PEOPLE v. BOYCE

Appellant’s Reply Brief

Cal.December 31, 2012

SUPREME CourTcopy COPY IN THE SUPREME COURT OF THESTATE OF CALIFORNIA THE STATE OF CALIFORNIA, No. $092240 Plaintiff and Respondent, (Orange County Superior Court Vv. No. 97NF2316) KEVIN BOYCE, . [Capital Case] Defendant and Appellant. SUPREMEgauer DEC 31 2012 APPELLANT’S REPLY BRIEF Frank A. McGuire Clerk Appeal from the Judgmentof the Superior Court ‘Deputy ~ of the State of California for the County of Orange _. Honorable Frank F. Fasel, Judge x MICHAELJ. HERSEK State Public Defender — DOUGLAS WARD Senior Deputy State Public Defender Cal. State Bar No. 133360 _ 1111 Broadway,10th Floor Oakland, California 94607 Phone (510) 267-3300 | Attorneys for Appellant DEATH PENALTY TABLE OF CONTENTS Page TABLE OF CONTENTSS.......ccccsscsccsssssnesssnneesscaeesessseneeesssseeasoensarenonsess i TABLE OF AUTHORITIES.......ceesecssssnesteeeeseetsnesesnneeennneesssseecenereaees iii INTRODUCTION......c::csssssescscsssssccesseessccstenscessseseesssseeccessnsensessessasessanees 1 ARGUMENTS.......csssssscsessseecsssnsececstecccesssesecessneesesssnneesessnnaceessessneeseesonens 3 1. APPELLANT IS BRAIN DAMAGED, SEVERELY MENTALLY ILL, AND MENTALLY RETARDED; PERMITTING THE STATE TO EXECUTE HIM, UNDER WHATEVER LEGAL GUISE, OFFENDS THE EVOLVING SENSE OF DECENCYIN THIS STATE AND NATION......c:sscscssssscesssresessrseesensusesseecessessseeeesessanenenseanesssgoes 3 A. Respondent’s Two-Page Response.....ssssesesesrersseessereerenetees 4 B. Reversal of the Death Sentence Is Required under Article I, Section 17 of the California Constitution. ................ 8 2. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY PERMITTING THE PROSECUTION TO PLAY AUDIO RECORDINGS OF THE911 CALLS MADE BY THE TWO SURVIVING VICTIMS OF THE CAPITAL CRIME........ccccscsscccsssccessscesesevssssveceeeeseneeeeseesseeeecesnresssneeasensasessnseoeners 20 A. Section 352 and the Relevanceof the 911 Tapes...21 B. The Ghastly 911 Tapes Shed Little if Any Light on the Witness’s Credibility; They Were Played for a Different and Illegitimate Reason .......ccsssssesecseresersecsresessrecsseseseseneees26 C. Reversal Is Required ......scscscssssseeeseesnessssensseesssnassenrevseseseseees 33 3. APPELLANT’S CLAIMS REGARDING THE FLIGHT INSTRUCTION ARE FULLY COGNIZABLE ON APPEAL..oscsssssssssceeessensecescccessssesesccnstenceessecesseasaesessssnaeeeeesessnnsassenees 37 4. THE RETALIATION CLAUSE OF THE PEACE- OFFICER SPECIAL CIRCUMSTANCEIS VAGUE AS APPLIED HERE ......ccssssssecssssssseneeeseseeseeensarecessaesssasessensensensssesges 39 A. The Importanceof the Statute’s Intent, to Protect Peace Officers, Does Not ImmunizeIt from Vagueness ReVICW....cccsseessssesssesereceseseseseseeeesesrecssnsanaeeesesnanecesesersecsengentes39 TABLE OF CONTENTS Page B. The Languageof Special Circumstances Must Meet Heightened Requirements of Certainty ......csecsereresreneees40 C. The Retaliation Clause of the Special Circumstance Is Unconstitutionally Vague As Applied Here........csssssseenees42 D. Even If this Court Were to Agree with Respondent’s Interpretation of the Statute, that Interpretation Could Not Be Applied Retroactively to Appellant......sssssesererees45 E. Reversal of the Death JudgmentIs Required ..........ssseeereeee 46 6. APPELLANT’S PENALTY PHASE MOTION FORSELF- REPRESENTATION, AN ATTEMPT TO ASSERT AUTONOMOUS CONTROLOF HIS DEFENSE, WAS ERRONEOUSLY DENIED......cccccsssscccsssneeescnneeseenneseseseossnsonensens 47 A. Respondent’s Thorny Path Throughthe Trial Court’s Erroneous Exercise of Its Discretion.........ssscsseseereeeeserrrentees47 B. The Request Was Not Equivocal to the Trial Court or the Prosecution .....scccssssssscsesescssssnneesesessssneceesetsorsgeesesenscengoess 49 C. The Windham Factors....ccscssesssssersccrsessnsnneerssessnesesssneessnsaoens 52 D. Although Untimely Underthis Court’s Precedents, Appellant’s Request Would Not Have Delayed the Penalty Phase.....scssssssesessesessereseessnsensersoneesnessesseseeseesseneneans 56 E. The Death Judgment Must Be Reversed ........scsssserseresseeres 57 . 9, IN LIGHT OF THE OVERWHELMINGMITIGATION, THE TRIAL COURT’S FAILURE TO GIVE THE JURY FULL INSTRUCTIONAL GUIDANCE AT THE PENALTY PHASE REQUIRES REVERSAL OF THE DEATH JUDGMENT.....cccsssessesessessessecnnensenesssnsennesensenessnsrsnsseneeas 58 10. THE TRIAL COURT’S NONCAPITAL SENTENCING ERRORS REQUIRE REVERSAL AND A REMAND ..........0000 69 A. The Invalid Upper Terms......scssscsssesesnresneseseesseenereesseseeeeeaee 69 B. The Invalid Consecutive Sentences....sssssccsessesercneenneensnien70 C. Correction of the Abstract ofJUdQMENt......ceessseseeseseesreeeees74 CONCLUSION. ......ccsssccsessssssssceseseessentesesssesescnsenssconenecseessensensenesseeeneres 76 TABLE OF AUTHORITIES Page(s) Fed. Cases Abdul-Kabir v. Quarterman (2007) 550 U.S, 233neeseessseessssseusssaseersscesseeseenseen 14 Armstrong v. Dugger (11% Cir, 1987) 833 F.2d 1430 veeeceeeeeennesseereeeesiessreees 8 Atkins v. Virginia (2002) 536 U.S. 304 veccceseerenereeeenesneneentearenesneenesy passim Bobby v. Bees (2009) 556 U.S. 825 vcesecseecesesieeeneeseeeesneeneenscsveessenssesenseasenssensises 8 Bonie v. City of Columbia (1964) 378 U.S. B47 vecececeeesenesseessieseseesseeseesens46 Brewer v, Aiken (7Cir.1991) 935 F.2d 850. eecesseeeeeeecenesnecseeesnsennensssns 11 Brewer v. Quarterman (2007) 550 U.S. 286. cssecesececsernteceeseneeneesreesesseesnerses 15 Buhl v, Cooksey (3d Cit. 2000) 233 F.3d 783veces52 Bullington v. Missouré (1981) 451 U.S. 430 eeeeserseessseeensssnessseaeccnssseeaneneny 33 Cannon v. Gibson (10% Cir. 2001) 259 F.3d 1253 wcscseceetereeeeceeneeeneesesees 16 Carroll v. Secretary, Dept. of Corrections (11% Cir. 2009) 574 F.3d 1354...eee 6 Carter v. Kentucky (1981) 450 U.S, 288... esceeeeeeteeeeseeseatsseeassesseensenssensneess 61 Chapman v. California (1967) 386 U.S. 18 veesscsseesseiesseesessecsnensneesnneesnes 34, 59 Cunningham v. California (2007) 549 U.S. 270 ceceeceneesseeesesseessseenreantesees 69 Deck v. Missouri (2005) 544 U.S. 622 .ecsescseeseseesnereeennecienneeeennsesiesnneesuesaenss 34 DeLassus v. United States (1835) 34 U.S. (9 Peters) 117.essere66 Eddings v. ORlaboma (1982) 455 U.S. 104essereveseeaeseeveanenees 8 Enmund v. Florida (1982) 458 U.S. 782 vecsecseerneeneeensereessuieeestssnescssneees 11 Estelle v. McGuire (1991) 502 U.S. O2..cecsecsecsecteecneeneeneeeseereneetineneerseessesssesseseets 34 Estelle v. Williams (1976) 425 US. 501 ceeseecsesssssecssersenneeeneeneeenesenseneeeneenneesenieens 29 Faretta v. California (1975) 422 U.S. 806 veeeiesneeeeereeneeeeiseeeeessenseeness passim Ferguson v. Culliver (11% Cir, 2008) 527 F.3d 1144. sessseeeeceseesnessseessersnaes 51 Ferrell v. Hall (11% Cir, 2011) 640 F.3d 1199 vecsecsecsneeeeetesnesarersaessnssensessins 15 Foucha v. Louisiana (1992) 504 US. 71 cssesereneeenireenenseneneesiesesessnsesee 7,13 Furman v. Georgia (1972) 408 U.S. 238 vesecceeneeseeesntesecensssiisesesnsercssecsnensiens 19 Gardner v. Florida (1977) 430 U.S. 349.cesses34, 71 Ghent v. Woodford (9% Cir. 2002) 279 F.3d 1121 weecseessseeseeseeessssesrsesneen 35 Glenn v. Tate (6Cir, 1996) 71 F.3d 1204. esecestesessneeeeeneensceneeeeneeneesesssren 11 TABLE OF AUTHORITIES Page(s) Gonzalez-Rivera v. LN.S. (9% Cit. 1994.) 22 F.3d 1441 vic cseseeeeeeeeeeens 28 Graham v. Florida (2010) _ US. __, 130 S.Ct. 2011ieceesecreseseeenesseneenes 4 Hardwick v. Crosby (11® Cir, 2003) 320 F.3d 1127 weccccssscssssssscscesssssnsesesscessen 11 In re Winship (1970) 397 U.S. 358 vecessseseesecsssssnsssssssesssessesesnssesssensseenseteneeeny 37 Indiana v, Edwards (2008) 554 U.S, 164 vecceccssesssssesesessesesesssesseesseneasseneene 6,12 Jurek v. Texas (1976) 428 U.S. 2602iccesseisessessensesnsessereensseeeseeseesearsernaneey 41 Kennedy v. Louisiana (2008) 554 US. 407 vccccccssscsssrescnsseseeerereesssseneanseesseressennens 4 Kolender v. Lawson (1983) 461 US. B52. ccccssesccesesssseneesesnsensecneerereseeeeeateeees 41 Kyles v. Whitley (1995) 514 US, 419 viesssssscseesessesesesssssseenssneeesssseseesssencenes 2 Lanzetta v. NewJersey (1939) 306 U.S. 451 aecssesseesseseseessesessesessssssassessnsseseseees 41 Lockett v, Ohio (1978) 438 U.S.586sssssssseseeeseeevssessseesensessse 17 Mathews v. United States (1988) 485 U.S. 58 viccccccesseseseseresnsessessssesneeseeneees 61 Maynard v. Cartwright (1988) 486 U.S. 356 wicscssssseseesesesessssssssesssssseseeeneenens 41 McKinney v. Rees (9® Cir. 1993) 993 F.2d 1378 vscccssessesseseessessssseeseseseseeees 34 Old Chief v. United States (1997) 519 U.S.V2.28, 29, 31 Oregon v. Ice (2009) 555 U.S. 160 nceeeesseseeereescesesseesesessessesssessessesssenessieens 70 Payne v. Tennessee (1991) 501 U.S. 808 vcceccceseeseseessseseseeseesesnesesnesesnenensens 32, 34 Porter v. McCollum (2009) 558 U.S. 30, 130 S.Ct. 447ceeseseersneeesenesneene 14 Pulley v. Harris (1984) 465 US. 37 vsccstseeeesessesssseecssesesssiersssssessieenaseessseas 19 Riggins v. Nevada (1992) 504 U.S. 127 sssssssssstintiesstssnssstinesete seveieuetnente 16 Rata v. United States (2007) 551 U.S. 338 vecceesssssnsseseeseseeseseresssseesersessssssessseesenes 71 Rompilla v. Beard (2005) 545 U.S. 374 cssssessssseesessessessssecnssesseneeesseensseeneesy 14 Rose v. Clark (1986) 478 U.S. 570 vsccssesssesssesesesssssssssnereesesscssseersssrsserssssesassecey 33 Satterwhite v. Texas (1988) 486 U.S, 249 vieccseersesnererssensecrsennieaseceseesserseerees 35 Screws v. United States (1945) 325 US. 91 vcecseseneeresesstenenserseeersen 65 Shepard v. United States (2005) 544 U.S. 1B .cccccsssseescessensssescensecsnsseesvessesessnes 70 Shislnday v. Quartermain (5® Cir, 2007) 511 F.3d 514.ices7 Simmons v. South Carolina (1994) 512 U.S. 154 wiseceecesseeseeeeretseeesessseseeses 32 Smith v. Mullin (10% Cir. 2004) 379 F.3d 919.les seessssesesvessenseseasessesenens 11, 16 Sparf v. United States (1895) 156 U.S. a1cecesessenessessenssessnesseseeseensenses 67 Iv TABLE OF AUTHORITIES Page(s) Thomas v. Allen (11® Cir. 2010) 607 F.3d 749 vcceeeeeeeeeseneeseenennentersees 5 Tigner v, Texas (1940) 310 U.S. 141 vecscsecseseseeeseeeneessneennisecieenessssenssanessens 6 Truesdale v. Moore (4% Cir. 1998) 142 F.3d 749 vesesseeeeresececerieseeences 15 Tuilaepa v. California (1994) 512 U.S. 967 vecsecseceeierieesneceressnreeresessieererans 41 Ulster County Court v. Allen (1979) 442 U.S. 140veneers37 United States v. Arlt (9% Cit, 1994) 41 F.3d 516 wccccceeeeeeeeeeseeeneneneeees 49, 51 United States v. Brooke (9% Cir. 1993) 4 F.3d 1480 weenie‘esenes 23, 35 United States v. Cunningham (C.A.D.C, 1998) 145 F.3d 1385...eee35 United States v. Evans (C.A.D.C. 2000) 216 F.3d 80. eeceeseceeeneeeeneseseneses 24 United States v. Fell (2d Cir.2004) 360 F.3d 135 v.eeescssseseeeceeeenesesesneens 32 United States v. Frazier-El (4% Cir. 2000) 204 F.3d 553 veeeeecsesecineneeen 52 United States v. Hitt (9 Cir, 1992) 981 F.2d 422 wv eeeeseeeeeeeeremsseesnees 31 United States v. Knobl (2d Cir. 1967) 379 F.2d 427 wessceeeeessesessenseensensessenes 30 United States v. Layton (9% Cir, 1985) 767 F.2d 549vecesveereevevevseess 30 United States v. Long (5% Cir. 2009) 562 F.3d 325 veceseeereseeseesesserennsessnn 12 United States v. Pepin (2d Cir, 2008) 514 F.3d 193... escssseeesressseesseesssneesseesnes 32 United States v. Scheffer (1998) 523 U.S. 303. cceneeeneeeessessresesessessersseesneesseeses 67 United States v. Sesay (C.A.D.C. 2002) 313 F.3d 591 weenie:24 United States v. Smith (E.D.La. 2011) 790 F.Supp.2d 482...ccc5 Wiggins v. Smith (2003) 539 U.S. 510 vsssssseesseesssseeeessssesnsassesnnseeesnaseennsseees 60 Wiley v. Epps (5% Cir, 2010) 625 F.3d 199 ceesseeesesssesesnesseenseessssrrsnscsnnen 5 Woodson v. North Carolina (1976) 428 U.S, 280 vccccsssessneeseeresneeerersentereeseas 33 Zant v. Stephens (1983) 462 U.S. 862 vecrsecessecsseeecssersseesssecsnseessecnnieceesseny 8 State Cases Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4t) 717veces40 Burke v. Almaden Vineyards, Inc. (1978) 86 Cal.App.3d 768weenie 22, 26 Carlos v. Superior Court (1983) 35 Cal.3d 131ecsessesessseessesessenseesssesneennesees 41 Cortez v. PurolatorAir Filtration Products Co. (2000) 23 Cal.4163 wesc40 Evangelatos v. Superior Court (1988) 44 Cal.3d 1188... eccsssessseeeesseesssseesesssessens 41 TABLE OF AUTHORITIES Page(s) Exparte Rosenheim (1890) 83 Cal. 388 wvesssecsssesssseerssseesssnessssseressseestnneessnetseenny 42 ET. v, LJ. (2011) 194 CalApp.4® 1 ceccceesstesssssssssnenssssecensnecesiscesneesssnes 48 In re Carmaleta B, (1978) 21 Cal.3d 482 ...cceeeereeesesessecsseesusseseeessernessseery 55 In re Derrick B. (2006) 39 Cal.4535 weseseeeseeeseresiesieiesseseesseseenernnteny 44 In re Sheena K. (2007) 40 Cal.4875 wcssscssecssesesesnerssnecsssssessssessseserssnenssens 72 In re Sturm (1974) 11 Cal.3d 258 vcseseseeceseeeseeessesssesursseesseensessennentsnen 71 Nally v. Grace Community Church (1988) 47 Cal.3d 278....cssccssscssseecsseecsesnn 22 People v. Anderson (1972) 6 Cal.3d 628 ...sessssecssseesssssnesrsnsiscessnnsecsenneerennecetin 8,9 People v. Aranda (2012) 55 Cal.4342 vsseecsssecssssesssessnesesnssensssnneesssnecteensten 67 People v. Armendariz (1984) 37 Cal.3d S73 .ssssssssscseessseesnnecrsnreccnnrcetssecrsens 22 People v. Avery (2002) 27 Cal.4th 49 ccessssesssseeesesssseenssnescssnsennnnrecnnssensissssnnens 42 People v. Barnett (1998) 17 Cal4% 1044 wsccsssesssseeessseersssnecssnesssnessenreercasessreerssssse 48 People v. Bean (1988) 46 Cal.3d 919 veseeecseessseersseeesssseesssnescsnnesrsnieteenecanteronsnectn 9 People v. Beeler (1995) 9 Cal.4953 veessesssssessssecsssescsssnesssareccsnnescenenereansesneresssneses 10 People v. Benavides (2005) 35 Cal.4t? 09 .seccsvsessssesssrecsssnesssnnecaneeessnecsnnecenresssess 68 People v. Bivert (2011) 52 Cal4® 96 .esssecssssssesssessneessnersniensnenenrennanen veeaeteeeeenens 34 People v. Black (2007) 41 Cab.4t 799. wecsssecsseseeeseesseessneeseecnecnneseneseneenes 69, 70, 71 People v. Blair (2005) 36 Cal.4 686. eccsserssssseecsssssssssnnecsssnessannecsssnmeersnreccreesires 55 People v. Bloom (1989) 48 Cal.3d 1194 vssssesccssessssseesssnsnecsrsnmerssnrecesnanecsnaess 54, 55 People v. Bonin (1989) 47 Cal.3d 808... csesscsssesesssessssssessnssecsssnneressunennnssensienste 22 People v. Booker (2011) 51 Cab.4t 141... ssssesccssseesssssessssnssesssssnecsssnereernnrecnnessssssness 21 People v. Box (2000) 23 Cal.41153 ..cssssssessesssessssesssssnecsnsnntersneesenneecsareerccessyes 32 People v. Bradford (1997) 14 Cal.4% 1005 .scssssescssssecssnsessssnserseneseenanrecsnsssrccssnseses 8 People v. Bradford (1997) 15 Cal.41229 .essienerttanerassneanssnss 48, 55 People v. Bradford (2010) 187 Cal.App.4® 1345 vcccssessessessssnesssssnseecnnersenssnneis 53 People v, Brady (2010) 50 Cal.4® 547 cssesssessssessssseessnssneecsssnessanisensnnnenenneresssseris 21 People v. Brown (1986) 46 Cal.3d 432....ssccsssecsssssensescssnecscnnecenntecsnenssenecsnitessseans 59 People v. Burgener (2009) 46 Cal.4® 231 vesccssscesssecsnsnsesssnneccssnrecesnneensesssaesate 49 People v. Cardenas (2007) 155 Cal.App.4® 1408 vrcccssecssserneesreceniseessnesee 70 People v. Carmony (2005) 127 Cal.App.4® 1006 vssecsssssescsnesscencessressarercesssssssse 9 vi TABLE OF AUTHORITIES Page(s) People v. Carter (1957) 48 Cal.2d 737 cessecsscstessnecssscseesnnessssnnssssrsensesaeenensssees 22 People v. Carter (2003) 30 Cal.4t 1166 wesssessecsecsneessecenecsennressnsereenss 60, 61, 67 People v. Carter (2005) 36 Cal.4% 1114 vccscsesssessnessneenecsnerersesceseeneemesnsssssnesees 33 People v. Castenada (2000) 23 Cal.4™ 743. cccsceeeeeeseerssneessrersenssnersesensnss 41 People v. Chatman (2006) 38 Cal.4344weenie61, 66, 67 People v. Clark (1990) 50 Cal.3d 583 weeceecneseeenecieeeieeneeeeerennsaeaseness 54, 55, 57 People v. Clark (1992) 3 Cal.4t 41 vsccecseecsseesnsesnernseenesesnessnssnsssseesssesnesssessieen 55 People v. Cleveland (2004) 32 Cal.4t 704 ..scccseseseeesecnesssessesessssesrserssnnennes 74 People v. Coleman (1985) 38 Cal.3d 69veces22 People v. Cornett (2012) 53 Cal.4th 1261 vreccecesecreseeneesnseseensesiessiessseneensen 42. People v. Cowan (2010) 50 Cal.4® 401veers59, 60, 62, 67 People v. Cudjo (1993) 6 Cab.4® 585..ccsecssnsesecnesrneecneesssessessneecsarsarsesrsserssessssns 34 People v. Cunningham (2001) 25 Cal.4® 926... sscsesesesereesensersneesssstssseensssess 35 People v. Daniels (1991) 52 Cal.3d 815 veecccceceecseceecsneeecsnssssssseseesssnieen 65 People v. Dejourney (2011) 192 Cal.App.4® 1091... ecsssseseessessssessesessneessnssses 34 People v. Dellinger (1989) 49 Cal.3d 1212 vcececsecesesenecsnessessssnesessneessessnesses 65 People v. Dement (2011) 53 Cal.4® 1 veccssccsssecsnesesessnseesneenecsnecasssnrssseesnnesen 34 People v. Dent (2003) 30 Cal.4th 213 cccssscersecneeseneecnserecsnesecsnnmesssessnisessesssnsaess 51 People v. Diaz (1992) 3 Cal.4495..cccseccsseceseeseesnecceecsneennissanessssnscsssrssnenens 55 People v. Dillon (1983) 34 Cal.3d 441 cccssescseeseerneecseesnesesnsnntsnnsssecssscssnnecsiey 9 People v. Doolin (2009) 45 Cal.4" 390 .cscseesnesseessssesnieesssesisneesseen 48,57 People v. Edwards (1991) 54 Cal.3d 787 weccecseseseneseseeesssnsercssscsensensaerses 55 People v. Ervine (2009) 47 Cal.4745 vcscsscseeneesssesessssssssecsussseaneraneeses 24, 58 People v. Exstrada (1995) 11 Cal.4% 568 vecssssesesssesssecssssieeeesaneesessessersaneeseneessees 65 People v. Farley (2009) 46 Cal.4™ 1053ccsesnsssecseeesssnssersseessesssssnssessenesennnes 46 People v. Farmer (1989) 47 Cal.3d 888 ..secsecssesserttesssseeseesssneenseessvecsensesssnesen 29 People v. Flood (1998) 18 Cal.4® 470. eescseenecrecseessneeenseesssesssressensssenssnnienn 37 People v. French (2008) 43 Cal.4"® 36 esesecsecesressseeesseesseesssserssieaveessseessnessny 69 People v. Frierson (1979) 25 Cal.3d 142 vesecseceeseeseeseesseerseesssscessnssrsecessetens 9 People v. Fudge (1994) 7 Cal.4® 1075 vececsesnseeneeeseesssseneesecssensenenserssecgsensy 8 vil TABLE OF AUTHORITIES Page(s) People v. Gallego (1990) 52 Cal.3d 115 vc eecseceerecnssicesseesessssnsssssesersssesnessss 53 People v. Gonzales (2011) 52 Cal.4254 vcecseseeseneneeeseeeseneaseeess 58, 59, 62 People v. Gonzales Ruiz (1970) 11 CalApp.3d 852...csesesneeseceneenesnessees 64 People v. Gonzalez (1990) 51 Cal.3d 1179 vi esececseceereeeeneeneesenenssaecsnen 44 People v. Halvorsen (2007) 42 Cal.4t 379 viecesecneesesneesseesssesneersessesnsesnes 47,57 People v. Harris (1998) 60 Cal.App.4! 727 wesccecseeeenseeneesessnsasieesssneessneen 34 People v. Hawthorne (2009) 46 Cal .4® 67 vrceceseseenesestsseesisssressersesneesenanesses 33 People v. Hillbouse (2002) 27 Cal.4® 469 scsesssesseessnessesscssssseesseeseneeesenssnsaees 37 People v. Holt (1997) 15 Cal.4619 vresecsesneeneeseereenesnesssessncsessserasesssensnen 66 People v. Hovarter (2008) 44 Cal.4® 983veneersveceaeneeeereseueeeenneesseass 65 People v. Howard (1992) 1 Cal.4® 1132 eececeseessessneeseeesnisessesnressseareenenssnen 55 People v. Howard (2008) 42 Cal.4™ 1000... ssesessesesesnesssecsseeassesnesnnneenrsseen 61 People v. Jackson (1996) 13 Cal.4 1164 veeecssecssecenessseessesssessssnesnsessneecssssessees 10 People v. Jembeins (2000) 22 Cal.4 900 vasssesssetneieintstistneieietsstneie 42, 44, 55 People v. Jennings (1988) 46 Cal.3d 963 veereseseseseeseenseasensesseessessenesniensy 9,19 People v. Jennings (2000) 81 Cal.App.4® 1301 .eseseeseesesssessesseesersaieesesnnen 34 People v. Joseph (1983) 34 Cal.3d 936 weeceereceseeneseeecssssnsssssrsssesseesseen 49 People v. Karis (1988) 46 Cal.3d 612 vrecsececsneessrsesrscesieeessssseresscssesneenseesnn 29 People v. Kelly (1992) 1 Cal.4495 vseessssseesssnecssseeaseersesersnsnvecssserasseessaneerscnneen 41 People v. Koontz (2002) 27 Cal.41041 vv essecsesssssseesseesssessscsseessessnneesssessnnes 55 People v. Lang (1989) 49 Cal.3d 991 .eesmseseescessnecssenecsesneessaressecsssenssessesees 55 People v. Lawrence (2009) 46 Cal.4186 wc esssesesssessssssssesessnessseenes 48, 53, 54, 57 People v. Leal (2004) 33 Cal.4® 999...cecsssescssseecssneecsnessneessstsssnieessnssssnesessveeessns 43 People v. Ledesma (2006) 39 Cal.4641 vrssecssssecsssesesnesssnseessesssensesseesssneesssnessney 41 People v. Leonard (1983) 34 Cal.3d 183 ..recsssessecssseesssesesensseessseesseedeneentenesseeeeess 22 People v. Leonard (2007) 40 Cal.4® 1370. esesecsecsersseesssessersesesseessmeenecnaneeen 4 People v. Lewis (2008) 43 Cal.4®415.59, 61, 66, 67 People v. Livingston (2012) 53 Cal.41145 vecsecsesteseeseesseesseessseaeenensseenseenes 59 People v. Loker (2008) 44 Cal.4* 691eeesaueeseeauecenecsueeanseaneensntaueenees 60, 66, 67 People v. Lopez (2011) 198 CalApp.4698 vccessessesesssessssesssesessnsereessnessens 23 vill TABLE OF AUTHORITIES Page(s) People v. Loy (2011) 52 Cal.4t® 46. ccsecsesneecnssesenresersseeseresseesssessnienssy 21, 31 People v. Marshall (1990) 50 Cal.3d 907 ..esseseceseeeeeeseesessnensessenees 9, 50, 52 People v. Massie (1998) 19 Cal.4i? 550. ceccsecneessiessescnseseenenssenseensnecssesenersns 55 People v. McKinnon (2011) 52 Cal.4610 vcecsecssecssessesssssseessesseesesssssesaneensees 26 People v. Michaels (2002) 28 Cal.4® 486 vesssecsecceeseesscsrneeeneesseessissssesssecnnnseases 26 People v. Mincey (1992) 2 Cal.4th 408 .....cccseecsesesseeenecsnsssnessneesessnsesnseseverenesssess 10 People v. Moon (2005) 37 Cal.4® 1 vcccsecsecesesnerneeesseeeneersenenss 60, 61, 63, 68 People v. Moore (2011) 51 Cal.4th 1104. esscsessesseesssscsssesssesnesnssssssssnesssseennes 61 People v. Moore (2011) 51 Cal.4* 386 v.eccsssseeseeeeeereessneenressersssressesseecsnseennees 22 People v. Morante (1999) 20 Cal.4% 403..cccseernesseseesssieseessssecsanerensnesssssesn 46 People v. Murphy (1963) 59 Cal.2d 818 vececcseessneeenecsssssessseesersssssesssnecssessnacs 22 People v. Murtishaw (2011) 51 Cal.4% 574. eceesessssseneesnessnsnsnennsnneen 22, 26 People v. Nelson (2011) 200 Cal.App.41083.eccssecssescsseessuieessssssssssessssnsees 40 People v. Odle (1988) 45 Cal.3d 386 verecceesneccssessssiesssecsssersseessnecesseenseseesenssens 45 People v. Osband (1996) 13 Cal.4t 622..unusnenunenenentstitneieneisisnanenessts 35° People v. Partida (2005) 37 Cal.4® 428 .eccsecsseesseessseessneesessssrensegssnsrssnensen 34 People v. Pinbolster (1992) 1 Cal.4™ 865 .eccssssesssesesecsecssnsesseecsssessseassneseetine 61 People v. Poggt (1988) 45 Cal.3d B06. ecesessseceesesesecssneseereteessesstssvessssrsseeeseeeneees 10 People v. Polk (1996) 47 Cal.App.4t 944 isscsssesseenseneesessesensnisseneersnien 30 People v. Ramos (1984) 37 Cal.3d 136 ceccessescssseseeceesssseeesseasssersseesssseeesusensnnes 9 People v. Ramos (1997) 15 Cal.41133 vecssssesesssescsseessesssserersennsseseesssneessnnentsnns 28 People v. Reeder (1976) 65 Cal.App.4® 235 .scccssecsssssssssssessseesnseessssnsessnnsen 64 People v. Riccardi (2012) 54 Cal.4758 vecsnesssssesseecsseecsssseseessecnnsessnecenny 21, 34 People v. Riggs (2008) 44 Cal.4th 248 vieeeesessecsnecssveesssscensensserenerssnensens 48, 50 People v. Rivera (2011) 201 Cal.App.4353viecsecsseccseesssiesessneessessssunessnensenny 23 People v. Rodriguez (1986) 42 Cat.3d 730 vecvccsesneecsseseesersssesssssessaeesnseessnny 40 People v. Rodriguez (1986) 42 Cal.3d 730 eecssesssecssserssseesssesseeresessensenersnnes 45 People v. Russel (1968) 69 Cal.2d 187... cessscsssessssesessssssresssersssesessaseenecsnescsatsseeen 55 People v. Salvido (2008) 44 Cal.4th 93 .cscsssssssessesssesssenasssssssiassenerinestestn 32 People v, Same (1969) 71 Cal.2d 194... sccsscscsreseesnecceseecsresnecsessesnsseannsesgen 23 tx TABLE OF AUTHORITIES People v. Sandoval (2007) 41 Cal.4® 825... ssssssecesssesssseesssesssecsnessnnecenen 70, 74 People v. Schader (1969) 71 Cal.2d 761 vseecesecsssssesnsesesseesssensecsneecsees 25, 26, 28 People v. Scheid (L997) 16 Cal.4' 1 ececssesecssesssecsssserssseessesssssseneesssnsecneesenncen 28 People v. Scott (2011) 52 Cale 452 vssnuannemnenninnnnnnniensse 31, 71, 72 People v. Smithey (1999) 20 Cal.4 936 veecessssscessessnseseeressissecneecnecsees 9,10, 38 People v. Souza (2012) 54 Cal.490.esessssessseessersssessesssessessseserseseneeeneen 58, 60 People v. St. Martin (1970) 1 Cal.3d 524 ..sesesssssessecsssirscsssnsesnennsessennecssenesseennnns 61 People v. Stanley (1967) 67 Cal.2d 812... cscsessseecseresecssesnnecenernecseecnnsnsnetces 26 People v. Stansbury (1993) 4 Cal.4® 1017 vessssssscssesssssnsercsneeresssecsssarecceennreeteeen 55 People v. Superior Court (Alvarez) (1997) 14 Cal.4908 ..csssecssseersseessssneeceseenny 55 People v. Superior Court (Exngert) (1982) 31 Cal.3d 797 ssecsssesssrsssssseesssnneeeesesnns 41 People v. Tafoya (2007) 42 Cal.4t 147ccccssssesesssssecsssenessnssseessnscesnneeceesneeeeenssney 11 People v. Taylor (2009) 47 Cal.4® 850.csveessecesseessessenserssesnesnicesesrenenn 6, 47, 55 People v. Taylor (2010) 48 Cal.4% 574.cnsesesnststnnenianesesnsnsnsaenanntien37 People v. Thomas (2012) 53 Cala 771 vecessavevsuenesecceevecenseseessvessnaeeseseessetes 29 People v. Thompson (1980) 27 Cal.3d 303 ..sscseccssssersecesseccnresssnserneccsnrensnrsssns 22 People v. Thompson (2010) 49 Cal.4% 79 .seessssssecseccsescssenssneerssrssnneersnetessnne 49 People v. Valdez (2012) 55 Cal.4® 82 .esssecsssecsseessseesseesnnesssnecsnnersenesssnrree 22 People v. Wallace (2008) 44 Cal.4t 1032 vsssssesscssssesssssnseessssnsesssseesnnneesrsnnnrene 10, 38 People v. Watson (1956) 46 Cal.2d 818... seessescscsesessssesssssseesssessnneersnareceessssneas 33 People v. Weidert (1985) 39 Cal.3d 836....sssessseessseernessnneseecnerencen 40, 42, 46 People v. Welch (1993) 5 Cal.4® 228 veccscssrsssescssessssssecsnsssescneesnnessonnsnssensaness 71 People v. Wilkins (1990) 225 Cal.App.3d. 299 ...sssesssssssssssssscsssessserseennitsrsssuesicn 54 People v, Williams (1988) 44 Cal.3d 1127 ecesscscessseseeeesserssneeecsnnmnereeeesnnsessnin 10 People v. Williams (1998) 17 Cala 148vcssessnnescssseeereavannaseeensesnan 72 People v. Wilson (2008) 43 Cal.4t 1 oessssecsssessssseeecnessnneeersnnescnntereessassn 58, 59, 61 People v. Wilson (2008) 44 Cal.4* 758.....sesscccsssssessessssssesesssnsescsnnsenteesennnsesteneses 60 People v. Wright (1985) 39 Cal.3d 570 ...cssesssesesseesssecsnessnessnieesnniecsenessssnsten 22 People v. Wright (2005) 35 Cal.4th 964 ccccsssescsssecrssssessssseessnccenmerssasssesssssens 34 People v. Young (2005) 34 Cal.4% 1149 vo cecssssssseccssssssscssnnescssneensenenecesssssenanes 10 x TABLE OF AUTHORITIES Page(s) Raven v. Deukmepian (1990) 52. Cal.3d 33 6..ccseccneecnenerssneesssessressceneensnen 9 Regents of University of California v. Superior Court (1999) 20 Cal.4 509ses40 Williams v. Garcetti (1993) 5 Cal.4™ S61 cecccseseeesereerssneneersesssseeecnssesens 41 Other State Cases Commonwealth v. Baumbammers (Pa. 2008) 960 A.2d 59 .vcseesseseseeesseeeeneens 7,18 Corcoran v. State Ind, 2002) 774 N.E.2d 495 weccsseseeeeeeeeeesnneenerseneeeseesseesses 17 Exparte Borden (Ala. 2000) 769 S0.2d 950 vrceccssecseeeceesesseesseesesssecsnssnnecniny 8 Hall v. State (Fla. 1993) 614 S0.2d 473 .cecsceseesesceeneeeeeneceeeeressesnsessneses 8 Lambert v. State (Okla.Crim.App. 1999) 984 P.2d 221.eee: 8, 19 Mays v. State (Tex. 2010) 318 S.W.3d 368 rcssecceesneeceenesessneesiesecsssssersseen 7 State v. Hancock (Ohio 2006) 840 N.E.2d 1032wcrc:6 State v. Ketterer (Ohio 2006) 855 N.E.2d 48...ccssssssesesssensseenssesstsssensensssesn 18 State v. Nelson (N.J. 2002) 803 A.2d 1 veecseeseseseeneeeeessesieessesneenneeesnesnerens 18 State v. Scott (Ohio 2001) 748 N.E.2d 11 veecceeseeeeeneessnesiensessserseesecsseen 18 State v. Young (Tenn, 2006) 196 S.W.3d 85..cccecseseeisesiesesssseersesesnecnnecnseseey 29 Wells v. State (Miss. 1997) 698 S0.2d 497. eeecneseeseeeesessseesersesseesseeansaseennien 8 Statutes Evid. Code, § 115 cecsesssssssssseesseesecsnessnesesseescenesenssanesnsssessnsesseesersseessseenrssseesgeens 60 Evid. Code, § 190 w.sssssssssssecssesesesnessnescnsessneenessnecsscevessscsnseseesssesseeressseraneeneseneneny 60 Evid. Code, § 210 isssssssseesessreeseecssecnseernseereesnrsrnsessssncensesessnsseseesseassnarecnsensnnty 23 Evid. Code, § 312 ciessesecsseesreneesneeenecnecsrenmensssisssesneesnssnssssseseresenraseeneesneetsy 65 Health & Saf. Code, § 1374.72 ccasessessssesssnecsnecssnesreeseeesennmersessnitssanresscsseessey 13 Ins, Code, § 10123,.15 ..eeeseesecssesseeseesnesneesnsccnecnnecnsesseiteneesessseseessecesesersranensns 13 Pen, Code, § 190.2... sssssesssecrsessecseesneesecsmerseenssseeassuneseesersesesreessenessneess passim Pen. Code, § 190.3 vcsssssesseereecnssssessnessneestsenersssssnssstessrerecsrsenessye 14, 33, 62 Pen. Code, § 654 cessecsessessseseeseesnecsseseeseneeninsseesiesnssanenecsnseasersarssseanessensesens 74 Pen. Code, § 669 vcsccsssessecsseesessesnscsececnssansensssnesnsesesesssravesessnsessesceanecnecsernensertny 74 Pen. Code, § 1259 vvicssssssssussssnssssnnseesnstenssssssssussesessesssasssssssseasessnsnsenesecees 37, 38 Pen. Code, § 2962 cecescsssesesseesssesssessiecsseensecneeenieareenssarsansssersssesesssrccanseaeasensses 13 xi TABLE OF AUTHORITIES Welf, & Inst, Code, § 4242..sutstsnistutuisnnanatineneneneeieitittetemenenenen 13 Welf, & Inst. Code, § 5150.sssssssssstsuatustntstetsiststistisissistissstsensese 13 Welf. & Inst. Code, § 5600.3 ..cscecsssecerneesneeeeneseesncsessersnrssrereesssrsnecsnersny 13 Welf. & Inst. Code, § 5802... cccsscsescecseecneseeeenssnesiresrsseesssessesnresraseeasscenetsens 13 Constitutions Cal. Const., art. 1, § 17 cccsesecsesnessesneceeeeeresesneereesssssarennssseesseneeseessens 8, 9, 11, 12 Cal. Const, art. 1, § 24 ceesscsssesssesseeseeseesneecsenneersesnesssesenssssesssssensecssenseesseconeeonsennss 9 Cal. Const., art. 1, § 27 vcssssssssesseseesserertesnesseeressssereerensennesevesecesseaeeesseseenesseaseeeetees 9 US. Const, 8 Amend.vicccscerssssseseeserssseessssneeeensecarensesnnessnsssereseensaenes passim USS. Const, 14% Amend... scsssseseesseeseseserssterersssssenssesessesersaseness 32, 33, 34, 40 Jury Instructions CALCRIM No, 267 1iccsccsscsssscssssssesessseseccssesesecnenessssnescccesssseeseneassssaseesenseesenensaeseeness 44 CALCRIM No760 .seeesssscsssecsssnnescsnesessnneceesaverssanecsssveesssseesssnecsnasetsansessaneceroneseenins 59 CAL.CRIM No, 761 ceccecssssssssscssescsssssesecescscessersneeeeserscssssscesesensaesesesessesseesersnenenensenaes 59 CALJIC No. 1.01 ecsessssecsseccssnesessnesesnnesessnesssseessvnecsasnesssanensusnsensasqsaneeceanacs 58, 59 CALJIC No. 1.03 siiescsssseesssesssseseceessnnseseeesssnneescessssveseesssnessessssnnsssearsnnnseseeennnnsnsstss 58 CALJIC No.1.05 vecssssessssssecsssssnesssnnreccssnueeccesssveressnensssnseecsssnsenconnnessonnseetseneceesssnss 58 CALJIC No. 2.03 viessssssesseessssensslesnnneccesssssnseecessssvesessssnunsscscesnnseccagsnnnrengananssessesste 65 CALJIC Nou 2.11 cessseecssssseesssssneeesneeccesnneeeessssneseaneneessssssnesanscesnsnasersnnsecgnanrentissnens 64 CALJIC No. 2.20 veesssesssssssesssssseesessneeecsssneessesssnnessnvensessusrssunanecnsancercnnnsennennntegsssgss 25 CALJIC No, 2.21.2 ..ccssesecccssssneeesseneeseeeessssaeessssssssersosssuseenesssnnsseceennarereenenarensetegse 65 CALJIC No. 2.52 ccccsssseesseessserescesseneseceesssunencesssnsssessssvuaseenssanasengesnnsaceennnuneeeressss 37 CALJIC No, 2.80 ..scscssecstecsteserseciseneeneesnsesnnsensesuovscepusscutscseneseseseaeacaraeetareveseasarentes 63 CALJIC No, 2.81 esssssssssscssseesecesssneseeseessnnneessussenssenssnssenssnsnsscesennnerersnananasesssssss 63 CALJIC No, 8.84.1 cesceecsseessneceeeeesresssseessnsnenseessneensecsnesenen sesseeretseseseseeesseeeeatens 59 CALJIC No. 17.30 .scssesssssssvnneecessneeesseesnanieccessnserssssssnescesansaneenseannacareennnnarsetensss 59 CALJIC No. 17.50 cescsescsssseecossssecesnsecesseneereonsnvecasssssesssssesassaversanssessnansseennnseeenensnict 59 Other Authorities 15 Code of Cal. Reg. 50G..sssssecseserersesessecenssissnscssseseraseeenecssennenssenneeansrnsssncssy 13 xi TABLE OF AUTHORITIES Page(s) Bonnie, The Competence of Criminal Defendants with Mental Retardation to Participate in their Own Defense (1990) 81 J.Crim.L. & Criminology 419......47 Bonnie, The Competence of Criminal Defendants: A Theoretical Reformulation (1992) 10 Behavioral Sci, 8 Li 2901 scsessessnesecseecesecnesssereseeeseenneesesnsssey 17 Bonnie, The Competence of Criminal Defendants: Beyond Dusky and Drope (1993) 47 U, Miami L.Rev. 539 .ccessessseesecsessenesnecenseseenenneseneeraneesenitenns 17 Comment, Equal Protection From Execution: Expanding Atkins to Include Mentally Impaired Offenders (2010) 60 Case W. Res. L.Rev. 925 essere 6 Gold, Federal Rule ofEvidence 403: Observations on the Nature of Unfairly Prejudicial Evidence (1983) 58 Wash. L.Rev. 497 visessceesssessesicssseneessees 33 Jefferson, Cal. Evidence Benchbook (4% ed. 2012)veces26 Lewis, Proofand Prejudice: A Constitutional Challenge to the Treatment of Prejudicial Evidence in Federal Criminal Cases (1989) 64 Wash. L.Rev. 289 ...29 McCormick on Evidence (6th ed. 2006)... ccceseseeseeeneneeeeeneesseereeeseetersss 29 ~ McDonnell, Targeting the Foreign Born by Race and Nationality: Counter- Productive in the ‘War On Terrorism”? (2004) 16 Pace Int'l L.Rev. 19...28 Meltonet al., Psychological Evaluations For The Courts: A Handbook For Mental Health Professionals and Lawyers (30 €d. 2007) .rsesesrceesescserresseen 16 Note, A Foundational Standardfor the Admission ofSound Recordings into Evidence in Criminal Trials (1978) 52 S.Cal. L.Rev. 1273.csseeeeeene30 Note, Defining Reasonable Doubt, 90 Coham, L.Rev. 1716wesc62 Note, Out-OfCourtAccusations Offeredfor “Background”. A Measured Responsefrom the Federal Courts (2010) 58 U.Kan. L.Rev. 473 ..ssesssereeen 24 Parsons, The LearnedJudge and the Mental Defective Meet - What Then? (1928) 12 Mental Hygiene 25 w..cscsecsuecneeressnessneesniessreserssisesnsevnnees esses 2, 36 Ramana, Living and Dying with a Double-Edged Sword: Mental Health Evidence in the Tenth Circuit's Capital Cases (2011) 88 Denv, L.Rev. 339......15 Shatz, The Eighth Amendment, The Death Penalty, and Ordinary Robbery- Burglary Murderers: A California Case Study (2007) 59 Fla. L.Rev. 719... 10 Slobogin, Mental Disorder as an Exemption From the Death Penalty: The Aba- IRR Task Force Recommendations (2005) 54 Cath, U. L.Rev, 1133... 7, 16 Slobogin, Mental Illness and the Death Penalty (2000) 24 Mental & Physical Disability L.Rep. 667 scsscsesseecsueerssesneesseesneessnescnsieessneessiessaresnierssseennenrsases 15 TABLE OF AUTHORITIES Page(s) Sundby, The Jury as Critic: An Empirical Look at How CapitalJuries Perceive Expert and Lay Testimony (1997) 83 Virg. L.Rev. 1109essences15 Tabak, Executing People With Mental Disabilities: How We Can Mitigate An Aggravating Situation (2006) 25 St. Louis U. Pub. L.Rev. 283...15 Winick, The Supreme Court’s Evolving Death Penalty Jurisprudence: Severe Mental Illness As The Neost Frontier (2009) Boston College L.Rev. 785....... 13 // xiv IN THE SUPREME COURT OF THESTATE OF CALIFORNIA THE STATE OF CALIFORNIA, No. $092240 Plaintiff and Respondent, (Orange County Superior v. Court No. 97NF2316) KEVIN BOYCE, [Capital Case] Defendant and Appellant. APPELLANT?’S REPLY BRIEF INTRODUCTION Kevin Boyce is mentally retarded, with an IQ of 69. Heis organically brain damaged, significantly so, and has been sinceearly childhood. Heis severely mentally ill and episodically psychotic. His thoughtprocesses are grossly distorted, paranoid, and delusional(e.g., the belief that heis the Egyptian God Osiris); his perceptual experiences are distorted, including auditory and visual hallucinations. Hehas learning disabilities and speech defects, secondary to his brain damage. Hesuffers significant impairmentsin nearly every aspect ofhislife. Attrial, this evidence was for the most part conceded bythe state and is overwhelming. Respondent, in its brief, does not truly dispute this extraordinarily mitigating life history. An objective assessmentofthis evidence forces the conclusion that Kevin Boyce is one of the most mitigated personsever to comebeforethis Court in a capital case. Why, then, was he sentenced to death? The crime here was certainly _1- horrific. And it has long been knownthat, “given a crime sufficiently atrocious and a popular resentmentsufficiently inflamed, and the measurings of mental responsibility go to discard.” (Parsons, The LearnedJudge and the Mental Defective Meet - What Then? (1928) 12 Mental Hygiene 25, 30.) In any event, when a mitigating case is as compelling as appellant’s, the smallest of errors may have moved oneor moreofthe jurors away from life towatd death. Thus, this Court should scrutinize appellant’s claims “with painstaking care.” (Kyles v. Whitley (1995) 514 US. 419, 422.) Assuming for the sake of argumentthat this Courtrejects appellant's argument that he is and has been so mentally damaged that the appropriate remedy is to reduce the death sentenceto life without the possibility of parole (see Arg. 1), then this Court mustfind that the trial court erred in denying appellant's penalty phase motion to controlhis defense by representing himself (see Arg.6). In this brief, appellant addresses certain contentions made by respondent, but does notteply to arguments which have been adequately addressed in the opening brief. The absence ofa reply on anyparticular argumentor allegation made by respondent and the failure to reassert any particular point made in appellant’s openingbrief do notconstitute a concession, abandonmentor waiver of the point by appellant, but indicates that the issue has been joined. The numbered argumentsin this brief are consistent with those contained in Appellant’s Opening Brief (““AOB”) and Respondent’s Brief (“RB”). // ARGUMENTS 1. APPELLANT IS BRAIN DAMAGED, SEVERELY MENTALLY ILL, AND MENTALLY RETARDED; PERMITTING THESTATE TO EXECUTE HIM, UNDER WHATEVER LEGAL GUISE, OFFENDS THE EVOLVING SENSE OF DECENCYIN THIS STATE AND NATION Through no fault of his own, Mr. Boyce does not have an intact, normal, functioning brain. He is mentally retarded, with an IQ of 69. Heis organically brain damaged,significantly so, and has been from early infancy. Hescored in the bottom one or two percent on manyofthe tests administered to measure brain damage. Heis also severely mentally ill and episodically psychotic. His thought processesate grossly distorted, paranoid, and delusional(e.g., the belief that he is the Egyptian God Osiris); he has distorted perceptual experiences including auditory and visual hallucinations. He has a mental disorder characterized by ideas of reference, oddbeliefs, magical thinking, unusual perceptions, perceptual experiences, odd thinking and speech, suspiciousness or paranoid ideation, inappropriate or restricted affect, and odd behavior. Hehaslearning disabilities and speech defects, secondary to his brain damage. Hesuffers significant impairments in nearly every aspect of hislife, Capital punishment must belimited to those offenders whose extreme culpability makes them “the most deserving of execution.” (4ikins v. Virginia (2002) 536 U.S. 304, 319 (“Atkins”). Mr. Boyce is not within that category. Because of his damaged brain and severe mentalillness,his culpability 1s categorically and overwhelmingly diminished. Allowing the governmentto terminate the life of such a profoundly damaged person would violate the evolved standards of decency in this state and this nation, standards that mark the progress of a maturing society. (AOB 62-81.) Appellant should receive a hearing pursuant to Arkins, supra, 536 US. 3. 304, in post-conviction proceedings. The pertinentfacts, including an IQ of 69 and significantlimitations in adaptive functioning from early childhoodto adulthood, were developed attrial and mostly undisputed. (AOB 28-29, 51- 55, 64, 66-67; cf. People v. Leonard (2007) 40 Cal.4® 1370, 1428 [factual prerequisites for a mental retardation claim notlitigated at trial must be determined post-conviction].) Unfortunately, appellantis currently unrepresented for post-conviction proceedings. A. Respondent’s Two-Page Response Respondent, in a two-page response, remainsintent on exacting Mr. Boyce’slife as paymentfor his crimes. (RB 51-52.) Aside from rightfully eschewing any claim of forfeiture,its truncated spelling is meritless. Respondentavers that the high court in Akins did notrely “on the opinion of mental health organizations, law reviews, and a Gallup poll survey of Americans.” (RB 52.) But A/&ins specifically states that the opinionsof the pertinent professional organizations,religious communities, and polls are relevant evidence in determining whether a national consensus concerning a punishment has evolved. (Ackins, supra, 536 U.S.at p. 316, fn. 21.) These are set forth in appellant’s opening brief. (AOB 73-74.) Respondentalso contendsthatthefailure to show a lack of a national legislative consensus against the execution of mentally ill persons defeats the claim. (RB 52.) The high court has held otherwise: the absence of a legislative consensus does not foreclose appellant’s claim: “Tt]here are measutes of consensus other than legislation.” (Graham v. Florida (2010) __ U.S. __, 130 S.Ct. 2011, 2023, quoting Kennedy v. Louisiana (2008) 554 US. 407, 432.) Appellant set forth those other measures in his opening brief. (AOB 73-74.) Respondentalso contends that certain mitigating evidence “does not factually support” the fact that appellantis brain damaged and severely ~4- mentallyill: for example, he cared for his grandmother,tookcare ofhis daughter, and was polite. (RB 52, fn. 14.) The contentionis contrary to the prosecutot’s acceptance attrial that appellant is grossly impaired: But, you know, you are hearingthis from Dr. Cross that heis -- you know, heis not the smartest -- he is not the smartest guy in the world. He is pretty down there. .. . Because, there 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. (8 RT 2728; AOB 66-67.) Helaterstated: “We ate not contesting the fact that Mr. Boyce hascertain problems, and that are well documented relying -- regarding his mentalabilities, and from whatever source. If it is organic brain disease or whatever, and weare notfighting that. Obviously,the court hasn’t foundus bringing in witnesses to do that. (11 RT 3807-3808; see also 12 RT 3940[“it never has been myposition to deny” the brain damage].) The experienced counsel for the codefendant, in seeking a severance, remarked that appellant was “aboutas puddin-head puddin-head as one can get.” (4 Pretrial RT 1107.) Moreover, respondent’s contention betrays a fundamental misapprehension ofthe capabilities of a person who suffers from these impairments andillnesses. People with retardation can drive cars and hold menial jobs (Thomas v. Allen (11% Cir. 2010) 607 F.3d 749, 759); they can also help pay household bills, help friends and neighbors, volunteer for military service, and bea reliable worker who providesfor his family (Wiley v. Epps (5" Cir. 2010) 625 F.3d 199, 217); and they ate generally able to fulfill all expected adult roles, and can “pass”in the community (Umited States v. Smith (E.D.La. 2011) 790 F.Supp.2d 482, 518-519). (See 7 RT 2517-2518 [testimony of Dr. Cross].) | Respondent further contendsthat the mitigating evidence showsthat appellant“knew the difference betweenright and wrong, he was able to make -5- choices and knew the consequencesofhis actions.” (RB 52, fn. 14.) But as with mental retardation (4/kins, supra, 536 U.S. at p. 318), a person can be brain damaged andseverely mentally ill, and still know the difference between right and wrong. Thus, the claim does notrise or fall on that point, according to Atkins. Further, as the high court has pointed out, mentalillness “can vary over time. It interferes with an individual’s functioning at different times in different ways.” (Indiana v. Edwards (2008) 554 U.S. 164, 175; see also Peopke »v. Taylor (2009) 47 Cal.4t 850, 877.) Respondent attempts to dispatch appellant’s equal protection and substantive due process claims with three cases. (RB 52.) Twoare inapposite. In Carroll v. Secretary, Dept. of Corrections (11% Cir. 2009) 574 F.3d 1354, 1370, the court concluded that an extension of Atkins to the severely mentally ill would constitute a new tule of constitutional law in violation of the Ant- terrorism and Effective Death Penalty Act. Equal protection is not mentioned in S/aze v. Hancock (Ohio 2006) 840 N.E.2d 1032, 1059-1060. The third case, Tigner v. Texas (1940) 310 US. 141, 147,is cited for the uncontested proposition that “[t]he Constitution does not require things which are different in fact or opinion to betreated in law as though they were the same.” Appellant has argued that there is no difference between the mentally retarded and the brain damaged and severely mentally ill for purposes of equal protection and capital eligibility. (AOB 78-81.) To the extent that brain damage and severe mentalillness impose deficits in culpability and deterrability comparable to (or greater than) mental retardation, offenders suffering these illnesses should be treated similarly and be exempt ftom capital punishment. (AOB 80; see generally Comment, Equal Protection From Execution: ExpandingAtkins to Include Mentally Impaired Offenders (2010) 60 Case W. Res. L.Rev. 925.) As a well-known scholar in the field explained: People with dementia or a traumatic head injury severe enough to result in significant limitations in both their intellectual _6- functioning and adaptive behavior rarely commit capital offenses. If they do, however, the reasoning in Azkins should apply and an exemptionis warranted, because the only significant characteristic that differentiates these severe disabilities from mental retardation is the age of onset. (Slobogin, Mental Disorder as an Exemption From the Death Penalty: The Aba-IRR Task Force Recommendations (2005) 54 Cath. U. L.Rev. 1133, 1135-1136, internal quotation marks omitted.) Moreover, when laws impinge on fundamental rights protected by the constitution, appellate courts must apply strict scrutiny. Theright to be free from cruel and/or unusual punishmentsis surely a fundamental right. (AOB 79; see Foucha v. Louisiana (1992) 504 U.S. 71, 80.) Appellant acknowledgedin his opening brief that various courts have declined to extend the holding in Atkins to persons with simple mentalillness. (AOB 70,fn. 37.) Respondentadds a few additional cases (RB 51), but none is dispositive because appellant does notclaim that Atkins should be extended to persons with simple mentalillness. 1 His argumentis that persons with significant brain damage,severe mentalillness, and significant irnpairmentsin intellectual functioning should not beeligible for death. Further, these cases providelittle comfort when viewed against the history preceding the categorical bar on the execution of the mentally 1. The additional cases cited by respondent do not involve a defendant whopresented clear, convincing, and unrefuted evidence of brain damage, severe mentalillness, and significant impairmentsin intellectual functioning. In ShisInday v. Quartermain (5" Cir. 2007) 511 F.3d 514, 521, the defendant simply had a long history of mentalillness. In Mays v. State (Tex. 2010) 318 S.W.3d 368, 379-380, the court concluded,in part, that “appellant has failed to show that, if he did suffer from some mental impairmentat the time of these murders, that impairment was so severe that he is necessarily and categorically less morally culpable than those whoate not mentally ill” In Commonwealth v. Baumhammers (Pa. 2008) 960 A.2d 59, 96, the defendant argued that ““Arkens should be extended to individuals such as himself, who had been described at trial by all psychiatric expert witnesses as suffering from mentalillnesses.” retarded. Mentally retarded defendants were sentenced to death and undoubtedly executed in the years before Atkins. (See Lambert v. State (Okla.Crim.App. 1999) 984 P.2d 221, 238 [Eighth Amendmentdid notviolate the execution of the mentally retarded; Exparte Borden (Ala. 2000) 769 So.2d 950, 957-958; Wells v. State (Miss. 1997) 698 So.2d 497, 514-516; Hall v. State (Fla. 1993) 614 So.2d 473, 478.) Then, Azkins was issued, reaffirming that the Eighth Amendmentis notstatic, but rather must be construedin accordance with contemporary and evolving standards of decency. There are two interesting omissions from respondent’s brief. First, it does notclaim that the prosecutor lacked an incentive to attack the evidence of brain damage, severe mental illness, and significant impairments in intellectual functioning. (Cf. Bobby v. Bes (2009) 556 U.S. 825, 836.) Given that such evidence has long been recognized as mitigating (Zant v. Stephens (1983) 462 U.S. 862, 885 [mentalillness]; Eddingsv. Oklahoma (1982) 455 USS. 104, 115 [severe emotional disturbance]; People v. Fudge (1994) 7 Cal.41075, 1118 [retardation]; Armstrong v. Dugger (11% Cir. 1987) 833 F.2d 1430, 1433- 1434 [organic brain damage]), the prosecutor had every incentive to attack the evidence. For the most part, he chose not to do so here. (Cf. Peopk v. Bradford (1997) 14 Cal.4% 1005, 1059-1060 [evidence of brain damage and alcohol intoxication was contested by the prosecution’s expert}.) Second, respondentfails to discuss this Court’s role underthe California Constitution’s separate and independentprohibition against cruel or unusual punishments, an issue appellant discusses next. (AOB 69-70, & fn. 36.) B. Reversal of the Death Sentence Is Required under Article I, Section 17 of the California Constitution Atticle I, section 17 prohibits cruel or unusual punishmentand is broader than the Eighth Amendment. (People v. Anderson (1972) 6 Cal.3d 628, 634[“the delegates to the Constitutional Convention of 1849 ... were aware -8- ofthe significance ofthe disjunctive form and thatits use was purposeful}; see also Peoph v. Smithey (1999) 20 Cal.4% 936, 1019-1020,fn. 1 (conc. opn. of Mosk,J.); People v. Carmony (2005) 127 Cal.App.4* 1066, 1085.) Yet, as with the Eighth Amendment,article I, section 17 prohibits the imposition of a punishmentthatis “not proportionate to individual culpability.” (Peopée ». Jennings (1988) 46 Cal.3d 963, 995; see also People v. Marshall (1990) 50 Cal.3d 907, 938.) Andit, too, must be construed in accordance with contemporary and evolving standards, while also considering the penological purposes of the punishment (Anderson, supra, at pp. 647-648, 651-653). Just as the high court must bring its own independent judgmenttobear in determining whether a punishmentviolates the Eighth Amendment, this Court determines whether a punishmentis unconstitutional underarticle I, section 17 of our Constitution. (Id. at p. 640; see also People v. Dillon (1983) 34 Cal.3d 441, 478). ? On appeal, and upon a defendant’s request, this Court performs whatit refers to as “intracase proportionality review,” under whichit decides whether a penalty is disproportionate to the defendant’s personal culpability by examining, inter alia, the circumstances of the offense and the consequences 2. Article I, section 27 of the state Constitution provides that the death penalty is a permissible type of punishment. (See People v. Frierson (1 979) 25 Cal.3d 142, 184-186.) But that provision does notbar consideration of a claim that a death sentence is disproportionate to a capital defendant’s culpability: this Court retains broad powersofjudicial review of death sentences “to safeguard against arbitrary or disproportionate treatment.” (Id.at pp. 186-187, see also People v. Ramos (1984) 37 Cal.3d 136, 152-153; People v. Bean (1988) 46 Cal.3d 919, 958.) Article I, section 24, a constitutional amendment requiring California state courts to afford nogreater rights to criminal law defendants than those afforded by the federal Constitution, was foundto be an invalid attempt to alter the substance andintegrity of the state Constitution as a document of independentvitality, force, and effect. (Raven v. Deukmepian (1990) 52 Cal.3d 336, 352-353.) of the defendant’s actions, as well as the defendant’s mental capabilities and other characteristics. (E.g., People v. Wallace (2008) 44 Cal.4" 1032, 1099; People v. Jackson (1996) 13 Cal.4% 1164, 1246; People v. Walliams (1988) 44 Cal.3d 1127, 1157-1158.) This proportionality review should serve to remove significantly brain damaged and severely mentally ill offenders from the ranks of the condemned. However, appellant is unaware of any case where this Court has found a death sentence under the 1978 death penalty schemeto be disproportionate to the defendant’s culpability. (See Shatz, The Eighth Amendment, The Death Penalty, and Ordinary Robbery-Burglary Murderers: A California Case Study (2007) 59 Fla. L.Rev, 719, 751-752.) This is true of defendants who were brain damaged or mentally ill. For example, in People v. Pager (1988) 45 Cal.3d 306, 348, the Court concluded that the presence of organic brain damageand a history of mentalillness did not“sufficiently reduce [the defendant’s] culpability to make the sentence disproportionate.” In People v. Mincey (1992) 2 Cal.4 408, 476- 477, the Court concludedthat “evidence of defendant’s below-average intelligence [was] insufficient to make the sentence disproportionateto his individual culpability.” In People v. Beeler (1995) 9 Cal.4 953, although there was insufficient evidence that the defendant in fact suffered from organic brain damage, the Court observed that such evidence “would not necessarily render a death sentence cruel or unusual” under the state constitution. (Id. at p. 995, emphasis in original; see also People ». Smithey (1999) 20 Cal.4936, 1015-1016.) In People v. Young (2005) 34 Cal.4® 1149, 1229, despite evidence that the defendant’s IQ was on the borderline of mental retardation, that he suffered from an organic brain disorder, and that his neuropsychological functioning was “highly impaired,” this Court agreed with the trial court’s conclusion that this evidence was insufficient to void the death judgment. Nonetheless, under this Court’s intracase propottionality review, the - 10 - death judgment must be reversed. Although the crime washorrific, a determination of the proportionality of a capital sentence cannot be based solely upon the circumstances ofthe offense or the magnitudeof the resulting harm; it must also include an assessmentofthe factors calling for life. (People v. Tafoya (2007) 42 Cal.4% 147, 198; see also Enmundv. Florida (1982) 458 U.S. 782, 801 [punishment mustbetailored to defendant’s personal responsibility and moralguilt].) Thus, notwithstanding the circumstancesof the offenses, appellant’s mitigating evidence — significant brain damage, severe mental illness, grossly distorted thought processes, learning disabilities, and other mitigation -- is overwhelming, andsignificantly weakens the aggravating factors. (See Hardwick v. Crosby (11% Cir. 2003) 320 F.3d 1127, 1164; Smith v. Mullin (10Cir. 2004) 379 F.3d 919, 942; Brewer v. Aiken (7% Cir.1991) 935 F.2d 850, 862 (cone. opn. of Easterbrook,J.) [citing empirical evidence of juror sympathyto claims of organic brain damage]; Glenn v. Tate (6% Cir. 1996) 71 F.3d 1204, 1211.) His severe impairments and damaged brain make the crimes more a heart-wrenching tragedy than an unmitigated outrage. Death is disproportionate to this most mitigated case. In addition, appellant requests this Court to do what the high court does in construing the analogousprovision of the federal Constitution: determine whether appellant’s significant brain damage, severe mentalillness, and significant impairmentsin intellectual functioning place him in a category of offenders for whom capital punishment cannot be imposed. In other words, the question appellantraises is whether, wholly apart from the circumstances of the capital crime or other aggravating factors, appellant’s culpability for the capital offense is sufficiently reduced to preclude the imposition of the death penalty underarticle I, section 17 of the California Constitution. The pertinent facts for this claim are set forth above: appellant’s IQ 1s -11- 69; he is significantly brain damaged and has been since he was an infant; he ts severely mentallyill and episodically psychotic; and his thought processes are gtossly distorted, paranoid, and delusional. (AOB 63-66.) Sentencing such a personto death is cruel or unusual underarticle I, section 17 of the California Constitution for the following reasons. First, the moral culpability of personswith significant brain damage and severe mentalillness is greatly diminished by virtue of their impairments; they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. (See Atkins, supra, 536 U.S. at pp. 317-320.) Offenders like appellant who suffer from these conditions experience such distortionsofreality that their ability to appreciate the wrongfulness of their conductor to understand its consequencesis significantly reduced. (See Indiana v. Edwards, supra, 554 U.S.at p. 176 [common symptomsofsevere mentalillness include “[dJisorganized thinking” and “deficits in sustaining attention and concenttation”].) Similarly, their symptomatology creates such gtoss irrationality thatit significantly impairs their judgment, thus, even if they understand the nature and consequencesoftheir acts and appreciate their wrongfulness, they ate nonetheless notfully able to control their conduct. Because of their disabilities in areas of reasoning, judgment, and control, they do notact with the level of moral culpability that characterizes the most serious adult criminal conduct. (AOB 70-72.) Second, any argumentthat a bar against the execution ofthe severely mentally ill and brain damagedis impracticable because psychiatry is an inexact science should berejected. Courts are called on to define or apply the conceptof a “severe” mentalillness in a variety of contexts, both criminal and civil. (See Indiana v. Edwards, supra, 554 U.S. at pp. 176-178; United States v. Long (5% Cir, 2009) 562 F.3d 325, 334.) The tetm “severe mental disorder” is definedin this state’s Mentally Disordered Offenders Act as: -12- an illness or disease or condition that substantially impairs the petson’s thought, perceptionofreality, emotional process, or judgment; or which grossly impairs behavior; or that demonstrates evidence of an acute brain syndrome for which prompt remission,in the absence of treatment, is unlikely. (§ 2962.) A similar conceptis set forth in the statutes regarding the Detention of Mentally Disordered Persons. (Welf. & Inst. Code, § 5150; see also Welf. -& Inst. Code, §§ 4242, 5600.3, 5802 [defining serious mental disorders and severe mental illness}; Health &Saf. Code, § 1374.72 [defining “severe mental illnesses”); Cal. Ins. Code, § 10123.15 {defining “severe mental disorders’’]; 15 CodeofCal. Reg. 506 [defining “severe mental disordet”’].) The State of Connecticut, prior to abolishing the death penalty, had a statute forbidding the execution of a defendant whose mental capacity was significantly impaired. (Conn. Gen.Stat. Ann, § 53a-46a, subd. (h)(3).) The American Psychiatric Association defines “severe mentalillness”as including “disorders with psychotic features that are accompanied by somefunctional impairment and for which medication or hospitalization is often required.” (AOB 75 & fn. 39.) Psychosis is defined as a “severe mental disorder characterized by gross impairmentsin reality testing, typically manifested by delusions,hallucinations, disorganized speech, or disorganized or catatonic behavior[.]” (Winick, The Supreme Court’s Evolving Death Penalty Jurisprudence: Severe Mental Illness As The Nest Frontier (2009) Boston College L.Rev. 785, 836, fn. 354.) In Foucha ». Louisiana, supra, 504 U.S. 71, involving involuntary commitment, the dissent complained that psychiatry (and its opinions) is not an exact science. The majority responded: That may betrue, but such opinionis reliable enough to permit the courts to base civil commitments on clear and convincing medical evidence that a person is mentally ill and dangerous and to base release decisions on qualified testimony that the person is no longer mentally ill or dangerous.It is also reliable enough for the State not to punish a person who by a preponderanceofthe evidence is found to have been insane at the time he committed a -13- criminal act, to say nothing of nottrying a person whois at the time found incompetent to understand the proceedings. (Id. at p. 76, fn. 3.) In short, courts are capable of applying a definition of severe mentalillness to the death penalty context, and determining thelevel of impairment required to conferineligibility for that punishment. Andin this case, appellant meets any definition of severely mentally ill and significantly brain damaged. Third, the acceptable goals served by the death penalty -- retribution and deterrence -- are not served where the defendant’s culpability is substantially diminished by brain damage and severe mentalillness. The theory of deterrence in capital sentencing is predicated upon the notion thatthe increased severity of the punishmentwill inhibit criminal actors from carrying out murderous conduct. Yet itis the same cognitive and behavioral impairments that make these defendants less morally culpable -- for example, the diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses -- that also makeit less likely that they can process the information of the possibility of execution as a penalty and,as a result, control their conduct based upon that information. (Atkins, supra, 536 U.S. at p. 320; AOB 70-71.) Thestate’s interest in exacting retribution by execution is constitutionally inadequate if a defendant’s reasoning and moralcapacities are sufficiently diminished, regardless of the ageravating factors and the circumstances of the crime. . Fourth, although thecapital sentencers must consider mental illness and brain damage undersection 190.3, factors (d), (h) & (k), that case-by-case consideration can be (and was here) inadequate. Evidence of brain damage and severe mental illness should be powerful mitigating evidence. (See Porter v. McCollum (2009) 558 U.S. 30, 130 S.Ct. 447, 454 [brain abnormality and cognitive defects]; Abdul-Kabir v. Quarterman (2007) 550 U.S. 233, 257-258 [neurological damage]; Rompilla v. Beard (2005) 545 U.S. 374, 392 [organic brain -14- damage and extreme mental disturbance]; Ferrell v. Hall (11Cir. 2011) 640 F.3d 1199, 1234-1235 [evidence of organic brain damage and mentalillnessis compelling mitigation].) But it is not always treated so. Courts and experts have recognized that such evidence is often a two-edged sword that enhances the likelihood that future dangerousness will be found by the jury. (See Atkins, supra, 536 U.S. at p. 321; Brewer v. Quarterman (2007) 550 US. 286, 292- 293; see generally Ramana, Living and Dying with a Double-Edged Sword: Mental Health Evidence in the Tenth Circuit’s Capital Cases (2011) 88 Denv. L.Rev. 339.) 3 Juries and judges often harbor hostile attitudes toward people with mental illness, and view severe mentalillness as more aggravating than mitigating. (See, e.g., Truesdale v. Moore (4Cir. 1998) 142 F.3d 749, 754-755; see also Tabak, Executing People With Mental Disabilities: How We Can Mitigate An Aggravating Situation (2006) 25 St. Louis U. Pub. L.Rev. 283, 288-289; Sundby, The Jury as Critic: An Empirical Look at How CapitalJuries Perceive Expert and Lay Testimony (1997) 83 Virg. L.Rev. 1109, 1165-1166 [severe mental illness, raises a numberofcollateral issues that may lead the jury to vote for a sentence of death rather thanlife]; Slobogin, Mental Illness and the Death Penalty (2000) 24 Mental & Physical Disability L.Rep. 667, 669-70.) Capital sentencing jurors, in the face of strong aggravating evidence, rather than properly weighing mental 3. The National Mental Health Association has noted thatcapitaltrials often fail “to identify who among those convicted and sentenced to death actually has a mental health condition.” (www.nmha.org/go/position- statements/54 (last visited Nov. 20, 2012). The American Psychiatric Association notes that “many observers ofcapital sentencing proceedings, including participating psychiatrists, believe that juries tend to give too little weight to mitigating evidence of severe mental disorder, leading to inappropriate execution of offenders whose responsibility was significantly diminished by mental retardation or mentalillness.” (Mental Illness and the Death Penalty in North Carolina: A Diagnostic Approach (2007), p. 25, footnotes omitted.) -15 - illness as a mitigating factor, are just as likely to considerit an aggravating factor, as showing future dangerousness. (See Slobogin, Mental Disorder as an Exemptionfrom the Death Penalty: The ABA-IRR Task Force (2005) 54 Cath. U. L.Rev. 1133, 1150-1151. One expert hasstated: In many cases an offender’s mentalillness, although presumptively mitigating, mightalso be directly connected with an ageravating circumstance. For instance, an offendet’s risk for violence mightbe the result of mentalillness. (Melton etal., Psychological Evaluations For The Courts: A Handbook For Mental Health Professionals and Lanyers (3d ed. 2007) at p. 289.) Courts are not immune from this thinking. (Cannon v. Gibson (10% Cir, 2001) 259 F.3d 1253, 1277- 1278 [evidenceof brain damage “could have strengthened the prosecution’s argument that Cannon represented a continuing threat to society]; Swzzth v. Mullin, supra, 379 F.3d at p. 943 [noting district court dismissal of mental mitigation].) The inadequacies of a case-by-case adjudication of the severely mentallyill and brain damagedis exacerbated bythe fact that (1) jurors observe the accused throughoutthetrial (Riggins v. Nevada (1992) 504 U.S. 127, 142 (conc. opn. of Kennedy, J.)), and (2) the demeanor of.such persons may create an unwarranted impression of a lack of remorse for their crimes(see Atkins, supra, 536 U.S. at pp. 320-321). 4 4. Further, brain damage and severe mentalillness,like significant cognitive limitations, sharply constrict a defendant’s ability “to give meaningful assistance to their counsel.” (Atkins, supra, 536 US.at p. 320.) Hallucinations and delusions diminish a defendant’s ability to report in two distinct ways: they impair the ability to accurately observe, and, particularly where the delusions are paranoid (as appellant’s were andare), they cause mistrust of persons attempting to help, and consequently impair willingness to cooperate with defense attorneys. Thus, a mentally impaired defendant might be unfairly convicted or sentenced to death if he alone has knowledge of certain facts but does notappreciate the value of suchfacts, or the propriety of communicating them to his counsel. (Bonnie, The Competence of Criminal Footnote continued on nextpage... -16- Thus, substantial and unacceptable risks inhere whenthe state seeks the death penalty against a brain damaged, severely mentallyill person. As with the mentally retarded and juveniles, case-by-case sentencing determinations of a profoundly brain damaged capital defendantcreates an unacceptably high risk “that the death penalty will be imposedin spite of factors which maycall for a less severe penalty.” (Lockett v. Ohio (1978) 438 U.S. 586, 605 (plur. opn.)). That risk was heightened here by the prosecution’s closing argument. As appellant pointed out in his opening brief, the prosecutor argued, in the face of Dr. Benson’s contrary, reiterated, and unrefuted testimony, that appellant“fit” the diagnosis of antisocial personality disorder, “otherwise knownas being a sociopath,” and showed no remorse. (AOB 77; 12 RT 3933, 3935-3937.) Appellantreiterates: if prosecutors are susceptible to mistaking brain damage and severe mentalillness for sociopathy, then capital sentencing jurors, particularly when urged to do so bythe state’s representative, are at substantial risk of making the same mistake. (AOB 77.) That risk cannot be tolerated undereither the federal or the state Constitutions. Before concluding, appellant sets forth certain quotes (internal quotation marks have been omitted) from several supreme courtjustices of our sister states, demonstrating in some small part the evolving standards of decency: The underlying rationale for prohibiting executions ofthe mentally retarded is just as compelling for prohibiting executions for the seriously mentally ill, namely evolving standards of decency. (Corcoran v. State Ind. 2002) 774 N.E.2d 495, 502 (disn. opn. of Rucker,J.).) Defendants: Beyond Dusky and Drope (1993) 47 U. Miami L.Rev. 539, 552; Bonnie, The Competence ofCriminal Defendants:A Theoretical Reformulation (1992) 10 Behavioral Sci. & L. 291, 295.) -17- This court has a chance to take a step toward being a more civilized and humanesociety. This court could declare that in the interests of protecting humandignity, Section 9, Article | of the Ohio Constitution prohibits the execution of a convict with a severe mental illness. I believe that the evolving standards of decency that mark the progress of Ohio call for such a judicial declaration. (State v. Scott (Ohio 2001) 748 N.E.2d 11, 20 (dis. opn.of Pfeifer, J.).) [Atkins and Roper| imply that in some instances a defendant’s diminished cognitive or reasoning capacities may bar the weighing of aggravating and mitigating factors becausethe defendant’s diminished culpability, by itself, removes execution as a possible punishment. ... Aggravating factors, while increasing our outrageascitizens in response to a crime,are irrelevant for capital sentencing purposesif the culpability of a defendant,at the time of his or her crimes,is sufficiently diminished... [I]f the culpability of the average murdereris insufficient to invoke the death penalty as our most extremesanction, then thelesser culpability of [the defendant}, given her history of mentalillness and its connection to her crimes, surely does not merit that form of retribution. (State v. Nelson (N.J. 2002) 803 A.2d 1, 49 (conc. opn. of Zazzali, J.).) I too question whether[deterrence or retribution] applies to severely mentallyill offenders... .There seems to belittle distinction between executing offenders with mental retardation and offenders with severe mentalillness, as they share many of the same characteristics. (State v. Ketterer (Ohio 2006) 855 N.E.2d 48, 85-86 (conc. opn. of Lundberg Stratton,J.).) Serious mentalillnesses have similar effects [to the mentally retarded and juveniles]... . An individual with a serious mental illness may bejust as seriously impaired in his ability to understand and process information as an individual with a diminished IQ or an individual who hasnotyet reached the age of legal majority. (Com. v. Baumhammers (Pa. 2008) 960 A.2d 59, 77 (cone. opn. of Todd,J.).) The question hereis not oneof guilt, but whetherthis profoundly damaged person’slife is to be exterminated. The words ofJudge Chapel, dissenting in a pre-Azkins case, ate apt: 18 - A majority of the Court today approves the execution of a mentally retarded man who has the mental age of an eight-year- old boy. The Court blithely rejects the claim that the execution of the mentally retarded violates our state and federal constitutions. In decidingto allow the killing of mentally retarded citizens, the majority swallowsall sense of decency, disregards the will of the people of Oklahomaandignoresthe ptinciples and valuesofArticle IT, section 9 of the Oklahoma Constitution. Because our State constitution will not tolerate the execution of a mentally retarded man, I respectfully dissent to the imposition of the death penalty in this case. (Lambert v, State (Okla.Crim.App. 1999) 984 P.2d 221, 240 (conc. & disn. opn of Chapel, P.J.), footnote omitted.) Noris it a question of escaping punishment: acceptance of this claim meansthat appellant would be sentenced to life without the possibility of parole. | There is no question that any capital sentencing scheme “may occasionally produce aberrational outcomes.” (See Pulley v. Harns (1984) 465 U.S. 37, 54.) This Court has recognized that it is “obligated to set aside the penalty in any case in which it is aberrant[.]” (Peophe v. Jennings (1988) 46 Cal.3d 963, 995.) The death sentence meted outto appellant-- significantly brain- damaged, severely mentally ill, and grossly impaired in intellectual functioning -- is incompatible with this state’s evolved standardsof decency, is excessive and disproportionate to appellant’s diminished culpability, and makes no measurable contribution to any acceptable goals of capital punishment. It is a “pointless and needless extinction of life with only marginal contributionsto any discernible social or public purposes.” (Furman v. Georgia (1972) 408 U.S. 238, 312 (conc. opn. of White,J.).) It must be reversed, // -19 - 2. THE TRIAL COURT COMMITTED REVERSIBLE ERRORBY PERMITTING THE PROSECUTION TO PLAY AUDIO RECORDINGSOF THE 911 CALLS MADE BY THE TWO SURVIVING VICTIMS OF THE CAPITAL CRIME Atthe guilt phase, surviving victims Jennifer and Amy Parrish each testified at length that two African-American men with guns committed the salon offenses. (4 RT 1803-1839 [Jennifer]; RT 2149-2165 [Amy].) At the end of their respective testimony, the prosecutor asked whether Jennifer and Amy had called 911, and each replied in the affirmative. Over appellant’s pretrial objection, the prosecutorplayed audio recordings of the 911 calls (the “911 Tapes”). The 911 Tapes “convey so much humansuffering”and are “unpleasantto listen to.” Thatis the prosecutor’s description. (RB 56.) The seasoned defense attorney described them as “the most emotional thing I have ever heard in my life.” (AOB 83.) The prosecutor could have simply asked each witness what was said during thecalls. What evidence did the 911 Tapes provide that was so important that the jury had to hear “so much human suffering?” In hercall, Jennifer Parrish said: “My husband’s been shot in the head.” Amy Parrish said: “He’s shotin the back ofthe head andthere’s stuff coming outofhis nose,” and “It’s two black men. They each have a gun... . They took the guns with them.” (RB 53-54.) Contrary to respondent’s claim (RB 60), these statements ate not very descriptive. They addedvirtually nothing to the . lengthy testimonyalready given by those witnesses on those very points. Trial courts must be alert to factors that may underminethe fairness of the fact-finding process and infringe the presumption ofinnocence, patticularly in capital cases. Here, the 911 Tapesfilled the courtroom with the surviving victims’ real-time frantic and distraught pleas for help. These horrific tapes created a clear and impermissible danger of arousing and inflaming the jurors’ hostility against the person charged with inflicting that - 20 - suffering, appellant, and luring the jurors away from their duty to impartially appraise the evidenceat the guilt phase. At the penalty phase, given the overwhelming evidence of mitigation, the emotional impact of the tapes may have swayed one or mote jurorsto disfavor life. (AOB 82-96.) Respondent,in its brief, does notallege forfeiture (the claimsare fully ptesetved), but contends that the audiotapes were relevant, not unduly prejudicial under Evidence Code section 352, and harmless. (RB 53-66.) > In this reply, appellant will focus on whetherthe trial court erred in admitting the 911 Tapes over appellant’s section 352 objection. The remaining claims in Argument2 are joined. A. Section 352 and the Relevance of the 911 Tapes Section 352 gives a trial court broad discretion to exclude evidenceif its probative value is substantially outweighed by the probability thatit will create a substantial dangetof, inter alia, undue prejudice. (Peoph v. Reccardi (2012) 54 Cal.4% 758, 808-809.) The statute applies when the prosecution attempts to introduce evidence such as prior bad acts, gruesome photos, or inflammatory evidence. (E.g., People v. Lay (2011) 52 Cal.4* 46, 61-62 [prior offenses]; People v. Booker (2011) 51 Cal.4" 141, 169-171 [gruesome photos]; People v. Brady (2010) 50 Cal.4% 547, 582-583 [victim impact evidence].) Indeed,it applies whenever the probative value ofa party’s proffered evidence is substantially outweighed by the danger of undueprejudice. Well before the 5. All further statutory references madein this argument are to the Evidence Code. Section 352 provides: The court in its discretion may exclude evidenceif its probative value is substantially outweighed by the probability thatits admissionwill (a) necessitate undue consumption of timeor (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. 21 - adoption of section 352, this Court recognized that “[i]f the principal effect of demonstrative evidence such as photographsis to arouse the passionsof the jury and inflame them against the defendant because of the horror of the crime, the evidence must of course be excluded.” (Peoph v. Carter (1957) 48 Cal.2d 737, 751.) Upon request, a trial court must “strike a careful balance” between the probative value of evidence and the danger of undue prejudice. (People v. Murtishaw (2011) 51 Cal.4% 574, 595-596.) This balanceis particularly delicate and critical where a criminal defendant’s liberty andlife are at stake. (Peopke ». Wright (1985) 39 Cal.3d 576, 588; People v. Murphy (1963) 59 Cal.2d 818, 829.) In cases of doubt, the exercise of discretion under section 352 should favor the accused. (People v. Thompson (1980) 27 Cal.3d 303, 318.) Onappeal,a trial court’s ruling under section 352 is reviewed for an abuse ofdiscretion, andits decision will be reversed only if the probative value of the evidence is outweighed by the danger of undueprejudice. (Peoph v. Valdez (2012) 55 Cal.4% 82, 133.) A trial court’s discretion under section 352 is not unlimited: “The discretion granted thetrial court by section 352 is not absolute and must be exercised reasonably in accord with the facts before the court.” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 289, fn. 5, internal quotation marks omitted; see also Burke v. Almaden Vineyards, Inc. (1978) 86 Cal.App.3d 768, 774.) There are instances where that discretion has not been correctly exercised. © Moreover, wherethe trial court placesits 6. E.g., Old Chief v. United States (1997) 519 U.S. 172, 180-186; Peopke v. Moore (2011) 51 Cal.4% 386, 405-406 [expert testimony]; People v. Cudjo (1993) 6 Cal.4t 585, 609-610 [exclusion of confession]; Peopk v, Bonin (1989) 47 Cal.3d 808, 846-848 [experimental evidence]; Peophe v. Coleman (1985) 38 Cal.3d 69, 85-86, 86-87, 92-93 fletters written by the defendant]; Peopie v. Armendan (1984) 37 Cal.3d 573, 589-590 [statements of feat]; People v. Leonard (1983) 34 Cal.3d 183, 187-189 [coarrestee’s guilty plea]; People v. Sam (1969) 71 Cal.2d Footnote continued on nextpage... 22 - reasoning on the record,as thetrial court did here (AOB85), an appellate court may discern an error in the lower court’s exercise of its discretion. In addressing a trial court’s balancing under section 352,a reviewing court must keep in mind the lower court’s view of the relevancy of the evidence. This Court cannot review thetrial court’s section 352 balancing without knowing the theoryof relevance, and thus the materialityand probative value of the evidence weighed by the court. (See §§ 210 [defining relevant evidence], & 352.) Ina similar context, the Ninth Circuit stated: “the government must show how evidenceis relevant; specifically, it must articulate precisely the evidential hypothesis by which a fact of consequence may be inferred from” the questioned evidence. (Unzted States v. Brooke (9% Cir. 1993) 4 F.3d 1480, 1483, internal quotation marks omitted [admission of prior false statements].) Here, at the hearings on the motion, the state offered a half-dozen theories of relevance. However, most of these bases for admissibility were either clearly not at issue or explicitly rejected by the trial court. For instance, the prosecutor argued that the tapes were relevant to show thatJennifer and Amy Parish wete presentat the scene and to show their suffering. But neither of those theories relates to a disputedfact (or, in the latter case, a permissible fact) that was of consequence to the guilt phase. Moreover, at the hearing on the motion, after the prosecutor submitted the matter, the court asked, “You are not going to respond specifically as to the probative value argument regarding some ofthe specifics like wound location?” The prosecutor responded, “No,”explaining that this was a mistake in a prior, errant 194, 206-207 [prior criminal acts]; People v. Lopez (2011) 198 Cal.App.4% 698, 713-716 [prior uncharged misconduct]; People v. Rivera (2011) 201 Cal-App.4* 353, 362-365 [demonstration of the murder by defendantin court, before the jury].) _23- transcript of a 911 call. The court then correctly concludedthat “we don’t have location of the woundissues.” (1 RT 1025-1027; AOB 86-87.) The same is true of the so-called “identification” basis of relevancy. As respondent notes, defense counsel strenuously argued that identification was not in issue (RB 58), and in his opening statement, counsel conceded appellant’s involvement. (AOB 87.) Thetrial court did not mentionthe identification basis in its ruling because it was notin issue. Further, to the extent that the 911 Tapes could be construed as mere “background,” any probative value would be slight. (See United States v. Sesay (C.A.D.C, 2002) 313 F.3d 591, 598- 600; United States v. Evans (C.A.D.C. 2000) 216 F.3d 80, 86-87; see generally Note, Out-OfCourtAccusations Offeredfor “Background”: A Measured Responsefrom the Federal Courts (2010) 58 U.Kan. L.Rev, 473.) 7 Respondent’s contention that the tapes were relevant to rebut appellant’s “statements” that the gun discharged “accidentally” (RB 59) is particularly disingenuous. The record pagescited in its brief are to appellant’s confession, not to any defense theory. At the hearing on the motion,defense counseldisclaimedreliance on an accidental shooting theory. (3 Pretrial RT 811.) Attrial, the defense did not argue that the shooting was accidental. Nor did the trial court mention that theory in its ruling on the section 352 motion. Thepossibility of an accidental shooting waselicited from this mentally 7. Respondentalso claims that the 911 Tapes were relevant to refute the defense theory that a third person was involved and appellant was merely a lookout. (RB 59.) Its brief cites to defense counsel’s opening statement, but not to any page where the prosecution offered this theory of relevancy to the trial court, or where thetrial court weighed the probative value of this theory. “A party cannot argue the coutt erted in failing to conduct an analysis it was not asked to conduct.” (People v. Partida (2005) 37 Cal.4™ 428, 435.) To the extent that respondenthas offered on appeal a new theory of admissibility not presentedbelow,it has forfeited that claim. (See Peopke v. Ervine (2009) 47 Cal.4% 745, 779-780.) , 24 - retarded, brain damaged defendant during his interrogation by law enforcement: they planted the suggestion, and as the mentally retarded are want to do, appellant wentalong with it. (See Atkins v. Virginia (2002) 536 US. 304, 320-321.) The prosecutorall but concededthis fact at his guilt- phase closing argument: Because[Detective] Kennedy said, “Well, maybeit is an accident, you know, because there is a cold-bloodedkiller and people who do accidents.” And Boyceis sort of like, “Well, yeah, okay. Yeah, that’s what it was.” (8 RT 2731) The prosecution cannot“credit the accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice.” (People v. Schader (1969) 71 Cal.2d 761, 776.) The prosecutor also argued that the tapes bolstered the witnesses’ credibility. This was the relevancy basis acceptedbythetrial court: I do see somecredibility/believability issues. I see some classic 2.20 Caljic [sid [8] issues that go to these people’s, what I am going to assumeis going to be proffeted testimony. And I think the people have a right to put that on, put that evidence on out front, so to speak, as opposed to reserving and waiting and seeing whether you can rehabilitate somebody. {[ The court has done the weighing process, and the probative value outweighs any prejudicial effect and they both shall be admissible. (1 RT 1028.) Respondent quotesthetrial court’s conclusion (RB 58), and addresses a portion of its section 352 argumentto the credibility basis for admissibility (RB 59-60). The issue, then, is whether the relevance of the 911 Tapesto the credibility of the witnesses was substantially outweighed by a dangerof undueprejudice from confrontingthe jurors with real-time ghastly screams of despair from the surviving victims. 8. Pattern instruction CALJIC No. 2.20 sets forth various factors that the jurors should consider in determining the believability of a witness. _25- B. The Ghastly 911 Tapes ShedLittle if Any Light on the Witness’s Credibility; They Were Played for a Different and Illegitimate Reason Under section 352, the probative value of the proffered evidence must be weighed against the danger of undueprejudice. (Peophe v. Murtishaw, supra, 51 Cal4th at pp. 595-596.) Evidence is probativeifit is relevant, material (Le., importantto the case), and necessary. (People v. Schader, supra, 71 Cal.2d at pp. 774-775.) A court must consider whether the evidence (1) tends logically and by reasonable inference to prove the issue upon whichitis offered, (2) is material or important to an issue in the proponent’s case, and (3) is necessary to prove the proponent’s case or merely cumulative to otheravailable and sufficient proof. (People v. Stanley (1967) 67 Cal.2d 812, 818-819; Burke v. Almaden Vineyards, Inc., supra, 86 Cal.App.3d at p. 774; 1 Jefferson, Cal. Evidence Benchbook (4% ed. 2012) § 22.6, pp. 404-405; cf. People v. McKinnon (2011) 52 Cal.4610, 669.) Here, putting aside the horrific aspects of the recordings, the proffered statements were that two 911 calls were made; the victim had been shotin the head; and the persons responsible were “two black men,” each with a gun. Given that each witness hadjust finished lengthy testimony establishing those vety facts, even assuming that the audiotapes were relevant, they wereclearly neither material nor necessary. The probative value of such cumulative evidence is low under section 352. (See People v. Michaels (2002) 28 Cal.4% 486, 532; Burke v. Almaden Vineyards, Inc., supra, 86 Cal.App.3dat p. 774.) Respondentrefers to the credibility issue as follows: Here, the crux of the defense was to discredit Deputy Parish’s and Ms. Parish’s testimony placing Boyce inside the salon as the shooter. As stated above, the 911 recordings were relevant to support Deputy Parish’s and Ms. Parish’s credibility. ] Thus, the tapes addressed anissue in the case,i.e. whether the jury should credit the sisters’ testimony regarding their recollection of what occutredat the salon. _ 26 - (RB 60, emphasis added.) Appellant has emphasized a portion of that quote because nowhere in respondent’sbriefis there an explanation as to how the 911 Tapes wererelevant to the witnesses’ credibility. Nowhere doesit articulate precisely the evidential hypothesis by which the 911 Tapes were relevant to the credibility of the witnesses. The credibility ofJennifer and Amy Parrish’s testimony regarding whether appellant was the shooter was in issue, not for any nefarious aspect of their character, but from the effect of the intense trauma of the unveiling crime upontheir recollections. The heart of the defense was to show that the traumaofthe incident gave rise to inconsistencies between their pretrial statements andtheir trial testimony regarding who was the shooter. (See AOB 10-11, 13-14.) Appellant made that clear at the hearing on the motion. (3 Pretrial RT 810-811.) And, in his guilt phase opening statement, before the prosecution beganits case-in-chief, defense counsel confirmed: We are not suggesting [the witnesses’ inconsistencies] be held against anyone. However, the fact remains that these witnesses have petceptions. They had perceptions,senses,ideas, regarding what occurred, and they gave at time accounts howthis event unfolded. We have no choice but to selectively embrace, study and cotroborate these details and analysis regarding the level of culpability assigned. From the outset when the suspects stormed the hair salon about 9:00 p.m. that night, commotion andfear existed... . The Parishes and Mr. York were clearly caught by surprise. They simply had no idea what hit them. They hadlittle opportunity to see the suspects at all as they were taken by surprise and so quickly ordered to the floor. (4 RT 1784.) The probative value of the statements made on the 911 Tapes -- two African-American men with guns; the victim was shotin the head -- to the witnesses’ credibility is close to nil. The fact that the perpetrators were two African-American men with gunsis close to the barest description possible: _27- In a countty asracially diverse as the United States with millions of people representing each identifiable ethnic or facial group, the racial or ethnic background of an individual has virtually no probative value except to exclude that person from the “circle of suspicion.” (McDonnell, Targeting the ForeignBorn by Race and Nationality: Counter-Productive in the ‘War On Terrorism”? (2004) 16 Pace Int'l L.Rev. 19, 43; see also Gonzalez. Rivera v. LN.S. (9% Cir. 1994.) 22 F.3d 1441, 1445-1446 [minimal probative value of tace in suppression context].) Had the victims given a more particular description, or a description that was against the facts, then the 911 Tapes may have been admissible. But that did not occurhere. Thetrial court, in finding a credibility issue with sufficient weight to permit the introduction of inflammable evidence, seriously misjudged the probative value of the 911 Tapesto thatissue. Appellant concededin his opening statement(before the prosecution’s case-in-chief) that he, an African- American man, was involved in the crimes. In assessing the materiality of the evidence (its importance to the case), the court must consider not only the elements ofthe offense, but also the defendant’s admissions. (See Peopkv. Schader, supra, 71 Cal.2d at p. 775 {referring to defendant’s “testimonial” admissions].) Although a concessionis immaterial to a determination of relevancy (People v. Scheid (1997) 16 Cal.4* 1, 16), it is important in determining the probative value of evidence under section 352 (see Old Chief v. United States (1997) 519 U.S. 172, 186; People v. Ramos (1997) 15 Cal.4% 1133, 1166-1167). As a result of the error, defense counsel was placed in an untenable position when he began cross-examination of each witness. The entire courtroom was teeling from the two 911 Tapes, thereby greatly arousing the jurors’ sympathy for the witnesses. This position was completely unnecessary because the probative value ofthat evidence was nearly nil. Against this minimal probative value of the 911 Tapes must be weighedthe danger of undueprejudice. The prejudice referred to in section - 28 - 352 does not mean “damaging,” but rather evidence that “uniquely tends to evoke an emotional bias” against a party while havinglittle probative effect on the material issues. (People v. Thomas (2012) 53 Cal.4771, 807; People v. Karis (1988) 46 Cal.3d 612, 638.) It also means “the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proofspecific to the offense charged.” (Old Chiefv. United States, supra, 519 US. at p. 180.) Prejudice becomes unfair when the primary purposeofthe evidenceat issueis to elicit emotions of bias, sympathy, hatred, contempt, retribution, or horror. (Svate v. Young (Tenn. 2006) 196 S.W.3d 85, 106, internal quotation marks omitted; see also Lewis, Proofand Prejudice: A Constitutional Challenge to the Treatment ofPrejudicial Evidence in Federal Criminal Cases (1989) 64 Wash. L.Rev. 289, 321-322.) 9 The problem with such horrific and emotional evidenceis that by inflaming the anger and passionsof the jurors, a dangeris created “that the jurors’ desire to see someone broughtto justice for this crime might interfere with their duty to meticulously appraise the evidence.” (People v. Farmer (1989) 47 Cal.3d 888, 907.) There is no reason for that danger to be countenanced in a capital case, particularly when the questioned evidenced haslittle probative value. Respondent, with surgical precision, counters that the statements in the calls were “descriptive and nothighly inflammatory[.]” (RB 60.) But the 9, Professor McCormick similarly concludes that evidence which “tends to arouse the jury’s hostility or sympathy for one side without regard to the probative value ofthe evidenceis unduly prejudicial.” (1 McCormick on Evidence (6th ed. 2006) § 185, p. 780.) He continues, “A juror influencedin this fashion may besatisfied with a somewhatless compelling demonstration of guilt than should be required.” (Idid.) Thus, the admission of unduly prejudicial evidence threatens the burden of proof, a crucial protection in a criminal case. (See Estelle v. Williams (1976) 425 U.S, 501, 503 [presumption of innocence requires courts to be “alert to factors that may undermine the fairness of the fact-finding process”’).) 29 - content of the statements was not the problem undersection 352. Rather,it wastheir context: real-time frantic screams andpleasfor help as the victim died in their arms. The Tapes are emotionally devastating, and appealed to the jurors’ sympathy for the surviving victims, arousedits sense of horror, provokedits instinct to punish, and posed a danger ofbias against appellant. Further, tape recordings have “a persuasive, sometimes a dramatic, impact ona jury.” (United States v. Knohl (2d Cir. 1967) 379 F.2d 427, 440.) A tape recording of a 911 call from a homicide scene is powerful evidence and leaves a strong impression. (See Peopk v. Polk (1996) 47 CalApp.4% 944, 953, fn. 5; see also (See Note, A Foundational Standardfor the Admission ofSound Recordings into Evidence in Criminal Trials (1978) 52 S.Cal. L.Rev. 1273, 1303 (“Evidence combining such high drama with the possibility of relatively easy alteration and manufacture should be treated with special caution’”’].) In United States v. Layton (9% Cir. 1985) 767 F.2d 549, involving the “Last Hour Tape” made during mass suicides in Jonestown, the court of appeals upheld thetrial court’s conclusion that the tape was more prejudicial than probative, in part because screams of dying children could be heard in the background. The court concluded: It would be virtually impossible for a jury to listen to this Tape and ignore the soundsof innocent infants crying (and presumably dying) in the background. The discussion of the impending mass suicide set against the background cacophonyof innocent children who have apparently already been given poison would distract even the most conscientious juror from the real issuesin this case. (Id. at p. 556.) The 911 Tapes are in the samevein: they are unforgettable, horrific screams from surviving victims. Norcan it be denied that alternative means for presenting this evidence were tight at hand and easily administered: each witness could havetestified that she madethecall and what was said. Defense counsel mentionedthis possibility at the hearing on the motion. (3 Pretrial RT 812.) This must be - 30 - taken into account when balancing under section 352: if other evidence, which does not carry the same dangers with it, could be used to establish the fact, then the marginal value of the preferred evidenceis slight or non- existent. (See Old Chief v. United States, supra, 519 U.S.at p. 184; Peophe v. Lay (2011) 52 Cal.4t 46, 61.) The government has a general right to presentits case as it deemsfit. (People v. Scott (2011) 52 Cal.4 452, 471.) However, that right is subject to the rules of evidence and fundamentalfairness. This is the difference between fair blows and foul. In this case, having the witnesses testify to what was said on: the 911 Tapes would not have unfairly deprived the state’s case of its permissible persuasiveness. The testimony of the two womanleading up to the 911 calls was intense and terrifying: a robbery resulting in the death of one victim’s fiancée. The 911 Tapes were cumulative, immaterial, and unnecessary. Their probative value was next to nil, Any incremental probative value of the 11 Tapes to the credibility of the witnesses was substantially outweighed by undueprejudice, particularly where, as here, life and death were at stake. “Where the evidenceis of very slight (if any) probative value,it’s an abuse of discretion to admit it if there’s even a modestlikelihood of unfair prejudice or a small risk of misleading the jury.” (United States v. Hitt (9Cir. 1992) 981 F.2d 422, 424.) When shed of the inadequate legal bases for admissibility, the real reason whythe prosecution wentto great lengths to have the jury hear these tapes at the guilt phase boils downto this: to inject into the guilt phase the emotional impact and suffering of the surviving victims. (See 7 CT 2567,) That reason was impermissible. Thetrial court erred in admitting the audiotapesat the guilt phase. With regard to the application of section 352 at the penalty phase ofa -31- capital case, this Court has concluded that: the trial court’s discretion to exclude evidence regarding the circumstances of the crime as unduly prejudicial is more circumscribed at the penalty phase than at the guilt phase of a capital murdertrial, because the sentenceris expected to weigh the evidence subjectively. (People v. Salcido (2008) 44 Cal.493, 158, citing People v. Boxe (2000) 23 Cal.4% 1153, 1201.) That conclusion cannotapply, however, to unduly prejudicial evidenceat the penalty phase. The Eight and Fourteenth Amendmentsto the federal Constitution forbid it. (See Payne v. Tennessee (1991) 501 U.S. 808, 825.) In United States v. Pepin (2d Cir. 2008) 514 F.3d 193, the court addressed the argument that more evidence, not less, should be admitted on the presence or absence of aggravating and mitigating factors: But it hardly follows from that general observation that relevant evidence is always permitted. Acceptance of that reasoning would eviscerate the trial court’s ability to exclude unduly prejudicial material from the penalty hearing inasmuch as any decision to exclude necessarily meansless evidence, not more. (Id. at p. 204.) Further, under the Federal Death Penalty Act: judges continuetheir role as evidentiary gatekeepers and, pursuant to the balancingtest set forth in [18 U.S.C] § 3593(0), retain the discretion to exclude any type of unreliable or prejudicial evidence that might rendera trial fundamentally unfair. (United States v. Fell (2d Cir.2004) 360 F.3d 135, 145.) The Eighth Amendment requires “a reasoned moral judgment” about whether death orlife is the appropriate sentence. (Simmons v, South Carolina (1994) 512 U.S. 154, 172.) Whether a sentencingjury’slife and death decision is guided or unguided, unduly inflammatory and prejudicial evidence has no role in a reasoned moral judgment, and threatensthereliability of the sentencing decision. 10 10. The fundamental goals of statutes such as section 352 are to ensure accuracy and fairness. (See Gold, Federal Rule ofEvidence 403: Observations on the Footnote continued on nextpage... -32- Respondentcorrectly points out that in People v. Hawthorne (2009) 46 Cal.4% 67, 101-102,this Court concluded that a 911 tape was admissible under Penal Code Section 190.3, factor (a), as a circumstance of the crime. (RB 61-62.) However, as appellant argued in his opening brief, the jury in Hawthorne was cautioned notto allow its emotional response to the 911 tape- recordings to “subvert their reasoned evaluation of the evidence.” (Id. at p. 103.) That instruction was not given here. (See AOB 92.) Even if such an instruction had been given, appellant doubtsits efficacy in this context. Real- time tape-recordings of 911 calls from the surviving victims at a homicide scene is a form of victim-impact evidence with great potential to unfairly impactthe jurors’ reasoned consideration of the mitigating evidence. Moreover, the 911 tapes in Hawthorne wereplayed solely at the penalty phase. (Id. at p. 101.) Here, they were not only playedat the guilt phase, they reverberated throughoutthe victim impact testimony of Amy and Jennifer Parrish at the penalty phase. The 911 Tapes,real-time recording of their frantic and distraughtpleas for help at the scene, even if part of the circumstancesof the crime, were unduly inflammatory and should not have been introducedat the penalty phase. | C. Reversal Is Required Understate law, reversal is required if there is a reasonable probability that the outcome would have been different in the absence of the 911 Tapes. (People v. Carter (2005) 36 Cal.4% 1114, 1170-1171; Peoph v. Watson (1956) 46 Cal.2d 818, 836.) The federal law claims are subject to the Chapman test: the Nature of Unfairly Prejudicial Evidence (1983) 58 Wash. L.Rev. 497, 499-500.) Theseare also the goals of the Eighth and Fourteenth Amendments. (See Rose v. Clark (1986) 478 U.S. 570, 579; Bullington v. Missouri (1981) 451 US. 430, 445-446; Woodson v. North Carolina (1976) 428 U.S. 280, 304 (plur. opn.) _33- prosecution must prove beyond a reasonable doubt that the erroneous admission of the 911 Tapes was harmless. (See People v. Wright (2005) 35 Cal.4964, 974-975,citing Chapman v, Cakfornia (1967) 386 U.S. 18, 24.) With regard to the due process claims, where an appellate court finds that improperly admitted evidenced has renderedthetrial fundamentally unfair, no prejudice inquiry is required as prejudice is inherent in the finding of error, This Court has stated that as a general matter, “the mere erroneous exercise of discretion under such ‘normal’ rules doesnotimplicate the federal Constitution.” (Peophk v. Cudjo (1993) 6 Cal.4% 585, 611; see also Peopke v. Dement (2011) 53 Cal.41, 52 [right to present a defense”); People v. Riccardi, supra, 54 Cal.4* at pp. 809-810 [due processrights].) The issue here, however, is the right to a fundamentally fair andreliable trial under the Eighth and Fourteenth Amendments. (See Deck v. Missouri (2005) 544 U.S. 622, 628; Gardner v. Florida (1977) 430 U.S. 349, 358.) Insofar as the ultimate object of the section 352 weighing processis a fair trial (People v. Harms (1998) 60 Cal.App.4t 727, 736), the careful weighing of prejudice against probative value under section 352 “is essential to protect a defendant’s due process right to a fundamentallyfait trial.” (People v. Defourney (2011) 192 Cal.App.41091, 1104, quoting People v. Jennings (2000) 81 Cal.App.4® 1301, 1314.) Under narrow circumstances, the erroneous admission of evidence may rendera trial fundamentally unfair and violate the right to due process. (See Estelle v. McGuire (1991) 502 U.S. 62, 70; People v. Partida (2005) 37 Cal.4® 428, 439; McKinney v. Rees (9Cir. 1993) 993 F.2d 1378, 1383-1385.) Inflammatory evidence that diverts the jury’s attention from its properrole or invites an irrational, purely subjective response violates the Fourteenth Amendment’s due process clause whenit is so unduly prejudicial that it renders the trial fundamentally unfair. (People v. Bivert (2011) 52 Cal.496, 118; Payne v. Tennessee, supra, 501 U.S. 808, 825.) _ 34 - The erroneousintroduction of the 911 Tapes in this case, when assessed in light of the overwhelming evidence in mitigation, posed a risk that one or more jurors would be moved thereby to vote for death. Apart from the ghastly nature of the 911 Tapes,andtheir ability to lure the jurors from a reasoned moralresponse to the evidence,the timing of the introduction of the tapes is important in determining prejudice: as noted, the Tapes were played at the end ofthe direct-examination for each witness, immediately preceding cross-examination. Appellant’s fate hung on the testimony of these two witnesses. Respondent devotes two full pages to cataloguing the myriad circumstances of the offense, and contends that the evidence of guilt was overwhelming. (RB 63-66.) This Court should look with skepticism upon the government’s argumentin light of theits tactical decision to introducethe 911 Tapes. (United States v. Brooke, supra, 4 F.3d at p. 1488; Ghent v. Woodford (9% Cir, 2002) 279 F.3d 1121, 1131.) The governmentfought hard in two hearings to have this evidence introduced, evidence that conveys “so much human suffering”; it should not now beheardto claim that it was unimportant. In any event, in appellant’s view, the evidence in mitigation was overwhelming. He is mentally retarded, brain damaged, and severely mentally ill. (See Arg. 1, ante.) As stated in the Introduction, “Given a crime 11. Respondent’s “overwhelming evidence” argumentis misplacedas regardsthe guilt phase. The harmless error inquiry requires the government to show that the error did not have an effect on the verdict, not merely that, absentthe error, a reasonable jury would have reached a guilty verdict. (See Satterwhite v. Texas (1988) 486 U.S, 249, 258-259; Ghent v. Wooaford (9 Cir, 2002) 279 F.3d 1121, 1126-1127; United States v. Cunningham (C.A.D.C. 1998) 145 F.3d 1385, 1394; People v. Cunningham (2001) 25 Cal.4926, 1018-1019; People v. Osband (1996) 13 Cal.4% 622, 743-747 (conc. & dis. opn. of Kennard, J.) _ 35 - sufficiently atrocious and a popular resentmentsufficiently inflamed, and the measurings of mental responsibility go to discard.” (Parsons, The LearnedJudge and the Mental Defective Meet - What Then? (1928) 12 Mental Hygiene 25, 30.) In passing, respondentstates that any error is harmless because the prosecutor did not rely on the 911 Tapes at the penalty phase. (RB 66.) But the jurots considered the tapes, as they were instructed. And what respondent fails to notice is that the prosecutor did notrefer to the tapesin his guilt phase closing argument either. Why? Becausethis evidence need be heard only once to haveits intended, unconstitutionaleffect. // _ 36 - 3. APPELLANT’S CLAIMS REGARDING THE FLIGHT INSTRUCTION ARE FULLY COGNIZABLE ON APPEAL Appellant argued that the trial court erred in giving the pattern instruction regardingflight as consciousness of guilt, CALJIC No. 2.52. (AOB 97-104.) Theissue is joined (RB 66-72), but appellant mustreply to one of respondent’s contentions. Appellant argued,inter alia, that the instruction created an impermissible inference that lessened the prosecution’s burden ofproof. (AOB 103; Ulster County Court v. Allen (1979) 442 U.S. 140, 157; In re Winship (1970) 397 U.S. 358, 364.) Respondent contendsthat appellant has forfeited that particular claim: Boyce complains that instructing the jury with CALJIC No.2.52 lessened the burden of proof. (AOB 104.) Boyce has forfeited his claim because hefailed to preserve the issue by objecting on those grounds below. (People v. Hillhouse (2002) 27 Cal.4™ 469, 503.) (RB 70.) Respondent’s reliance upon Hii/house is misplaced becausethat case held that a claim under CALJIC No. 2.51 (regarding motive) was cognizable notwithstanding afailure to object. (People v. Hillbouse, supra, 27 Cal.4t at p. 503, citing § 1259 & People v. Flood (1998) 18 Cal.4% 470, 482, fn. 7.) Mote recently, and directly on point, is People v. Taylor (2010) 48 Cal.4® 574, where the defendant argued that CALJIC No. 2.52 -- the instruction involved here-- allowed the jury to draw irrational permissive inferences. As in this case, the Attorney General in Tay/or argued that the claim wasforfeited. This Court rejected the argument: Contrary to respondent’s suggestion, defendant did notforfeit his claim regarding CALJIC No. 2.52 byfailing to object to the ~ instruction in the trial court. (§ 1259 [appellate court may review an instruction, even when no objection was made below,if _37- defendant’s substantial rights were affected].) (Id. at p. 630, fn. 13, internal citations omitted.) Similarly, in Peopk v. Wallace (2008) 44 Cal.4% 1032, also involving the flight instruction, the Attorney General again contended that the argument was forfeited for failure to object, and this Court again rejected the argument: “Section 1259, however, permits appellate review of claims of instructional error affecting a defendant's substantial rights. [Citations] Therefore, we may assess this claim onits merits.” (Id. at p. 1074, fn. 7.) Another case involving the flight instruction, People v. Smithey (1999) 20 Cal.4% 936,is in accord: “Despite the Attorney General’s contention to the contrary, defendant did not waive this claim by failing to object to the instruction in thetrial court.” (Id. at p. 982, fn. 12.) In short, a claim that the flight instruction lessened the burden of proofclearly affects an accused’s substantial rights. Thus, the claim is cognizable on appealdespite a failure to object on those specific grounds. (§ 1259.) Respondent’s forfeiture argument should be rejected. Further, before trial, appellantfiled a “Motion to Federalize All Objections Made by Counsel” (6 CT 1887), and respondentfiled an opposition (6 CT 2020). At a hearing on the motion,the parties agreed that when an objection is made, that it “be deemed under federal and state” grounds, Thetrial court accepted that agreement. (2 Pretrial RT 558.) Theclaimsare fully cognizable on appeal. // _ 38 - 4. THE RETALIATION CLAUSE OF THE PEACE- OFFICER SPECIAL CIRCUMSTANCEIS VAGUE AS APPLIED HERE The jury found true the special circumstance allegation that appellant killed an off-duty peaceofficer in retaliation for the performanceofhis duties. (§ 190.2, subd. (a)(7).) % The victim was a deputy sheriff, who had been assigned to a penalinstitution -- Wayside -- where appellant had been incarcerated several years before the victim was employed there. According to respondent,appellant“was upset by the way he wastreated at Wayside” so he killed the victim “‘in retaliation for” the way appellant believed the victim, as a guard in thejail, treated people like appellant. (RB 76.) In his openingbrief, appellant demonstratedthat the retaliation clause of subdivision (a)(7) is unconstitutionally vague, and that the evidence was legally insufficient to establish that the killing was in retaliation for the performance of the off-duty officer’s official duties. (AOB 105-116.) Respondent contendsthattheretaliation clause of the special circumstanceis not vague andsufficient evidence supported theallegation. (RB 72-79.) ® A. The Importance of the Statute’s Intent, to Protect Peace Officers, Does Not Immunize It from Vagueness Review In performing statutory interpretation, this Court’s fundamental task “4s to determine the Legislature’s intent so as to effectuate the law’s purpose.” 12. The retaliation clause of the statute provides: the victim was a peace officer, as defined in the above- enumerated sections, or a former peace officer under any of those sections, and wasintentionally killed in retaliation for the performanceofhis or her official duties. 13. Respondent’s brief does notallege forfeiture of any argumentraised in the opening brief; the vagueness claim waslitigated at trial and is fully preserved for appeal. (See 6 CT 1654 [motion] & 7 CT 2169 [opposition]. - 39 - (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4* 717, 724, internal quotation marks omitted.) Here, section 190.2, subdivision (a)(7), as respondent observes,is intendedto effectuate society’s strong interest in protecting peaceofficers. (RB 76-77, quoting Peopke v. Rodriguez (1986) 42 Cal.3d 730, 781; see also AOB 110.) However, the fact that a statute’s purposeis laudable, importantorcrucial, does notinsulate the statute — particularly one establishingeligibility for the death penalty — from vagueness teview and the requirements of due process and the Eighth Amendment. (See Cortex v. PurolatorAir Filtration Products Co. (2000) 23 Cal.4" 163, 176, fn. 9; People v. Nelson (2011) 200 Cal.App.4* 1083, 1096.) In People v. Weidert (1985) 39 Cal.3d 836, involvingthe killing-of-a-witness special circumstance, the Court stated: From a policy point of view, perhapsthe killing of any witness— whether that witness’ testimony wasto beelicited in a proceeding denominated criminal, juvenile, traffic, “quasi-criminal,” probate, civil, legislative, or administrative—should bea capital offense. However, our role is limited by the language of subdivision (a)(10) and anylegislative history which elucidates its meaning. (Id. at p. 843; see also id. at p. 855 [There is no indication that the voters intended to make [the witnesskilling special circumstance] applicable to witnesses in juvenile proceedings” .) In the final analysis, this issue presents the intersection of two crucial interests: protection of peace officers andeligibility for the death penalty. Statutory interpretation is reviewed de novo. (Regents of University of Cakforma v. Superior Court (1999) 20 Cal.4% 509, 531.) B. The Languageof Special Circumstances Must Meet Heightened Requirements of Certainty Under the Eighth and Fourteenth Amendments, special circumstances must be defined with sufficient precision to eliminate arbitrary or capricious decision-making by the sentencer. (See Maynard v. Cartwright (1988) 486 U.S. _ 40 - 356, 361-364.) They must have a “common-sense core of meaning... that criminaljuries should be capable of understanding[.]” (Tasdaepa v. Cakfornia (1994) 512 U.S. 967, 973-974, quoting Jurek v. Texas (1976) 428 U.S. 262, 279 (conc. opn. of White, J.), ellipsis in original.) To comply with due process,a special circumstance, as with any statute, may not forbid conduct in terms so vague that people of common intelligence would be relegated to differing guesses about its meaning. (People v. Castenada (2000) 23 Cal.4% 743, 751; Wilkams v. Garcetti (1993) 5 Cal.4% 561, 567; People v. Superior Court (Engert) (1982) 31 Cal.3d 797, 801, 803, citing Langetta v. NewJersey (1939) 306 U.S. 451, 453.) A special circumstanceis unconstitutionally vague if the ordinary meaning of its languagefails adequately to communicate the parameters ofthe statutory requirements. (People v. Ledesma (2006) 39 Cal.4* 641, 725.) Many, if not most, statutes are ambiguous to some extent. (See Peopkv. Kelly (1992) 1 Cal.4495, 533-534,citing Evangelatos v. Supertor Court (1988) 44 Cal.3d 1188, 1201.) However, where a statute imposes criminal penalties, the standard of certainty is higher. (Kolender v. Lawson (1983) 461 US, 352, 358, fn. 8.) 4 Over a century ago, this Court stated that, in construing a penalstatute, “the defendantis entitled to the benefit of every reasonable doubt, whether it 14. In Carlos v. Superior Court (1983) 35 Cal.3d 131, 143, overruled on other grounds in People v. Anderson (1987) 43 Cal.3d 1104, 1138-1147,this Court stated: We cannot demandperfection in the drafting of statutes; some inconsistency and inequity is probably inevitable. But neither should we ignore such matters whencalled to our attention. If, as in this case, we can discover a reasonable interpretation of the statute which avoidslogical anomalies and minimizes inequitable results, surely we would prefer that interpretation to one that does not. AL - atise out of a question of fact, or as to the true interpretation of wordsor the construction of language used in a statute....” (Exparte Rosenheim (1890) 83 Cal. 388, 391.) “[T]he degree of strictness in construing penal statutes should vary in direct relation to the severity of the penalty.” (Peopke v. Weidert, supra, 39 Cal.3d at p. 848.) Further, whena statute defining a crimeis susceptible of two reasonable interpretations, the rule of lenity, which has constitutional underpinnings, favors that interpretation more favorable to the defendant. (See People v. Cornett (2012) 53 Cal.41261, 1271-1272; People v. Avery (2002) 27 Cal.449, 57-58; Peopke v. Weidert (1985) 39 Cal.3d 836, 847-850.) Therule of lenity may apply notwithstanding the protective purpose ofa statute such as section 190.2, subdivision (a)(7). (See People v. Cornett, supra, at p. 1271, in. 8.) C. The Retaliation Clause of the Special Circumstance Is Unconstitutionally Vague As Applied Here The issue here is whether theretaliation clause of the section 190.2, subdivision (a)(7) is unconstitutionally vague under these circumstances. First, it must be notedthat the electorate who passedthis statute did not limit it to the simple intentional killing of a peace officer; this is not a status special circumstance. There has to be more:a killing either in the performance of the officer’s duties, which covers “present conduct” bythe officer; or a killing in retaliation for the performanceof duties, which covers killings for “prior actions” by the officer. (7 CT 2175 [prosecutot’s opposition].) There is no question that somekillings fit within the retaliation clause. People v. Jenkins (2000) 22 Cal.4% 900, 1019-2020 is paradigmatic: theofficer, though off-duty, waskilled in retaliation for his investigation into a criminal case involving the defendant. Thus, there was a direct relationship between the defendantandthe officer’s performanceof duties. This Court concluded that the special circumstance “requires a subjective purposeto retaliate for performance of official duties - and that performance mustin fact have been lawfull[.]” (Id. at p. 1021; AOB 111-112.) Other cases, includingthis case, are 42 - not so clear: the performanceof duties by the victim officer were unrelated to appellant. Indeed, the prosecution’s pleadings evinced uncertainty as to whetherthe special circumstance applied here: its complaint contained the special circumstance allegation, but the original information did not. (1 CT 234; 3 CT 609-610.) Respondentcontendsthat “[t}here is no requirementofa direct relationship betweentheofficer and the defendant.” (RB 76.) It continues: There is nothing aboutthe statute that suggests it should be limited to motivation based on a distinct act performed by a peace officer or one directed specifically at the defendant: (RB 77.) There are two answerto this contention. First, its adoption would mutate the special circumstance into a status offense. Second, the common meaning of the word “retaliate” equates to a motivation by the actor to “get back” at a person for actions taken by that person against the actor. That meaning is confirmed by dictionary definitions of the term, Courts often consult dictionaries to determine the usual meaning of wordsin statutes. (See People v. Leal (2004) 33 Cal.4% 999, 1009.) Thus, Webster’s New World Dictionary (3d ed. 1988), definesretaliate as punishmentin kind; returnlike for like. The American Heritage Dictionary (5% ed. 2011 is in accord: “To do something in responseto an action doneto oneself or an associate, especially to attack or injure someoneas a response to a hurtful action.” Black’s Law Dictionary defines the term under“lex talionis” as “[t]he law of retaliation; which requires the infliction upon a wrongdoer of the same injury which he has caused to another.” For that reason, the jury sent out a note asking if the officet had to be performing an official duty at the time of the offense: its commonsense understanding ofthe word “retaliate” was that the “pay back” should relate to the victim officer’s duties. Appellant argues that the retaliation clause must be construed to mean _ 43 - that there were specific actions performed by the victim officer, known to the defendant, and motivatingthekilling. In other words, some direct relationship between theofficer and his performance of duties, and the defendant. Otherwise, the statute is reduced to a status offense. The ordinary meaning of its language fails adequately to communicate the parametersof the statutory requirements, people of commonintelligence would berelegated to differing guesses aboutits meaning, and there would be no common-sense ‘core of meaning that criminal juries should be capable of understanding. Appellant is unaware of any adjudicated meaning of the term _ “retaliation” in a like context; nor does respondentidentify any. (See In re Derrick B. (2006) 39 Cal.4* 535, 539-540 [presumption that whenstatute uses term that has been judicially construed, term is used in the sense given by the courts].) The term is used in other special circumstances(e.g., § 190.2, subds. (a)(10) — (13)), as well as in certain civil contexts, including wrongful termination. For example, in Joaquin v. City ofLos Angeles (2012) 202 Cal.App.41207, the court held that there had to be a causal link between the retaliatory animus and the adverse action in a retaliatory termination case. (Id. at pp. 1220-1221.) Put in termsrelevantto the special circumstance, retaliation requires a direct telationship betweentheofficer’s performance of his duties and the defendant. Nothingin the instructions given to the jury cured this fatal ambiguity. Thetrial court gave an instruction defining “official duties” as including the duties of a custodial officer. Butit failed to limit the definition of retaliation as including a relationship betweentheofficer’s duties and the defendant. It also failed to require the jury to find that the officer’s performance of duties was lawful, a necessary finding that must be madeby the jury. (See Peopke v. Jenkins (2000) 22 Cal.4900, 1020-1021; Peopke v. Gonzalez (1990) 51 Cal.3d 1179, 1223; cf. CALCRIM No.2671 [lawful performance of a custodial _44- officer}.) 8 Appellant had liberty interest in the accuracy ofthese findings, and in having them decided by the jury. (People v. Odle (1988) 45 Cal.3d 386, 412.) The prosecutot’s guilt phase closing argument fed on these omissions: the bottom lineis that although Shayne York was not on duty as a peace officer at the time that the murder tookplace, 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 to talk about that a little bit later. [He never did so.] Soit is in retaliation for that, and that’s the lawful performance. (8 RT 2684.) In other words, appellant shotthe officer for being a police officer, not for his performanceofduties, particularly duties unrelated to appellant. Or, as the prosecutor admitted in his opening statement, “it’s in retaliation for him having been a peace officer.” (4 RT 1781.) In the absence of an appropriate definition, each juror would necessarily apply his or her own definition of retaliation. (See Pepev. Rodriguez (1986) 42 Cal.3d 730, 782.) The definition of the special circumstancegiven to appellant’s jury was unconstitutionally vague, and the evidence was insufficient to establish beyond a reasonable doubt the elements of the special circumstance. D. Even If this Court Were to Agree with Respondent’s Interpretation of the Statute, that Interpretation Could Not Be Applied Retroactively to Appellant If this Court were to hold that the retaliation clause of section 190.2, subdivision (a)(7) is constitutional as applied here, the effect would betoalter appellant’sliability from first degree murder to murder with special 15. Appellant cannotbe accused of failing to tender different instructions. In his motion to dismiss the special circumstance, he objected that the then- curtent CALJIC instructionspertaining to the special were deficient. (6 CT 1670-1671.) Byits ruling, the trial court rejected that argument. Instead,it gave the standard, but vague in these circumstances, instructions. _45 - circumstances. Such an enlargementofthe statute would changethe legal consequencesof appellant’s acts completed before the effective date of the construction. Because an unforeseeablejudicial enlargementofa criminal Statute may not be applied retroactively without violating due process, such a holding should not apply to appellant’s case. (Peopke v, Farley (2009) 46 Cal.4 1053, 1121-1122; People v. Morante (1999) 20 Cal.4403, 430-432; Pegple v Werdert (1985) 39 Cal.3d 836, 855; see also Bowie v. City ofColumbia (1964) 378 U.S. 347, 351-353.) E. Reversal of the Death JudgmentIs Required Whatever standard of prejudice is applied here (see AOB 115-117), two facts dictate reversal of the death judgment. First, the mitigating evidence was overwhelming. Second, the prosecutor,in his closing argument, made clear that his case for death was based on the circumstancesofthe crime and, in particular, the status of the victim as a peace officer, rather than anyspecific act committed in the performanceofhis duties. (AOB 115.) Accordingly, reversal of the death judgmentis required. // - 46 - 6. APPELLANT’S PENALTY PHASE MOTION FORSELF- REPRESENTATION, AN ATTEMPT TO ASSERT AUTONOMOUS CONTROLOF HIS DEFENSE, WAS ERRONEOUSLY DENIED In his openingbrief, appellant argued that the trial court erred in denying appellant’s motion for self-representation, made one week before the penalty phase was to begin. (AOB 131-142.) It may appear incongruousthat appellant is arguing that such a damaged individual should have been allowed to represent himself at the penalty phase. Yet, there was no question of appellant’s competency to stand trial. And at the time ofhis request in 2000,in ruling on a motionforself- representation, “state law provided thetrial court with no test of mental competenceto apply other than the standard of competencetostandtrial.” (People v. Taylor (2009) 47 Cal.4® 850, 879.) In other words,thetrial court erred to the extent that it considered as a basis for denying appellant’s motion for self-representation any “supposed mentalincapacity not amountingto incompetencyto standtrial[.|” (Peopke v. Halvorsen (2007) 42 Cal.4th 379, 433.) Moreover, whatappellant sought to do in asserting autonomouscontrolofhis penalty phase defense was notto ask for the death penalty, but to put on no evidence or argument. (AOB 131-133; see generally Bonnie, The Competence of Criminal Defendants with Mental Retardation to Particpate in their Own Defense (1 990) 81 J.Crim.L. & Criminology 419.) Respondentconcedesthatthe trial court erred by considering inappropriate factors in denying appellant’s request, but claims that the request was untimely and equivocal. (RB 91-100.) A. Respondent’s Thorny Path Through the Trial Court’s Erroneous Exercise of Its Discretion According to this Court, when a motion for self-representation is not madebeforetrial has begun it is untimely. (But see AOB 137-140.) The _47- motion maystill be granted, butit is subject to the trial court’s discretion. (People v. Bradford (1997) 15 Cal.4% 1229, 1365.) In exercising that discretion, the court must ensure that the motion 1s knowing andintelligent, and that the accused understands the dangers of self- representation. (Faretta v. California (1975) 422 U.S, 806, 835.) The trial court must also consider certain factors, known as the Windham factors after Peophev. Windham (1977) 19 Cal.3d 121, and discussed post. (See People v. Lawrence (2009) 46 Cal.4% 186, 191-192; People v. Barnett (1998) 17 Cal.4® 1044, 1104- 1106.) Six pages into its argument, respondent concedesthat thetrial court erred by basingits denial of the motion on inappropriate factors. (RB 97, AOB133.) A court may not “measure a defendant’s competence to waivehis right counsel by evaluating the defendant’s ‘technical legal knowledge.” (People v. Doolin (2009) 45 Cal.4* 390, 454; see also Faretta v. California, supra, 422 USS. at p. 836.) Or, as this Court hasstated,“it is improper fora trial court to quiz a defendant on such topics and then draw on the defendant’s lack of knowledge of the substantive law as a basis for denying the right to proceed without counsel.” (People v. Riggs (2008) 44 Cal.4248, 277, fn. 10.) Here, the trial court’s consideration of such improperfactors in denying the request was a clear abuse of discretion: A discretionary order based on the application of improper criteria or incorrect legal assumptionsis not an exercise of informed discretion and is subject to reversal even though there may be substantial evidence to support that order (F.T. v. LJ. (2011) 194 Cal.App.4*1, 26.) Further, the trial court made no inquiry into whether appellant’s request to waive counsel was voluntary, knowing andintelligent, as the Sixth Amendment requires. (AOB 134-135.) It simply denied the request because appellant was “not qualified to represent himself[.]” (8 RT 2960.) This, too, _ 48 - was etror, but it does not benefit the government: If a defendant seeks to represent himself and the courtfails to explain the consequencesof such a decision to him,the governmentis not entitled to an affirmance of the conviction it subsequently obtains. To the contrary, the defendantis entitled to a reversal and an opportunity to make an informed and knowing choice. (United States v, Arlt (9% Cir. 1994) 41 F.3d 516, 521 [involving a pretrial motion].) Appellantis entitled to noless. Nordid thetrial court discharge “its duty to advise defendantof the dangers and disadvantagesof self-representation.” (People v. Burgener (2009) 46 Cal.4th 231, 241.) This, too, cannot be used to appellant’s detriment. As the Court explained in Peoph v. Joseph (1983) 34 Cal.3d 936, “[iJf a trial court could insulate an erroneous denial of Faretta status by a failure to give the proper warnings, the Faretfa doctrine would be rendereda nullity.” (Id at p. 945.) Thus, in denying appellant’s motion,the trial court relied on inappropriate factors, failed to ascertain if the attempted waiver was knowing andintelligent, and failed to ensure that the request was made with awareness of the disadvantages of self-representation. The court abusedits discretion. B. The Request Was Not Equivocalto the Trial Courtor the Prosecution Respondentdevotes one page to its claim that appellant’s request was equivocal. Nocases are cited. (RB 98.) It is true, as respondentstates, that the motion started out as a Marsden motion. But, “it is not at all uncommonfor a Faretfa motion to accompany an accused’s request to dismiss court-appointed counsel.” (People v. Joseph, supra, 34 Cal.3d at p. 944.) © In any event, the court’s questioning of appellant and 16. People v. Thompson (2010) 49 Cal.4th 79, is remarkably similar to this -case. There, after the guilt phase had concluded, the defendant made an oral Footnote continued on nextpage... _ AQ - defense counsel revealed both that appellantdesired self-representation and the reason for that request: appellant’s desire to control his defense at the penalty phase. Here are the most pertinent statements by defendantat the hearing: I don’t want to --them to put no defense for me on the penalty phase. I don’t want them putting no defense for me on the penalty phase, so I would like to have them removed. No, I don’t want no other attorney. I just want [defense counsel] moved off my case. (8 RT 2953-2955.) These are statements, not questions, and they were confirmed by defense counsel. 1” Thus,despite the initial confusion and contradictory statements by appellant, the trial court understoodhis request: “you are telling me you don’t want another lawyer appointed and you wantthe courtto relieve [defense counsel].” (8 RT 2959; see People v. Riggs (2008) 44 Cal.4248, 275, fn. 9 [initial confusion over representation waslater clarified]; People ». Marshall Faretta motion together with a motion to substitute counsel. After a lengthy hearing on both motions,thetrial court stated that the defendant: clearly expressed his wishesto receive the death penalty,to call no witnesses, and to not confront or cross-examine any witnesses the prosecution called. The court granted defendant’s request to represent himself, but placed his appointed attorneys on standby status, (Id. at p. 132.) No issue was raised in Thompson becausethe trial court handled the situation correctly. 17. Respondent complains that “{a]t one point [appellant] said he did not even wantto be presentat the hearing. (RB 98,citing 8 RT 2959.) That statement did not make appellant’s request equivocal; it was fully consistent with his intent to present no mitigation at the penalty phase. 50 - (1997) 15 Cal.4t 1, 25 [‘*The court understood his words’’].) Again, this was a statement, not a question. The court never made finding that the request was equivocal becauseit clearly understood the request. (See United States v. Arlt, supra, 41 F.3d at pp. 519-520.) Indeed, respondent understands the reason for appellant’s request: “Boyce revealed the reason for his request was that he did not want a defense presented during the penalty phase.” It then confirmsthat “[o]ut of an abundanceofcaution, the trial court treated the request as both a Marsden and Paretta motion. (RB 98.) That should be the end ofthe claim that appellant’s request was equivocal: if the court properly treated it as a Paretta motion — andit did — then the request was not equivocal. Appellant is not the most facile with words and ideas. But he communicated his thoughts calmly, his attorneys confirmed his intent, and the trial court understood the reason for the request. Notalismanic formula is required to invokethe right to self-representation. (Ferguson v. Culkver (11% Cir, 2008) 527 F.3d 1144, 1147.) Further, the inquiry into whether the request was equivocal was pretermitted by thetrial court’s abuse of discretion in denying the request on inappropriate bases. (See ante.) In People v. Dent (2003) 30 Cal.4® 213,this Court reversed the denial of a Faretta request where,as here,the trial court relied on an inappropriate factor in denying the motion. With regard to whether the request was equivocal, the Couttstated: We need not decide this issue, however, because whetheror not defendant’s request was equivocal, the trial court’s response was not only legally erroneous but also unequivocal, and foreclosed any realistic possibility defendant wouldperceive self-representation as an available option. Thus, even assuming defendant’s request was equivocal, the trial court’s response effectively prevented defendant from making his invocation unequivocal. (Id. at p. 219.) 51 - The requirementthat a requestfor self-representation be unequivocal exists for a reason: to prevent defendants from making capricious or inadvertent waivers of counsel and to protect trial courts from manipulative vacillations by defendants regarding representation. (See United States v. Fragier-El (4% Cit. 2000) 204 F.3d 553, 558-559; Buhl v, Cooksey 3d Cir. 2000) 233 F.3d 783, 792.) As respondentnotes, a motionforself-representation “made out of temporary whim, or out of annoyanceorfrustration” should not be granted. (RB 92, quoting People v. Marshall (1997) 15 Cal.4* 1, 21.) Yet, respondent does not argue that appellant's motion was capricious ot inadvertent, or made out of whim, annoyance, bad faith, passing emotion, or for manipulation. The reason for the motion,as respondent concedes (RB 99-100), was so that appellant could exercise his autonomy andcontrol his defense. That reason is not whimsical. “[T]he state may not constitutionally prevent a defendant charged with commission ofa criminal offense from controlling his own fate by forcing on him counsel who maypresent a case which is not consistent with the actual wishes of the defendant.” (Peopkv. Windbam (1977) 19 Cal.3d 121, 130; see also Faretta v. California, supra, 422 US. at p. 817 [forcing a lawyer upon an unwilling defendantis contrary to his basic right to defend himselfif he truly wants to do so”}.) Further, during the hearing, defense counsel stated that he wasat “loggerheads” with his client regarding the presentation of the penalty phase. That suggests an extensive discussion by counsel with appellant, not a spur of the momentrequest. Tellingly, neither the trial court nor respondentaver that there was whim or manipulation in appellant’s request. The court treated appellant’s request as serious. C. The Windham Factors As noted above,a trial court presented with a mid-trial motion for self- reptesentation shall inquire sua sponteinto the specific factors underlying the -52- request thereby ensuring a meaningful record... .” (People v. Windham (1977) 19 Cal.3d 121, 128; see also People v. Lawrence, supra, 46 Cal.4* at pp. 191-196; People v. Bradford (2010) 187 Cal.App.4% 1345, 1353-1354.) The non- exhaustive Windham factorsinclude: 1. defendant’s prior history in the substitution of counsel, 2. the reasonsset forth for the request; 3, the length and stage of the trial proceedings; 4. disruption or delay which reasonably might be expected to ensue from the granting of such motion; and 5. the likelihood of defendant’s effectiveness in defending against the charges if required to continue to act as his ownattorney. (People v. Gallego (1990) 52 Cal.3d 115, 163-164; see also People v. Lawrence, supra, 46 Cal.4% at pp. 191-192.) Respondentclaimsthatthe trial court “implicitly or explicitly” considered several of the factors when denying appellant’s request. (RB 98- 99.) The record, however, does not reveal any reasoned application ofthe Windham factors. Instead, the court relied on improperfactors, as respondent concedes. Properly applied to this case, the Windham factorsreveal: 1. appellant had noprior history of substituting counsel or seeking self representation; 2. the reason for the request was to protect his most fundamental right, to control his defense at the penalty phase; 3, although the request cameafter the guilt phase, differences with counsel over the penalty phase presentation may not appear until the end of the guilt phase, 4, no disruption or delay would have occurred because appellant intended to put on no witnesses at the penalty phase; and 5. the likelihood of appellant’s effectiveness as his own attorney would weigh against granting the motion. However,thatis true of any request for self-representation. 53 - No Windham factor is necessarily determinative. (People v. Lawrence, supra, 46 Cal.4at p. 196.) But the factors here weigh in favor of granting appellant’s motion. The mostrevealing factor is that appellant had a compelling reason for waiving counsel: the fundamentalright to control his defense. This Court’s capital cases have madeclear that both the trial courts and counsel must respect a competent defendant’s considered and voluntary decisions on matters of fundamental importance affecting trial of the action. (Peopk». Bloom (1989) 48 Cal.3d 1194, 1222.) This includes a defendant’s right to control his defense at the penalty phase: “The defendanthasthe right to present no defense andto take the stand and both confess guilt and request imposition of the death penalty.” (People v, Clark (1990) 50 Cal.3d 583, 617- 618, internal citations omitted.) Indeed, this Court has held that it is not irrational for a defendantto prefer death to life in prison. (Peopk v. Bloom, supra, 48 Cal.3d at pp. 1222-1223.) Respondenthastrouble accepting these plain, long-standingrules. It asserts that “there is nothing in the record to indicate Boyce had any further disagreement with counsel presenting mitigating evidence during the penalty phaseof any otherissues with his defense.” (RB 99.) Whatever the meaning of that phrase, the hearing showed that appellant and counsel were at “loggerheads” over the presentation of the penalty phase. Respondent 18. Respondentrelies on dictum in a footnote in Peopk v. Wilkins (1990) 225 Cal.App.3d. 299, 309,fn. 4, for the proposition that a disagreement over trial tactics is an insufficient reason to grant an untimely Faretfa request.” The disagreementin this case, however, was not over trial tactics, but over a fundamental tight belonging to appellant. Both before and after W2/kens, this Court has recognized the importanceofa capital defendant’s “ability to control his destiny and make fundamental decisions affecting the trial.” (Peopk v. Bloom, supra, 48 Cal.3d at p. 1222.) Nowhere is that more important than at the penalty phase of a capital case. _54- concedesthat Peopk v. Blair (2005) 36 Cal.4" 686, 736-737, held that that a self-represented defendant has the right to refrain from presenting mitigating evidence during the penalty phase of a capital case. But it contends that “the reverse” is not true: A defendant who does not want to present mitigating evidenceat the penalty phase, does not have theright to represent himself based solely on thatfact. (RB 100.) No authority is given for that proposition. Appellant is unaware of any such authority, Assuming that the requirements for self-representation are met, the authority relating to a defendant’s autonomyand theright to control his or her own destiny and defense is to the contrary. (E.g., People v. Taylor (2009) 47 Cal.4* 850, 865-866; People v. Blair, supra, 36 Cal.4% at pp. 736-737; People v. Koontz (2002) 27 Cal.4% 1041, 1073-1074; Peopke v. Jenkins (2000) 22 Cal.4900, 1044; People v. Massie (1998) 19 Cal.4® 550, 570; People v. Bradford (1997) 15 Cal.4 1229, 1363-1373; People v. Stansbury (1993) 4 Cal.4® 1017, 1062-1064; People v. Clark (1992) 3 Cal.4% 41, 109-110; People v. Diaz (1992) 3 Cal.4% 495, 566; People v. Howard (1992) 1 Cal.4® 1132; People v. Edwards (1991) 54 Cal.3d 787, 809-811; People v. Clark (1990) 50 Cal.3d 583, 617-618; Peopkv. Lang (1989) 49 Cal.3d 991, 1029-1030; Peoph v. Bloom, supra, 48 Cal.3d atp. 1222.) Anexercise ofdiscretion must be “grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.” (People v. Superior Court (Alvarez) (1997) 14 Cal.4* 968, 977,internal quotation marks omitted.) Here, the trial court considered erroneousfactors, and failed to consider the appropriate factors. “[W]here fundamentalrights ate affected by the exercise of discretion by thetrial court, we recognize that such discretion can only betruly exercised if there is no misconception bythe trial court as to the legal basis for its action.” (In re Carmaleta B. (1978) 21 Cal.3d 482, 496; see also People v. Russel (1968) 69 Cal.2d 187, 195 [exercises of _55- legal discretion must be guided by legal principles and policies appropriate to the particular matter at issue].) The court abused its discretion in denying appellant’s motion. D. Although Untimely Under this Court’s Precedents, Appellant’s Request Would Not Have Delayed the Penalty Phase With respect to the Ameliness of the motion, respondenthasits dates off. It claims that appellant “waited until the day the penalty phase was scheduled to start to make his request. (RB 97, citing 8 RT 2952.) But the trial court set August 28, 2000,as the start of the penalty phase. Appellant's motion was made on August 22, 2000, when the guilt verdicts were returned. (10 CT 3357; 8 RT 2950.) Second, by protesting that appellant’s motion was “manifestly untimely” (RB 97), respondent seemsto imply that this Court’s timeliness requirementis a condition precedent to granting relief. It is not. This Court has held that a motion forself-representation made after trial has begunlies within the discretion of the trial court, which must consider the Windham factors. (AOB 140; see ante.) Oneof those factors -- the disruption ordelay which might reasonably be expected to follow the granting of such a motion -- incorporates the effect of the timing of a request for self-representation. (People v. Windham, supra, 19 Cal.3d at p. 128.) ? As noted, this factor weighed in favor of granting appellant’s motion. Third, the timeliness requirementfora self-representation motion does not exist ina cloud. It exists for a reason: to prevent the misuse of such a 19, Respondentpoints out that thetrial courtinitially noted that the motion “was not technically timely made.” (RB 98,citing 8 RT 2961.) But it neglects the court’s following sentence: “Butjust rather than a procedural denial, the court wanted to make inquiry of Mr. Boyce’s ability to represent himself.” The court’s final ruling was on the merits. _ 56 - motion to delay the trial or obstruct the orderly administration of justice. (People v. Doolin, supra, 45 Cal.4% at p. 454; People v. Halvorsen (2007) 42 Cal.4® 379, 434.) Respondent does not argue that the motion would delaythetrial. How could it? A week before the penalty phase was morethan sufficient to effectuate appellant’s intent: to present no witnesses, as he was entitled to do. (People v. Clark (1990) 50 Cal.3d 583, 617-618.) Appellant neither sought nor required a continuance. Accordingly, granting the motion would not have changed the court’s calendar one whit, and respondent does not argue otherwise. Nor did the court express any concern that appellant was attempting to delay or disrupt the proceedings. (See People v. Lawrence, supra, 46 Cal.4t 186, 195.) Unlike the defendant in People v. Doolin, supra, 45 Cal.4™ at pp. 454-455, appellant was ready to proceed. In Windham, this Court cautioned that the timeliness requirement “must not be used as a means oflimiting a defendant’s constitutional right of self-representation.” (People v. Windham, supra, 19 Cal.3d at p. 128, fn. 5.) That hortatory appeal applies here. As the Court stated in People v. Halvorsen (2007) 42 Cal.4t 379, 434: “The rationale behind therule giving the trial court the discretion to deny an untimely Farefta motion-to avoid disruption of an ongoingtrial-thus is not implicatedin this case.” E. The Death Judgment Must Be Reversed The penalty phase judgment must be reversed. (People v. Halvorsen, supra, 42. Cal.4* at p. 434.) // _57- 9. IN LIGHT OF THE OVERWHELMING MITIGATION, THE TRIAL COURT’S FAILURE TO GIVE THE JURY FULL INSTRUCTIONAL GUIDANCEAT THE PENALTY PHASE REQUIRES REVERSAL OF THE DEATH JUDGMENT The penalty phase in this case was similar to a traditionaltrial. Over six days, numerouslay witnessestestified for both sides, were cross-examined, and impeached. Credibility was in issue. A numberofexpertstestified, offering opinionson a variety of subjects, and were vigorously cross- examined. Accordingly, the trial court was required to instruct the penalty phase jurors with all of the applicable instructions, from CALJIC No, 1.01 through 8.88. (People v. Souza (2012) 54 Cal.490, 134; People v. Gonzales (201 1) 52 Cal.4254, 327-328 [respondent acknowledges error], CALJIC No.8.84.1.) It failed to do so. This was ertor and has been since 1988. (AOB 177-185.) Respondentrepeatedly concedes that the trial court erred (RB 119, 123, 124, 126), but contendsthat it was harmless. (RB 119-127.) Theissues are mostly joined, but there remain a few threads. First, respondent contendsthat appellant’s failure to request CALJIC Nos. 1.01, 1.03, and 1.05 forfeited those claims. (RB 122,citing People v. Ervine (2009) 47 Cal.4745, 804, & People v. Wilson (2008) 43 Cal.4% 1, 30.) The contention is wrong, not because of respondent’s reading of the cases, but because Ervine misread Wilson. Ervinestates: We note as well that defendant forfeited any claim with respect to the failure to reinstruct in particular on the respective duties of the judge and jury [CALJIC No. 1.00} and the concluding instructions “by failing to request such instructionsattrial.” (People v. Wilson (2008) 43 Cal.4" 1, 30.) (Ervine, supra, at 804.) Wilson, however, held no such thing: Finally, we reject defendant’s claim that the trial court erred in failing to instruct sua sponte with CALJIC Nos. 17.30 through 17.50, which include cautionary instructions, instructions on the jurors’ duties, and concludinginstructions. While the Use Note _ 58 - to CALJIC No. 8.84.1 tefers to CALJIC Nos. 1.01 through 8.88, it makes no reference to CALJIC Nos. 17.30 through 17.50. Defendant provides no authority supporting his claim that the trial court had a sua sponte duty in this regard; nor, we add, does he argue that thefailure to give such instructions resulted in prejudice here. Thus, by failing to request such instructionsat trial, defendant has waived this claim. (Wilson, supra, at p. 30.) Wilson mentioned CALJIC No.1.01 in discussing the | instructions that must be given sua sponte, as compared to CALJIC Nos. 17.30 through 17.50 which do not. This Court’s cases and the Use Note to CALJIC No.8.84.1 have long required trial courts to give CALJIC Nos.1.01 through 8.88. (AOB 178-179; e.g. People v. Gonzales (2011) 52 Cal.4% 254, 327-328; People v. Cowan (2010) 50 Cal.4" 401, 494.) This Court should disapprove Evvine’s holding thata trial court has no sua sponte duty to instruct on CALJIC Nos. 1.01, 1.03, and 1.05 at the penalty phase. It conflicts with CALJIC No.8.84.1, as well as the now- current CALCRIM Nos. 760 and 761, and can only cause mischief. (See, e.g., People v. Livingston (2012) 53 Cal.4% 1145, 1178[citing Emine & Wikson].) Second, given the conceded ertor, respondent arguesthat appellanthas not produced a “concrete example of how he has been prejudiced.” (RB 124.) The requirementof a “concrete example” does not seem consistent with the “reasonable possibility” standard in People v. Brown (1986) 46 Cal.3d 432, 446- 448, Noris placing the burden of proof on appellant consistent with the standard in Chapman v. California (1967) 386 USS. 18, 24, which explicitly places the burden ofproofon the beneficiary of the error; here, respondent. This Court equates the Brown test with the Chapman test. (People v. Wilson, supra, 43 Cal.4* at p. 28.) Yet, the Court has comeclose to adopting respondent’s view: “In the absence of some specific indication of prejudice arising from the record,defendant does no more than speculate that the absence of the instructions prejudiced him.” (People v. Lewis (2008) 43 Cal.4® 415, 535, 59 - quoting People v. Carter (2003) 30 Cal.41166, 1221, internal quotation marks omitted, emphasis added;cf. Evid. Code, § 115 [defining “Burden of proof’ as a party’s obligation to establish by evidence a degree of belief concerning a fact in the mindofthe trier of fact]; Evid. Code, § 190 {defining proof.) If respondent were required to prove the error harmless, it too could only present speculation. It must concedethat the penalty phase was lengthy, with many different witnesses and issues, and required a jury fully instructed to handle and evaluate the evidence, and decide the issues. But, nothing is knownfor sure about what this particular jury did in the jury room with these incomplete instructions. The impenetrability of jury deliberationsis closely guarded. (See Peoph v. Wilson (2008) 44 Cal.4% 758, 829 [emphasizing the sanctity and secrecy of jury deliberations]. Appellant will offer examples from the record showingthatthere is a reasonable possibility that one juror would have voted differently had the ettor not occurred. If he can show that, relief should be granted. (See Waggins v. Smith (2003) 539 U.S. 510, 537.) But first he notes that the error presents a larger issue. This Court has clearly and repeatedly exhorted “trial courts not to dispense with necessary penalty phase evidentiary instructions in the future. Thecostin time of providing such instructions is minimal, and the potential for prejudice in their absence surely justifies doing so.” (People v. Carter (2003) 30 Cal.41166, 1222; see also People v. Gonzales, supra, 52 Cal.4" at p, 331; People v. Moon (2005) 37 Cal.41, 37, fn. 7.) Yet, the Court continues to be faced with this error in capital cases, and required to closely scrutinize the record and the omitted instructions to determine whether thereis a reasonable possibility of prejudice. The cases ate too many to enumerate. 7° 20. E.g., People v. Souza (2012) 54 Cal.4t 90, 134; People v. Gonzales, supra, 52 Cal.4t at pp. 327-328; People v. Cowan (2010) 50 Cal.4% 401, 494; People v. Footnote continued on nextpage... - 60 - Whythis error, and whyin capital cases? Fully instructed juries is both the norm and a prerequisite in civil and criminal cases. “Jurors are not experts in legal principles; to function effectively, and justly, they must be accurately instructed in the law.” (Carter v. Kentucky (1981) 450 USS.288, 302; see also Mathews v. United States (1988) 485 U.S.58, 64 [Theissues offact in a criminal trial are usually developed by the evidence adduced andthe court’s instructions to the jury”); People v. St. Martin (1970) 1 Cal.3d 524, 531.) And yet, sometrial courts, for some reason,are ill- performing this crucial duty in the most importantjudicial proceeding of all: the penalty phase of a capital case. Onepossibility should be eliminated right away. This Court has often noted that the ultimate decision to be made at the penalty phase differs from that at the guilt phase: the penalty-phase determination is essentially moral and normative. (E.g., People v. Moore (2011) 51 Cal.4™ 1104, 1145.) Nonetheless, before reaching that decision, jurors are usually, as they were here, presented with a large amountofadversarial proceeding evidencethat must be evaluated and properly handled. Hence, the importance ofbeing fully instructed. The inquiry on appealis highly fact-specific. The instructions given and the omitted instructions mustbe carefully analyzedin light of the evidence presented. In somecases, the paucity of the evidence easesthetask. Butin this case, there was a full-on penalty phase presented by the Orange County Public Defender. Theresult, as appellant has argued,is that the Loker (2008) 44 Cal.4691, 745; People v. Lewis (2008) 43 Cal.4® 415, 535; People v. Wilson, supra, 43 Cal.4® at p. 28 [assuming error]; People ». Howard (2008) 42 Cal.4* 1000, 1026; People ». Chatman (2006) 38 Cal.4" 344, 408; People v. Moon (2005) 37 Cal.4t 1, 37; People v. Carter (2003) 30 Cal.4" 1166, 1219; People v. Pinholster (1992) 1 Cal.4% 865, 965.) -61- mitigating evidence was overwhelming. Inlight of this, this Court should carefully review appellant’s claim anderr on the side of a reasonable possibility that one juror would have voted for life had the jury been properly instructed. In this case, the omitted definition of beyond a reasonable doubt(as well as several other omitted instructions) related to the section 190.3, factor (b) Damani Gray incident. The beyond a reasonable doubtstandardis applicable to factor (b) because “evidence of other crimes maybeparticularly importantto a jury considering penalty[.] (People v. Cowan (2010) 50 Cal.4% 401, 489.) Whenin issue, a trial court is required to give “the definition of reasonable doubt that comprises the second paragraph of CALJIC No. 2.90.” (People v. Gonzales (2011) 52 Cal.4254, 328.) Here, the incident occurred 12 years prior to trial when Gray was young. The prosecutioncalled Gray and a police officer while the defense called two officers; all were subject to cross- examination. Versions differed. (See AOB 32-33 [statementoffacts]; RB 28- 29 [same].) The jurors required full instructional guidance in dealing with this issue. Yet, they did notreceive all of the instructions necessary for handling the evidence, including the definition of a reasonable doubt. The words “beyond a reasonable doubt”are notself-defining for jurors. “[JJurors are often confused about the meaning of reasonable doubt” whenthat term isleft undefined. (See Note, Defining Reasonable Doubt, 90 Colum. L.Rev. 1716, 1723 (1990) [citing studies]. Further, the guilt phase instructions were given two weeks before the penalty instructions. That raises a reasonable possibility that one juror, focused on the incident, would have misapplied the standard and voted for death. 21 21. A correct définition of beyond a reasonable doubt was also important to the defense because it argued lingering doubtin mitigation. (12 RT 3966- 3967.) To assess that argumentproperly, the jury should havereceived the definition of beyond a reasonable doubt. - 62 - The Damani Grayallegation was notinsignificant. The prosecutor usedit for a reason, as he revealed in closing argument: “it shows a pattern of violence that begins back in 1987. It shows a pattern with encounters with the law.” (12 RT 3900-3901.) The prosecutor effectively used a relatively minor criminal offense to make larger points in favor of death. Next, experts were paramountin this case. The defense called six experts on a variety of subjects relating to appellant’s social history and mitigation (Leo, Cross, Benson, Cervantes, Johnson, and Alonso). In his cross-examination of Dr. Benson, the prosecutor vigorously challenged certain key findings (the age that appellant began hearing voices andhis identification as Osiris). (10 RT 3542-3544, 3551, 3553-3358, 3561; 11 RT 3799-3801, 3803- 3807, 3817-3818.) At closing argument, the prosecutor repeatedly attacked those assumptionsand thefacts and opinionsof certain of the experts. (12 RT 3920-3921, 3932-3935, 3937-3938, 3939-3940.) And, he soughtto tag appellant as having anti-social personality disorder; in other words,a sociopath. (12 RT 3932-3934, 3936-3937.) Yet the expert in question testified unequivocally that appellant did not suffer that diagnosis. Moreover, a number of family members — including Trudith Bell, a teacher, and Brenda Boyce — gavelay opinions in mitigation regarding appellant. (9 RT 3210-3223, 3231-3232, 3239-3242 [Trudith Bell]; 9 RT 3290-3292, 3294-3295 [Brenda Boyce].) Understanding and evaluating the weight to be accorded this evidence was not easy. (Cf. People v. Moon (2005) 37 Cal.4" 1, 38 [no prejudice where, inter alia, defendant called no expert witness to present his social history and no mental health professionals}.) Outof the jury’s hearing, counsel debated experts and their use of hypotheticals. (10 RT 3371-3375.) The jurors needed full guidanceto resolve these disputes. They were instructed on CALJIC No. 2.80, the general expert instruction, but were not given CALJIC Nos. 2.81 - 63 - regarding hypothetical questions or 2.82 on lay opinion. Cases have been reversed forthe failure to give CALJIC No. 2.80. (People v. Reeder (1976) 65 Cal.App.4% 235, 241-243; People v. Gonzales Ruiz (1970) 11 Cal.App.3d 852, 859-865.) The instructions on hypotheticals and lay opinions that were erroneously omitted here are just as important. The fact that the jury returned death for a mentally retarded, brain damaged, and severely mentally ill defendantraises a reasonable possibility that one or more jurors did not properly assess the expert testimony. In an interesting twist, one of the erroneously omitted instructions, CALJIC No.2.11, states: | Neither side is required to call as witnesses all persons who may have been present at any of the events disclosed by the evidence ot who may appear to have some knowledge of these events. Neither side is required to produceall objects or documents mentioned or suggested by the evidence. At the prosecutor’s penalty closing, however,he argued: I thought it was very telling that we would hear from some of these witnesses, some ofthese relatives who would sort of spottingly see the defendantalong the road, and yet the two people wholive with him, we didn’t hear from. We didn’t hear from terry Boyce or Michelle Boyce. Why not? Why didn’t we hear from the two people who grew up with him that saw him all the time? (12 RT 3916.) CALJIC No. 2.11 would have useful, to say the least, in the jurors’ assessmentof that argument. Another example of a reasonable possibility that a juror would have voted forlife had the jury been fully instructed relates to the omitted CALJIC instructions concerning “Evidence and Guides for Its Consideration”: direct and circumstantial evidence, the sufficiency of circumstantial evidence, and the sufficiency of circumstantial evidence to prove specific intent or mental state. (CALJIC Nos. 2.00, 2.01, 2.02, 2.03, 2.11, 2.13, 2.21.2, 2.22 and 2.27.) This Court long ago heldthat a trial court has a “duty to instruct on those general - 64 - principles relating to the evaluation of evidence.” (People v. Daniels (1991) 52 ~ Cal.3d 815, 885, internal citation omitted.) Evidence Code, section 312 allows no doubt as to the importance of theseinstructions: [Where the trial is by jury: (a) All questions offact are to be decided by the jury. (b) Subject to the control of the court, the jury is to determine the effect and value of the evidence addressedtoit, including the credibility of witnesses and hearsay declarants. These evidence-guiding instructions would have applied to a number of issues, including the Damani Grayincident, the battle over the testimony of appellant’s mother, Vertis, and the expert testimony. Several of these instructions contain the word “willful” (CALJIC Nos. 2.03, 2.21.2), which the high court long ago noted “is a word with many meanings[.]” (Screws v. United States (1945) 325 U.S. 91, 101.) In short, respondent’s “well-fitted men” (RB 125) were left to evaluate and consider the evidence at the penalty phase of a capital case under circumstances that would not occur in the smallest civil or criminal case. In assessing this error, this Court has often relied on anill-founded presumption, Thejurors are specifically instructed (as was appellant’s jury) to disregard the guilt phase instructions, meaningpay no attention to those instructions. (See People v. Estrada (1995) 11 Cal.4t 568, 578 [disregard defined as an intentional lack of attention]; People v. Dellinger (1989) 49 Cal.3d 1212, 1219; RB 120.) That point was reinforced by the trial court’s instructional finale: this “concludes the court’s reading of the applicable instructionsasto this phase of the trial.” (12 RT 4050.) The jurors are presumedto have, andin any event would have, understood andfaithfully followed the directionsto disregard the guilt instructions. (See People v. Hovarter (2008) 44 Cal.4% 983, 1005.) One or more jurors may have assumed that certain of the guilt phase instructionsstill applied; but that assumption would have violated the clear directive to 65 - disregard those instructions andthe court’s statement that these are the only instructionsthat did apply. 22 Even if one or morejurors did violate that directive, they did not have those guilt phase instructions before them to consult, as they did two weeksearlier. Yet, this Court has assumed in a numberofcases that the jury did just that: where the jurors have not been adequately advised on the law regarding beyond a reasonable doubt,“the jury would likely have assumed the reasonable doubtthe court referred to at the penalty phase had the same meaning as the term had duringthe guilt phase” (Peopk v. Loker (2008) 44 Cal.4691, 745; see also People v. Lewis (2008) 43 Cal.4% 415, 536; Peopke v. Chatman (2006) 38 Cal.4% 344, 408; People v. Holt (1997) 15 Cal.4" 619, 685.) Thus, this Court has found no prejudice from this error on the assumption that the jurors violated the instructions. *3 The Court has also noted that nothing in the closing arguments of the parties suggested that the jurors were free to make a standardless assessment of the evidence. (E.g., People v. Lewis, supra, 43 Cal.4™ at p. 535.) Here, the prosecutorstated as followsat the penalty phase closing argument: In the penalty phase, there is no burden of proof. Neither side has a burden as to which penalty is appropriate. (12 RT 3899.) Although this was followed bythe prosecutor notingthat a factor (b) incident must be proven beyond a reasonable doubt (12 RT 3899), the confusion is palpable. Moreover,neither counsel discussed or explicated the omitted instructions at closing argument. 22. Hypothetically, if a copy of the guilt instructions happened to bein the jury room by accident, conscientious jurors would notconsult them in light of the trial court’s directives to disregard them. 23. In 1835, ChiefJustice Marshall wrote that “[h]e whoalleges that an officer entrusted with an important duty has violated his instructions, must show it.” (DeLassus v. United States (1835) 34 U.S. (9 Peters) 117, 134.) _ 66 - The Court has concluded that there is “no reason to assumethat the jurors would have felt free to evaluate the penalty phase evidence in a vacuum, rather than carefully and deliberately, as they apparently had evaluated the guilt phase evidence.” (People v. Lewis, supra, 43 Cal.4% at p. 535, quoting Peophe v. Carter, supra, 30 Cal.4* at p. 1221, internal quotation marks omitted; RB 125.) But there is reason to believe that the jurors wereleft in a partial vacuum: a numberof required instructions were not given. And whetherthe jurors evaluated the evidence carefully and deliberately is not the problem;the lack of guidance in that evaluationis. The Court has also placed weight onthefact that the jurors in certain cases did notask any questionsor requestclarification as to how to assess of the penalty phase evidence. (People v. Aranda (2012) 55 Cal.4% 342, 375; People v. Lewis, supra, 43 Cal.4% at 535; People v. Chatman (2006) 38 Cal.4% 344, 408; People v. Loker (2008) 44 Cal.4* 691, 745-746.) This is indeed puzzling. Cases with instructional error are legion. Yet there has never been a requirement that the jury notice the legal error and bring it to the court’s attention. “We mustholdfirmly to the doctrine that in the courts of the United Statesit is the duty of juries in criminal cases to take the law from the court, and apply that law to the facts as they find them to be from the evidence.” (Sparfv. United States (1895) 156 US. 51, 102.) In other cases, this Court has found the error harmless, in part because the aggravating evidence was voluminous, while the mitigating evidence was notparticularly strong. (People v. Cowan (2010) 50 Cal.4% 401, 492.) In appellant’s case, the mitigation was overwhelming. With respect to respondent’s quotation from United States v. Scheffer (1998) 523 U.S. 303, 313, regarding the proposition that credibility determinationsare for the jury “who are presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of _67- men” (RB 125), appellant, apart from noting that the portion of Scheffer cited is a plurality opinion, has no quibble. But the fact that the jury has the responsibility to determine credibility and is fitted to do so does not negate the fact that a trial court has a sua sponte duty to instruct to instruct capital sentencing jurors on the generalprinciples relating to the evaluation of evidence. (People v. Moon, supra, 37 Cal.4at p. 35; People v. Benavides (2005) 35 Cal.4% 69, 111-112.) Taken to its extreme, respondent’s position would do away entirely with the need to instruct such “fitted men.” Few would embrace such a radical proposition, particularly at the penalty phase ofa capital case whenlife is at stake. // _ 68 - 10. THE TRIAL COURT’S NONCAPITAL SENTENCING ERRORS REQUIRE REVERSAL AND A REMAND A. The Invalid Upper Terms In Cunningham v. California (2007) 549 U.S. 270, 274, the high court held that California’s procedure for selecting an upper term violated a defendant’s right to jury trial because it gave “to the trial judge, not to the jury, authority to find the facts that expose a defendantto an elevated ‘upper term’ sentence.” Thetrial court here erred in this respect. (See People v. French (2008) 43 Cal.4® 36, 52; AOB 188-192.) In its brief, respondent repeatedly asserts that the trial court imposed the upper term based on appellant’s recidivism. (RB 127, 129.) Thisis puzzling given that the trial court made quite clear that it was imposing the upper term becauseof the vulnerability of the victim: “The court selects the aggravated term because of the vulnerability of the victims.” (12 RT 4121,) The court gave the same reason for the upper term on the gun use enhancement. (12 RT 4121.) What respondent apparently meansto argueis that the court cou/d have imposed the upper term based on appellant’s recidivism. (RB 128.) It notes that the probation report mentioned several potential aggravating factors, and that the trial court mentioned appellant’s two prior felony convictions in ruling on appellant’s motion for modification. (RB 128-129.) Nonetheless, speculating upon whatthe court could have doneis no substitute for whatthe court actually did, The court relied on the vulnerability of the victims factor. Undaunted, and contrary to the record, respondent’s peroration again erroneously avers that “in imposing the upper terms,the trial court permissibly relied on [appellant’s] criminal history.” (RB 130.) Respondent then contends that the error was harmless under Peopk». Black (2007) 41 Cal.4% 799, in which this Court concluded: _ 69 - as long as a single aggravating circumstance that renders a defendanteligible for the upper term sentence has beenestablished in accordance with the requirements ofApprendi and its progeny, any additional fact finding engaged in bythetrial court in selecting the appropriate sentence amongthethree available options does not violate the defendant’s right to jury trial. (Id. at p. 812, emphasis in original; see also People v. Sandoval (2007) 41 Cal.4® 825, 839; RB 129-130.) In his opening brief, appellant did not concede that this Court’s decision in People v, Black sufficed to bring California’s prior determinate sentencing scheme into compliance with Cunningham. (AOB 189.) Moreover, it is not clear that Apprend?’s recidivism exceptionstill commands a majority of the high court. (See Shepard v. United States (2005) 544 US. 13, 27-28 (cone. opn. of Thomas,J.).) But in any case, respondentis baldly asking this Court to make its own choiceof reasons to “save”thetrial court’s sentencing. That is not this Court’s function. As the court of appeal stated in People v. Cardenas (2007) 155 Cal.App.4% 1468: It is not for the appellate court to conjure the reasonsthetrial court could haverecited to supportits sentencing decision from the manyoptionslisted in the statutes and court rules. We review the trial court’s reasons-we don’t make them up. (Id. at p. 1483.) Respondentdoesagree with appellant, however,that if this Court finds the Cunningham errorprejudicial, “it should remand for resentencing|.]” (RB 132; AOB 193-195.) B. The Invalid Consecutive Sentences Respondent has misread appellant’s claim regardingthetrial court’s imposition of consecutive sentences. Appellant does not claim that the trial court erred under Oregon v. Ice (2009) 555 U.S. 160, (RB 133.) Indeed, appellant noted that the 5-4 ruling in Ive held that Oregon’s judge-imposed consecutive sentencing procedure did not violate the Sixth Amendment. -70 - (AOB192.) Still, there is no gainsaying the importance of the consecutive sentencing decision. AsJustice Scalia pointed out, “[t]he decision to impose consecutive sentencesalters the single consequence most important to convicted noncapital defendants: their date of release from prison.” (Id. atp. 721 (dis. opn. of Scalia, J.).) Thetrial court here did err, however, in failing to give any reason for the imposition of consecutive sentences. The statutes and sentencing rules require a trial court to state “reasons”forits discretionary choice to impose a consecutive sentence. (AOB 192-193; see People v. Black, supra, 41 Cal.4at pp. 822-823 [court needcite reasonsfor its imposition of a consecutive sentence].) Requiring a statement ofreasons “encouragesthecareful exercise of discretion and decreases therisk of error” and “supplies the reviewing court with information needed to assess the merits of any sentencing claim and the prejudicial effect of any error.” (People v. Scott (1994) 9 Cal.4™ 331, 349, 351.) Moreover, the sentencing hearingis a critical phase of the proceeding and the statementof reasonssecures a defendant’s right to due process. (See Rita v. United States (2007) 551 U.S. 338, 356-357 [importance of federal requirement for sentencing statementofreasons]; Gardner v. Florida (1977) 430 U.S. 349, 358; In re Sturm (1974) 11 Cal.3d 258, 267-272 [in parole context, due process requited definitive statement of its reasons].) Respondent contendsthat defense counsel’s failure to object to the trial court’s failure to state such reasons precludesraising the issue on appeal. (RB 134.) In Peopk v. Welch (1993) 5 Cal.4228, this Court held that sentencing claims are not exempted from an objection requirement,andthat defendants cannotchallenge the terms of their probation forthe first time on appeal. (Id. at pp. 236-237.) In Peopke v. Scott, supra, 9 Cal.4331, the Court applied those principles “to defendants who challenge the statementof reasonsgiven bythetrial court in supportofits discretionary sentencing -71- choices.” (Id. at p. 348.) In other words,“the waiver doctrine should apply to claims involving the trial court’s failure to properly make orarticulate its discretionary sentencing choices.” (Id. at p. 353.) Accotding to WestLaw, more than 2,000 California cases havecited Scott on this point. Given the presumption thatappellate counsel will raise only “genuinely colorable claims in good faith on appeal” (In re Sheena K. (2007) 40 Cal.4875, 886), that number suggests that there are thousandsof cases wherea trial court failed in.somepart of its sentencing duty, yet the claim wasforfeited, ostensibly due to defense counsel’s inattention. Justice Kennard pointed out one problem in herdissent: “In complex cases involving multiple counts with multiple sentence enhancements,therefore, it may be difficult for trial counsel to immediately identify any deficiencies in thetrial court’s otal statement of reasons.” (Scott, supra, at p. 359 (conc. & disn. opn. of Kennard, J.).) Scott ‘s answerto this problem was post-conviction proceedings based on ineffective assistance of counsel: Under existing law, a defense attorney whofails to adequately understand the available sentencing alternatives, promote their ptoper application, or pursue the most advantageousdisposition for his client may be found incompetent. (People v. Scott, supra, 9 Cal.4* at p. 351.) Scott is not only draconian, but also inefficient in a timeoflimited judicial resources. Accordingly, appellant respectfully asks this Court to revisit that decision. In any event, forfeiture does not prohibit an appellate court from reaching an unpreservedclaim;it merely allows it not to do so. (See Jn re Sheena K. (2007) 40 Cal.4875, 887, fn. 7; People v. Wilkams (1998) 17 Cal.4® 148, 161-162, fn. 6.) And, the decision in Scott was premised,in part, on the assumption that the parties would know before the sentencing hearing what sentenceis likely to be imposed and the reasons therefore. (People v. Scott, supra, 9 Cal.4® at pp. 350-351.) Thatis not the case here, as the probation 72 - report does not mention consecutive or concurrent sentencing. (11 CT 3648- 3658.) This Court also stated in Sco# that “there must be a meaningful opportunity to object,” and further declared: This opportunity can occur only if, during the course of the sentencing hearingitself and before objections are made, the patties are clearly apprised of the sentence the court intends to impose and the reasons that support anydiscretionary choices. (Id. at p. 356; see also éd., at pp. 350-351; see also In re Sheena K., supra, 40 Cal.4* at p. 887 [appellate courts have invoked their discretion to review an apparent constitutional issue when the defendantdid not have a meaningful opportunity to objectat trial].) The constitutionalissue at stake here is due processat criminal sentencing. The requirements for a meaningful opportunity to object do not appear to have occurred here. Had there been such an opportunity, then counsel, presumptively competent, would have objected. Finally, respondentfails to identify the reason given bythetrial court to justify imposition of a consecutive sentences: it simply points to the probation reportas identifying “numerous aggravating circumstances.” (RB 134-135; see rule 4.425.) Once again,it is asking this Court to save a sentencing decision that was made in error. No reasons were given bythetrial coutt for this sentencing decision. The “vulnerability of the victim” sentencing factor could not be usedto justify the consecutive sentences because the courtrelied on that factor in imposing the upper terms (AOB 192-193), and the prosecution’s motionto strike the alleged prior convictions was granted (12 RT 4059-4060). The Scorule is subject to a narrow exception: unauthorized sentences or sentences entered in excess of jurisdiction do not require an objection to preserve the claim for appeal. In the absence ofa valid factor, the sentencing choice is unauthorized: “a trial court will abuse its discretion under the amended schemeifit relies upon -73- circumstancesthat are not relevantto the decision or that otherwise constitute an improperbasis for decision.” (See People ». Sandoval (2007) 41 Cal.4th 825, 847-848.) 24 C. Correction of the Abstract ofJudgment In his openingbrief, appellant argued that the abstract of judgment did not correctly reflect that the sentences on counts 2 through 11 were stayed “because ofthe fact that the courtrelied on the facts underlying these offenses to deny the motion to modify the death penalty.” (12 RT 4123; AOB 193.) Respondentcorrectly points out that the abstract of judgment shows that the sentences on those counts were stayed, pending the execution ofthe death sentence. (11 CT 3600; RB 127.) Although the sentences were not stayed under section 654, the trial court stated in its sentencing minute that the service of the additional years of imprisonment on Counts 2 through 11 were stayed. (11 CT 3656.) Finally, in his concurring opinion in Peopk v. Cleveland (2004) 32 Cal.4% 704, Justice Chin observed that when a defendant has been sentenced to death, “no need exists to impose any other sentence.” (Id. at p. 770 (conc. opn.of Chin, J.).) A simple alternative exists, as Justice Chin proposed: The Legislature might provide that if the trial court imposes a 24, Section 669 provides, in part: Upon the failure of the court to determine how the terms of imprisonmenton the second or subsequent judgmentshall run, the term of imprisonment on the second or subsequent judgment shall run concurrently. In other words, whenthetrial court errs by failing to say anything about concurrent or consecutive sentences, the benefit inures automatically to the defendant. But when the courtaffirmatively errs in imposing consecutive sentences, here byfailing to give the necessary reasons for that sentencing choice, a defendant with inattentive counsel must bear the consequence. _74- sentence of death or LWOPon any count, it need not impose any other sentence, including enhancements. If the convictions are ever set aside or modified to reduce the sentence to something less than LWOP,the court can resentence the defendant on the remaining countsat that time. (Ibid.) Appellant agrees with this observation. // 75 - CONCLUSION Forall of the reasons stated above and in appellant’s openingbrief, the convictions and death sentence in this case must be reversed. DATED: December 31, 2012. MICHAEL J. HERSEK State Public Defender NS Lhe DOUGLAS WARD Senior Deputy State Public Defender Cal. State Bar No. 133360 1111 Broadway, 10th Floor Oakland, California 94607 Phone (510) 267-3300 Attorneys for Appellant KEVIN BOYCE 76 - 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 23,000 words, DATED: December 31, 2012. SAL GLAS:WARD SoeDECLAS State Public Defender Attorney for Appellant KEVIN BOYCE _77- DECLARATION OF SERVICE Re: People v. Boyce, No. S092240 I, Neva Wandersee, declare that I am over 18 years of age, and not a party to the within cause; my business address is 1111 Broadway, Suite 1000, Oakland, California 94607. A true copy ofthe attached: APPELLANT’S REPLY BRIEF on each ofthe following, by placing samein 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 December 31, 2012, sealed and deposited in the United States Mail at Oakland, California, Alameda County, in which I am employed, with the postage thereon fully prepaid. I declare under penalty of perjary that the foregoingis true and correct. Signed on December 31, 2012,at akland, California. Ye Neva Wandersee aeCOUR COr. AMENDED DECLARATION OF SERVICE Re: People v. Boyce, No. $092240 I, Neva Wandersee, declarethat I am over 18 years of age, and not a party to the within cause; my business address is 1111 Broadway, Suite 1000, Oakland, California 94607. A true copy of the attached: APPELLANT’S REPLY BRIEF on eachof the following, by placing samein an envelope (or envelopes) addressed (respectively) as follows: SUPREME COURT The Honorable Kamala D.Harris F | L E D Attorney General of the State of California 110 W. “A” Street, Suite 1100 . JAN = 2 2013 San Diego, California 92101 | Frank A. McGuire Clerk Deputy Eachsaid envelope was then, on December 31, 2012, sealed and deposited in the United States Mail at Oakland, California, Alameda County, in which I am employed, with the postage thereon fully prepaid. I declare under penalty of petjurythat e foregoing is true and correct. Signed on December 31, 2012/ at Oakland,Qo NevaVG.