supra, 494 U.S. at p. 380), and because the instructions given contained ambiguities “concerning the factors actually considered by [the sentencing body in imposing a judgmentof death]” (Eddings v. Oklahoma, supra, 455 U.S. at p. 119 (conc. opn. of O’Connor,J.), to uphold the death sentence - 170 - on the instructions given would “risk that the death penalty [was] imposed in spite of factors which [called] for a less severe penalty” (Lockett v. Ohio, supra, 438 USS. at p. 605; see also Abdul-Kabir v. Quarterman, supra, 550 U.S.at pp. 256-257). “When the choice is between life and death,thatrisk is unacceptable and incompatible with the commandsof the Eighth and Fourteenth Amendments.” (Lockeit, supra, at p. 605.) Accordingly, the judgment of death mustbe reversed. // -171 - ntRENEEHEREANSAREEAMENAinTURES my tees Se SeateraAERPintTENEANRAURRSEEE8ak Oren 8. THE TRIAL COURT COMMITTED REVERSIBLE ERROR AT THE PENALTY PHASE BY REFUSING APPELLANT’S PROPOSED INSTRUCTIONS REGARDING THE PROHIBITION ON DOUBLE-COUNTING AGGRAVATING FACTS AND FACTORS A. The Trial Court Erroneously Refused Appellant’s Request to Instruct the SentencingJurors Not to Double-Count the Facts Underlying the Special Circumstances The jury found the three alleged special circumstances to be true: the killing of a peace officer in the performance ofhis duties; killing while engaged in the commission of a burglary; and killing while engaged in the commission of robbery. (8 RT 2930-2944; 10 CT 3251-3275.) At the penalty phase, the trial court instructed the capital sentencing jurors that: In determining which penalty is to be imposed on the defendant, you shall considerall the evidence which has been received during any part ofthe trial of this case. You shall consider, take into account and be guided by the following factors, if applicable. A, the circumstances of the crime of which the defendant was convicted in the present proceeding, and the existence of any special circumstances found to be true.... (12 RT 4039-4042; 10 CT 3442-3444; CALJIC No.8.85.) In People v. Melton (1988) 44 Cal.3d 713, this Court observed that factor (a) poses a risk that the jury might double-countspecial circumstancessinceit “tells the penalty jury to consider the ‘circumstances’ of the capital crime and any attendant statutory ‘special circumstances.” (Id. at p. 768; accord, Peopée». Ashmus (1991) 54 Cal.3d 932, 997.) For that reason, this Court has instructed trial courts that, upon a defendant’s request, the jury should be admonished not to double-count. (Meéton, supra, at p. 768.) Appellant made that request here. He submitted a proposed instruction, Defense 17, on the jurors’ consideration of facts under factor (a): You must not consider as an aggravating factor the existence of any special circumstanceif you have already considered the facts -172- of the special circumstance as a circumstance ofthe crime for which the defendant has been convicted. In other words, do not consider the same factors more than once in determining the presence of aggravating factors. (10 CT 3482.) Thetrial court believed the first part of the proposed instruction to be “somewhat misleading,” and concludedthat: I guess for the purpose ofthe record, the court will refuse it and with the commentthat, you know,if you want to resubmit somethinga little bit more specific as relates to not double counting or overlapping, so to speak, that maybe that works. But, I think it is a semantics issue more than anythingelse. (11 RT 3868-3870.) The court erred because Defense 17 was a correct statementof the law that must be given when requested by the defense. In Peop/e v. Monterroso (2004) 34 Cal.4th 743, the trial court refused a defense-proposed instruction containing language identical to the one proposed by appellantin this case. © This Court concluded that this language correctly stated the law and should have been given. (Id. at pp. 789-790; accord, People v. Ayala (2000) 24 Cal.4th 243, 289.) Thetrial court here erred in refusing appellant’s requested instruction. Understate law, a trial court’s erroneous refusal of a defendant’s proper instruction at a capital penalty trial requires reversal of the death judgmentif there is a reasonable possibility that the failure to give the instruction affected the jury’s verdict. (See Peopk v. Brown (1988) 46 Cal.3d 432, 448-449.) When theerror is a failure to give a defense-requested 69. The instruction at issue in Mon¢erroso also contained one sentence regarding the jury’s consideration of multiple special circumstances which was held to be an incorrect statement of law. (People v. Monterroso, supra, 34 Cal.4th at p. 789.) That sentence was notpart of appellant’s proposed instruction. (10 CT 3482.) - 173 - instruction on double-counting, this Court has often concludedthat the error is not prejudicial becauseit is “unlikely” that jurors would actually double- count absent the prosecutor encouraging them to doso in his argument. (E.g., People v. Chatman (2006) 38 Cal.4th 344, 409; People v. Melton, supra, 44 Cal.3d at pp. 768-769.) In the present case, however, the special circumstances were particularly susceptible to being improperly double-counted bythejury. Reasonable jurors would likely have considered the fact of killing a peace officer, in the course of a robbery and a burglary, as aggravating circumstances of the crime. They would then reasonably have followed the clear language of the instruction and give additional weight to the same fact as a special circumstance. Misleading argumentby the prosecutor was not necessary for the jurors to make this mistake. 7” (See Carter v. Kentucky (1981) 450 U.S. 288, 304 [arguments of counsel were no substitute for an explicit instruction requested by the defense].) If the trial court had given appellant’s proposed instruction, there is at least a reasonable possibility that one or more ofthe jurors would have returned a verdictof life without the possibility of parole. (See People v. Brown, supra, 46 Cal.3d at p. 448.) The error also violated appellant’s federal constitutional rights to due process,a fair trial, and a reliable penalty determination underthe Sixth, Eighth and Fourteenth Amendments to the federal Constitution, An 70. Moreover, whenthe standard criminal jury instructions were recently rewritten, the phrase “and the existence of” language in CALJIC No.8.85 was deleted. The new form instruction, CALCRIM No.763, describes factor (a) as: “The circumstancesofthe crime[s] that the defendant was convicted ofin this case and any special circumstances that were foundtrue.” If the Judicial Council’s Task Force on Criminal Jury Instructions believed that the phrase “and the existence of any special circumstances” meant “and any special circumstances,” then it is likely that capital sentencing jurors would as well. -174- instruction, such as the one given here, which poses a risk that the capital sentencing jurors will double-count or overweigh aggravating factors may skew the weighing process and thereby “creates the risk that the death penalty will be imposed arbitrarily and thus, unconstitutionally.” (United States v. McCullah (10th Cir. 1996) 76 F.3d 1087, 1111-1112.) Such risk is unacceptable in a capital case. (See Lockett v. Ohio (1978) 438 U.S. 586, 605 (plur. opn.).) Accordingly, the judgment of death must be reversed. B. The Trial Court Erroneously RefusedAppellant’s Requested Instruction Seeking to Limit the Sentencing Jurors’ Consideration of the Facts Used to Find First Degree Murder Thetrial court also refused a penalty phase instruction proposed by appellant, Defense number 6, which sought to constrain the jurors’ consideration and weighing of the facts underlying the first degree murder conviction: In deciding whether you should sentence the defendanttolife imprisonment without the possibility of parole, or to death, you cannot consider as an aggravating factor any fact which was used by you in finding him guilty of murder in the first degree unless that fact establishes something in addition to an element of the crime of murder in the first degree. J The fact that you have found Kevin Boyce guilty beyond a reasonable doubtofthe crime of murder in the first degree and attendant special circumstancesis notitself an aggravating circumstance. (10 CT 3469.) The prosecutor argued that the instruction was confusing, that it conflicted with factor (a), and that “that’s all covered by CALJIC [No|] 8.88.” (11 RT 3863.) Thetrial court refused the instruction, stating: “I added vague and seemsto conflict with someofthe basic instructions.” (11 RT 3863.) Thetrial court’s refusal to give appellant’s proposed instruction violated his constitutionalrights to a reliable sentencing determination, due process and fair trial in violation of the Sixth, Eighth, and Fourteenth - 175 - Amendments to the federal Constitution. In People v. Moon (2005) 37 Cal.4th 1, the defendant complained that the trial court’s rejection of a defense-proposedinstruction nearly identical to Defense 6 violated the Eighth and Fourteenth Amendmentsto the federal Constitution. On appeal, this Court noted thatit had rejected the same argument in People v. Earp (1999) 20 Cal.4th 826, 900, in which it concluded that “section 190.3, factor (a) expressly permits the jury to consider at the penalty phase the circumstances of the crime and the existence of any special circumstancesit finds true.” (Moon, supra at p. 40.) Pursuant to Peopk v. Schmeck (2005) 37 Cal.4th 240, 303-304, appellant hereby raises this claim and requests that this Court reconsider the arguments raised in Moon and concludethat the failure to instruct the capital-sentencing jurors not to consider as an aggravating factor any fact that was used in finding the defendant guilty of murderin the first degree, unless that fact establishes something in addition to an element of the crime of murderin the first degree, posed a substantial risk that the jurors would double-count or overweigh aggravating circumstances underfactor (a). Upon such reconsideration, appellant’s death judgment mustbe reversed. // -176 - 9. THE TRIAL COURT ERREDBY FAILING TO INSTRUCT THE JURORS ON THE GENERAL PRINCIPLES OF LAW GOVERNING THE PENALTY PHASE AND ON THE DEFINITION OF “REASONABLE DOUBT”ASIT PERTAINED TO EVIDENCE OF OTHER CRIMES CONSIDERED DURING THE PENALTY PHASE A. The Penalty Phase and theTrial Court’s Instructions At the penalty phase, the prosecution presented four victim-impact witnesses; documentary evidence of prior convictions (9 RT 3097-3098; Exhs. 81-82); and testimony concerning a prior act of violence (9 RT 3064-3088 [Damani Gray]; 9 RT 3089-3095 [Robert Jones]), an allegation that was vigorously contested by the defense through cross-examination, and by the presentation of two witnesses regarding Damani Gray’s credibility. (9 RT 3123-3128 [Maria Gholizadeh]; 9 RT 3198-3203 [Andrew Monsue].) The defense presented testimony from numerous family members and others familiar with appellant’s history; appellant’s first-grade teacher; an investigator with the public defender’s office; a minister; and testimony from an expert on gangs, a psychiatrist, a sociologist, and a psychologist. Several of the family members and the minister were subjected to brief cross-examination. (9 RT 3281-3282 [Tony Boyce]; 9 RT 3312 [Brenda Boyce]; 10 RT 3574-3575 [Reverend Barber].) The public defender investigator was cross-examined regarding an important aspect of appellant’s early history. (9 RT 3369-3370 [John Depko].) Two of the experts were extensively cross-examined. (10 RT 3428-3438 [Alex Alonso]; 10 RT 3549-3561, 11 RT 3799-3807, 3817-3818 [Dr. Benson].) Also, the defense introduced a number of documentary exhibits. (E.g., Def. Exhs. NN-HHH.) In its penalty instructions, thetrial court directed the jurors to “[d]isregard all other instructions given to you in other phasesofthis trial.” (10 CT 3441; 12 RT 4038-4039; CALJIC No. 8.84.1.) The court gave one general instruction, CALJIC No.1.02, regarding statements of counsel, -177- stricken evidence, and insinuations of questions (10 CT 3433; 12 RT 4033- 4034); two instructions regarding the evaluation of evidence,including CALJIC No. 2.20 [believability of witness] (10 CT 3434-3435; 12 RT 4034- 4035); CALJIC No, 2.21.1 [discrepancies in testimony] (10 CT 3436; 12 RT 4036); two instructions regarding a defendant’s right notto testify, CALJIC No. 2.60 (10 CT 3451; 12 RT 4047) and CALJIC No. 2.61 [defendant mayrely on state of evidence] (10 CT 3452; 12 RT 4047-4048); and oneinstruction regarding expert testimony, CALJIC No.2.80 (10 CT 3437; 12 RT 4036- 4037). B. The Trial Court Erred By Failing to Instruct the Jurors on All of the Principles of Law Necessary for the Jury’s Understanding of the Case and of the Penalty Phase Decision Under California law, capital sentencing jurors must be instructed on the general principles of law that are closely and openly connected with the facts and necessary for the jury’s understanding of the case, even absent a request from the defendant. (People v. Lewzs (2008) 43 Cal.4th 415, 534.) This sua sponte duty includes a duty to instruct capital sentencingjurors, inter alia, on the general principles relating to the evaluation of evidence. (People v. Moon (2005) 37 Cal.4th 1, 35; People v. Benavides (2005) 35 Cal.4th 69, 111-112; People v. Daniels (1991) 52 Cal.3d 815, 885.) This duty is clearly set forth in the Use Note to CALJIC No.8.84.1, which states that the instruction “should be followed by all appropriate instructions beginning with CALJIC No.1.01, concluding with CALJIC [No.] 8.88.” (Use Note to CALJIC No.8.84.1 (6th ed. 1996); see also People v. Babbitt (1988) 45 Cal.3d 660, 718, fn. 26.) Here, at the penalty phase, both the prosecution and the defense presented testimonial and documentary evidence. Lay and expert witnesses were cross-examined and impeached; and, credibility was at issue. Moreover, the jury was instructed to consider all the evidence from the guilt phase. (10 - 178 - CT 3441-3442; 12 RT 4038-4039.) Accordingly, the trial court was required to instruct the capital sentencing jurors with the following appropriate instructions: CALJIC No. 1.01 [Instructions considered as a whole]; CALJIC No.1.03 [Jurors forbidden independentinvestigation]; CALJIC No, 1.05 [Juror’s use of notes}; CALJIC No. 2.00 [Direct and circumstantial evidence]; CALJIC No. 2.01 [Sufficiency of circumstantial evidence]; CALJIC No. 2.02 [Sufficiency of circumstantial evidence to ptove specific intent or mentalstate]; CALJIC No.2.03 [Consciousness of guilt -- falsehood]; CALJIC No. 2.11 [Production of all available evidence not required]; CALJIC No,2.13 [Prior consistent or inconsistent statements as evidence]; CALJIC No. 2.21.2 [Witness willfully false]; CALJIC No. 2.22 [Weighing conflicting testimony]; CALJIC No.2.27 [Sufficiency of testimony of one witness]; CALJIC No.2.82 [Concerning hypothetical questions]; and CALJIC No. 2.81 [Opinion testimonyof lay witness]. Thetrial court’s failure to give these instructions was error. (See People v. Lewis, supra, 43 Cal.4th at pp. 534-536 [trial court erred in failing to reinstruct the jury with applicable instructions regarding the evaluation of evidence]; People v. Moon, supra, 37 Cal.4th at pp. 36-37 [CALJIC Nos.1.03, 2.00, 2.13, 2.27]; People v. Carter (2003) 30 Cal.4th 1166, 1219 [CALJIC No. 2.22]; People v. Steele (2002) 27 Cal.4th 1230, 1257.) Defense counsel did not urge or otherwise cause the court to omit these instructions; thus, the error was not “invited” by the defense. (See People - 179 - v. Moon, supra, 37 Cal.4th at p. 37; People v. Benavides, supra, 35 Cal.4th at p. 111.) Although manyofthese instructions were givenat the guilt phase (9 CT 3086-3114), at the penalty phase the trial court explicitly instructed the jurors to “disregard”the guilt phase instructions: You will now be instructedastoall the law that applies to the penalty phase ofthis trial. You must determine what the facts are from the evidence received during the entire trial unless you are instructed otherwise. You must accept and follow the law that | shall state to you. Disregard all otherinstructions given to you in other phasesofthistrial. (10 CT 3441; 12 RT 4038-4039.) 7 The jurors are presumedto have understood and faithfully followed the direction to disregard the guilt instructions. (See People v. Hovarter (2008) 44 Cal.4th 983, 1005; People v. Mendoza (2007) 42 Cal.4th 686, 699.) The plain meaning of the term “disregard” is to pay no attention. (See People v. Estrada (1995) 11 Cal.4th 568, 578 [“the word ‘disregard’ has been defined as describing the situation in whicha lack of attention is ‘intentional or willful”’].) Accordingly, the capital sentencing jurors in this case must be presumedto have paid noattention to the guilt phase instructions. C. The Trial Court Erred by Failing to Instruct the Jurors on the Definition of the Phrase “Reasonable Doubt” As Used in Section 190.3,Factor (b) Section 190.3, factor (b) sets forth as a capital sentencing factor “[t]he presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.” Capital sentencing jurors must be instructed that they can consider evidence of other criminal activity only if they find “beyond a 71. Similarly, at the conclusion of the penalty phase instructions, the court stated: “[T]hat concludes the court’s reading of the applicable instructionsas to this phase ofthe trial.” (12 RT 4050.) - 180 - reasonable doubt”that the defendant had engaged in such activity. (Peopkv. Benavides, supra, 35 Cal.4th at pp. 112-113; Peopke v. Philips (1985) 41 Cal.3d 29, 65; People v. Robertson (1981) 33 Cal.3d 21, 53.) Here, the prosecution’s aggravating evidence underfactor (b) included the evidence relating to the Lamppost Pizza robberies and thealleged assault on Damani Gray. (9 RT 3017-3019 [prosecution opening statement]; 12 RT 3899-3901 [prosecution closing argument].) The capital sentencing jurors were expressly instructed that evidence had been introduced for the purpose of showing that appellant committed those criminal acts, and were instructed that they could not consider evidence of other criminal activity unless proven beyond a reasonable doubt. (10 CT 3447; 12 RT 4043-4044; see also 10 CT 3452; 12 RT 4047-4048 [CALJIC No. 2.61].) However, the jurors were not instructed at the penalty phase on the definition of reasonable doubt, or the presumption of innocence. This was error: a trial court should instruct the jury on the definition of reasonable doubtat the penalty phase. (See Peopkv. Loker (2008) 44 Cal.4th 691, 745; see also People v, Howard (2008) 42 Cal.4th 1000, 1026; People v. Chatman (2006) 38 Cal.4th 344, 407-408; § 1096.) 7 D. The Trial Court’s Errors Violated Appellant’s Constitutional Rights Thetrial court’s errors violated appellant’s rights under the federal and state constitutions. (U.S. Const., 6th, 8th & 14th Amends,; Cal. Const., art. I, §§ 7, 15, 16 & 17.) Capital sentencing jurors must“be properly instructed 72. In People v. Payton (1992) 3 Cal.4th 1050, this Court held thatfailure to define reasonable doubt during the penalty phase of a trial was not error becausethe trial court instructed the jury that most of the guilt phase instructions continued to apply. (Id at pp. 1068-1069; see also Peopée v. Rogers (2006) 39 Cal.4th 826, 904-905.) In this case, however, as noted above, the jurors were specifically told that the instructions given in the guilt phase of the trial did not apply and to disregard those instructions. - 181 - regardingall facets of the sentencing process.” (Peophe v. Visctotti (1992) 2 Cal.4th 1, 74, quoting Walton v, Arizona (1990) 497 U.S. 639, 653; cf. People v. Holt (1997) 15 Cal.4th 619, 683.) Complete and accurate jury instructions are as Critical at the penalty phase as they areat guilt: “It is quite simply a hallmark of our legal system that juries be carefully and adequately guided in their deliberations.” (Gregg v. Georgia (1976) 428 US. 153, 193 (plur. opn. of Stewart, Powell & Stevens, JJ.).) States are free to “shape and structure” the jurors’ consideration of mitigating evidence, so long asthe jurors are not precluded from considering and giving effect to that evidence. (Buchanan v. Angelone (1998) 522 U.S. 269, 276.) But a state cannot utilize confusing instructions which insert “an element of capriciousness”’ into the jurors’ deliberations and sentencing decision. (See Penry v. Johnson (2001) 532 US. 782, 800.) The Eighth and Fourteenth Amendments, and the analogous provisions of the California Constitution, require “procedural safeguards protecting against arbitrary and capricious impositions of the death sentence” (Samyer v. Whitley (1992) 505 U.S. 333, 341), and require that the procedures leading to a determination that death is the appropriate punishmentin a specific case -- including jury instructions -- meet a heightened standard for reliability (see Mzl/s v. Maryland (1988) 486 U.S. 367, 383-384; Woodson v. North Carolina (1976) 428 U.S. 280, 305). Here, the trial court’s failure to fully instruct the jury on how to evaluate the evidence when determining whether appellantlived or died, and its failure to instruct on the meaning of beyond a reasonable doubtas used in factor (b), inserted an elementof capriciousness into the jurors’ deliberations and sentencing decision,failed to provide adequate procedural safeguards protecting against the arbitrary and capricious imposition of the death sentence, and failed to meet the constitutionally-required heightened standard for reliability in the procedures that led to the death determination. Those - 182 - errors denied appellant a fair and reliable capital sentencing determination,in violation of appellant’s Eighth and Fourteenth Amendmentrights, and the parallel provisions of the California Constitution. Further, thetrial court’s failure to instruct the capital sentencing jurors on the definition of beyond a reasonable doubtviolated appellant’s rightto a trial by jury underthe state and federal constitutions. (Apprendi v. NewJersey (2000) 530 U.S. 466; 490; Reng v. Arizona (2002) 536 U.S, 584.) This Court has repeatedly rejected similar claims, concluding that Apprendi and its progeny have no application to the penalty phase procedures under California capital sentencing statutes. (See People v. Loker, supra, 44 Cal.4th at p. 744; People v. Morrison (2004) 34 Cal.4th 698, 730-731.) Appellant respectfully requests that this Court reconsider those decisions. (See People v. Schmeck (2005) 37 Cal.4th 240, 303-304.) Finally, under California law, a defendant hasa liberty interest under the Due Process Clause of the Fourteenth Amendment(see Hicks v. Oklahoma (1980) 447 U.S. 343, 344-347; Murtishaw v. Woodford (9th Cir. 2001) 255 F.3d 926, 969-970; People v. Webster (1991) 54 Cal.3d 411, 439), and a life interest under the Eighth and Fourteenth Amendments (see Ohio Adult Parole Auth. v. Woodard (1998) 523 U.S, 272, 288-289 (conc. opn. of O’Connor,J.)), in having the capital sentencing jurors accurately instructed on how to evaluate the evidence and onthe consideration of aggravating factors, when determining whether the defendantlives or dies. Thetrial court’s failure to do so violated appellant’s rights to due process, as well as his rights to equal protection, a fair trial by an impartial jury, and a reliable death judgment. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. 1, §§ 1, 7, 15, 16.) E. The Death Sentence Must Be Reversed Underthe federal standard of review of constitutionalerror, the trial court’s errors are prejudicial unless the state proves beyond a reasonable doubt - 183 - that the assumederror did not contribute to the death verdict; understate law, a failure to reinstruct the jury with evidentiary instructions in the penalty phase is prejudicial if there is a reasonable possibility that the error affected the verdict. (Chapman v. Cakfornia (1967) 386 U.S. 18, 24; People v. Carter, supra, 30 Cal.4th at pp. 1221-122.) In People v. Moon, supra, 37 Cal.4th 1, this Court examined “the nature of the evidence presented to determine whetherit was likely that omitted instructions affected the jury’s evaluation of the evidence.” (Id. at p. 38.) In reaching its conclusion thatthefailure to reinstruct the jury with any applicable guilt phase instructions was harmless, this Court found significant that the prosecution called no witnesses andrelied principally on the circumstances of the crime as shown bythe guilt phase evidence, that the defense case in mitigation consisted of only six lay witnesses who attested generally to the defendant’s good nature and lack of prior acts of violence, and that none ofthese six witnesses was vigorously cross-examined by the prosecutor. No defense witness was impeached,andall spoke from personal knowledge of the defendant. Neither side presented any circumstantial evidence, and no evidence was admitted for a limited purpose. (Id. at pp. 38- 39,) This case bearslittle resemblance to Moon, The prosecution here called witnesses to substantiate the Damani Gray incident; cross-examined numerous witnesses; and called into question the credibility and reliability of testimony by defense expert and lay witnesses. The omitted instructions -- particularly those regarding circumstantial evidence, the weighing of conflicting testimony, and hypothetical questions -- were necessary for the jury’s full understanding of the evidence and the defense’s case forlife. With regard to the failure to instruct on the definition of beyond a reasonable doubt, under California law the jury must determine the truth of - 184 - “other crime” evidence brought under factor (b) beyond a reasonable doubt. (People v. Robertson, supra, 33 Cal.3d at p. 54.) This determination is required by due process andis especially important in the penalty phase ofa capital trial in order to guarantee that the Eighth Amendment’s requirementfor heightened reliability has been met. (See Ford v. Wainwright (1986) 477 U.S. 399, 411, 414.) The definition of reasonable doubtis a term ofart that can be easily misunderstood by jurors. (See Victor v. Nebraska (1994) 511 U.S. 1, 23 (conc. opn. of Kennedy, J.); People v. Brigham (1979) 25 Cal.3d 283, 315 (conc. opn. of Mosk,J.).) The trial court here failed to ensure that the jurors understood the definition of reasonable doubt or would apply it to their penalty deliberations. In such circumstances, this Court cannot assume that each and every one of the capital sentencing jurors decided aggravating factor (b) based upon the correct standard of proof. Although the capital crime was serious, the mitigating evidence was especially strong. The defense presented clear, convincing, and unrebutted evidence of appellant’s mental retardation, brain damage, and severe mental illness. The evidence showed that appellant had speech andlearning disabilities from a very early age. He was raised by an alcoholic mother who did not believe in and neglected appellant’s medical needs, did not inform appellant that his stepfather was nothis biological father until appellant was approximately 13-years old, and withheld him from organized sports because of a fear of injury. As a child, appellant’s family changed residences numerous times, and he wasultimately raised in gang-infested, south central Los Angeles. In these circumstances, there is at least a reasonable possibility that the errors identified above affected at least one juror’s consideration and weighing of the evidence. Accordingly, appellant’s death sentence must be reversed. // - 185 - 10. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ITS SENTENCING OF APPELLANT ON THE NONCAPITAL COUNTS AND THE GUN-USE ENHANCEMENTS A. Procedural and Factual Background Atsentencing,the trial court denied appellant’s motion to modify the death verdict, reviewed the probation report, and heard victim impact statements (12 RT 4071-4115). The probation report lists one “circumstance in aggravation” regarding the crimes (that they “involved great violence, great bodily harm,threat of great bodily harm andotheracts disclosing a high degree of cruelty, viciousness or callousness’’); and several circumstancesin ageravation regarding appellant (he had engaged in violent conduct which “indicated a serious danger to society”; his prior convictions were “numerous and of increasing seriousness”; he had served three prior prison terms, and was on parole when the capital crime was committed; and,his “prior performance on probation and parole was unsatisfactory’. Thetrial court sentenced appellant to death on count 1. (12 RT 4078- 4079, 4120-4121) With respect to counts 2-11, the noncapital counts, and the gun- use enhancements associated with each of those counts, the court sentenced appellantas follows. With respect to count 2, a conviction for the second degree robbery ofJennifer Parish, the court sentenced appellant to the upper term offive years. The sole reason given by the court for the selection of that term was the “vulnerability of the victims [s¢.” (12 RT 4121; see also 11 CT 3659 [abstract of judgment].) With respect to the gun-use enhancementfound true as to count 2, the court also imposed the upper term of ten years. 73 The sole reason forthe selection of the upper term on the 73, The sentencing minute order prepared by the clerk is inconsistent with the trial court’s oral pronouncementof judgment on this point. The former states that the upper term for the gun-use enhancement was imposed with Footnote continued on nextpage... - 186 - enhancement was, again, the vulnerability of the victims.” (12 RT 4121.) On counts 3-11, the court imposed one-third of the mid-term for the substantive counts, and one-third of the mid-term for each associated gun-use enhancement. (12 RT 4121-4123.) 7 The court calculated thetotal determinate sentencing term “‘to be served consecutive” as 34 years, four months. (12 RT 4123; see also 11 CT 3659-3661 [abstract of judgment].) At the conclusion of the sentencing, thetrial court stayed the “additional years of imprisonment”: [T]he court specifically orders that the service of the additional years of imprisonment on counts II through XI be stayed and not served by the defendant because ofthe fact that the courtrelied on the facts underlying these offenses to deny the motion to modify the death penalty. Said stay shall be during the pendency of the appeal on countI and shall become permanent when the sentence on countI is completed. (12 RT 4123.) The abstract of judgment showsthatall of the gun-use enhancements were stayed, but doesnotreflect that the substantive counts were stayed. (11 CT 3659-3661.) regard to the enhancementassociated with count 1. (11 CT 3653.) Thelatter controls, however: Where a discrepancy exists between theoral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncementcontrols. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) 74, The court summarized its sentencing on counts 3-11: With respect to counts ITI through XI all being subordinate to countIJ, one-third of the three-year midterm of the robberies, an additional one year. One-third of the gun enhancementof four years is an additional one year four months,all to be served consecutive to countII. (12 RT 4121-4122.) - 187 - B. The Trial Court’s Imposition of the Upper Term for Count 2 and the Upper Term for the Gun-use Enhancement Associated with That Count Violated Appellant’s Constitutional Rights The noncapital sentences imposed on appellant-- for robbery, attempted robbery, burglary, and the gun-use enhancements -- were each subject to determinate sentencing under California law. (See §§ 213, subd. (a); 461; 1170, subds. (a) & (b); 12022.5, subd. (a).) > At the time of appellant’s sentencing in 2000, the determinate sentencing schemeprescribed three terms of imprisonment. That schemedirected trial court “to start with the middle term, and to move from that term only when the court findsitself and places on the record facts-whether related to the offense or the offender-beyond the elements of the charged offense.” (People v. Black (2007) 41 Cal.4th 799, 808, quoting Cunningham v. Calfornia (2007) 549 U.S. 270, 279.) Those sentencing facts “need be proved only by a preponderanceofthe evidence.” (Peopke v. Sandoval (2007) 41 Cal.4th 825, 836.) That scheme, by permitting a judge to impose an elevated “upper term” sentence on a preponderance of the evidence standard,violates the Sixth and Fourteenth Amendments. Any fact that exposes a defendantto a gteater potential sentence must be foundby jury, not a judge, and established beyond a reasonable doubt. (Apprendi v. NewJersey (2000) 530 USS. 466, 490; Reng v. Anzona (2002) 536 U.S. 584, 588-589, 602; Blakely v. Washington (2004) 542 US. 296, 301-305; United States v. Booker (2005) 543 USS. 75. In response to the high court’s decision in Cunningham v. Calfornia (2007) 549 U.S. 270, discussed post, the Legislature amended section 1170, subdivision (b), effective March 30, 2007. (See People v. Sandoval, supra, 41 Cal.4th at p. 836, fn. 2.) Unless otherwise noted,all references herein are to the statutes and rules in effect under the former determinate sentencing scheme. - 188 - 220, 230-232.) In Cunningham v. California, supra, 549 U.S, 270, the high court applied that rule to California’s then-operative determinate sentencing scheme, and concludedthat the facts permitting imposition of an elevated “upper term” sentence for a particular crimefell within the jury’s province. (Id. at p. 292.) Accordingly, the high court held, that scheme “‘cannot withstand measurement against our Sixth Amendment precedent.” (Id. at p. 293.) 76 Thus, appellant had a right under the Sixth and Fourteenth Amendments to have a jury determine beyond a reasonable doubt any ageravating fact or factor used to impose an upper term. That right was violated whenthe trial court imposed the upper term on count 2 and the upper term on the associated gun-use enhancement, based on a fact not found unanimously by a jury and not subject to the beyond a reasonable doubt standard (that the victim was vulnerable). (Cunningham v. California, supra, 549 USS. at pp. 292-293; see also People v. Miller (2008) 164 Cal.App.4th 653, 669 [upper term sentence based on particular vulnerability of the victirn violated Cunningham.) Shortly after Cunningham was decided, this Court, in Peopk v. Black, supra, 41 Cal.4th 799, held that the imposition of an upper term does not violate a defendant’s Sixth Amendmentrights “so long as onelegally sufficient ageravating circumstance has been foundto exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.) Appellant does not concede that this Court’s decision in Peopk v. Black sufficed to bring California’s prior determinate sentencing scheme into compliance with Cunningham. (See generally Note, Cahfornia’s Determinate 76. Cunningham “applies retroactively to any case in which the judgment was notfinal at the time the decision in Béakely was issued.” (In re Gomez (2009) 45 Cal.4th 650, 658.) - 189 - Sentencing Law: How Cakfornia Got It Wrong... Twice (2008) 12 Chap. L.Rev. 87.) But even assuming that it did, the exceptions identified in Béack do not apply here. First, the trial court relied solely upon the vulnerability of the victim in imposing the upper term;it did notrefer to or rely upon any other determinate sentencing aggravating circumstance. Possible aggravating circumstances that are neither mentioned nor relied upon bythetrial court cannotbe relied upon by a reviewing court to “save” a constitutionally defective sentence. (See Peoph v. Cardenas (2007) 155 Cal.App.4th 1468, 1480- 1481.) Second, the defense made no specific admission that the victim was “particularly vulnerable.” Indeed, the probation report in this case does not list the particular vulnerability of the victim as a circumstance in aggravation. (11 CT 3650-3651.) Third, no independent, valid, and applicable determinate sentencing aggravating circumstance was found unanimously and beyond a reasonable doubtbythejury. 7” Accordingly, the trial court’s imposition of the upper term for count 2 and the upper term for the gun-use enhancementassociated with that count violated appellant’s constitutional rights. C. The Trial Court’s Reliance on the Vulnerability of the Victim to Impose the Upper Term for Count 2 and the Upper Term for the Gun-use Enhancement Associated with that Count Was Improper Thetrial court relied on a single aggravating circumstance -- the vulnerability of the victims-- to justify both the upper term for the conviction for robbery in count 2, and for the imposition of the upper term for the gun- use enhancementrelated to that count. The court’s reliance on that 77. The amended information alleged that appellant had suffered several prior convictions. (7 CT 2102.) However, the prosecution movedto dismiss those allegations, and that motion was granted. (12 RT 4059-4060; 10 CT 3572-3573.) - 190 - sentencing factor was improper. First, a trial court may not use the same putative fact both to impose an upper term on a base count and an upper term on the enhancement. (See People v, Coleman (1989) 48 Cal.3d 112, 164-165; People v. Velasquez (2007) 152 Cal.App.4th 1503, 1516,fn. 12.) Second,the trial court’s reliance on the “vulnerability of the victims” was improper. California Rules of Court, rule 4.421(a)(3) provides that, as a circumstance in aggravation, the fact that the victim was “particularly vulnerable” can support the imposition of an upper term. (See Peopk v. Clark (1990) 50 Cal.3d 583, 637; People v. Loudermilk (1987) 195 Cal.App.3d 996, 1007.) 78 To support this sentencing factor, it is not sufficient that the victim be simply “vulnerable,” meaning “defenseless, unguarded, unprotected, accessible, assailable, one whois susceptible to the defendant’s criminal act.” (People v. Weaver (2007) 149 Cal.App.4th 1301, 1314, internal quotation marks omitted.) Instead, the victim must be “particularly” vulnerable, meaning that he is vulnerable to a “‘special or unusual degree, to an extent greater than in other cases.”’ (Peopk v. Loudermilk (1987) 195 Cal.App.3d 996, 1007, quoting People v. Smith (1979) 94 Cal.App.3d 433, 436; see also Butler v. Curry Oth Cir, 2008) 528 F.3d 624, 649-650.) The victim of the robbery alleged and foundtrue in count2, Jennifer Parish, was undoubtedly vulnerable. But there was no evidence that she was “particularly” so in the sense intended by the determinate sentencing ageravating circumstance. Nordid the court cite to any such evidence. Therefore, the trial court’s reliance on that aggravating circumstance to impose the upper term for count 2 and the upper term for the gun-use 78. The California Rules of Court related to sentencing were amended subsequentto the Legislature’s amendmentofthe determinate sentencing scheme in March 2007, (See Peopk v. Black, supra, 41 Cal.4th at p. 808,fn. 2.) - 191 - enhancementassociated with that count was improper. D. The Trial Court Erred in Imposing Consecutive Sentences In Oregon v. Ice (2009) ___ U.S. __, 129 S.Ct. 711, the high court addressed whether the Sixth Amendmentprohibits the assignmentto judges, rather than to juries, the finding of facts necessary for the imposition of consecutive sentences for multiple offenses. Under the Oregon sentencing scheme under review in Ice, the trial court is granted the discretion to impose consecutive sentences onceit has made“certain predicate fact findings”(e.g., that two burglaries constituted separate incidents resulting in separate harm). (id. at p. 715.) The high court, in a 5-4 decision, held that “the Sixth Amendmentdoes not exclude Oregon’s choice.” (Id at pp. 714-715.) 7 Prior to Ice, in Peopk v. Black, supra, 41 Cal.4th 799, this Court held that the imposition of consecutive terms did not implicate the Sixth Amendment because: In deciding whether to impose consecutive terms, the trial court may consider aggravating and mitigating factors, but there is no requirementthat, in orderto justify the imposition of consecutive terms, the court find that an aggravating circumstanceexists. [Citations.] Factual findings are not required. (Id. at p. 822.) However, the imposition of consecutive sentences is subject to limitations under California law. In particular, a trial court must give adequate reasons for its sentencing choices, including the decision to impose consecutive sentences. (See People v. Belmontes (1983) 34 Cal.3d 335, 346-349, People v. Tillotson (2007) 157 Cal.App.4th 517, 545 see also § 1170, subd. (c); Cal. Rules of Court, rule 4.406(b)(5).) In this case, the trial court gave no reason for its decision to impose consecutive sentences. Thetrial court erred 79. Justice Scalia, dissenting in Ice, trenchantly decried the majority’s flawed reasoning and “its repeated exhumation of arguments dead and buried by prior cases[.]” (Oregon v. Ice, supra, 129 S.Ct. at pp. 722-723.) - 192 - in failing to do so. To the extent that the trial court may haverelied on the vulnerability of the victims to impose consecutive sentences, it also erred. A trial court “cannotrely on the same fact to impose both the upper term and a consecutive sentence.” (People v. Scott (1994) 9 Cal.4th 331, 350, fn. 12; see also Peopk v. Stitely (2005) 35 Cal.4th 514, 575; People v. Osband (1996) 13 Cal.4th 622, 728; Cal. Rules of Court, rule 4.425(b).) Thetrial court’s failure to articulate valid reasonsfor its decision to impose consecutive sentences was error. E. The Abstract of Judgment Must Be Amendedto Reflect that the Court Stayed the Substantive Counts As noted above, in its oral pronouncementof judgment,thetrial court ordered that the “additional years of imprisonment on counts IT through X1” be stayed “because of the fact that the courtrelied on the facts underlying these offenses to deny the motion to modify the death penalty.” (12 RT 4123.) The clerk’s sentencing minute order is consistent with the court’s oral pronouncement: it provides that each of the substantive counts and the associated gun-use enhancementsis “stayed pending successful completion of sentence on count 1, then permanently stayed.” (11 CT 3653-3656.) The abstract of judgment, however, shows that each of the gun-use enhancements was stayed, but does notreflect that the substantive counts were stayed. (11 CT 3659-3661.) The abstract must be corrected to conform to the court’s oral pronouncementof judgment. F, The Errors Were Prejudicial and Require a Remandfor Resentencing The United States Supreme Court has held that the failure to submit a sentencing factor to the jury is not structural error, but instead is subject to the standard of review for federal constitutional error set forth in Chapman v. Cahfornia (1967) 386 U.S. 18. (Washington v. Recuenco (2006) 548 U.S. 212, 218, - 193 - 222.) Under that standard, the state bears the burden of proving beyond a reasonable doubtthat the error was harmless. (Chapman,at p. 24.) In Peopk v. Sandoval, supra, 41 Cal.4th 825, this Court stated that Cunningham error may be harmless if the reviewing court concludes “that the jury, applying the beyond-a-reasonable-doubtstandard, unquestionably would have foundtrueatleast a single ageravating circumstance had it been submitted to the jury....” (Id. at p. 839; see also; People v. Wilson (2008) 44 Cal.4th 758, 812-813; People v. French (2008) 43 Cal.4th 36, 53.) Assuming, without conceding, that this view of federal law is correct, the error is not harmless. As set forth above, the probation report lists a number of other possible aggravating circumstances under the determinate sentencing scheme. As argued above, however, the errors cannot be rendered harmless thereby because thetrial court did not refer to or rely upon those other possible ageravating circumstances. As stated by the court in People v. Cardenas, supra, 155 Cal.App.4th 1468: It is not for the appellate court to conjure the reasonsthetrial court could haverecited to support its sentencing decision from the many optionslisted in the statutes and court rules. We review the trial court’s reasons-we don’t make them up. (Id. at p. 1483.) Nor can the defective sentences be saved by reference to Evidence Code section 664 (“It is presumed that official duty has been regularly performed”) combined with California Rules of Court, rule 4.409 (“Relevant criteria enumerated in these rules must be considered by the sentencing judge, and will be deemed to have been considered unless the record affirmatively reflects otherwise.”). The question here is not whetherthetrial court “considered” other aggravating circumstances that might be presentin the probation report. Instead, the question is whether the court “relied” on any of those other circumstances in making its sentencing decision. The record - 194 - here showsthat the court relied solely upon one aggravating circumstance: the vulnerability of the victim. Appellanthada state-created liberty interest in being sentenced in conformity with state law. (See Hicks v. Oklahoma (1980) 447 US. 343, 346). “A defendanthasa legitimate interest in the character of the procedure which leads to the imposition of the sentence.” (Murtishaw v. Woodford 9th Cir. 2001) 255 F.3d 926, 969-970,citing Gardner v. Florida (1977) 430 U.S. 349, 358.) The errors identified herein violated that right and, accordingly,violated appellant’s right to due process. In these circumstances, this Court cannot conclude beyond a reasonable doubtthat the errors were harmless. Accordingly, as in Peoplev. Sandoval, supra, 41 Cal.4th at pages 843-846, the imposition of the upper term sentence on count two and the associated gun-use enhancement, and the imposition of consecutive sentences, must be reversed, and the case remanded to the trial court for resentencing in a manner consistent with state and federal law. // - 195 - 11. CALIFORNIA’S DEATH PENALTY STATUTE,AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION Manyfeatures of California’s capital-sentencing schemeviolate the United States Constitution. Appellant requested modified instructions to remedy someofthese defects, but most of his requests were denied. (10 CT 3458-3484; 11 RT 3848-3884).) This Court consistently has rejected cogently- phrased arguments pointing out these deficiencies. In People v. Schmeck (2005) 37 Cal.4th 240, this Court held that what it considered to be “routine” challenges to California’s punishment schemewill be deemed“fairly presented” for purposes of federal review “even when the defendant does no more than (i) identify the claim in the context of the facts, (ii) note that we previously have rejected the sameor a similar claim in a prior decision, and (uit) ask us to reconsider that decision.” (Id. at pp. 303-304, citing Vasquez v. Hillery (1986) 474 U.S. 254, 257.) In light of this Court’s directive in Schmeck, appellant briefly presents the following challenges to urge their reconsideration and to preserve these claims for federal review. Should the court decide to reconsider any of these claims, appellant requests the right to present supplemental briefing, °° A. Section 190.2 Is Impermissibly Broad To meet constitutional muster, a death penalty law must provide a meaningful basis for distinguishing the few cases in which the death penalty ts imposed from the manycases in whichit is not. (Peopke v. Edelbacher (1989) 47 Cal.3d 983, 1023,citing Furman v. Georgia (1972) 408 US. 238, 313 (conc. opn. 80. These claims of error are cognizable on appeal undersection 1259, even when appellant did not seek the specific instruction or raise the precise claim asserted here. - 196 - of White, J.).) Meeting this criteria requires a state to genuinely narrow, by tational and objective criteria, the class of murdererseligible for the death penalty. (Zant v. Stephens (1983) 462 U.S. 862, 878.) California’s capital sentencing scheme does not meaningfully narrow the pool of murderers eligible for the death penalty. At the timeof the offenses charged against appellant, section 190.2 contained approximately 21 special circumstances, Given the large numberofspecial circumstances, California’s statutory schemefails to identify the few cases in which the death penalty might be appropriate, but instead makes almostall first degree murders eligible for the death penalty. This Court routinely rejects challenges to the statute’s lack of any meaningful narrowing. (People v. Stanley (1995) 10 Cal.4th 764, 842-843.) This Court should reconsider Stanley and strike downsection 190.2 and the current statutory schemeassoall-inclusive as to guarantee the arbitrary imposition of the death penalty in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. B. The Broad Application of Section 190.3, Subdivision (a) Violated Appellant’s Constitutional Rights Section 190.3, factor (a), directs the jury to consider in aggravation the “circumstances of the crime.” (See CALJIC No.8.85; 10 CT 3442-3444; 12 RT 4039-4042).) Prosecutors throughout California have argued that the jury could weigh in aggravation almost every conceivable circumstance ofthe crime, even those that, from case to case, reflect starkly opposite circumstances. Of equal importanceis the use of factor (a) to embrace facts that cover the entire spectrum of circumstances inevitably present in every homicide: facts such as the victim’s age, defendant’s age, motive for the killing, and method, time, and location ofthe killing. In this case, the prosecutorrelied on the methodofkilling and appellant’s alleged motive as ageravating factors. (12 RT 3943-3947.) This Court has never applied any limiting construction to factor (a). - 197 - (Peopk v. Blair (2005) 36 Cal.4th 686, 7494 [‘circumstances of crime” not required to have spatial or temporal connection to crime].) As a result, the concept of “aggravating factors” has been applied in such a wanton and freakish mannerthat almostall features of every murder can be and have been characterized by prosecutors as “aggravating.” As such, California’s capital sentencing schemeviolates the Fifth, Sixth, Fighth, and Fourteenth Amendments to the United States Constitution because it permits the jury to assess death on no basis other than thatthe particular set of circumstances surrounding the crime were enough in themselves, without some narrowing principle, to warrant the imposition of death. (See Maynard v. Cartwright(1988) 486 U.S. 356, 363; but see Tutlaepa v. California (1994) 512 U.S. 967, 987-988 [factor (a) survived facial challenge at time of decision].) Appellant is aware that the Court has repeatedly rejected the claim that permitting the jury to consider the “circumstances of the crime” within the meaning of section 190.3 in the penalty phase results in the arbitrary and capricious imposition of the death penalty. (Peopk v. Kennedy (2005) 36 Cal.4th 595, 641; People v. Brown (2004) 33 Cal.4th 382, 401.) Appellant urges the court to reconsider this holding. (See Peopke v. Schmeck, supra, 37 Cal.4th at pp. 303- 304.) C. The Death Penalty Statute and Accompanying Jury Instructions Fail to Set Forth the Appropriate Burden of Proof 1. Appellant’s death sentence is unconstitutional becauseit is not premised on findings made beyond a reasonable doubt California law does not require that a reasonable doubt standard be used during any part of the penalty phase, except as to proofofprior criminality (CALJIC Nos. 8.86, 8.87). (People v. Anderson (2001) 25 Cal.4th 543, 590; People v. Fatrbank (1997) 16 Cal.4th 1223, 1255; see People v. Hawthorne (1992) 4 Cal.4th 43, 79 [penalty phase determinations are moral and not - 198 - “susceptible to a burden-of-proof quantification”’].) In conformity with this standard, appellant’s jury was nottold that it had to find beyond a reasonable doubtthat aggravating factors in this case outweighed the mitigating factors before determining whether or not to impose a death sentence. (CALJIC No. 8.88; 10 CT 3453-3454; 12 RT 4048-4050.) Indeed, the prosecutor, at his penalty phase closing argument, categorically informed the jurors that “[i]n the penalty phase, there is no burden of proof.” (12 RT 3899.) Apprendi v. NewJersey (2000) 530 US. 466, 478, Ring v. Anzona (2002) 536 USS. 584, 604, Blakely v. Washington (2004) 542 U.S. 296, 303-305, and Cunningham v. California (2007) 549 U.S, 270, now require any fact that is used to support an increased sentence (other than a prior conviction) be submitted to a jury and proved beyond a reasonable doubt. To impose the death penalty in this case, appellant’s jury had to first make several factual findings: (1) that ageravating factors were present; (2) that the aggravating factors outweighed the mitigating factors; and (3) that the aggravating factors were so substantial as to make death an appropriate punishment. (CALJIC No. 8.88; 10 CT 3453- 3454; 12 RT 4048-4050).) Because these additional findings were required before the jury could impose the death sentence, Apprendi, Ring, Blakely, and Cunningham require that each ofthese findings be made beyond a reasonable doubt. The courtfailed to so instruct the jury and thusfailed to explain the general principles of law “necessary for the jury’s understanding ofthe case.” (People v. Sedeno (1974) 10 Cal.3d 703, 715; see Carter v. Kentucky (1981) 450 US. 288, 302.) Appellant is mindful that this Court has held that the imposition of the death penalty does not constitute an increased sentence within the meaning of Apprendi (People v. Anderson, supra, 25 Cal.4th at p. 589, fn. 14), and does not require factual findings. (People v. Griffin (2004) 33 Cal.4th 536, 595.) The Court has rejected the argument that Apprendi and Ring impose a reasonable - 199 - doubt standard on California’s capital penalty phase proceedings. (Peopkv. Prieto (2003) 30 Cal.4th 226, 263.) Appellant urges the Court to reconsiderits holding in Prieto so that California’s death penalty scheme will comport with the principles set forth in Apprendi, Ring, Blakely, and Cunningham. (See Peopk v. Schmeck, supra, 37 Cal.4th at pp. 303-304.) Setting aside the applicability of the Sixth Amendmentto California’s penalty phase proceedings, appellant contends that the sentencer of a person facing the death penalty is required by due process and the prohibition against cruel and unusual punishment to be convinced beyond a reasonable doubt not only that the factual bases for its decision are true, but that death is the appropriate sentence. This court has previously rejected appellant’s claim that the Due Process Clause and the Eighth Amendmenteach requires that the jury be instructed that it must decide beyond a reasonable doubtthat the ageravating factors outweigh the mitigating factors and that death is the appropriate penalty. (People v. Blair, supra, 36 Cal.4th at p. 753.) Appellant requests that the Court reconsider this holding. 2. Some burden of proofis required, or thejury should have been instructed that there was no burdenofproof State law provides that the prosecution always bears the burden of proofin a criminal case. (Evid. Code, § 520.) Evidence Code section 520 creates a legitimate state law expectation as to the way a criminal prosecution will be decided and appellantis therefore constitutionally entitled under the Fourteenth Amendmentto the burden of proof provided for by thatstatute. (Cf. Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [defendant constitutionally entitled to procedural protections afforded bystate law].) Accordingly, appellant’s jury should have been instructed that the state had the burden of persuasion regarding the existence of any factor in aggravation, whether ageravating factors outweighed mitigating factors, and the appropriateness of the death penalty, and that it was presumedthatlife without parole was an - 200 - appropriate sentence. CALJIC Nos. 8.85 and 8.88, the instructions given here (10 CT 3442- 3444; 12 RT 4039-4042; 10 CT 3453-3454; 12 RT 4048-4050), fail to provide the jury with the guidance required for administration of the death penalty to meet constitutional minimum standards, in violation of the Sixth, Eighth, and Fourteenth Amendments. This Court hasheld that capital sentencing is not susceptible to burdens of proof or persuasion because the exercise is largely moral and normative, and thus unlike other sentencing. (People v. Lenart (2004) 32 Cal.4th 1107, 1136-1137.) This Court has also rejected any instruction on the presumption oflife. (People v. Arias (1996) 13 Cal.4th 92, 190.) Appellant is entitled to jury instructions that comport with the federal Constitution and thus urges the court to reconsiderits decisions in Lenart and Arias. (See Peopk v. Schmeck, supra, 37 Cal.4th at pp. 303-304.) Even presuming it were permissible not to have any burden of proof, the trial court erred prejudicially by failing to articulate that to the jury. (Cf. People v. Williams (1988) 44 Cal.3d 883, 960 [upholding jury instruction that prosecution had no burden of proofin penalty phase under 1977 death penalty law ].) Absent such an instruction, there is the possibility that a juror would vote for the death penalty because of a misallocation of a nonexistent burden ofproof. 3. Appellant’s death verdict was not premised on unanimousjury findings a. Aggravating factors To impose a death sentence, when there is no assurance the jury, or even a majority of the jury, ever found a single set of aggravating circumstances that warranted the death penalty, violates the Sixth, Eighth, and Fourteenth Amendments. (See Baslew v. Georgia (1978) 435 U.S. 223, 232-234; Woodson v. North Carolina (1976) 428 U.S. 280, 305.) Nonetheless, this Court “has held that unanimity with respect to aggravating factors is not required by - 201 - statute or as a constitutional procedural safeguard.” (People v. Taylor (1990) 52 Cal.3d 719, 749.) This Court reaffirmed this holding after the high court’s decision in Ring v. Arizona, supra. (See People v. Prieto, supra, 30 Cal.4th at p. 275.) Appellant asserts that Prieto was incortectly decided, and application of the Ring reasoning mandatesjury unanimity under the overlapping principles of the Sixth, Eighth, and Fourteenth Amendments. “Jury unanimity... is an accepted,vital mechanism to ensure that real and full deliberation occursin the jury room,andthatthe jury’s ultimate decision will reflect the conscience of the community.” (McKoy v. North Carolina (1990) 494 U.S. 433, 452 (conc. opn. of Kennedy,J.).) Thefailure to require that the jury unanimously find the aggravating factors true also violates the equal protection clause of the federal Constitution. In California, when a criminal defendant has been charged with special allegations that may increase the severity of his sentence, the jury must render a separate, unanimousverdict on the truth of such allegations. (See, e.g., § 1158a.) Since capital defendants are entitled to more rigorous protections than those afforded noncapital defendants (see Monge v. Cakfornia (1998) 524 U.S. 721, 732; Harmelin v. Michigan (1991) 501 U'S. 957, 994), and since providing more protection to a noncapital defendantthan a capital defendantviolates the equal protection clause of the Fourteenth Amendment (see e.g., Myers v. Yést (9th Cir. 1990) 897 F.2d 417, 421), it follows that unanimity with regard to aggravating circumstancesis constitutionally required. To apply the requirement to an enhancementfinding that may carry only a maximum punishmentof one year in prison, but notto a finding that could have “a substantial impact on the jury’s determination whetherthe defendant should live or die” (Peopke v. Medina (1995) 11 Cal.4th 694, 763-764), would byits inequity violate the equal protection clause of the federal - 202 - Constitution andbyits irrationality violate both the due process and cruel and unusual punishmentclauses of the federal Constitution, as well as the Sixth Amendment’s guarantee of a trial by jury. Appellant asks the Court to reconsider Taylor and Preto and require jury unanimity as mandated by the federal Constitution. (See Peopke v. Schmeck, supra, 37 Cal.4th at pp. 303-304.) b. Unadjudicated criminal activity Appellant’s jury was notinstructed that prior criminality had to be found true by a unanimousjury; nor is such an instruction generally provided for under California’s sentencing scheme. In fact, the jury was instructed that unanimity was not required (CALJIC No.8.87; 10 CT 3447; 12 RT 4044- 4045), and the prosecutor, at closing argument, stressed that “[y]ou don’t have to all agree on [factor (b)].” (12 RT 3900.) Consequently, any use of unadjudicated criminal activity by a memberof the jury as an aggravating factor, as outlined in section 190.3, factor (b), violates due process and the Fifth, Sixth, Eighth, and Fourteenth Amendments, rendering a death sentence unreliable. (See, e.g., Johnson v. Mississippi (1988) 486 U.S. 578, 584-586, 590 [overturning death penalty based in part on vacated prior conviction].) This Court has routinely rejected this claim. (Peopk v. Anderson, supra, 25 Cal.4th at pp. 584-585.) Here, the prosecution presented evidence regarding unadjudicated criminal activity allegedly committed by appellant, the Damini Gray incident (9 RT 3064-3066, 3086-3088, 3089-3095), and devoted a considerable portion of its closing argumentto the alleged offense (12 RT 3899-3902). The United States Supreme Court’s recent decisions in Cunningham v. Cakfornia, supra, 549 U.S. 270, Blakely v. Washington, supra, 542 U.S. 296, Ring v. Arizona, supra, 536 U.S. 584, and Apprendi v. NewJersey, supra, 530 US. 466, confirm that under the due process clause of the Fourteenth Amendment and - 203 - the jury trial guarantee of the Sixth Amendment,all of the findings prerequisite to a sentence of death must be made beyonda reasonable doubt by a unanimousjury. In light of these decisions, any unadjudicated criminal activity must be found true beyond a reasonable doubt by a unanimousjury. Appellant is aware that this Court has rejected this very claim. (Peoph v. Ward (2005) 36 Cal.4th 186, 221-222.) Heasks the Court to reconsider its holdings in Anderson and Ward. (See People v. Schmeck, supra, 37 Cal.4th at pp. 303-304.) 4. The instructions caused the penalty determination to turn on an impermissibly vague and ambiguous standard Whether to impose the death penalty on appellant hinged on whether the jurors were “persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstancesthat it warrants death instead oflife without parole.” (CALJIC No.8.88; 10 CT 3453-3454; 12 RT 4048-4050.) The phrase “so substantial” is an impermissibly broad phrase that does not channelor limit the sentencer’s discretion in a mannersufficient to minimize the risk of arbitrary and capricious sentencing. Consequently, this instruction violates the Eighth and Fourteenth Amendments becauseit creates a standard that is vague and directionless. (See Maynard v. Cartwright, supra, 486 USS.at p. 362; see also Arg, 7, ante.) This Court has found that the use of this phrase does not render the instruction constitutionally deficient. (Peopk v. Breaux (1991) 1 Cal.4th 281, 316, fn. 14.) This Court should reconsider that opinion. 5. The instructions failed to inform the jury that the central determination is whether death is the appropriate punishment The ultimate question in the penalty phase of a capital case is whether death is the appropriate penalty. (Woodson v. North Carolina, supra, 428 U.S.at p. 305.) Yet, CALJIC No.8.88 does not make this clear to jurors; rather it instructs them they can return a death verdictif the aggravating evidence - 204 - “warrants” death rather than life without parole. These determinationsare not the same. To satisfy the Eighth Amendment“requirementofindividualized sentencing in capital cases” (B/ystone v. Pennsylvania (1990) 494 U.S. 299, 307), the punishment mustfit the offense and the offender,i.e., it must be appropriate (see Zant v. Stephens, supra, 462US.at p. 879). On the other hand, jurors find death to be “warranted” when they find the existence ofa special circumstance that authorizes death. (See People v, Bacigalupo (1993) 6 Cal.4th 457, 462, 464.) By failing to distinguish between these determinations, the jury instructions violate the Eighth and Fourteenth Amendments tothe federal Constitution. The Court has previously rejected this claim. (People v. Arias, supra, 13 Cal.4th at p. 171.) Appellant urges this Court to reconsider that ruling. (See People v. Schmeck, supra, 37 Cal.4th at pp. 303-304.) 6. The instructions failed to inform the jurors that if they determined that mitigation outweighed aggravation, they were required to return a sentence oflife without the ossibility of parole Section 190.3 directs a jury to impose a sentenceoflife imprisonment without parole when the mitigating circumstances outweigh the aggravating circumstances. This mandatory language is consistent with the individualized consideration of a capital defendant’s circumstances that is required under the Eighth Amendment. (See Boyde v. Cahfornia (1990) 494 U.S. 370, 377.) Yet, CALJIC No.8.88 does not address this proposition, but only informs the jury of the circumstances that permit the rendition of a death verdict. By failing to conform to the mandate of section 190.3, the instruction violated appellant’s right to due process of law. (See Hicks v. Oklahoma, supra, 447 U.S, at p. 346.) This Court has held that since the instruction tells the jury that death can be imposedonlyifit finds that aggravation outweighs mitigation,it is - 205 - unnecessary to instruct on the converse principle. (People v. Duncan (1991) 53 Cal.3d 955, 978.) Appellant submits that this holding conflicts with numerous cases disapproving instructions that emphasize the prosecution theory of the case while ignoring or minimizing the defense theory. (See People v. Moore (1954) 43 Cal.2d 517, 526-529; Peopk v. Kelly (1980) 113 CalApp.3d 1005, 1013-1014; see also People v. Rice (1976) 59Cal.App.3d 998, 1004 [instructions required on every aspect of case].) It also conflicts with due process principles in that the nonreciprocity involved in explaining how a death verdict may be warranted, but failing to explain when an LWOPverdict is required,tilts the balance of forces in favor of the accuser and against the accused. (See Wardius v. Oregon (1973) 412 US. 470, 473-474.) 7. The penaltyjuryshould be instructed on the presumption oflife The presumption of innocenceis a core constitutional and adjudicative value that is essential to protect the accused in a criminal case. (See Estelle v, Wilkams (1976) 425 U.S. 501, 503.) In the penalty phase of a capital case, the presumption oflife is the correlate of the presumption of innocence. Paradoxically, however, although the stakes are much higherat the penalty phase, there is no statutory requirementthatthe jury be instructed as to the presumption oflife. (See generally Note, The Presumption ofLife: A Starting Pointfor Due Process Analysis ofCapital Sentencing (1984) 94 Yale LJ. 351; cf. Delo v. Lashley (1983) 507 U.S. 272, 278-280.) Thetrial court’s failure to instructthe jury that the law favors life and presumeslife imprisonment withoutparole to be the appropriate sentence violated appellant’s right to due process of law (U.S. Const., 14th Amend.), his tight to be free from cruel and unusual punishmentand to have his sentence determinedin a reliable manner (U.S. Const., 8th & 14th Amends.), and his right to the equal protection of the laws. (U.S. Const. 14th Amend.) In Peopk v. Arias, supra, 13 Cal.4th 92, this Court held that an - 206 - instruction on the presumption of life is not necessary in California capital cases, in part because the United States Supreme Court has held that “the state may otherwise structure the penalty determination asit sees fit,’ so long as state law otherwise properly limits death eligibility. (Id at p. 190.) Nevertheless, as the other sections of this brief demonstrate, this state’s death penalty law is remarkably deficient in the protections needed to insure the consistent andreliable imposition of capital punishment. Therefore, a presumptionoflife instruction is constitutionally required. D.Failing to Require that the Jury Make Written Findings Violates Appellant’s Right to Meaningful Appellate Review Consistent with state law (People v. Fauber (1992) 2 Cal.4th 792, 859), appellant’s jury was not required to make any written findings during the penalty phase ofthe trial. The failure to require written or other specific findings by the jury deprived appellant of his rights under the Sixth, Eighth, and Fourteenth Amendmentsto the federal Constitution, as well as his right to meaningful appellate review to ensure that the death penalty was not capriciously imposed. (See Gregg v, Georgia (1976) 428 U.S. 153, 195.) This Court has rejected these contentions, (People v. Cook (2006) 39 Cal.4th 566, 619.) Appellant urges the court to reconsider its decisions on the necessity of written findings. (See Peopk v. Schmeck, supra, 37 Cal.4th at pp. 303-304.) E. The Instructions to the Jury on Mitigating and Aggravating Factors Violated Appellant’s Constitutional Rights 1. The use of restrictive adjectives in the list of potential mitigating factors Theinclusion in the list of potential mitigating factors of such adjectives as “extreme” (see CALJIC No.8.85; § 190.3, factors (d) and (g); 10 CT 3442-3444; 12 RT 4040-4041) acted as barriers to the consideration of mitigation in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Mis v. Maryland, supra, 486 U.S. at p. 384; Lockett v. Ohio, supra, - 207 - 438 USS.at p. 604; see also Arg. 7, ante.) Appellant is aware that the Court has rejected this argument (People v, Avila (2006) 38 Cal.4th 491, 614), but urges reconsideration. 2. The failure to delete inapplicable sentencing factors Several of the sentencing factors set forth in CALJIC No.8.85 were inapplicable to appellant’s case: factors (6), (f) and (g). Thetrial court failed to omit those factors from the jury instructions (CALJIC No. 8.85; 10 CT 3442-3444; 12 RT 4040-4042), likely confusing the jury and preventing the jurors from making anyreliable determination of the appropriate penalty, in violation of defendant’s constitutionalrights. Appellant asks the Court to reconsider its decision in Peopk v. Cook, supra, 39 Cal.4th at p. 618, and hold that the trial court must delete any inapplicable sentencing factors from the jury’s instructions. (See Peoph v. Schmeck, supra, 37 Cal.4th at pp. 303-304.) 3. The failure to instruct that statutory mitigating factors were relevant solely as potential mitigators In accordance with customary state court practice, nothing in the instructions advised the jury which of the sentencing factors in CALJIC No. 8.85 were aggravating, which were mitigating, or which could beeither ageravating or mitigating depending on the jury’s appraisal of the evidence. (10 CT 3442-3444; 12 RT 4039-4042.) The Court has upheld this practice. (People v. Hillhouse (2002) 27 Cal.4th 469, 509.) As a matter of state law, however, several of the factors set forth in CALJIC No.8.85 -- factors(d), (e), (f), (g), (h), and (j) -- were relevantsolely as possible mitigators. (People v. Hamilton (1989) 48 Cal.3d 1142, 1184; Peopke», Davenport (1985) 41 Cal.3d 247, 288-289), Appellant’s jury, however, wasleft free to conclude that a “not” answeras to any of these “whether or not” sentencing factors could establish an aggravating circumstance. Consequently, the jury was invited to aggravate appellant’s sentence based on non-existent or irrational aggravating factors precludingthe reliable, individualized, capital - 208 - sentencing determination required by the Eighth and Fourteenth Amendments. (See Stringer v. Black (1992) 503 U.S. 222, 230-236.) As such, appellant asks the court to reconsiderits holding that the court need not instruct the jury that certain sentencing factors are only relevant as mitigators. (See People v. Schmeck, supra, 37 Cal.4th at pp. 303-304.) F, The Prohibition Against Inter-case Proportionality Review Guarantees Arbitrary and Disproportionate Impositions of the Death Penalty The California capital sentencing scheme does not require that either the trial court or this Court undertake a comparison between this and other similar cases regarding the relative proportionality of the sentence imposed, i.e., inter-case proportionality review. (See Peopke v, Fierro (1991) 1 Cal.4th 173, 253.) The failure to conductinter-case proportionality review violates the Fifth, Sixth, Eighth, and Fourteenth Amendmentprohibitionsagainst proceedings conductedin a constitutionally arbitrary, unreviewable manner or that violate equal protection or due process. For this reason, appellant urges the court to reconsiderits failure to require inter-case proportionality review in capital cases. (See People v. Schmeck, supra, 37 Cal.4th at pp. 303-304.) G. The California Capital SentencingScheme Violates the Equal Protection Clause California’s death penalty scheme providessignificantly fewer procedural protections for persons facing a death sentence than are afforded persons charged with non-capital crimes in violation of the Equal Protection Clause. To the extent that there may be differences between capital defendants and non-capital felony defendants, those differences justify more, not fewer, procedural protections for capital defendants. In a non-capital case, any true finding on an enhancementallegation must be unanimous and beyond a reasonable doubt, aggravating and mitigating factors must be established by a preponderanceofthe evidence, - 209 - and the sentencer must set forth reasons justifying the defendant’s sentence. (People v. Sengbadychith (2001) 26 Cal.4th 316, 325; Cal. Rules of Court, rule 4.406.) In a capital case, there is no burden of proofat all, and the jurors need not agree on what aggravating circumstances apply nor provide any findings to justify the defendant’s sentence. Appellant acknowledges that the court has previously rejected these equal protection atguments (People v. Manriquez (2005) 37 Cal.4th 547, 590), but he asks the court to reconsider that conclusion. (See Peopk v. Schmeck, supra, 37 Cal.4th at pp. 303-304.) H. California’s Use of the Death Penalty as a Regular Form of Punishment Falls Short of International Norms This court has rejected numeroustimes the claim that the use of the death penalty atall, or, alternatively, that the regular use of the death penalty violates international law, the Eighth and Fourteenth Amendments, or “evolving standards of decency” (Trop v. Dulles (1958) 356 USS. 86, 101). (People v. Cook, supra, 39 Cal.4th at pp. 618-619; People v. Snow (2003) 30 Cal.4th 43, 127; People v. Ghent (1987) 43 Cal.3d 739, 778-779.) In light of the international community’s overwhelmingrejection of the death penalty as a regular form of punishment and the United States Supreme Court’s decision citing international law to support its decision prohibiting the imposition of capital punishment against defendants who committed their crimes as juveniles (Roper v. Simmons (2005) 543 U.S. 551, 554), appellant urges the court to reconsiderits previous decisions. // - 210 - CONCLUSION Forall of the reasons stated above and in appellant’s openingbrief, the convictions and death sentence in this case must be reversed. DATED: May 17, 2010. “State Public - 211 - MICHAELJ. HERSEK efender | Lb DOUGLASWARD Deputy State Public Defender Cal. State Bar No. 133360 221 Main Street, Suite 1000 San Francisco, California 94105 Phone (415) 904-5600 Attorneys for Appellant KEVIN BOYCE CERTIFICATE AS TO LENGTH OF BRIEF Pursuant to California Rules of Court, rule 8.630(b)(2), I hereby certify that I have verified, through the use of our word processing software, that this brief, excluding the tables, contains approximately 66,000 words. DATED: May 17, 2010. - LY DOUGLAS WARD eputy State Public Defender Attorney for Appellant KEVIN BOYCE - 212 - DECLARATION OF SERVICE Re: People v. Boyce, No. $092240 I, Neva Wandersee, declare that I am over 18 years of age, and not a party to the within cause; my business address is 221 Main Street, 10th Floor, San Francisco,California 94105. A true copy of the attached: APPELLANT’S OPENING BRIEF on each ofthe following, by placing same in an envelope (or envelopes) addressed (respectively) as follows: The Honorable Edmund G. Brown Mr. Kevin Boyce Attorney General of the State of California P.O, Box J-43178 110 W. “A” Street, Suite 1100 Tamal, California 94974 San Diego, California 92101 Orange County District Attorney Clerk of Court Attn: David Brent, Esq. Orange County Superior Court 401 Civic Center Drive Department C-35 Santa Ana, California 92701 700 Civic Center Drive West Santa Ana, California 92702 Each said envelope was then, on May 17, 2010, sealed and deposited in the United States Mail at San Francisco, California, the county in which ] am employed, with the postage thereon fully prepaid. I declare under penalty of perjury that the foregoing is true and correct. Executed on May 17, 2010, atClCalifornia. Neva Wandersee
