PEOPLE v. JOHNSONAppellant’s Opening BriefCal.May 30, 2012IN THE SUPREME COURTOFTHE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, ) ) Plaintiff and Respondent, ) CAPITAL CSQPREME COURT ) vs, ) $093235 FILED ) JERROLD ELWIN JOHNSON, ) MAY 30 2012 Defendant and Appellant. ) ) Frederick K. Ohlrich Clerk Deputy APPELLANT’S OPENING BRIEF Automatic Appeal from the Superior Court of California Lake County, Superior Court No. CR4797 THE HONORABLE ROBERTL. CRONE,JR., JUDGE WILLIAM D. FARBER State Bar No. 45121 Attorney at Law 369-B Third Street # 164 San Rafael, CA 94901 pi P / \ ij & Lom bgt werako Telephone: (415) 472-7279 Attorneyfor Appellant Johnson TOPICAL INDEX TABLE OF CASES TABLE OF STATUTES STATEMENT OF THE CASE STATEMENTOF FACTS I. GUILT TRIAL A. During Flight from Sheriff's Deputies Seeking to Arrest Him for Parole Violation, Appellant Wrecks His Van Near Kono Tayee on December18, 1998 1. Testimony ofCharles Farmer 2. TestimonyofStarlene Parenteau 3. Testimony ofLaw Enforcement Officers B. Appellant’s Familiarity with theKono Tayee Area C. Ellen Salling Murdered at Home in Kono Tayee on December19, 1988 1. Testimony ofBill Ellis 2. | TimeofDeath 3. Law EnforcementInvestigation at Salling’s Home a. Testimony of Sgt. David Garzoli b. Testimony ofDet. Chris Carlisle Page xiii xlix 10 13 13 13 18 19 19 20 TOPICAL INDEX (CONTINUED) Page 4. Cause ofDeath 22 D. Appellant Arrested After Crashing Salling’s Sable During Flight from Law Enforcement Officers on December 21, 1998 24 E. Search of Starlene Parenteau’s Home; Evidence Recovered from Parenteau 29 F, Search of Salling’s Car on December22, 1998 30 G. Other Evidence Linking Appellant to Salling’s Murder 30 H. Identification of Salling’s Property 31 I. Salling’s Missing Property and Furniture Found in January 1999 33 J. Appellant’s Conduct After Salling’s Murder | 36 1. Testimony of Starlene Parenteau 36 2. Testimony ofNorman Myers 40 3. Testimony of Shiree Hardman 41 K. Fingerprint Evidence . 42 L. Blood and DNA Evidence 43 M. Wood and WoodReconstruction Evidence 47 N. Handwriting Evidence 48 Il. PENALTY TRIAL -- PROSECUTION CASE 49 A. 1980 Burglary Conviction 49 ii TOPICAL INDEX (CONTINUED) Page B. 1988 Pamela Martin Assault 49 C. 1992 Jennifer VonSeggern Killing 50 D. Margaret Johnson Killing 58 E. Appeilant’s Post-Arrest Admissions 71 F. Victim Impact Testimony 73 Ill. PENALTY TRIAL -- DEFENSE CASE 77 A. Testimony ofBryant Johnson 77 B. Testimony ofAppellant 78 1. 1980 Burglary Conviction 78 2. 1988 Pamela Martin Assault 79 3. 1992 Jennifer VonSeggern Killing 81 4. Margaret Johnson Killing 81 5. Ellen Salling Murder 82 C. Drug Use and Addiction 84 D. Testimony ofCorrectional Officer Robert Fogelstrom 86 E. Testimony ofMildred Mallory 86 F. Testimony ofDr. Raymond Deutsch 87 IV. PENALTY TRIAL -- REBUTTAL 89 A. Testimony ofPaul Sundquist 89 ili TOPICAL INDEX (CONTINUED) Page B. Testimony of Kathleen Frank 89 A. Guilt Trial Issues and Assignments of Error 90 I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S Il. MOTION FOR CHANGEOF VENUE; DENIAL OF APPELLANT’S CHANGE OF VENUE MOTION VIOLATED HIS RIGHTS TO A FAIR TRIAL, TO DUE PROCESS, AND TO A RELIABLE PENALTY DETERMINATION GUARANTEEDBYTHE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION 90 A. Factual and Procedural Background . 90 B. Standard ofReview 93 C. The Court Erred and Abusedits Discretion on Denying Appellant’s Motion for Change ofVenue 94 D. Denial of Appellant’s Change ofVenue Also Violated His Rights to a Fair Trial, Due Process ofLaw, and to a Reliable Penalty Determination Guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution 107 THE TRIAL JUDGE’S YEARS-LONG CLOSE PERSONAL AND PROFESSIONAL RELATIONSHIP WITH THE PROSECUTOR, AND THE CONSEQUENT APPEARANCE OF BIAS, PRESUMEDBIAS, AND ACTUAL BIAS, REQUIRED THE JUDGE TO DISQUALIFY HIMSELFIN THIS CASE; THE COURT’S FAILURE TO DO SO DEPRIVED APPELLANT OF HIS FUNDAMENTAL RIGHTSTO A FAIR TRIAL, DUE PROCESS OF LAW AND TO A RELIABLE PENALTY DETERMINATIONIN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION; FURTHER, AS STRUCTURAL ERROR, THE FAILURE TO DISQUALIFY WAS PREJUDICIAL PER SE 119 iv TOPICAL INDEX (CONTINUED) Page ASIGNMENTSOF ERROR(Cont.) II. (Cont.) A. Factual and Procedural Background 119 B. Standard of Review 121 C. Waiver; Ineffective Assistance ofCounsel 122 D. The Appearance of Impartiality, Presumed Bias and Actual Bias Required the Court to Disqualify Itself; the Trial Court’s Failure to Do So Violated Appellant’s Rights to a Fair Trial and Due Process ofLaw Guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 7 and 15 ofthe California Constitution; the Error was Prejudicial Per Se 127 E. The Denial ofAppellant’s Right’s to a Fair Trial in a Fair Tribunal Before an Impartial Judge Also Rendered the Guilt and Penalty Determinations Unreliable in Violation ofthe Eighth and Fourteenth Amendmentsto the United States Constitution 138 Il. THE EVIDENCE WASINSUFFICIENT UNDER THE DUE PROCESS CLAUSES OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE CALIFORNIA CONSTITUTION(ART.I, § 15) TO SUPPORT APPELLANT’S CONVICTION OF CARJACKING ON COUNT 4 (§ 215, SUBD.(a) AND FIRST DEGREE FELONY-MURDER ON COUNT1 (§ 187) PREDICATED ON THE COMMISSION OR ATTEMPTED COMMISSION OF A CARJACKING 141 A. Factual and Procedural Background 141 B. Standard ofReview 142 TOPICAL INDEX (CONTINUED) Page ASIGNMENTSOF ERROR(Cont.) Til. IV. /// (Cont.) C. Constitutional Due Process Standards 143 D. Insufficiency ofthe Evidence of Carjacking and Felony-Murder 144 THE EVIDENCEWASINSUFFICIENT UNDER THE DUE PROCESS CLAUSES OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE CALIFORNIA CONSTITUTION(ART.I, § 15) TO SUPPORT THE SPECIAL CIRCUMSTANCEFINDINGIN COUNT 1 OF CARJACKING-MURDERPURSUANT TO§ 190.2, SUB- DIVISION(a)(17)(L); INSUFFICIENCY OF THE EVIDENCE ALSO RENDERED THE SPECIAL CIRCUMSTANCEFINDING UNRELIABLEIN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION | 158 A. Factual and Procedural Background 158 B. Sufficiency ofEvidence, Generally 160 C. Insufficiency ofthe Evidence to Support the Special Circumstance Finding that the Murder Occurred in the Commission or Attempted Commission of a Carjacking 161 D. Insufficiency ofthe Evidence to Support the Special Circumstance Finding Also Led to an Unreliable Penalty Determination in Violation ofAppellant’s Fundamental Rights Guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution 167 vi TOPICAL INDEX (CONTINUED) B. Penalty Trial Issues and Assignments of Error V. THE TRIAL COURT ERRONEOUSLY AND PREJUDICIALLY FAILED TO INSTRUCT THE JURY ON THE APPROPRIATE USE OF VICTIM IMPACT EVIDENCEIN VIOLATION OF APPELLANT’S RIGHTSTO A FAIR TRIAL, DUE PROCESS, AND TO A RELIABLE DETERMINATION OF PENALTY GUARANTEEDBYTHE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION; THE ERROR WAS NOT HARMLESS BEYOND A REASONABLE DOUBT A. Factual and Procedural Background B. Admissibility ofVictim Impact Evidence, Generally; Jury Instructions C. The Court Failed to Instruct the Jury on the Proper Use of Victim-Impact Evidence; the Error Was Not Harmless Beyond a Reasonable Doubt VI. THE TRIAL COURT ERRED BY PERMITTING THE STATE TO RETRY THE VONSEGGERN KILLING AND APPELLANT’S PRIOR 1993 MANSLAUGHTER CONVICTION, AND BY GIVING MURDERINSTRUCTIONSIN THE LANGUAGEOF CALJIC NOS. 8.00-8.21 AND ON AGGRAVATING FACTORS IN THE MODIFIED LANGUAGE OF CALJIC NO.8.87, THEREBY ALLOWING THE STATE TO ELEVATETHE PRIOR KILLING AND ADJUDICATED MANSLAUGHTER TO MURDERIN VIOLATION OF THE “PROSECUTED AND ACQUITTED” PROHIBITION OF PENAL CODE SECTION 190.3, THE DOCTRINE OF COLLATERAL ESTOPPEL, THE CONSTITUTIONAL PROSCRIPTION AGAINST DOUBLE JEOPARDY, AND APPELLANT’S RIGHTS TO DUE PROCESSOF LAW,FAIR TRIAL, AND A RELIABLE PENALTY DETERMINATION GUARANTEEDBYTHE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION vii Page 169 169 169 171 175 183 TOPICAL INDEX (CONTINUED) Page ASIGNMENTSOF ERROR(Cont.) VI. (Cont.) A. Factual and Procedural Background 183 B. Retrial of Appellant for the Murder ofVonSeggern as a Separate and Additional Factor in Aggravation, Was Prohibited by the “Prosecuted and Acquitted” Provision of Section 190.3 187 C. Principles of Collateral Estoppel and Res Judicata Barred the State From Retrying Appellant’s 1992 Manslaughter Conviction During the Penalty Trial in Order to Elevate the Crime to Murder 194 D. Retrial ofAppellant’s Manslaughter Conviction Was Barred by the Proscription Against Double Jeopardy Embodiedin the Fifth and Fourteenth Amendments to the United States Constitution and California Constitution, Article I, Section 15 203 E. Appellant Did Not Waive or Forfeit the Claims of Error; Ineffective Assistance of Counsel 212 F. Retrial ofAppellant’s Manslaughter Conviction Violated Appellant’s Fundamental Constitutional Rights to a Fair Trial, Due Process, andto a Reliable Penalty Determination Guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution | (217 VII. THE JURY INSTRUCTIONS ON THE MITIGATING AND AGGRAVATING FACTORS IN SECTION 190.3, AND THE JURORS’ APPLICATION OF THESE SENTENCING FACTORS, RENDERED APPELLANT’S DEATH SENTENCE CAPRICIOUS AND ARBITRARYIN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION 225 Vili TOPICAL INDEX (CONTINUED) ASIGNMENTS OF ERROR(Cont.) VII. (Cont.) A. Factual and Procedural Background B. The Instruction on Section 190.3, Subdivision (a) and Application of that Sentencing Factor Resulted in the Arbitrary and Capricious Imposition of the Death Penalty C. The Instruction on Penal Code Section 190.3, Subdivision (b) and the Jurors’ Application ofthat Sentencing Factor Violated Appellant’s Constitutional Rights to a Fair Penalty Trial, Due Process, Equal Protection, Trial by Jury and a Reliable Penalty Determination 1, 2. Introduction The Use ofUnadjudicated Criminal Activity as Aggravation Renders Appellant’s Death Sentence Unconstitutional The Failure to Require a UnanimousJury Finding on the Unadjudicated Acts of Violence Denied Appellant His Right to a Jury Trial Guaranteed by the Sixth and Fourteenth Amendments and Requires Reversal ofHis Death Sentence Absent a RequirementofJury Unanimity in Respect to the Alleged Unadjudicated Acts ofViolence, the Instructions on Section 190.3, Subdivision (b) Allowed Jurors to Impose the Death Penalty on Appellant Based on Unreliable Factual Findings That Were Never Deliberated, Debated, or Discussed Page 225 228 237 _ 237 239 240 244 TOPICAL INDEX (CONTINUED) Page ASIGNMENTSOF ERROR(Cont.) VII. (Cont.) D. The Failure to Require the Jury to Base a Death Sentence on Written Findings Regarding the Aggravating Factors Violates Appellant’s Constitutional Rights to Meaningful Appellate Review and Equal Protection ofthe Law 248 E. Evenifthe Absence ofthe Previously Addressed Procedural Safeguards Does Not Render California’s Death Penalty Scheme Constitutionally Inadequate to Ensure Reliable Capital Sentencing, Denying Them to Capital Defendants Such as Appellant Nevertheless Violates Equal Protection Requirements of the Fourteenth Amendmentto the United States Constitution 252 F. Conclusion 253 VIN. PENAL CODE SECTION 190.3 AND IMPLEMENTING JURY INSTRUCTIONS (CALJIC NOS. 8.84-8.88) ARE UNCONSTITUTIONAL, BECAUSE THEY FAIL TO SET OUT THE APPROPRIATE BURDEN OF PROOF OR CONTAIN OTHER CONSTITUTIONALLY COMPELLED SAFEGUARDS AND PROTECTIONS REQUIREDBYTHE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION 255 A. Introduction 255 B. TheStatute and Instructions Unconstitutionally Fail to Assign to the State the Burden ofProving Beyond a Reasonable Doubt the Existence of an Aggravating Factor, that the Aggravating Factors Outweigh the Mitigating Factors, and that Death is the Appropriate Penalty 256 TOPICAL INDEX (CONTINUED) ASIGNMENTSOF ERROR(Cont,) VIII. (Cont.) C. The California and United States Constitutions Require an Instruction That the Jury May Impose a Sentence ofDeath Only if Persuaded Beyond a Reasonable Doubt that the Aggravating Factors Outweigh the Mitigating Factors and that Death is the Appropriate Penalty 1. Factual Determinations 2. Imposition ofLife or Death D. The Fifth, Sixth, Eighth, and Fourteenth Amendments Require that the State Bear Some Burden ofPersuasion at the Penalty Phase E. The Instructions Violated the Sixth, Eighth, and Fourteenth Amendments by Failing to Require Juror Unanimity on Aggravating Factors F. The Penalty Jury Should Have Been Instructed on the Presumption ofLife G. Conclusion IX. THE USE OF CALJIC NO. 8.88, DEFINING THE SCOPE OF THE JURY’S SENTENCING DISCRETION AND THE NATURE OF ITS DELIBERATIVE PROCESS, VIOLATED APPELLANT’S FUNDAMENTALRIGHTSTO A FAIR TRIAL, DUE PROCESS, EQUAL PROTECTION, AND A RELIABLE DETERMINATION OF PENALTY GUARANTEEDBYTHE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION //1 xi Page 265 265 267 272 276 282 284 285 TOPICAL INDEX (CONTINUED) Page ASIGNMENTSOF ERROR(Cont.) IX. (Cont.) A. The Use CALJIC No. 8.88 Caused the Jury’s Penalty Choice to Turn on an Impermissibly Vague and Ambiguous Standard that Failed to Provide Adequate Guidance and Direction 286 B. CALJIC No. 8.88 Failed to Inform the Jurors that the Central Determination is Whether the Death Penalty is the Appropriate Punishment, Not Simply an Authorized Penalty 289 C. CALJIC No.8.88 Failed to Inform the Jurorsthat if They Determined that Mitigation Outweighed Aggravation, They Were Required to Return a Sentence ofLife Without the Possibility of Parole 293 D. Conclusion X. APPELLANT’S DEATH SENTENCE VIOLATESINTER- NATIONAL LAW,WHICHIS BINDING ON THIS COURT, AS WELL AS THE EIGHTH AMENDMENTTO THE UNITED STATES CONSTITUTION 299 XI. THE CUMULATIVEEFFECT OF ERRORS UNDERMINED THE FUNDAMENTAL FAIRNESS OF TRIAL AND THE RELIABILITY OF THE DEATH JUDGMENTIN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH | AMENDMENTSTO THE UNITED STATES CONSTITUTION 304 CONCLUSION 309 CERTIFICATE OF COMPLIANCE 309 PROOF OF SERVICE | 310 Xii TABLE OF CASES Abelson v. National Union Fire Ins. Co. (1994) 28 Cal.App.4th 776 Addington v. Texas (1979) 441 U.S. 418 [99 S.Ct. 1804, 60 L.Ed.2d 323] Aetna Life Ins. Co. v. Lavoie (1986) 475 U.S. 813 [106 S.Ct. 1580, 89 L.Ed.2d 823] Allen v. McCurry (1980) 449 US. 90 [101 S.Ct. 411, 66 L. Ed.2d 308] Allen v. United States . (1896) 164 U.S. 492 [17 S.Ct. 154, 41 L.Ed. 528] Apodaca v. Oregon (1972) 406 U.S. 404 [92 S.Ct. 1628, 32 L.Ed.2d 184] Applebaum v. Board ofDirectors ofBarton Memorial Hospital (1980) 104 Cal.App.3d 648 Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] Arave v. Creech (1993) 507 U.S. 463 [113 S.Ct. 1534, 123 L.Ed.2d 188] Arias v. Superior Court (2009) 46 Cal.4th 969 Arizona v. Fulminante (1991) 499 U.S. 279 [111 S.Ct. 1246, 113 L. Ed.2d 302] Arnold v. State (1976) 236 Ga. 534 [224 S.E.2d 386] Ashe v. Swenson (1970) 397 U.S. 436 [90 S.Ct. 1189, 25 L.Ed.2d 469] xiii Page 199 267, 269, 270 128, 134 202 247 241 130 Passim 175, 235, 236 194 127, 129, 139 287, 288 194, 196, 199 TABLE OF CASES (CONTINUED) Atkins v. Virginia (2002) 536 U.S. 304 [122 S.Ct. 2242, 153 L.Ed.2d 335] Ballew v. Georgia (1978) 435 U.S. 223 [98 S.Ct. 1029, 55 L.Ed.2d 234] Baze v. Rees (2008) 553 U.S. 35 [128 S.Ct. 1520, 1548, 170 L.Ed.2d 420] Beck v. Alabama (1980) 447 U.S. 625 [100 S.Ct. 2382, 65 L.Ed.2d 392} Benton v. Maryland (1969) 395 U.S. 784 [89 S.Ct. 2056, 23 L.Ed.2d 707] Blackledge v. Perry (1974) 417 U.S. 21 [94 S.Ct. 2098, 40 L.Ed.2d 628] Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] Blystone v. Pennsylvania (1990) 494 U.S. 299 [110 S.Ct. 1078, 108 L.Ed.2d 255] Boyde v. California | (1990) 494 U.S. 370 [110 S.Ct. 1190, 108 L.Ed.2d 316] Boykin v. Alabama (1969) 395 U.S. 238 [89 S.Ct. 1709, 23 L.Ed.2d 274] Bracy v. Gramley (1997) 520 U.S. 899 [117 S.Ct. 1793, 138 L.Ed.2d 97] Brady v. United States (1970) 397 U.S. 742 [90 S.Ct. 1463, 25 L.Ed.2d 747] Briggs v. Superior Court (2001) 87 Cal.App.4th 312 Xiv Page 299, 300 Passim 302 Passim 204 206 Passim 291 293 212 128, 132 213 121 TABLE OF CASES (CONTINUED) Brinton v. Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550 Brosterhous v. State Bar (1995) 12 Cal.4th 315 Brown v. Louisiana Page 198 201 (1979) 447 U.S.323 [100 S.Ct. 2214, 65 L.Ed.2d 159] 242, 246, 247, 279 Brown vy. Ohio (1977) 432 U.S. 161 [97 S.Ct. 2221, 53 L.Ed.2d 187] Bullington vy. Missouri 192, 205, 206 (1981) 451 U.S. 430 [101 S.Ct. 1852, 68 L.Ed.2d 270] 208, 218, 219, 270 Burch v. Louisiana (1978) 441 U.S. 130 [99 S.Ct. 1623, 60 L.Ed.2d 96] Burks v. United States (1978) 437 U.S. 1 [98 S.Ct. 2141, 57 L.Ed.2d 1] Caldwell v. Mississippi (1985) 472 U.S. 320 [105 S.Ct. 2633, 86 L.Ed.2d 231] California v. Brown (1987) 479 U.S. 538 [107 S.Ct. 837, 93 L.Ed.2d 934] California v. Ramos (1983) 463 U. S. 992 [103 S.Ct. 3446, 77 L.Ed.2d 1171] Calley v. Callaway (Sth Cir. 1975) 519 F.2d 184 Caperton v. A.T. Massey Coal Co. (2009) 556 U.S. 868 [129 S.Ct. 2252, 173 L.Ed.2d 1208] Castillo v. City ofLos Angeles (2001) 92 Cal.App.4th 477 XV 242 211 Passim 248, 256, 289 218, 222 116 133, 136, 138 198 TABLE OF CASES (CONTINUED) Page Catchpole v. Brannon (1995) 36 Cal.App.4th 237 : 139 Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705 Passim Christie v. City ofEl Centro (2006) 135 Cal.App.4th 767 138 Coleman v. Kemp (11th Cir. 1985) 778 F.2d 1487 108 Commonwealth v. O’Neal (Mass. 1975.) 327 N.E.2d 662 | 253 Conev. Bell (6th Cir. 2001) 243 F.3d 961 125, 216 Conservatorship ofRoulet | (1979) 23 Cal.3d 219 , 268 Cool v. United States (1972) 409 U.S. 100 [93 S.Ct. 354, 34 L.Ed.2d 335] 298 Cooperv. Fitzharris (9th Cir. 1978) 586 F.2d 1325 304 Cunningham v. California - (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856] Passim Delaney v. United States . (1st Cir. 1952) 199 F.2d 107 109, 110 Delo v. Lashley (1983) 507 U.S. 272 [113 S.Ct, 1222, 122 L.Ed.2d 620] 283 Donnelly v. DeChristoforo (1974) 416 U.S. 637 [94 S.Ct. 1868, 40 L.Ed.2d 431] 192, 304, 305 xvi Eddings v. Oklahoma TABLE OF CASES (CONTINUED) (1982) 455 U.S. 104 [102 S.Ct. 869, 71 L.Ed.2d1] Estelle v. Williams (1976) 425 U.S. 501 [96 S.Ct. 1691, 48 L.Ed.2d 126] Estes v. Texas (1965) 381 U.S. 532 [85 S.Ct. 1628, 14 L.Ed.2d 543] Evitts v. Lucey (1985) 469 U.S. 387 [105 S.Ct. 830, 83 L.Ed.2d 821] Ezekial v. Winkley (1977) 20 Cal.3d 267 Fahy v. Connecticut (1963) 375 U.S. 85 [84 S.Ct. 229, 11 L.Ed.2d 171] _ Flier v. Superior Court (1994) 23 Cal.App.4th 165 Frank v. Mangum (1915) 237 U. S. 309 [35 S.Ct. 582, 59 L.Ed. 969] Furman v. Georgia (1972) 408 U.S. 238 [92 S.Ct. 2726, 33 L.Ed.2d 346] Gardnerv. Florida (1977) 430 U.S. 349 [97 S.Ct. 1197, 51 L.Ed.2d 393] Gentile v. State Bar ofNevada (1991) 501 U.S. 1030 [111 S.Ct. 2720, 115 L.Ed.2d 888] Gideon v. Wainwright (1963) 372 U.S.335 [83 S.Ct. 792, 9 L.Ed.2d 799] Godfrey v. Georgia (1980) 446 U.S. 420 [100 S.Ct. 1759, 64 L.Ed.2d 398] XVii Page 157, 168, 273, 275 282 113 297 ~ 130 180, 181 | (121 117 Passim Passim 1 12 295 236, 252, 289 TABLE OF CASES (CONTINUED) Page Green v. Georgia (1979) 442 U.S. 95 [99 S.Ct. 2150, 60 L.Ed.2d 738] 245 Green v. United States | (1957) 355 U.S. 184 [78 S.Ct. 221, 2 L.Ed.2d 199] 204, 218 Greer v. Miller (1987) 483 U.S. 756 [107 S.Ct. 3102, 97 L.Ed.2d 618] 304 Gregg v. Georgia (1976) 428 U.S. 153 [96 S.Ct. 2909, 49 L.Ed.2d 859] 175, 248, 287, 303 Griffin v. United States (1991) 502 U.S. 46 [112 S.Ct. 466, 116 L-Ed.2d 371] 278 Hambarian v. Superior Court (2002) 27 Cal.4th 826 130 Hannah v. Larche (1960) 363 U.S. 420 [80 S.Ct. 1502, 4 L.Ed.2d 1307] 138, 139 Harmelin v. Michigan (1991) 501 U.S. 957 [111 S.Ct. 2680, 115 L.Ed.2d 836] 250, 280, 302 Harris v. Wood (9th Cir. 1995) 64 F.3d 1432 305 Hicks v. Oklahoma (1980) 447 U.S. 343 [100 S.Ct. 2227, 65 L.Ed.2d 175] 240, 293, 294, 297 Hildwin v. Florida (1989) 490 U.S. 638 [109 S.Ct. 2055, 104 L.Ed.2d 728] 278 Hitchcock v. Dugger (1987) 481 U.S. 393 [107 S.Ct. 1821, 95 L.Ed.2d 347] 307, 308 Illinois v. Vitale (1980) 447 U.S. 410 [100 S.Ct. 2260, 65 L.Ed.2d 228] 206 xviii TABLE OF CASES (CONTINUED) Page In re Andrews (2002) 28 Cal.4th 1234 124, 215 In re Dixon (1953) 41 Cal.2d 756 126 In re Marquez (1992) 1 Cal.4th 584 306 In re Murchison (1955) 349 U.S. 133 [75 S.Ct. 623, 99 L.Ed. 942] 107, 111, 128, 129 ‘In re Sturm (1974) 11 Cal.3d 258 249, 250 In re Waltreus (1965) 62 Cal.2d 218 126 In re Winship (1970) 397 U.S. 358 [90 S.Ct. 1068, 25 L.Ed.2d 368] 266, 267, 268, 269 In re Yurko ~ (1974) 10 Cal.3d 857 203 Irvin v. Dowd (1961) 366 US. 717 [81 S.Ct. 1639, 6 L.Ed.2d 751] 109, 110, 113, 115 Izazaga v. Superior Court (1991) 54 Cal.3d 356 295 Jackson v. Virginia (1979) 443 U.S. 307 [99 S.Ct. 2781, 61 L.Ed.2d 560] 143, 156, 167 Jeffers v. United States (1977) 432 U.S. 137 [97 S.Ct. 2207, 53 L.Ed.2d 168] 206 Johnson v. Louisiana (1972) 406 U.S. 356 [92 S.Ct. 1620, 32 L.Ed.2d 152] 241, 246, 247, 248 xix TABLE OF CASES (CONTINUED) Johnson v. Mississippi (1988) 486 U.S. 578 [108 S.Ct. 1981, 100 L.Ed.2d 575] Johnson v. Texas (1993) 509 U.S. 350 [113 S.Ct. 2658, 125 L.Ed.2d 290] Johnson v. Zerbst (1938) 304 U.S. 458 [58 S.Ct. 1019, 82 L.Ed. 461] Joint Anti-Fascist Refugee Committee v. McGrath (1951) 341 US. 123 [71 S.Ct 624, 95 L.Ed. 817] Jurek v. Texas (1976) 428 U.S. 262 [96 S.Ct. 2950, 49 L.Ed.2d 929] Kansas v. Marsh (2006) 548 U.S.163 [126 S.Ct. 2516, 165 L.Ed.2d 429] Killian v. Poole (9th Cir. 2002) 282 F.3d 1204 Krulewitch v. United States (1949) 336 U.S. 440 [69 S.Ct. 716, 93 L.Ed. 790] Larson v. Palmateer (9th Cir. 2007) 515 F.3d 1057 Lewis v. Jeffers (1990) 497 U.S. 764 [110 S.Ct. 3092, 111 L.Ed.2d 606] Lockett v. Ohio (1978) 438 U.S. 586 [98 S.Ct. 2954, 57 L.Ed.2d 973] Louisiana ex rel. Francis v. Resweber (1947) 329 U.S. 459 [67 S.Ct. 374, 91 L.Ed. 422] Lucido v. Superior Court (1990) 51 Cal.3d 335 Page 248, 274, 279 228 213 140 294 237 305 110 139 175 Passim 211 198, 201 TABLE OF CASES (CONTINUED) Lutwakv. United States (1953) 344 US. 604 [73 S.Ct. 481, 97 L.Ed.2d 593] Matthewsv. Eldridge (1976) 424 US. 319 [96 S.Ct. 893, 47 L.Ed.2d 18] Maynard v. Cartwright (1988) 486 U.S. 356 [108 S.Ct. 1853, 100 L.Ed.2d 372] Mayola v. Alabama (Sth Cir. 1980) 623 F.2d 992 McKoy v. North Carolina (1990) 494 U.S. 433 [110 S.Ct. 1227, 108 L.Ed.2d 369] McMillin Development, Inc. v. Home Buyers Warranty (1998) 68 Cal.App.4th 896 Mills v. Maryland (1988) 486 U.S. 367 [108 S.Ct. 1860, 100 L.Ed.2d 384] Mongev. California (1998) 524 U.S. 721 [118 S.Ct. 2246, 141 L.Ed.2d 615] Montana v. United States (1979) 440 US. 147 [99 S.Ct. 970, 59 L.Ed.2d 210] Mu'’Minv. Virginia (1991) 500 U.S. 415 [111 S.Ct. 1899, 114 L.Ed.2d 493] Murphyv. Florida (1975) 421 U.S. 794 [95 S.Ct. 2031, 44 L.Ed.2d 589] Murrayv. Alaska Airlines, Inc. (2010) 50 Cal.4th 860 Murray v. Giarratano (1989) 492 U.S. 1 [109 S.Ct. 2765, 106 L.Ed.2d 1] Page 213 267 Passim 108 278 198 Passim Passim | 202 112 110, 113, 114 195 222 TABLE OF CASES (CONTINUED) Murray’s Lessee v. Hoboken Land & Improvement Co. (1855) 59 U.S. 272 [18 How. 272] Murtishaw v. Woodford (9th Cir. 2001) 255 F.3d 926 Myersv. Yist (9th Cir. 1990) 897 F.2d 417 North Carolina v. Pearce (1969) 395 U.S. 711 [89 S.Ct. 2072, 23 L.Ed.2d 656] Offutt v. United States (1954) 348 U.S. 11 Ohio v. Johnson (1984) 467 U.S. 493 [104 S.Ct. 2536, 81 L.Ed.2d 425] Ohio Bell Telephone Co. v. Public Utilities Com. (1937) 301 U.S. 292 [57 S.Ct. 524, 81 L.Ed. 1093] Parklane Hosiery Co. v. Shore (1979) 439 U.S. 322 [99 S.Ct. 645, 58 L.Ed.2d 552] Patterson v. Colorado ex rel. Attorney General ofColo. (1907) 205 U.S. 454 [27 S.Ct. 556, 51 L.Ed. 879] Patton v. United States (1930) 281 U.S. 276 [50 S.Ct. 253, 74 L.Ed. 854] Patton v. Yount (1984) 467 U.S. 1025 [104 S.Ct. 2885, 81 L.Ed.2d 847] Payne v. Tennessee (1991) 501 U.S. 808 [111 S.Ct. 2597, 115 L. Ed.2d 720] People v. Adcox (1988) 47 Cal.3d 207 Page 278 290 240, 250, 280 205, 206 129 203, 206 140 195 107 213 101, 110 171, 172, 179 231 TABLE OF CASES (CONTINUED) Page People v. Allison (1989) 48 Cal.3d 879 230, 233 People v. Alvarado (1999) 76 Cal.App.4th 156 148 People v. Anderson (2001) 25 Cal.4th 543 259 People v. Antoine (1996) 48 Cal.App.4th 489 146, 147, 152, 166 People v. Arias (1996) 13 Cal.4th 92 283 People v. Ashmus (1991) 52 Cal.3d 932 181, 234 — People v. Avena (1996) 13 Cal.4th 394 234 People v. Bacigalupo (1993) 6 Cal.4th 457 291 People v. Bacigalupo (1991) 1 Cal.4th 103 277, 278 People v. Barragan (2004) 32 Cal.4th 236 197 People v. Bassett (1968) 69 Cal.2d 122 197 People v. Beames (2007) 40 Cal.4th 907 236, 237 People v. Bean (1988) 46 Cal.3d 919 _ 221, 233, 234 XXili TABLE OF CASES (CONTINUED) People v. Beeman (1984) 35 Cal.3d 547 People v. Belcher (1974) 11 Cal.3d 91 People v. Belenger (1963) 222 Cal.App.2d 159 People v. Belmontes (1988) 45 Cal.3d 744 People v. Benson (1990) 52 Cal.3d 754 People v. Berry (1976) 18 Cal.3d 509 People v. Bivert (2011) 52 Cal.4th 96 People v. Blair (2005) 36 Cal.4th 686 People v. Bloom (1989) 48 Cal.3d 1194 People v. Bolton (2011) 192 Cal.App.4th 541 People v. Bonin (1988) 46 Cal.3d 659 People v. Boyer (2006) 38 Cal.4th 412 People v. Boyette (2002) 29 Cal.4th 381 XXxiv Page 149, 164 214 151 230, 233 190, 231, 233 190 265 265 222 220 233 139 172, 176 TABLE OF CASES (CONTINUED) Page People v. Bradford (1997) 15 Cal.4th 1229 . 191, 192 People v. Brady (2010) 50 Cal.4th 547 172, 176 People v. Bramit (2009) 46 Cal.4th 1221 172, 290 People v. Breaux (1991) 1 Cal.4th 281 261, 287, 288 People v. Breverman (1988) 19 Cal.4th 142 ' 177 People v. Bright (1996) 12 Cal.4th 652 189 People v. Brown | (2004) 33 Cal.4th 382 , 227 People v. Brown (1993) 6 Cal.4th 322 121, 122, 138 People v. Brown (1988) 46 Cal.3d 432 180, 181, 182, 306 People v. Brown (1985) 40 Cal.3d 512 256, 289, 293 People v. Burney | (2009) 47 Cal.4th 203 172, 241, 249 People v. Burnick (1975) 14 Cal.3d 306 268 People v. Cain (1995) 10 Cal.4th 1 233, 234 TABLE OF CASES (CONTINUED) People v. Carpenter (1997) 15 Cal.4th 312 People v. Carrera (1989) 49 Cal.3d 291 People v. Carrington (2009) 47 Cal.4th 145 People v. Carter (2003) 30 Cal.4th 1166 People v. Carter (2005) 36 Cal.4th 1215 People v. Catlin (2001) 26 Cal.4th 81 People v. Chadd (1981) 28 Cal.3d 739 People v. Champion (1995) 9 Cal.4th 879 People v. Chatman (2006) 38 Cal.4th 344 People v. Clair (1992) 2 Cal.4th 692 People v. Clark (2011) 52 Cal.4th 856 People v. Clark (1992) 3 Cal.4th 41 People v. Coddington (2000) 23 Cal.4th 529 Page 231, 232, 234 230 176, 227, 241, 243 124, 215 131 194, 213, 214, 304 192 289 128, 134, 137, 138 233 122, 181 233 230, 233 TABLE OF CASES (CONTINUED) People v. Coffman andMarlow (2004) 34 Cal.4th 1 People v. Coleman (2007) 146 Cal.App.4th 1363 People v. Conner (1983) 34 Cal.3d 141 People v. Cooper (1991) 53 Cal.3d 771 People v. Coryell (2003) 110 Cal.App.4th 1299 People v. Costello (1943) 21 Cal.2d 760 People v. Cox (2003) 30 Cal.4th 916 People v. Crawford (1982) 131 Cal.App.3d 591 People v. Cruz (2008) 44 Cal.4th 636 People v. Cudjo (1993) 6 Cal.4th 585 People v. Cunningham (2001) 25 Cal.4th 926 People v. D’Arcy (2010) 48 Cal.4th 257 People v. Davenport (1985) 41 Cal.3d 247 XXVii Page 102, 287 153 130 101 154, 155 295 258 244 227 256 216, 217 229, 243 261 TABLE OF CASES (CONTINUED) Page People v. Davis (2009) 46 Cal.4th 539 91, 92, 174 People v. Davis (2005) 36 Cal.4th 510 162 People v. Deere (1991) 53 Cal.3d 705 233 People v. Dellinger (1985) 163 Cal.App.3d 284 244 People v. Dennis (1998) 17 Cal.4th 468 98 People v. Duncan (1991) 53 Cal.3d 955 274, 295, 296 People v. Dunkle (2005) 36 Cal.4th 861 232, 284 People v. Duran (2001) 88 Cal.App.4th 1371 154, 155 People v. Edelbacher (1989) 47 Cal.3d 983 289 People v. Edwards (1991) 54 Cal.3d 787 171, 172, 231, 233 People v. Enraca (2012) 53 Cal.4th 735 249 People v. Ervine (2009) 47 Cal.4th 745 172 People v. Eubanks (1996) 14 Cal.4th 580 130 XXViil TABLE OF CASES (CONTINUED) Page People v. Famalaro (2011) 52 Cal.4th 1 91, 104, 176, 177 People v. Fauber (1992) 2 Cal.4th 792 232, 233, 234, 249 People v. Feagley (1975) 14 Cal.3d 338 268 People v. Fields (1996) 13 Cal.4th 289 89, 205, 210 People v. Fish (2005) 131 Cal.App.4th 1210 144 People v. Foster (2010) 50 Cal.4th 1301 287, 288 People v. Freeman (1994) 8 Cal.4th 450 230, 231, 234 People v. Friend (2009) 47 Cal.4th 1 239, 257 People v. Frierson | (1991) 53 Cal.3d 730 230 People v. Frye (1998) 18 Cal.4th 894 227 People v. Gaines (1980) 112 Cal.App.3d 508 203 People v. Gamache (2010) 48 Cal.4th 347 124, 215 People v. Ghent (1987) 43 Cal.3d 739 243 TABLE OF CASES (CONTINUED) People v. Gilmore (1854) 4 Cal. 376 People v. Glenn (1991) 229 Cal.App.3d 1461 People v. Gomez (2011) 192 Cal.App.4th 609 People v. Gonzales (2011) 51 Cal.4th 894 People v. Gonzales and Soliz (2011) 52 Cal.4th 254 People v. Grandy (2006) 144 Cal.App.4th 33 People v. Green (1980) 27 Cal.3d 1 People v. Greer (1947) 30 Cal.2d 589 People v. Griffin (2004) 33 Cal.4th 536 People v. Guerra (2006) 37 Cal.4th 1067 People v. Guerrero (1988) 44 Cal.3d 343 People v. Guzman (1988) 45 Cal.3d 915 People v. Hall (1986) 41 Cal.3d 826 Page 189 297 149, 150, 165 272, 283 227, 257 144 145, 162 190, 205 227, 265, 270, 291 131, 143 210 162 145 TABLE OF CASES (CONTINUED) People v. Hamilton (1995) 40 Cal.App.4th 1137 People v. Hanson (2000) 23 Cal.4th 355 People v. Harris (2005) 37 Cal.4th 310 People v. Hart (1999) 20 Cal.4th 546 People v. Hartsch (2010) 49 Cal.4th 472 People v. Haskett (1990) 52 Cal.3d 210 People v. Haskett (1982) 30 Cal.3d 841 People v. Hawkins (1995) 10 Cal.4th 920 People v. Hawthorne (1992) 4 Cal.4th 43 People v. Hayes (1990) 52 Cal.3d 577 People v. Hernandez (1988) 47 Cal.3d 315 People y. Hill (2000) 23 Cal.4th 853 People v. Hill (1998) 17 Cal.4th 800 XXxi Page 147, 148, 164 220 123, 128, 176 207 176, 178 261 180 231 250, 251, 265, 282 Passim 144, 161 146, 148, 155 305, 307 TABLE OF CASES (CONTINUED) People v. Hillhouse (2002) 27 Cal.4th 469 People v. Hines (1997) 15 Cal.4th 997 People v. Hoard (2002) 103 Cal.App.4th 599 People v. Hoffard (1995) 10 Cal.4th 1170 People v. Holmes (2004) 32 Cal.4th 432 People v. Holt (1984) 37 Cal.3d 436 People v. Horning (2004) 34 Cal.4th 871 People v. Howard (1992) 1 Cal.4th 1132 People v. Hughes (2002) 27 Cal.4th 287 People v. Jackson (1996) 13 Cal.4th 1164 People v. Javier A. (1985) 38 Cal.3d 811 People v. Jenkins (2000) 22 Cal.4th 900 People v. Jennings (1991) 53 Cal.3d 334 XXXii Page 142, 143 123, 243 151, 153 200 200 305 - 162 233 147 180, 233 143 94, 96, 102, 160 98, 105, 231 TABLE OF CASES (CONTINUED) People v. Johnson (1992) 3 Cal.4th 1183 People v. Johnson (2006) 142 Cal.App.4th 776 People v. Jones (2003) 29 Cal.4th 1229 People v. Jones (2001) 25 Cal.4th 98 People v. Jurado (2006) 38 Cal.4th 72 People v. Kaurish (1990) 52 Cal.3d 648 People v. Kelley (1980) 113 Cal.App.3d 1005 People v. Kimble (1988) 44 Cal.3d 480 People v. Kipp (2001) 26 Cal.4th 1100 People v. Kogut (2005) 10 Misc.3d 305 [806 N.Y.S.2d 366] People v. Koontz (2002) 27 Cal.4th 1041 People v. Lavender (1934) 137 Cal.App. 582 People v. Lawley (2002) 27 Cal.4th 102 XXXili Page 193 199 181, 283, 304 162 236 232 | 295 161 147, 233 92 177, 190, 196, 197 151 187 TABLE OFCASES (CONTINUED) People v. Ledesma (1987) 43 Cal.3d 171 People v. Lee (2011) 51 Cal.4th 620 People v. Legrand (2002) 196 Misc. 179 [747 N.Y.S.2d 733] People v. Lennart (2004) 32 Cal.4th 1107 People v. Leonard (2007) 40 Cal.4th 1370 People v. Letner and Tobin (2010) 50 Cal.4th 99 People v. Lewis (2009) 46 Cal.4th 1255 People v. Lewis (2001) 26 Cal.4th 334 People v. Lewis (2001) 25 Cal.4th 610 People v. Lewis and Oliver (2006) 39 Cal.4th 970 People v. Livaditis (1992) 2 Cal.4th 759 Peoplev. Lomax (2010) 49 Cal.4th 530 People v. Lopez (2008) 42 Cal.4th 960 XXXIV Page 213 257, 285, 299 92 263 97, 98, 99 265 290 160 190, 207, 210 176 231 285 126, 147 TABLE OF CASES (CONTINUED) People v. Lopez (2003) 31 Cal.4th 1051 People v. Loy (2011) 52 Cal.4th 46 People v. Lucas - (1995) 12 Cal.4th 415 People v. Lucero (2000) 23 Cal.4th 692 People v. Marsden (1970) 2 Cal.3d 118 People v. Marshall (1997) 15 Cal.4th 1 People v. Marshall (1996) 13 Cal.4th 799 People v. Martin (1986) 42 Cal.3d 437 People v. Mata (1955)133 Cal.App.2d 18 People v. Mayfield (1997) 14 Cal.4th 668 People v. McLain (1988) 46 Cal.3d 97 People v. McPeters (1992) 2 Cal.4th 1148 People v. Medina (1995) 11 Cal.4th 694 XXXV Page 145, 146, 154 283 230, 232 234 135 163 145, 214 250 295 123 233 232 280 TABLE OF CASES (CONTINUED) People v. Medina (1995) 39 Cal.App.4th 643 People v. Melton (1988) 44 Cal.3d 713 People v. Memro (1985) 38 Cal.3d 658 People v. Mendoza (2007) 42 Cal.4th 686 People v. Mendoza Tello (1997) 15 Cal.4th 264 People v. Mickey (1991) 54 Cal.3d 612 People v. Milner (1988) 45 Cal.3d 227 People v. Mims (1955) 136 Cal.App.2d 828 People v. Minifie (1996) 13 Cal. 4th 1055 People v. Miranda (1987) 44 Cal.3d 57 People v. Monterroso (2004) 34 Cal.4th 743 People v. Moon (2005) 37 Cal.4th 1 People v. Moore (2011) 51 Cal.4th 386 XXXVI Page 152, 153 191, 208, 209, 210 156, 166 243, 272 124, 126, 215 160 289, 290 | 204 221 143 207 285, 290 295, 299 TABLE OF CASES (CONTINUED) People v. Moore (1954) 43 Cal.2d 517 People v. Morales (1989) 48 Cal.3d 527 People v. Morales (2003) 112 Cal.App.4th 1176 People v. Morrison (2004) 34 Cal.4th 698 People v. Murtishaw (2011) 51 Cal.4th 574 People v. Murtishaw (1989) 48 Cal.3d 1001 People v. Nelson (2011) 51 Cal.4th 198 People v. Ochoa (2001) 26 Cal.4th 398 People v. Ochoa (1998) 19 Cal.4th 353 People v. Ochoa (2011) 191 Cal.App.4th 664 People v. Olivas (1976) 17 Cal.3d 236 People v. Osband (1996) 13 Cal.4th 622 People v. Padilla (1995) 11 Cal.4th 891 XXXVii Page 296 230, 231 215, 216 227, 257 177, 272 177, 261 Passim 177, 178 190 197 252, 253 207, 231 232 TABLE OF CASES (CONTINUED) People v. Palacios (2007) 41 Cal.4th 720 People v. Panah (2005) 35 Cal.4th 395 People v. Partida (2005) 37 Cal.4th 428 People v. Perez (1992) 2 Cal.4th 1117 People v. Perry (2006) 38 Cal.4th 302 People v. Phillips (1985) 41 Cal.3d 29 People v. Pollock (2004) 32 Cal.4th 1153 People v. Powell (1967) 67 Cal.2d 32 People v. Pride (1992) 3 Cal.4th 195 People v. Prieto (2003) 30 Cal.4th 226 People v. Prince (2007) 40 Cal.4th 1179 People v. Proctor (1992) 4 Cal.4th 499 People v. Ramirez (2006) 39 Cal.4th 398 XXXViii Page 148, 165 Passim 140 163 299 233 176, 179, 261 220 98 259, 277 98, 257, 259 96 95, 96, 98, 99 TABLE OF CASES (CONTINUED) People v. Ramirez (2006) 141 Cal.App.4th 1501 People v. Ray (1996) 13 Cal.4th 313 People v. Rice (1976) 59 Cal.App.3d 998 People v. Robinson (2005) 37 Cal.4th 592 People v. Rodriguez (1999) 20 Cal.4th 1 People v. Rundle (2008) 43 Cal.4th 76 People v. Russell (2010) 50 Cal.4th 1228 People v. Salcido (2008) 44 Cal.4th 93 People v. Salgado (2001) 88 Cal.App.4th 5 People v. Samayoa (1997) 15 Cal.4th 795 People v. Santamaria (1994) 8 Cal.4th 903 People v. Scott (1997) 15 Cal.4th 1188 People v. Seaton (2001) 26 Cal.4th 598 Page 144 227 295 102 143 283 285 257 204 233 196 122, 213, 233 123, 207 TABLE OF CASES (CONTINUED) People v. Seel (2004) 34 Cal.4th 535 People v. Sheldon (1989) 48 Cal.3d 935 People v. Smith (2005) 35 Cal.4th 334 People v. Smith (2003) 30 Cal.4th 581 People v. Snow (2003) 30 Cal.4th 43 People v. Stanley (1995) 10 Cal.4th 764 People v. Staten (2000) 24 Cal.4th 434 People v. Statum (2002) 28 Cal.4th 682 People v. Steele (2002) 27 Cal.4th 1230 People v. Stewart (2004) 33 Cal.4th 425 People v. Sully (1991) 53 Cal.3d 1195 _ People v. Summersville (1995) 34 Cal.App.4th 1062 People v. Superior Court (Mitchell) (1993) 5Cal.4th 1229 xl Page 189 209 179 261, 288 121, 123 192, 200, 203 144 192, 200, 203 195, 196 128, 231 93 199 272 TABLE OF CASES (CONTINUED) People v. Taylor (2002) 26 Cal.4th 1155 People v. Taylor (1990) 52 Cal.3d 719 People v. Thomas (2011) 51 Cal.4th 449 People v. Thomas (1986) 41 Cal.3d 837 People v. Thomas (1977) 19 Cal1.3d 630 People v. Thompson (1980) 27 Cal.3d 303 People v. Thurman (2007) 157 Cal.App.4th 36 People v. Valladares (2009) 173 Cal.App.4th 1388 People v. Valladoli (1996) 13 Cal.4th 590 People v. Vasquez (2006) 39 Cal.4th 47 People v. Verdugo (2010) 50 Cal.4th 263 People v. Vieira (2005) 35 Cal.4th 264 People v. Virgil (2011) 51 Cal.4th 1210 xli Page 243 277 257, 299 200 268 221 204 190 203 129 243 93 139, 173, 177 TABLE OF CASES (CONTINUED) People v. Visciotti (1992) 2 Cal.4th 1 People v. Vogel (2007) 148 Cal.App.4th 131 People v. Waidla (2000) 22 Cal.4th 690 People v. Wallace (2008) 44 Cal.4th 1032 People v. Wallace (2004) 33 Cal.4th 738 People v. Watson (2008) 43 Cal.4th 652 People v. Weaver (2001) 26 Cal.4th 876 People v. Webb (1993) 6 Cal.4th 494 People v. Welch (1999) 20 Cal.4th 701 People v. Wheeler (1978) 22 Cal.3d 258 People v. Williams (1997) 16 Cal.4th 636 People v. Williams (1989) 48 Cal.3d 1112 People v. Williams (1971) 22 Cal.App.3d 34 xlii Page 231 199 232 163, 181 202 227 94 231, 232 95 279 136 101 304 TABLE OF CASES (CONTINUED) People v. Williams (2006) 14 Misc.3d 571 [830 N.Y.S.2d 452] People v. Wilson (1992) 3 Cal.4th 926 People v. Wright (1990) 52 Cal.3d367 People v. Yeoman (2003) 31 Cal.4th 93 Plyler v. Doe (1982) 457 U.S. 202 [102 S.Ct. 2382, 72 L.Ed.2d 786] Porter v. Superior Court (2007) 148 Cal.App.4th 899 Preciado v. County of Ventura (1982) 143 Cal.App.3d 783 Presnell v. Georgia (1978) 439 U.S. 14 [99 S.Ct. 235, 58 L.Ed.2d 207] Price v. Georgia (1970) 398 U.S. 323 [90 S.Ct. 1757, 26 L.Ed.2d 674] Proffitt v Florida (1976) 428 U.S. 242 [96 S.Ct. 2969, 49 L.Ed.2d 913] Reagan vy. United States (1895) 157 U.S. 301 [15 S.Ct. 610, 39 L.Ed.709] Reynolds v. United States (1879) 98 U.S. 145 [25 L.Ed. 244] Richardson v. Quarterman (Sth Cir. 2008) 537 F.3d 466 xiii Page 92 124, 215 123 123 297 205 194 266 212 273, 275 295 108, 110 132, 133, 136 TABLE OF CASES (CONTINUED) Page Richardson v. Superior Court (2008) 43 Cal.4th 1040 144 Richardson v. United States . (1999) 526 U.S. 813 [119 S.Ct. 707, 143 L.Ed.2d 985] 280 Rideau v. Louisiana (1963) 373 U.S. 723 [83 S.Ct. 1417, 10 L.Ed.2d 663] 109, 112, 113, 115 Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556] Passim Robinsonv. California (1962) 370 U.S. 660 [82 S.Ct. 1417, 8 L.Ed.2d 758] 167, 303 Romano v. Oklahoma (1994) 512 U.S. 1 [114 S.Ct. 2004, 129 L.Ed.2d 1] 224 Roper v. Simmons (2005) 543 U.S. 551, 567 [125 S.Ct. 1183, 161 L.Ed.2d 1] 301 Rymerv. Hagler (1989) 211 Cal.App.3d 1171 194 Sandberg v. Virginia Bankshares, Inc. (4th Cir. 1992) 979 F.2d 332 198 Santosky v. Kramer (1982) 455 U.S. 745 [102 S.Ct. 1388, 71 L.Ed.2d 599] 267, 268, 269 Sawyer v. Whitley (1992) 505 U.S. 333 [112 S.Ct. 2514, 120 L.Ed.2d 268] 229 Schad v. Arizona (1991) 501 U.S. 624 [111 S.Ct. 2491, 115 L.Ed.2d 555] 277 Schiro v. Farley (1994) 510 U.S. 222 [114 S.Ct. 783, 127 L.Ed.2d 47] 211 xliv TABLE OF CASES (CONTINUED) Schneble v. Florida (1972) 405 U.S. 427 [92 S.Ct. 1056, 31 L.Ed.2d 340] Serfass v. United States (1975) 420 U.S. 377 [95 S.Ct. 1055, 43 L.Ed.2d 265] Sheppard v. Maxwell (1966) 384 US. 333 [86 S.Ct. 1507, 16 L.Ed.2d 600] Sincavage v. Superior Court (1996) 42 Cal.App.4th 224 Sinclair v. United States (1929) 279 U.S. 749 [49 S.Ct. 471, 73 L.Ed. 1938] Skilling v. United States (2010) 561 U.S. [130 S.Ct. 2896, 2915, 177 L.Ed.2d 619] Skinner v. Oklahoma (1942) 316 U.S. 535 [62 S.Ct. 1110, 86 L.Ed. 1655] Skipper v. South Carolina (1986) 476 US. 1 [106 S.Ct. 1669, 90 L.Ed.2d 1] Sosa v. Alvarez-Machain (2004) 541 U.S. 692 [124 S.Ct. 2739, 159 L.Ed.2d 718] Spaziano v. Florida (1984) 468 U.S. 447 [104 S.Ct. 3154, 82 L.Ed.2d 340] Speiser v. Randall (1958) 357 U.S. 513 [78 S.Ct. 1332, 2 L.Ed.2d 1460] State v. Bobo (Tenn. 1987) 727 S.W.2d 945 State v. McCormick (Ind. 1979) 397 N.E.2d 276 xlv Page 307 204 108, 113 121 117 97 253 308 300 157, 168 266, 267, 268 239 239 TABLE OF CASES (CONTINUED) State v. Rizzo (Conn. 2003) 833 A.2d 363 State v. White (Del. 1978) 395 A.2d 1082 Stone v. Superior Court (1982) 31 Cal.3d 503 Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674} Stringer v. Black . (1992) 503 U.S. 222 [112 S.Ct. 1130, 117 L.Ed.2d 367] Stroble v. California (1952) 343 U.S. 181 [72 S.Ct. 599, 96 L.Ed. 872] Sullivan v. Louisiana (1993) 508 U.S. 275 [113 S.Ct. 2078, 124 L.Ed.2d 182] Sumner v. Shuman (1987) 483 U.S. 66 [107 S.Ct. 2716, 97 L.Ed.2d 56] Taylor v. Kentucky (1978) 436 U.S. 478 [98 S.Ct. 1930, 56 L.Ed.2d 468] Townsendv. Sain (1963) 373 U.S. 293 [88 S.Ct. 745, 9 L.Ed.2d 770] Trop v. Dulles (1958) 356 U.S. 86 [78 S.Ct. 590, 2 L.Ed.2d 630] Tuilaepa v. California (1994) 512 U.S. 967 [114 S.Ct. 2630, 129 L.Ed.2d 750] Tumey v. Ohio (1927) 273 U.S. 510 [47 S.Ct. 437, 71 L.Ed. 749] xlvi Page 271 251 189 Passim 289 115 275, 276, 294 167 306 249 253, 300 Passim 111, 129 TABLE OF CASES (CONTINUED) Turnerv. Louisiana (1965) 379 U.S. 466 [85 S.Ct. 546, 13 L.Ed. 424] UnitedFarm Workers ofAmerica v. Superior Court (1985) 170 Cal.App.3d 97 United States v. Capo (Sth Cir. 1979) 595 F.2d 1086 United States v. Frederick (9th Cir. 1996) 78 F.3d 1370 United States v. Gonzales-Lopez (2006) 548 U.S. 140 [126 S.Ct. 2557, 165 L.Ed.2d 409] United States v. Green (9th Cir. 1977) 554 F.2d 372 United States v. Hines (1999) 55 F.Supp. 62 United States v. Lesina (9th Cir. 1987) 833 F.2d 156 United States v. McDonald (9th Cir. 1978) 576 F.2d 1350 United States v. Vargas (7th Cir. 1978) 583 F.2d 380 United States v. Wallace (9th Cir. 1988) 848 F.2d 1464 United States ex rel. Bloeth v. Denno (CA2 1963) 313 F. 2d 364 Walton v. Arizona (1988) 497 U.S. 639 [110 S.Ct. 3047, 111 L. Ed. 2d 511] xlvii Page 115 121, 131 108 304 128 109 92 297 108, 109 221 305 117 | 243 TABLE OF CASES (CONTINUED) Wardius v. Oregon (1973) 412 U.S. 470 [93 S.Ct. 2208, 37 L.Ed.2d 82] Washington v. Hofbauer (6th Cir. 2000) 228 F.3d 689 Washington v. Texas (1967) 388 U.S. 14 [87 S.Ct. 1920, 18 L.Ed.2d 1019] Weemsv. United States (1910) 217 U.S. 349 [30 S.Ct. 544, 54 L.Ed. 793] Westbrook v. Milahy (1970) 2 Cal.3d 765 Williams y. Florida (1970) 399 U.S. 78 [90 S.Ct. 1893, 26 L.Ed.2d 446] Williams v. New York (1949) 337 U.S. 241 [69 S.Ct. 1079, 93 L.Ed. 1337] Withrow v. Larkin (1975) 421 U.S. 35 [95 S.Ct. 1456, 43 L.Ed.2d 712] Woodson v. North Carolina (1976) 428 U.S. 280 [96 S.Ct. 2978, 49 L.Ed.2d 944] Zant v. Stephens (1983) 462 U.S. 862 [103 S.Ct. 2733, 77 L.Ed.2d 235] Zaragosa v. Craven (1949) 33 Cal.2d 315 Zemina v. Solem (D.S.D. 1977) 438 F.Supp. 455 Zevnik v. Superior Court (2008) 159 Cal.App.4th 76 xIviii Page 295 125, 216 295 300 253 241, 242 260 Passim Passim Passim 199 297 198 TABLE OF STATUTES Page United States Constitution Art. I, § 8 302 Article III, § 2, cl. 3 107 Article VI, § 2 302 Fifth Amendment Passim Sixth Amendment Passim Eighth Amendment Passim Fourteenth Amendment Passim California Constitution Article I, section 7 Passim Article I, section 7, subd.(a) 127 Article I, section 15 Passim Article I, section 16 180, 283 Article I, section 17 180, 283 Article I, section 24 123, 213 Penal Code Section 20 145, 163 Section 187, subd. (a) Passim Section 189 144 Section 190, subd.(a) | 259 xlix TABLE OF STATUTES (CONTINUED) Page Penal Code (cont.) Section 190.2, subd.(a) 226, 259 Section 190.2, subd. (a)(17)(A) 1 Section 190.2, subd. (a)(17)(G) 1 Section 190.2, subd. (a)(17)(L) 1, 158, 160, 166 Section 190.3 Passim Section 190.3, subd. (a) Passim Section 190.3, subd. (b) Passim Section 190.4, subd.(b) 264 Section 190.4, subd.(e) 7, 274 Section 192 Passim Section 192, subd. (a) Passim Section 211 1, 6, 155 Section 215 Passim Section 215, subd. (a) Passim Section 215, subd. (c) 155 Section 459 1,6 Section 462, subd.(a) 2 Section 667, subd. (a)(1) 2,5 Section 667, subds. (b)-(i) 2,5 TABLE OF STATUTES (CONTINUED) Page Penal Code(cont.) Section 667.5, subd.(a) 2,5 Section 667.9, subd. (a) 2,6 Section 969b 50, 188 Section 1016, subd. 3 192, 200 Section 1023 189, 190, 204, 205 Section 1033 93 Section 1158, subd.(a) 280 Section 1170, subd. (c) "250 Section 1170.12, subds. (a)-(d) . 2,5 Section 1118 | 7 Section 1118.1 35 Section 1181.7 7 Section 1192.5 200 Section 1203.075, subd. (a) 2 Section 1203.085, subd. (a) 2,5 Section 1203.085, subd. (b) 2,5 Section 1237, subd.(a) 7 Section 1239, subd. (b) 7 Section 1368 4 li TABLE OF STATUTES (CONTINUED) Page Penal Code(cont.) Section 12022, subd. (b)(1) 2,6 Evidence Code Section 452 187 Section 452, subd. (d) 187, 230 Section 452.5 187 Section 453 187 Code of Civil Procedure Section 170.1, subd. (a)(6)(A)(ii1) 138 Section 170.1, subd. (a)(6)(C) 123 Section 170.1, subd.(c) 123 Section 170.3, subd. (d) 122 California Rules of Court Rule 4.420(e) 250 California Jury Instructions -- Criminal (CALJIC) CALJIC No.8.20 183 CALJIC No.8.21 158, 183 CALJIC No.8.80.1 159 CALJIC No.8.81.17 159, 162, 163 CALJIC No. 8.84 255, 256 lii TABLE OF STATUTES (CONTINUED) Page California Jury Instructions - Criminal (CALJIC) (cont.) CALJIC No.8.84.1 170, 178, 179, 255 CALJIC No.8.85 Passim CALJIC No. 8.85(a) 171, 227, 229, 233 CALJIC No. 8.85(b) Passim CALJIC No.8.86 170, 186, 189, 255 CALJIC No. 8.87 Passim CALJIC No. 8.88 Passim CALJIC No.9.46 158 Other Authorities Assem. Com. on Pub. Safety, Analysis of Sen. Bill No. 60 (1993-1994 Reg. Sess.) 146 Steven G. Calabresi, Importing Constitutional Normsfrom a . “Wider Civilization”: Lawrence and the Rehnquist Court’s Use ofForeign and International Law in Domestic Constitutional Interpretation (2004) 65 Ohio St. L.J. 1283 300 Goldstein, The State and the Accused: Balance ofAdvantage in Criminal Procedure (1960) 69 Yale L.J. 1149 295 Note, Zhe Presumption ofLife: A Starting PointforDue Process Analysis ofCapital Sentencing (1984) 94 Yale L.J. 351 283 Restatement Third ofthe Foreign Relations Law ofthe United States (1987) 302 liii TABLE OF STATUTES (CONTINUED) Other Authorities (cont.) Antonin Scalia & Stephen Breyer, Discussion at the American University Washington College ofLaw: Constitutional Relevance of Foreign Court Decisions (Jan. 13, 2005) David J. Seipp, Our Law, Their Law, History, and the Citation ofForeign Law (2006) 86 B.U.L.Rev. 1417 United States Census Bureau, Census 2000 Redistricting Data United States Census Bureau, Census 2000, Lake County, California, DP-1, Profile of General Demographic Characteristics: 2000.) United States Code 21 U.S.C. § 848(a) 21 U.S.C. § 848(k) State Statutes Ala. Code, § 13A-5-46(£) (1982) Ala, Code, § 13A-5-47(d) (1982) Ariz. Rev. Stat. Ann., § 13-703.01(E) (2002) Ark. Code Ann., § 5-4-603(a) (Michie 1993) Colo. Rev.Stat., § 18-1.3-1201(2)(b)(D (2002) Colo. Rev. Stat. Ann. § 18-1.3-1201(2)(b)(I1)(A) (2002) Colo. Rev.Stat., § 18-1.3-1201(2)(c) (2002) Del. Code Ann., tit. 11, § 4209(c)(3)b.1. (2002) liv Page 300 300 94 94 280, 281 279 251 251 251, 279 251, 279 251 251, 279 251 279 TABLE OF STATUTES (CONTINUED) Page State Statutes (cont.) S.D. Codified Laws Ann., § 23A-27A-5 (1988) 251 | Tenn. Code Ann., § 39-13-204(g) (1993) 251, 280 Tex. Crim. Proc. Code Ann., § 37.07(c) (West 1993) 251 Tex. Crim. Proc. Code Ann., § 37.071 (West 1993) 280 Va. Code Ann., § 19.2-264(D) (Michie 1990) 251 Wyo.Stat. § 6-2-102(e) (1988) | 251 li [THIS SIDE INTENTIONALLYLEFTBLANK] IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, ) ) No. 8093235 Vs. ) ) JERROLD E. JOHNSON, ) Defendant and Appellant. ) ) STATEMENTOF THE CASE Byinformation filed on October 25, 1999 in the Superior Court of California, Lake County, appellant Jerrold E. Johnson was charged with the murder ofEllen Salling in violation of Penal Code section 187, subdivision (a)! (count 1). The information alleged three special circumstances: murder during commission or attempted commission ofrobbery (§ 190.2, subd. (a)(17)(A)), murder during the commission or attempted commission ofburglary (§ 190.2, subd. (a)(17)(G)), and murder during the commission or attempted commission of carjacking (§ 190.2, subd. (a)(17)(L)). (1 CT 130-132.) In addition to the alleged count 1 murder, the information charged appellant with burglary of an inhabited dwelling in violation of section 459 (count 2); robbery of an inhabited dwelling housein violation of section 211 (count 3); and carjacking in violation of section 215, subdivision (a) (count4). The information alleged as to all counts that appellant personally inflicted great bodily injury (§ 17 Subsequent undesignated statutory references are to the Penal Code. _ 1203.075, subd. (a)), personally used a deadly and dangerous weapon (§12022, subd. (b)(1)), and was ineligible for probation (§§ 462, subd. (a) and 1203.085, subds.(a) & (b)). The information alleged as to counts 2 through 4 that the victim was 65 years of age or older (§ 667.9, subd. (a)). Theinformation additionally alleged oneprior serious or violent felony conviction pursuant to sections 667, subdivision (a)(1), 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through(i), and one prior prison term within the meaning of section 667.5, subdivision (a). (1 CT 104-111.) At initial arraignment proceedings on the same date, appellant was not represented by counsel. The prosecution announced that the death penalty would be sought. (1 CT 112-113; 1 RT 1-20.) After the appointment of counsel, appellant was arraigned on November5, 1999 at which time he pled not guilty to all counts and deniedall special allegations. (1 RT 49- 61.) A preliminary notice ofpenalty phase evidence wasfiled on February 25, 2000. (1 CT 130-138.) Appellant moved for a change ofvenue on May30, 2000. (1 CT 182-207.) In a declaration and exhibits in support of appellant’s change ofvenue motion, appellant’s expert indicated that 64 percent ofthe venire had knowledgeofthis case and 42 percent had prejudged guilt. Other survey results indicated that 49 percentofpotential jurors in Lake County would prejudge sentence were appellant found guilty. In the expert’s opinion, there thus was a reasonable likelihoodthat appellant could notreceive a fair trial in Lake County.’ (1 CT 151- */ In an initial, random polling of Lakeport residents by a defense investigator, 181; 13 RT 234-243; 14 RT 339-342.) After hearings on appellant’s change of venue motion,the trial court denied the motion on July 6, 2000,rulingthat appellant failed to establish a reasonablelikelihoodthat.a fair and impartialtrial could not be had in Lake County. (2 CT 377; 16 RT 628-641.) On June 9, 2000, the prosecutionfiled a first amended notice of evidence in aggravation. (1 CT 232-237.) A second amended notice of evidence in aggravation was filed on June 28, 2000. (2 CT 371-376.) On June 27, 2000, the Hon. Robert L. Crone was assignedto this case for all purposes. (2 CT 367.) Because ofprior personal and professionalties, the court stated on the recordits close ties to and relationship with the prosecutor. ° (2 CT 378-381.) Defense counsel did not make any further inquiry; and appellant was not asked to nor did he personally waive the conflict-of-interest and appearanceofor actual bias involving the court and prosecutor. (13 RT 127-13 1.) On June 27, 2000, the court and parties agreed to conduct simultaneous every one of 20 respondents had also reported they were aware ofthis case and had formed someopinion aboutit. (See 1 CT [Confidential Sealed -- PC section 987.9 Documents] 2-4; see ArgumentI, infra.) 3/7 On June 27, 2000, Judge Robert Crone was assignedto this caseforall purposes, includingtrial. Judge Crone advised the parties that he was a former District Attorney ofLake County; that he had been succeededin office by the prosecutor; that the prosecutor had servedas a pallbearer at his mother’s funeral; that he had urged the prosecutorto run for judge in the recently-concluded election; that he had actively helped the prosecutorin his successful election campaign for judicial office; that formerly, while still serving as District Attorney, he had placed the prosecutor in charge of the District Attorney’s office in his absence while trying a change of venuecase in Butte County;that he and the prosecutor had been close friends for a numberofyears; and that he did not intend to disqualify himself in this case. (13 RT 127-131; see ArgumentII, infra.) guilt trial voir dire and death penalty qualification. (13 RT 132; 19 RT 1307- 1319.) On the same date, defense counsel applied ex parte for an order permitting forensic psychiatrist Dr. Raymond M.Deutsch, a specialist in methamphetamine psychosis, to examine and have face-to-face interviews with appellant. (2 CT 368- 370; 13 RT 140.) Appellant’s motion was granted on June 30, 2000. (See 1 CT [Confidential, Sealed -- PC section 987.9 Documents] 6-8.) Trial by jury commendedJuly 1, 2000. (2 CT 386-426.) Defense counsel approvedthe use of a jury questionnaire andits language as modified. (18 RT 1034.) At the beginningoftrial, defense counsel stated for the record that appellant offered to plead guilty to first degree murder with special circumstances in exchangefor a sentenceoflife imprisonment without the possibility of parole but appellant’s plea offer was rejected by the prosecutor. (21 RT 1643-1644.) On August 15, 2000, the trial court was advised of a suicide attempt by appellant on August 12.* (32 RT 3807-3808.) Defense counsel declared a doubt as to appellant’s competency and movedfor suspension of criminal proceedings pursuant to section 1368. (32 RT 3811-3813.) Thetrial court suspended criminal proceedings and appointed two medical examiners to evaluate appellant and report on his competency. (2 CT 534-437 [order appointing Dr. Douglas M. Rosoff and Dr. Donald T. Apostle]; 32 RT 3846-3848.) After evaluating appellant, both examiners concludedthat appellant was competentto stand trial, although one of ‘/ Appellant overdosed on Elavil -- (an antidepressant with an inherentrisk of suicidality) -- that he had hoardedin jail. (32 RT 3807.) the examiners indicated that appellant wasstill suicidal. (2 CT 438-444; 33 RT 3863-3865.) The trial court found that appellant was competent to standtrial and resumedcriminal proceedings. (2 CT 420; 33 RT 3866.) Jury selection concluded and the jury was sworn on August 22, 2000. On the same date, appellant (waivinghis rightto trial by jury as to certain allegations) admitted the allegations pursuantto section 1203.85, subdivisions(a) and (b) in counts 1 through 4 and admitted the alleged priorserious or violent felony conviction’ pursuantto sections 667, subdivision (a)(1), 1170.12, subdivisions(a) through (d), and 667, subdivisions(b) through (i) and oneprior prison term within the meaning of section 667.5, subdivision (a). (2 CT 426; 33 RT 3947-3960.) Opening statements and the evidentiary portion ofthe guilty trial commenced August 23, 2000. (34 RT 3978-4039.) Appellant movedto discharge counsel on August 29, 2000 pursuant to People v. Marsden (1970) 2 Cal.3d 118. The trial court declined to relieve counsel after a hearing on the same date. (2 CT 426-433.) The prosecution rested on September 19, 2000. Thetrial court denied appellant’s motion forjudgment of acquittal on all three special circumstances pursuantto section 1118.1. (42 RT 5258-5250, 5258.) Without presenting an affirmative defense orcalling any defense witnesses,and relying on the state of the evidence presented by the prosecution, the defense rested. (42 RT 5268.) >/ Manslaughterin violation of § 192 sustained on November8, 1993 in Sonoma County Case No. SCR20425. Following closing argument andjury instructions (including submission of count 1 on theories ofboth deliberate and premeditated murder and felony murder) (2 CT 517-561; 3 CT 562-640 [jury instructions as read], 641-719 [instructions submitted to jury]), the jury began deliberations on September 21, 2000 at approximately 10:18 a.m. The jury returned verdicts at 3:25 p.m.(after 3 hours and 35 minutes of deliberations). (2 CT 433; 3 CT 720-727; 44 RT 5573.) The jury found appellantguilty offirst degree murder on count 1 in violation of section 187, subdivision (a) and foundtrueall three alleged special circumstances. The jury also foundthat appellant personally used a deadly or dangerous weapon within the meaning of section 12022, subdivision (b)(1). As to count2, the jury found appellant guilty of first degree burglary in violation of section 459. On count 3, the jury found appellant offirst degree robbery in violation of section 211. On count 4, the jury found appellant guilty of carjacking in violation of section 215, subdivision (a). (3 CT 720-727.) As to counts 2 through 4, the jury found that the crimes were committed against a person 65 years ofageorolder within meaning of section 667.9, subdivision (a) and that appellant personally used a deadly or dangerous weapontrue within meaning of section 12022, subdivision (b)(1). (44 RT 5574-5578.) The penalty trial commenced September 27, 2000. On October 11, 2000, appellant addressed the court aboutthe react belt he was wearing and statements madeby correctionalofficers who were holding the remote activating device. The trial court did not take any action in response to appellant’s complaints. (3 CT 775.) After closing argumentandinstructions to the jury (3 CT 836-858), the jury commenced deliberations at 4:05 p.m. and adjourned at 5:00 p.m. on October19, 2000. After readback oftestimony from 10:53 a.m. until 12:14 p.m., and a break for lunch between 12:17 and 1:25 p.m., the jury returned a single, consolidated verdict of death at 2:25 p.m. on October 20, 2000. (3 CT 768-779; 4 CT 1048; 54 RT 6882-6883.) On November9, 2000, the trial court pronounced judgmentand sentence. (4 CT 1078-1079.) The court denied the automatic motion to modify the penalty.® (1 CT 1084-1124; 55 RT 6898-6905.) The trial court sentenced appellant to death. [4 CT 1078-1079; 1125-1127 [abstract ofjudgment]; 55 RT 923-6929.) Ajudgment of death was signed by the court on November9, 2000, and appellant was committed to San Quentin State Prison for execution of sentence. (4 CT 1079-1087, 1125-1127; 55 RT 6928-6929.) This appeal from a judgment of death following trial by jury is automatic. (§§ 1237, subd. (a) and 1239, subd. (b).) 6/ Refusing to file a new trial motion, defense counselstated: “I reviewed Penal Code Section 1181 with regard to grounds for a motion for newtrial, and I don’t believe that any grounds for such motionlie; although, there’s some-- some theory proffered by certain appellate lawyers who workin the California Appellate Project on these types of cases that where the jury recommends a sentence of death, the defense counsel should automatically file a motion for new trial regardless ofthe lack of grounds. [{] I don’t believe in filing frivolous motions and wasting the Court’s time. Weare, of course, asking the Court and applying to the Court under [Penal Codesection] 1181.7, as well as [section] 190.4(e), for the modification of the jury’s recommendedverdict of death to life without possibility ofparole.” (4 CT 1089.) STATEMENT OF FACTS I, GUILT TRIAL A. During Flight from Sheriff's Deputies Seeking to Arrest Him for Parole Violation, Appellant Wrecks His Van Near Kono Tayee on December18, 1998 1. Testimony of Charles Farmer In December 1998, Charles Farmer wasstaying at Starlene Parenteau’s residence at 398 Schindler Street in Clearlake Oaks, Lake County. Farmer had known appellant for a couple ofyears and Parenteau for about seven years. At the time, appellant was also living with Parenteau. Farmer slept on the couch in Parenteau’s house. Appellant and Parenteau occupied the master bedroom.(34 RT 4093-4095.) On December18, 1998, Farmer and appellant worked together repairing a neighbor’s car. At the time, appellant drove a van which was depicted in People’s Exhibit No. 139. Neither appellant nor Farmer was drinking any alcoholor using drugs. In Farmer’s opinion, appellant appeared sober and was doing very good workrepairing the neighbor’s car. (34 RT 4096-4102.) While he and appellant worked on the neighbor’s car, Farmer observed some law enforcementofficers and pointed them out to appellant. Farmer told appellant that they were probably involved in a drugbust. About 10 minuteslater, appellantleft in his van to get some vise grips to loosen the master cylinder that they were working on. Appellant had no trouble operating his van. Appellant never returnedafter leaving to get the vise grips. After a couple ofdays, Farmer learned that appellant had been arrested. (34 RT 4102-4103.) Attrial, Farmer recalled that when appellant was working on the car he was wearing blue pants andblack boots. In a prior statement to police, Farmersaid that appellant was wearing black, lace-up boots with steel toes and a checkered flannel shirt or overcoat. (34 RT 4103-4110.) 2. Testimony of Starlene Parenteau In December 1998, Starlene Parenteau was living in a house ownedby her parents on Schindler Street in Clearlake Oaks. (36 RT 4524-4528.) She had known appellant for many years; they grew up together. For about a week in December 1998, appellant lived with Parenteau. Appellant slept with Parenteau in her bedroom. (36 RT 4524-4528.) Parenteau’s son, Rick, had a small bedroom in the house. Herfriend, Charlie Farmer, slept on a couchin the living room. (45 RT 4528-4531.) Atthe timeoftrial, Parenteau was in the Lake County Jail for misdemeanor assault on a peace officer. She had been previously convicted ofvarious misdemeanors, including hit-and-run in Sacramento, battery on a peaceofficer, resisting or obstructing a peace officer, and public intoxication. (36 RT 4524- 4528.) Neither Parenteau nor appellant used any drugs on December 18, 1998, although Parenteau recalled that she used methamphetaminethe day before. (36 RT 4531-4534.) However, appellant was regularly using methamphetaminein the 5 to 6-day period before December 18, 1998. (37 RT 4617.) At 8:30 a.m. on December 18, 1998, appellant and Farmerleft to work on a neighbor’s car on PineStreet in Clearlake Oaks. Appellant appeared normal. They did not use any drugsor alcohol that morning. (36 RT 4534-4537.) Parenteau next saw appellant and Farmerat 11:00 a.m. at her neighbor’s house on Pine Street, working on the neighbor’scar. (36 RT 4537-4538.) Having done appellant’s laundry, Parenteau was familiar with his clothing. While at work on the neighbor’s car, appellant was wearing blue Levi’s (as shown in People’s Exhibit Nos. 101-B and 146) and a corduroyorterry cloth shirt. Appellant also had a blue and black or red and black shirt [People’s Exhibit Nos. 102-A, 103-B, and 145]. Parenteau could notrecall if appellant was wearing that shirt on December 18, 1998. (36 RT 4538.) After seeing appellant and Farmer on Pine Street, Parenteau wentto her mother’s house in the samearea. (37 RT 4549-4555.) Parenteau did notsee appellant again until Monday, December 21, 1998, whenhecalled and they arranged to meetat Fifth and Butler Streets near her home in Clearlake Oaks. (37 RT 4617-4619.) 3. Testimony of Law Enforcement Officers Onthe afternoon ofDecember 18, 1998, Lake County Deputy SheriffMike Morshed was on patrol in his marked patrol car with his police dog in the 10 Clearlake Oaks area ofLake County. (34 RT 4039-4041.) Amonghis duties, . Morshedwas trying to locate appellant and arrest him for parole violation. Morshed wasusing a color photographto identify appellant. (34 RT 4045-4048.) At 2:56 p.m., while parked on the shoulder ofHighway 20 between Catholic Church Road and Sulphur Bank Road, Morshed spotted the brown van (People’s Exhibit No. 139) that authorities believed appellant was driving. The driver of the van had a brown mustache and long hair, and he was wearing a baseball cap, sunglasses, and a multicolored shirt; he was the same person shown in his color photograph. (34 RT 4048-4052.) Although he was not sure, Morshed testified at trial that the driver was possibly wearing the clothing identified as People’s Exhibit No. 102. (34 RT 4052.) | Morshed made a u-turn and followed the van westbound on Highway 20 and then onto High Valley Road. Runninga license plate check, Morshed verified that van was registered to appellant’s parents. Morshed radioed for assistance from other sheriff's detectives. Deputy Hall arrived in another patrol car and took a position behind Morshed’spatrol car. Sergeant McMahonarrivedat the turn-off to High Valley Road. Morshedattemptedto stop appellant on a flat portion of High Valley Road before it entered the national forest area. Morshedactivated his emergencylights,light bar, headlights, and siren. Morshed had no doubt that appellant saw his patrolcar in his side mirror. (34 RT 4052-4060.) Morshed pursued the van at speeds up to 55 mph alongthe gravel and dirt portions ofHigh Valley Road. It appeared obvious to Morshedthat the driver was 11 running and had nointention of stopping. Morshed pursued appellant for approximately 10 miles on the narrow, one-lane road. Just before the intersection with Road M-12, Morshedlost sight ofthe van. He believed that the van had turned off onto a side road or had goneoffthe road. Morshedradioed to Deputy Hall and Sergeant McMahonto continue slowly, because appellant might have gone off the road. Morshed advised the other officers that he would continue slowly toward the intersection with Road M-12. (34 RT 4068-4073.) At approximately 3:25 p.m., Deputy Hall reported via police radio that he had located the brown van approximately 40 yards from the roadwayin thick vegetation. Morshed had already driven past that location. He thus turned around and drove back to where Deputy Hall had located the van on hillside leading down to Clearlake. Sergeant McMahon,who hadbeen behind Deputy Hall, also arrived at the location where the van hadleft the road. Morshed searched the area with his canine, but the dog lost the scent in some thick vegetation. The brown van looked fairly intact. Approximately 20 other officers joined in the search for the driver along Highway 20. A Sonoma County helicopter with infrared sensors wascalled in to assist in the search. The search was called off at approximately 6:30 p.m. whenit got dark. (34 RT 4073-4079.) Morshed remainedat the crash site until the brown van was towed away. (34 RT 4081-4083.) The crash site where the van had been located was approximately 5 miles from the homeofEllen Salling at 7963 Richard Drive in Kono Tayee. The area between the crash site and Salling’s home was hilly and mountainous;there was 12 no development except along Highway 20. (34 RT 4080.) B. Appellant’s Familiarity with the Kono Tayee Area Emmett Lee Smith, Jr. lived in Lucerne, Lake County. He worked as the Lake County distributor of the Santa Rosa Press Democrat. In 1996, Smith hired appellant as a paper carrier. Appellant worked for him from June 1, 1996 through July 18, 1997. During the time that appellant worked for Smith, he always had the sameroute in Clearlake Oaks from KonoTayee to Spring Valley, covering approximately 100 to 160 miles. Every day, appellant delivered about 300 papers to homes and racks, including seven homesin Kono Tayee. He nevercollected money from customers. Ellen Salling was one ofthe newspaper customers on appellant’s route in Kono Tayee. (35 RT 4404-4411.) C. Ellen Salling Murdered at Homein Kono Tayee on December19, 1988 1. TestimonyofBill Ellis William (Bill) Ellis lived in the Kono Tayee area ofLucerne at 7921 Richard Drive. Ellis’ home was five houses down thestreet from Ellen Salling’s homeat 7963 Richard Drive. Ellis was Salling’s best friend and companion since both their spouses died -- hers in 1990; his in 1995.” Ellis visited Salling five or six times per week in the evening. Salling’s home had twostoreys, including a ’/ It wasstipulated that Ellen Salling’s date ofbirth was March23, 1922. (42 RT 5246-5247.) 13 master bedroom upstairs and two bathrooms.(34 RT 4130-4132.) | On Friday, December 18, 1998, Ellis stopped by Salling’s homeat approximately 5:30 p.m. to drop off someparts for repairing her dock. Ellis spent the evening with Salling. They ate dinner together. (34 RT 4128-4129.) Ellis had a remote control for Salling’s garage door. When Ellis left Salling’s house on December18, her red car was parked in the garage. Salling always parkedhercar on the left-hand side of the garage. (34 RT 4128-4132.) Ellis was familiar with Salling’s habits, the arrangement ofher furniture, and the location ofher car keys and purse. Salling kept her purse on the kitchen- dining room pass-through counter when she was about to go out. Atother times, Salling kept her purse in the master bedroom or bathroom. Her keys wereleft in a dish next to her purse. Salling kept her wallet in her purse. (34 RT 4132-4233.) Accordingto Ellis, Salling’s house was absolutely the neatest house in the world. Salling was an immaculate housekeeper. Nothing wasoutofplace. In the winter, Salling used the furnace and a pellet stove for heat. The fireplace in her den was seldom used. Thepellet stove was the primary source ofheat. Salling did not keep firewoodin her house; according to Ellis, there was no firewood in Salling’s house on December 18, 1998. Indeed, Ellis could not recall when Salling last used herfireplace after installing the pellet stove. (34 RT 4132-4134.) WhenEllis left Salling’s house at 10 p.m. on December18, 1998, she was fine. She had no injuries, cuts, or bruises. (34 RT 4134-4135.) Ellis planned to return next morning, December 19, 1998, to work on Salling’s dock. Ellis and 14 Salling planned to go togetherlater in the day to a neighbor’s open house on Cora Drive in Kono Tayee from about 5:30 to 8:00 p.m. The next morning,Ellis arrived at Salling’s homeat 9:15 a.m. on Saturday, December 19, 1998. He parkedhis truck in driveway. On opening the garage door with his garage door opener, Ellis did not see Salling’s car. Ellis thought she had gone shopping, since her daughter and son-in-law were coming for Christmas. Salling owned a 1999 Mercury Sable that she had purchased in November 1998. Ellis identified photographsof Salling’s Sable (People’s Exhibit Nos. 90 and 142). WhenEllis last saw Salling’s car, it was not damaged. (34 RT 4135-4139.) From the garage, Ellis got the parts he had left the previous evening and took them to the back ofthe house near the dock. He worked on Salling’s dock and gangway until 10:30 a.m. Hedid notsee Salling and did not enter her home during the time he was working on her dock. On leaving, Ellis closed the garage door with the remote and drove home. Later that day, at approximately 4:00 p.m., Ellis called Salling to see what time she wantedto go to the open house. Hecalled three times between 4:00 and 4:30 p.m. Thinking Salling was in the showeror getting ready, Ellis got dressed for the open house and then drove overto Salling’s houseat 5:30 p.m. Ellis found Salling’s house dark. Her front door was locked, which was unusual. Lookingin the garage, Ellis noted that her car was gone. Thinking that something may have happenedto Salling’s mother-in-law who wasin a nearby board and care home, Ellis went home. He drove by the neighbor’s open houseto see if Salling’s car there. Not seeing Salling’s car, Ellis 15 drove homeand called the care home where Salling’s mother-in-law lived. He inquired whether Salling wasthere orifthere had been any problems with “grandma.” Ellis was told there were no problems with the mother-in-law andthat the care homehad notseen Salling all day. Ellis drove back to Salling’s home at 5:35-5:40 p.m. He opened the garage door, and, using the key, wentinto the house through the laundry room next to the garage. (34 RT 4139-4143.) Onentering laundry room and then kitchen, Ellis turned on the kitchen light. He saw a food mixeron the counteranda cookietin half-filled with cookies. There was cookie dough was in the mixing bowl. Proceeding to the entryway, Ellis looked in the living room. He immediately saw Salling’s legs in the entryway as shown in People’s Exhibit No. 39. He touched Salling’s body -- the back area aroundthe hip -- to see if Salling was alive. It was obviousto Ellis that she was not alive. He picked up a cordless phone on kitchen counter, called 911, and then replaced the phonein its receiver. (34 RT 4144-4147.) There were no lights on in Salling’s home whenEllis returned at 5:35 p.m.. Hedid notrecall seeing the mixer or cookie dough the previous night. There was no doubtin his mind that the body was that ofEllen Salling. He observed lot of blood around the body. Attrial, Ellis identified various photographs taken inside Salling’s house by sheriff’s deputies after Salling’s body had been found. He identified the following photographs: People’s Exhibit No. 47 [interior ofhouse and entryway showing Salling’sglasses on floor between entryway and kitchen]; People’s Exhibit Nos. 39-A-1 and 48 [Salling’s glasses]; People’s Exhibit No. 49 16 [entryway showingpiece oftree limb next to doorstop]; People’s Exhibit No. 50 [close-up of doorstop, portion ofentryway cabinet, and piece oftree limb]; People’s Exhibit No. 155 [floor plan and furniture]; People’s Exhibit No. 156 [photographsofinterior of Salling’s house]. Ellis also identified a photograph of Salling’s deceased husbandin his living room showing a small footstool or Ottoman with black Naugahyde and finished woodlegs. Ellis last saw the footstool or Ottoman on December 18, 1998 in the hallway where the body was found the next day. At that time, the Ottoman was undamaged. Ellis also told the jury that he did not recognize the pieceoftree limb near the front entry as shown in People’s Exhibit Nos. 49 and 50. There had been no such objectin Salling’s house on December18, 1998. (34 RT 4149-4156.) After Ellis called 911, he was unsure whetherthe call had been completed. Within a minute, the telephone rang. Ellis went to another telephonein the den and tookthesheriff's call in response. Ellis told a female dispatcher he was quite sure he had come upon a murdersituation. The dispatcher asked Ellis to stay on the line and to keep talking to her. The dispatchertold Ellis that someofficers would soon arrive. The dispatcherinsisted Ellis stay on the phone. Ellis remained in the den with the phoneuntil officers arrived. The dispatcher advisedEllis to go outside to the front of Salling’s home. Ellis went outside the same way he had entered -- through the entryway, laundry, and garage. (34 RT 4143-4147.) Ellis did not disturb anything in house. Sheriff's deputies arrived just as Ellis came outside; Ellis told officers everything he knew. (34 RT 4148-4149.) 17 2. TimeofDeath Robert Woolworth owneda vacation home at 772 Cora Drive in Kono Tayee, where he was staying on Saturday, December 19, 1998. Woolworth saw Ellen Salling at 7:00 a.m. at the intersection of Cora Drive and Richard Drive. (35 RT 4184, 4190-4191.) Atthe time, Salling walking from Richard Drive to Cora Drive. Although both Woolworth and Salling acknowledged seeing the other, they did not wave to each other. Woolworth did notrecall if Salling was carrying a cane or purse. No one else was onthestreet at the time. Woolworth recalled that Salling was wearing gray pants and a multicolored top. She was not wearing glasses. Her hair was neat. According to Woolworth, there was nothing unusual about Salling’s appearanceat the time, and she did not appear to be injured. Salling’s clothing was not disheveled or torn. (35 RT 4184, 4190-4191.) On December 19, 1998, Maureen Viel lived in a homeat 7886 Alston Way in Kono Tayee. Viel’s house was on the corner ofRichard Drive and Alston Way. Viel knew Ellen Salling and was aware that Salling lived nearby on Richard Drive. Salling was about 5’4”tall and thin. (34 RT 4120-2122, 4124.) While cleaning houseshortly before 8:30 a.m. on the morning of December 19, 1998, Viel looked out one ofher large windowsfacing the street. She saw Salling’s new red Mercury driving past her house and noticed that a man was driving Salling’s car. The driver was wearing a plaid jacket similar to People’s Exhibit No. 102-A. No one else wasin the car. (34 RT 4120-4124.) 18 WhenViel saw Salling’s car, it had not been damaged;it was in brand-new condition. Viel attention wasattracted to Salling’s car that morning because Salling rarely drove out ofthe residential area along Alston Way where Viel lived. Salling usually drove out along Richard Drive where she lived. Viel noticedthat Salling’s car was going very fast. It hit a drain in the middle ofthe street and bounced up quite high. According to Viel, Salling would never have driven that fast as the speed limit on her street was only 15 mph. (34 RT 4116-4118.) 3. Law Enforcement Investigation at Salling’s Home a. Testimony of Sgt. David Garzoli Sergeant David Garzoli was the supervising investigator for the Lake County Sheriff's detective bureau and head of detectives on December 19, 1998. At 5:45 p.m., Garzoli responded with other deputies to Bill Ellis’ 911 call from Kono Tayee. Garzoli arrived shortly after 6:00 p.m. at 7963 Richard Drive. He metBill Ellis in the driveway. (35 RT 4168-4171.) Bill Ellis told Garzoli that he had entered the house looking for Salling and foundherin the living room. Hesaid that Salling had been beaten or stabbed. Garzoli did a protective sweep ofthe residence looking for suspects and to confirm that Salling did not need medicalattention. (35 RT 4171-4172.) Garzoli entered Salling’s house through the laundry area. He observed blood and other evidence in kitchen area. Garzoli located Ellen Salling’s body lying face down onthe floor. She was obviously deceased. There was a wooden 19 object by Salling’s head, blood smears on the kitchen counter, and bloody footprints in kitchen area. Garzoli also saw a cookie mixer and cookies on a tray. (35 RT 4171-4180.) b. Testimony of Det. Chris Carlisle Det. Chris Carlisle arrived at Ellen Salling’s home on the evening of December19, 1998, shortly after 6:30 p.m. He wasassignedas the lead investigator to manage the Salling homicide investigation. (35 RT 4260-4263.) Carlisle obtained a search warrant for Salling’s homeat 1:11 a.m. on December 20, 1998. (35 RT 4279-4288.) After obtaining the warrant, Carlisle entered the home. There was no evidence of forced entry. Salling’s body was located in the front entryway adjacentto the living room. There was bruising to Salling’s head,face, left arm, and right hand. Blood and blood spatters were observed on the floor and wall next to her body. A broken pieceofa tree limb was found in the entryway. A dowel, finished and unfinished wood, and some small wood chips, similar in appearance to the piece oftree limb, were also found near the body. (35 RT 4304-4310; (36 RT 4351-4361; 38 4756-4766.) Salling’s eyeglasses were found close to the front door. Small spatters of blood were noted in the front entryway, beginning near the front door and continuing to where the wood parquet floor metthe living room carpet. There was a bloody shoeor bootprint on Salling’s back and on the parquet floor. (35 RT 20 4325-4328.) Carlisle observed blood andhair in the kitchen sink, blood on the handle of a water jug, a drinking glass with hair on the handle, and blood on the kitchen faucet. (35 RT 4294-4298.) Carlisle checked views from the kitchen window. Standingat the kitchen sink, facing the kitchen window,he couldsee the garage, but the front door was notvisible. Someonestanding close to the front door would not bevisible from the kitchen window.(35 RT 4323-4324.) However, a person walking up thefront walkway toward the front door could be seen from the kitchen window. (35 RT 4329-4332.) There were no peepholesin the front door. Although the front door had glass panes, those were 6’1” high and were usedonly to allow entry of light into the house. (35 RT 4310-4311.) Carlisle also inspected other areas of the house, including the upstairs bedrooms. There was a circle ofblood around the doorknob and on the doorjamb in the upstairs master bedroom. In Carlisle’s opinion, the pattern ofblood on the master bedroom doorwas consistent with a long-sleeve, bloody cuff. A nightstand in the master bedroom was pulled out and the contents dumped onthefloor. (35 RT 4289.) Carlisle removed blood-spattered wood paneling from the wall adjacent to where Salling’s body was found. (37 RT 4729-4730.) Spatters in the entryway, and on the parquet floor, and a shoeprinton the floor tested positive for blood. The body ofEllen Salling was placed in a sealed bag and taken to the Jones & Lewis Mortuary where it was placedin a locked refrigerator. Carlisle later 21 attended Salling’s autopsy performed by Dr. ThomasGill. (35 RT 4325-4328.) Latent fingerprints were taken from various areas inside the house. There was no match between appellant’s rolled fingerprints and any ofthe latent prints taken from Salling’s residence or objects inside her home. (35 RT 4298.) 4. Cause ofDeath Dr. Thomas Gill performed the autopsy on the body ofEllen Salling at the Sonoma County central morguefacility in Santa Rosa on December 21, 1998. (39 RT 5034-5040.) At the time of death, Salling was 5’5 1/ 2”tall and weighed 129 pounds. (39 RT 5046.) There were defensive and puncture woundsto Salling’s right hand and other contusions, bruises, and lacerations on her face, head, and body. (39 RT 5041-5054, 5061-5062.) Salling’s scalp was torn or ripped from her head. Multiple, superimposed lacerations and contusions on Salling’sleft shoulder were consistent with blunt force trauma. (39 RT 5057-5061.) Injuries to Salling’s face, check, and lip were consistent with both blunt force blowsby fist and a cylindrical or rectangular type of object. (39 RT 5061-5062, 5069-5073.) In Dr. Gill’s opinion, more than one instrument could have been used to inflict the various injuries he observed on Salling’s head and body. (39 RT 5052- 5055; 40 RT 5091-5092, 5095, 5102.) Someoftheinjuries to Salling’s body and head suggested that a linear instrument wasusedto inflict the wounds, such as a furnitureleg or a cylindrical tree limb. (39 RT 5046-5050; 40 RT 5095-5097.) Other injuries to Salling’s head and scalp required a shearing instrumentat an 22 angle to the skin surface, suchas soleor heel of a boot. (39 RT 5046-5049.) Scalp injuries included semi-circles or arches, curved injuries, almostparallel to one another; the area affected was actually a skin flap as though it was coming off. There was an undermining virtually all the way around and underneath the scalp injury, signifying application of a shearing force. (39 RT 5062-5063.) Thenature ofthe severe head lacerations and scalp woundssuggested that Salling’s head was mostlikely in a stationary position on the floor when they were inflicted. (39 RT 5052-5055.) In Dr. Gill’s opinion,all ofthe injuries he observed on Salling’s head and body, with the exception ofthe scalp injuries, could have been caused by a bluntobject or objects. (39 RT 5061-5062.) Someoftheinjuries to Salling’s face were consistent with use of footwear applied to her head coupled with the use of a blunt object and fist. (40 RT 5074-5074.) Deep lacerations to Salling’s head and scalp were also consistent with the use of footwear to stomp Salling while her head wasstationary onthe floor. The injury to the bridge ofher nose wasconsistent with her glasses being struck and knocked offher face. (40 RT 5074-5075.) Dr. Gill observed “coup contra coup” brain injury or blowsto oneside of the head causing the brain to moveto andslap against other side ofthe skull. (40 RT 5084-5086.) There was very noticeable brain injury to the opposite side of Salling’s brain in this case. The injuriesto her scalp were onleft side but the injury to her brain was ontherightside, signifying that significant force was exerted uponleft side ofthe head to cause damageto right side ofher brain. Dr. 23 Gill also noted a periorbital hemorrhageor bruising aroundthe left eye, head, and face. (39 RT 5063-5064, 40 RT 5073-5075.) In Dr. Gill’s opinion, the cause of death was blunt force trauma to the head and rapid stopping ofthe heart. (40 RT 5090-5091.) In Dr. Gill’s opinion, two severe injuries to the left side of Salling’s head causedtearing or ripping ofher scalp with contra coup injuries to the underlying brain. These injuries were sufficiently severe to be fatal. In Dr. Gill’s opinion, extreme force was used to produce “this muchtearing of [the] scalp.” The other injuries to her head,face, and body did not demonstrate a high degree of force. (40 RT 5088-5089.) In Dr. Gill’s opinion, the head and scalp injuries, occurring while the head was semi-stationary and while Salling was lying on ground, implied that the fatal head injuries occurred at or toward the end of an assault. In Dr. Gill’s opinion someofthe injuries, abrasions, and contusions could have beeninflicted after death. (40 RT 5100-5102.) All of the severe scalp injuries were consistent with having been caused by footwear. (40 RT 5086-5087, 5059-5100.) In Dr. Gill’s opinion, Ellen Salling died within minutes. Her lung weights were extremely light without congestion, suggesting that Salling died very quickly within a few minutes after the infliction of fatal injuries. (40 RT 5087-5088.) | D. Appellant Arrested After Crashing Salling’s Sable During Flight from Law Enforcement Officers on December21, 1998 | At approximately 3:00 a.m. on December 21, 1998, Lake County Deputy 24 SheriffRobert Zehrung observed a red Mercury Sable going westbound on Highway 20 in Clearlake Oaks. The Sable matchedthe description ofthe vehicle reportedly taken in the Salling homicide on December 19, 1998, and the driver matchedthe description of the suspect being sought in the Salling murder. (37 RT 4648-4649.) Zehrung notified his dispatcher that he had spotted the Sable. He made a u-turn andstarted to follow the vehicle. Zehrungactivatedhis police siren and emergencylights. The Sable accelerated up to 90 mphas it fled from Zehrung. (37 RT 4625-4632.) Zehrung pursued the Sable on Highway 20at speeds up to 110-115 mph. After chasing the Sable for about 13 miles, Zehrunglost sight ofit in the area of New LongValley. Atthis point, the road was very curvy and mountainous. Passing Cache Creek Bridge, Zehrung pointed his spotlight at an on-comingcar, and saw that it was the same Sable and driver he had been chasing. The driver had a brown mustache and brown hair, and was wearing a dark jacket. Zehrung again made a u-turn, advised other units in the area that the Sable had turned around, and gave chase. Zehrung again lost sight of the Sable at it entered curves near the Double Eagle Ranch. (37 RT 4632-4638.) Deputy Zehrung drove back to the Lake Point Lodge just outside Clearlake Oaks off Highway 20. He radioed other units in the area asking ifthey had seen the Sable. After five minutes, a Clearlake police car drove up and parked nextto Zehrung’s vehicle. Just as the other officer asked Zehrung what the suspect vehicle looked like, Zehrung spotted the Sable as it passed by where he was 25 parked. Zehrung again activated his emergency lights and siren, and pursued the red Sable on the same route as before at speeds up to 120 mph,and past the intersection ofHighway 52 and Highway 20. Twootherpolice cars joined Zehrungin the chase, but they were far behind. (37 RT 4638-4642.) Deputy Zehrung pursued the Sable along Highway 20 past New Long Valley Road and the Cache Creek area, and toward Walker Ridge Road. Zehrung saw the Sable turn onto Walker Ridge Road. Zehrung saw the Sable veer off the right shoulder, strike a grassy embankment, and cometo a stop. It was then about 3:40 a.m. Zehrung notified police dispatch that the suspect vehicle had crashed. Hewaited for other units, including a SWATteam,to arrive. Zehrung was unsure whetherthe driver wasstill in the Sable after it crashed. (37 RT 4649-4654.) After other police vehicles arrived, Zehrung and other officers approached the Sable. Its air bags had deployed; the driver had escaped. (37 RT 4654-4656.) Zehrung checkedthe license plate of the Sable, confirmed that it was registered to Ellen Salling. A police perimeter was established to search for the driver. At the time, it was 5 degrees below zero. At dawn, over 100 law enforcementofficers and tracking dogs began to search for the driver. Appellant was located nearby down hillside hours after the crash at 8:50 a.m. (37 RT 4664-4666.) He was apprehended, handcuffed, and placed into Zehrung’spatrol car. At trial, Zehrung identified appellant as the driver of Salling’s red Sable during the police pursuit and at the time of the crash. (37 RT 4656-4660.) At thetime ofhis apprehension, appellant was very cold, hypothermic, and 26 unable to walk or movehis arms or legs. He needed immediate medicalattention. At 9:15 a.m., Zehrung drove appellant to the emergency room of Rosebud Community Hospital. (37 RT 4660-4661, 4664-4666.) Searching appellant before the medical examination, Zehrung found and seized two packs ofcigarettes (one ofwhich contained two glass methamphetamine smoking pipes), a set of keys, blue notebook pad, a gold brooch-type pin, and a personal check in the name of Elsie Hillyer and Shiree Hardman. (37 RT 4663-4664.) After the search, Zehrung escorted appellant into the emergency room and turned overcustody ofhim to Deputies Hiatt and Pfann. (37 RT 4661-4663.) Colusa County Sheriff's Sergeant Brian Trippassisted in searching for appellant along Walker Ridge Road in Lake County on December 21, 1998. (37 RT 4667-4670.) Hearrivedat the crashsite at 5:00 a.m. and worked with other members of the Colusa County Special Operations and Reconnaissance Team and a Colusa County search and rescue dog. Heandhis search doglocated appellant about 100 yards from the crashed vehicle. He was found lying face-down and did not respond to Tripp’s commands. Assoonas appellant was lifted up, Sgt. Tripp noticed a wallet above his head.* A folded piece ofyellow note paperfell from appellant’s abdomenarea when he waslifted up. Tripp retrieved and examined the items which he then turned over to Lake County investigator Paulich. Attrial, °/ It was stipulated that the wallet contained California driver’s license paperwork issued in the nameofJerrold Elwin Johnson [People’s Exhibit No. 207]. Appellant’s height was listed as 6’0” and his weight as 200 pounds. (42 RT 5245.) 27 Tripp identified appellant as the suspect who wasdetained, and heidentified . People’s Exhibit No. 75-A as the yellow paperthat fell from appellant’s abdomen or stomach areaas he was lifted up. (37 RT 4670-4675.) | Lake County Deputy Sheriff Christopher Rivera assisted in apprehending appellant along Walker Ridge Road on December 21, 1998. Hearrived at 7:00 a.m. After appellant’s arrest, Rivera was assigned to Rosebud Community Hospital where appellant had been taken for emergency treatment. At the hospital, Rivera saw appellant and arranged for a blood draw. Rivera was present when three vials ofblood were drawn from appellant. (37 RT 4688-4691.) In Rivera’s opinionattrial, appellant appeared the same while at the hospital following his arrest as he did at trial. There were no noticeable | differences in appellant’s appearance. Appellant weighed about the sameattrial as he did after arrest. Rivera did not observe any marks,cuts, or bruises on | appellant while he was being treated in the emergency room. (37 RT 4695-4696.) With other SWAT team members, Lake County Sheriff’s Detective Corey Paulich also participated in searching for appellant on Walker Ridge Road on December21, 1998. (37 RT 4697-4701.) After appellant’s arrest, Paulich was directed to obtain evidence seized by Colusa County Deputy Sheriff Brian Tripp from or next to appellant at time ofhis arrest, including a wallet with a driver’s license in the name ofJerrold Elwin Johnson,social security card, business card of parole agent Cameron L. Batchelder, and a note written on yellow paper [People’s Exhibit No. 75]. (37 RT 4706-4709.) 28 Det. Paulich also photographed and processed Salling’s Sable at the crash site for evidence. (38 RT 4752-4755.) Paulich was assisted by Department of Justice, Santa Rosa Regional Laboratory, senior criminalist Michael L. Potts. In processing the Sable, Paulich observed a ribbed pattern on the trunk whichtested positive for the presence ofblood. The trunk carpet and console areas also tested positive for blood. (38 RT 4753-4756.) E. Search of Starlene Parenteau’s Home; Evidence Recovered from Parenteau After appellant’s arrest, Sheriff's Sergeant Patrick McMahondroveto Starlene Parenteau’s homeat 398 Schindler Street on the evening ofDecember21, 1998 to secure the homeprior to issuance of a search warrant. McMahon encountered Parenteau outside by the front door. He advised her that appellant was underarrest and that they were looking for jewelry taken in a recent homicide. Parenteau immediately becameupset, started to cry, and tried to remove jewelry from around her neck and fingers. Unable to removethe necklace, Parenteau asked McMahonto “take this off of me.” Parenteau handed McMahonone necklace andthree rings. (37 RT 4680-4686.) Parenteau’s home wassearched on the evening of December 21, 1998. (37 RT 4732-4733.) Items seized from her homeincluded a blue corduroyshirt belonging to appellant; a bloodstained black and blue corduroy shirt belonging to appellant with “fleshy material” on the sleeves; a gold bracelet found on a dresser in the master bedroom; earrings; and a fanny pack containing a yellow daisy 29 broochlater identified as belonging to Ellen Salling. Various writings in appellant’s name werealso found in Parenteau’s home. (37 RT 4714-4718; see also 37 RT 4727-4728.) Bloodstainedjeans belonging to appellant were found in the laundry room. A piece ofyellow paper with the names “Shiree” and “Jeff” and a telephone numberwas foundon the kitchen table. (19A RT 1235-1246.) F. Search of Salling’s Car on December22, 1998 Ellen Sallings’s red Sable was searched pursuant to a search warrant on the morning ofDecember 22, 1998. (37 RT 4718-4722, 4780.) DepartmentofJustice latent print examiner Galen Nickey and criminalist Michael Potts assisted in the search. Nickey dusted the car for and collected latent fingerprints. Nickey also seized and took possession ofthe domelight cover, cigarette lighter, steering wheel, rear view mirror, a credit card folder, and checks in the nameofEllen Salling. Nickey broughtthe items back to his DOJ laboratory for testing and analysis. (37 RT 4719-4722.) Duringthe search of Salling’s car on December 22, 1998, Det. Paulich observed the ignition key to the red Mercury in the interior of the vehicle. (38 RT 4800-4801.) G. Other Evidence Linking Appellant to Salling’s Murder On the morning ofDecember 22, 1998, Detectives Carlisle and Paulich met with Jeff Biddle and Shiree Hardman at their residence at the Galaxy Resort on Old Highway 53, in Clearlake. (38 RT 4780-4784.) The officers seized a 30 handwritten note from a letter holder in their kitchen [People’s Exhibit No. 115]. Biddle and Hardman provided writing samples to the officers. (38 RT 4780-4784.) A blue notebook found in appellant’s possession at the time of his arrest contained indentations or impressionsidentical to the note found in the Biddle- Hardman home. (38 RT 4785-4790.) Whenthe blue notebook was later examined, it was found to contain three or four items inside the back cardboard insert. These items included a Providian Visa gold card in Ellen Salling’s name; a Citibank Visa card in Ellen Salling’s name; a California driver’s license in Ellen Salling’s name; and a photograph of a man and a woman with writing on back stating “Henni and Ronald Ray” [daughter and son-in-law of Ellen Salling]. Salling’s Citibank Visa card (found in the blue notebookin appellant’s possession) was used to purchase gas at a Super Cheaper store in Lake County,as reflected on a printed receipt dated December 20, 1998 [People’s Exhibit No. 81]. (38 RT 4790-4791, 4875-4883.) H. Identification of Salling’s Property On the morning ofDecember 20, 1998, Henni Ray, Ellen Salling’s daughter, was en route with her husband to her mother’s home whenshe learned ofher mother’s death. Before Henni and her husband were permitted to enter her mother’s home, members ofher mother’s church group had cleaned up the house. (36 RT 4364-4369.) Ray walked through her mother’s home on December 20, 1998 to 31 determine the damageand to see what, if anything, was missing. Ray did not see any damage to the windowsor doors. She told the jury that her mother’s Ottoman footstool was ordinarily kept near the kitchen adjacentto the front hallway. Since her mother had a pellet stove in the living room,she did not have any firewood or tree branchesin her house. (36 RT 4375-4379, 4398-4399.) Ray prepared an inventory ofmissing and unrecovered items. According to Ray, her mother was missing jewelry valued at $13,600,including a gold watch, gold chain, pearls, gold piece, bracelets, earrings, and other jewelry, Raytestified that her mother kept herjewelry in the master bathroom; she never had any open drawers in her house. (36 RT 4379-4398.) In November 1998, Ray and her husband helped her mother purchase a new red Mercury Sable from a dealership in Needles which they once owned. She and her husbanddelivered the car to her mother. Ray identified People’s Exhibit No. 90 as a photograph ofher mother’s red Sable as it appeared after purchase in November 1998. Raytold the jury that her mother’s car was usually parked in her garage. Her motherkepther purse, wallet, and car keys on a pass-through counter in the kitchen. She identified People’s Exhibit No. 134-A as her mother’s purse and People’s Exhibit No. 135-D as her mother’s wallet. Ray had given the purse to her motherasa gift. (36 RT 4379-4398.) Rayalso identified her mother’s remote keyless entry device [People’s Exhibit No. 135-A], car keys [People’s Exhibit No. 135-B], and emergency key [People’s Exhibit No. 135-C] for a vehicle her mother previously owned. Ray 32 identified items from her mother’s wallet and purse, including checks, business cards, and credit cards. Ray identified a jewelry box owned by her mother [People’s Exhibit No. Exhibit 105-B], a pair of earrings bought by her father and worn by her mother [People’s Exhibit No. 105-B-2], and a daisy pin commemorating the birthday ofthe Queen ofDenmark that Ray had purchasedfor her mother before her death [People’s Exhibit No. 105-A]. (36 RT 4397-4398.) I. Salling’s Missing Property and Furniture Found in January 1999 John Joneslived with his mother, Faye Bilbrey, in Clearlake Oaks. (35 RT 4208-4211.) In late December 1998 or early 1999, Jones found a purse and wallet next to a footstool or Ottoman on a hillside near his home. He took the purse home,butleft the footstool on the hillside. (35 RT 4211-4214; 35 RT 4235-4236.) Onceat home, Jones inspected the purse and found that it contained some papers, a wallet, keys, checkbook, and other items, including a remote keyless entry device [People’s Exhibit No. 135-A], key [People’s Exhibit No. 135-B], plastic key [People’s Exhibit No. 135-C], and various cards and credit cards in a plastic holder [People’s Exhibit No. 134-A-13]. (65 RT 4214-4220, 4232-4235.) Jones saw a namewith the letter “S” on someofthe items in the wallet and thought the purse and wallet might belong to a recent Lake County murdervictim. Jones’ mother had previously read some newspaperarticles to him about two murdersin the area. (35 RT 4221-4222.) Abouttwoorthree days after finding the purse, Jonestold his friend, Ron 33 Oxnam, about what he had found. Oxnam lived in Nice, Lake County, and was employed by his mother, Betty Lou Romans,at her residential care homefacility. Romanstook care of elderly womenat her facility, including Ellen Salling’s mother-in-law. (35 RT 4411-4414.) Oxnam told Jones that he thought he knew the ownerofthe purse. Oxnam said his mother could return the purse and its contents to the owner’s family. Thus, at Oxnam’s suggestion, Jones gave the purse and its contents to him. Jones retained only the keys and wallet. Jones put the keys in a bucket he kept at home. (35 RT 4222-4227.) He gave the wallet to his mother, Faye Bilbrey. Bilbrey later gave the wallet to her mother, Virginia Harding, a resident ofLucerne, Lake County. (35 RT 4194-4199.) After Jones gave him the purse, Oxnam inspected its contents. He found a driver’s license and other items inEllen Salling’s name. Seeing Salling’s name on someofthe items, and aware that Salling’s mother-in-law was living in his mother’s care home, Oxnam gavethe purse to his mother, Betty Romans. Romans became very upset when she saw Salling’s purse. Romans had been very close to Ellen Salling. She had known Salling for many years. Salling regularly visited her mother-in-law at Romans’ care home. (35 RT 4418-4427, 4428-449: 36 RT 4463-4465.) Romans subsequently turned Salling’s purse over to Lake County Deputy Sheriff Carl Stein. (36 RT 4467-4470.) Sometimeafter giving the purse and contents to Oxnam, Jones also spoke with Sheriff Detective Stein. Jones told Stein where he found thepurse, wallet, 34 _andfootstool. (35 RT 4236-4240.) Stein drove Jonesto the hillside near his house where the purse and footstool had been found. Stein retrieved the footstool with one leg missing and a small portion of finished wood that appear to be part of the missing leg. (35 RT 4245.) Stein also observed hair, reddish material he presumed to be blood, and white spatters that appeared to betissue or flesh on different portions of the footstool. Stein placed the items in evidence bags and brought them backto the sheriff's station. (35 RT 4240-4245, 4247-4251.) Jones wasalso contacted by Det. Carlisle in respectto the keys that he found in Salling’s purse. Accompanied by Carlisle, Jones retrieved from his mother’s house someofthe keys he had found in Salling’s purse, including a keyless entry device [People’s Exhibit No. 135-A], ignition key [People’s Exhibit No. 135-B], and a red plastic spare key for a Mercury [People’s Exhibit No..135- C]. (38 RT 4799-4800.) Carlisle also drove Jones to the Lucerne homeofhis grandmother, Virginia Harding, from whom theyretrieved Salling’s wallet. (35 RT 4227-4229; 35 RT 4191-4193.) On February 12, 1999, Det. Carlisle and other officers again searched the hillside near Jones’ house in Clearlake Oaks where Salling’s purse and Ottoman had been previously found. During the search, two pieces from a wooden Ottoman, one 7-8”in length with an apparent bloodstain, were recovered about 12 to 15 feet from the location of the Ottoman previously found in the samearea.(38 RT 4791-4797; 38 RT 4801-4802.) In September 1999, Carlisle tested the keys he retrieved from John Jones on 35 Ellen Salling’s red Sable. Both People’s Exhibit No. 135-A [remote entry device] and People’s Exhibit No. 135-B [plastic key] operated the car. (38 RT 4801-4892.) J. Appellant’s Conduct After Salling’s Murder 1. Testimony of Starlene Parenteau Thepolice visited Starlene Parenteau at home on December19, 1998 looking for appellant. After the police left, Parenteau walkedto a pizza parlorin Clearlake Oaks. She spent time with friends and then went to a bar. (37 RT 4557- 4566.) On returning homelater that night, Parenteau saw a gold bracelet, gold cameobrooch, a necklace, and other jewelry on the kitchen table. She had never seen those items before. Parenteau identified People’s Exhibit No. 104-A as the gold bracelet and People’s Exhibit No. 105-A as the pendant Parenteau saw on her kitchen table when she returned homefrom the bar. (37 RT 4567.) At approximately 3:00 a.m. on December20, 1998, appellant telephoned Parenteau at home. Although notactually living with Parenteau atthe time, appellant had beenstaying off and on at her house beginning around December10, 1998. (37 RT 4611-4612.) Parenteau had known appellant for many years. (37 RT 4610-4611.) She and appellant regularly used methamphetamine together on a daily basis, several times a day. (37 RT 4612-4614.) | Atthe time ofhis early morning telephonecall, appellant said he was at a nearby pay phone. Hetold Parenteau to meet him at the creek behind her house. He said his parole agent waslooking for him, and he did not wantto go to her 36 house. Parenteau told appellant to meet her on nearby Butler Street. Parenteau left her house about 45 minutes later and met appellant as agreed about a block away from her home.(37 RT 4570-4577, 4579-4581; 37 RT 4608-4609.) Appellant was driving a red car. Although appellant told her that he had borrowedthe car from friends, Parenteau thoughtthe car, as well as the jewelry she had seen earlier, might have been stolen. (37 RT 4603-4604.) According to Parenteau, appellant had scratches on his face and nose. She had not seen any scratches on appellant when she last saw him the day before. Appellant said he got the scratches outrunning the cops in Clearlake Oaks. Appellant told Parenteau that he fled from the cops because he had “copped some dope from Jeff Carmak’s house”and wasalso absconding from parole. He also said that a helicopter had been looking for him. Appellant said that he had been in the mountainshiding from the cops. Heslept in the mountainsto hide from the helicopter that was looking for him. (37 RT 4600-4602.) When appellant picked up Parenteau, she noticed that all ofhis clothing was new. She saw otheritems of clothingstill in their packages. Appellant was wearing new boots. Parenteau had been previously aware that appellant owned just one pair ofblack, steel-toed boots with waffle soles. (37 RT 4603-4604.) Appellant told Parenteau that he bought the clothes at Wal-Mart. He also said he bought a new faucet for her sink. (37 RT 4589-4591; 37 RT 4602-4603.) After Parenteau met appellant, they drove to a motel in Middletown. (37 RT 4608-4609.) Although appellant normally wasa fast driver, he drove carefully 37 and safely to Middletown. His memory wasfine; she did not notice anything bizarre, unusual, or crazy with him. (37 RT 4605-4610.) He spoke in a normal manner and talked about events they both rememberedas friends for many years. During the drive, appellant said that earlier that day he had returned to her house, took a shower, changed clothes, and left jewelry on the kitchen table. Onceat the motel, Parenteau signed the registration form; appellant paid for the room. (37 RT 4570-4577, 4579-4581.) After checking into the motel room, appellant retrieved a cardboard box from the trunk of his car. At trial, Parenteau identified the box as People’s Exhibit No. 105-B. Appellant told Parenteau the box contained some rings. He told her he gotit “from a dude” who owed him $300. Parenteau saw there were three gold weddingrings inside the box. Parenteau identified People’s Exhibit Nos. 100-A and 100-B as twoofthe gold rings contained in the box appellant showed her. After looking at the rings, Parenteau and appellantleft the motel and wentto the nearby Middletown casino. (37 RT 4577-4579.) While at the casino, Parenteau met Charlie Piper. Appellant played the slot machines and may havetried to cash a check. (37 RT 4584.) Leaving the casino, Parenteau and Piper walked around the cornerto the home ofEddie Simon,a mutual friend. Appellant drove to Simon’s home and met them there. Appellant had suggested they visit Simonin the hopeof selling him the gold rings he had for methamphetamine andcash. (37 RT 4581-4582.) Simon did not have any dope totrade for the rings and wasnotinterested in buying them. Parenteau, 38 Piper, and appellant returned to the casino. After a while, they all went to their Middletown motel room and smoked somedope furnished by Piper. (37 RT 4583.) Parenteau testified that from the time appellant had picked her up near her homein thered car, neither she nor appellant used any drugs until they smoked methamphetamine in their motel room with Charlie Piper. (37 RT 4582-4587.) The next day, Parenteau and appellantleft the motel at around 10:30 a.m. and drove to Clearlake. They stoppedatthe Clearlake Wal-Mart at around 11:00 a.m. Parenteau returned a pair ofjeans appeliant had previously purchased. (37 RT 4588-4589.) Parenteau identified People’s Exhibit No. 136-A as the Wal-Mart receipt she took into the store on returning appellant’s jeans.” She received a refund of $15.94 for the jeans. (37 RT 4589-4591.) After leaving Wal-Mart, Parenteau and appellant stopped to eat and then drove along Old Highway 53. They stopped again on encountering Charlie Piper. Parenteau talked to Piper again abouttrading appellant’s rings to get some drugs so she and appellant could get high. Piper told Parenteau to meet him at the Galaxy Resort in half an hour. Before driving to the Galaxy Report, Parenteau and appellant ran some errands. Appellant stoppedfirst for gas at a Super Cheaper station and then at a Taco Bell. Appellant paid for both the gas and their meal at Taco Bell. He was given receipts for these purchases including People’s Exhibit No. 84 [Taco Bell receipt] and People’s Exhibit No. 81 [Super Cheaper gas */ Parenteaualsotestified that the receiptlisted a faucet appellant said he had purchased for her home. Parenteau later turned the faucet over to the police. (37 RT 4591.) 39 receipt]. After these and other errands, Parenteauand appellant drove to the Galaxy Resort in search of Charlie Piper. There, they met JeffBiddle and Shiree Hardman wholived together at the Galaxy Resort. (37 RT 4591-4594.) Parenteau and appellant visited with Biddle and Hardman at the Galaxy Resort all afternoon. Appellant borrowed a piece ofyellow note paper from Hardman and a pen from Parenteau to write a note. Attrial, Parenteau identified the note appellant wrote as People’s Exhibit No. 75-A [note dropped from appellant’s wallet at the timeofhis arrest].) (37 RT 4595-4598.) Parenteau also identified People’s Exhibit No. 105-E as a note she wrote at Hardman’sresidence before leaving. (37 RT 4599-4600.) Later that afternoon or early evening, appellant and Parenteau wentto visit the homeofa friend named Gingerto see about selling some ofthe rings appellant had obtained. They then returned to Shiree Hardman’s place until after dark. At night, appellant and Parenteau drove briefly back to the casino in Middleton in search of Charlie Piper. Appellant and Parenteau then drove back to Clearlake Oaks. Appellant dropped off Parenteau on Butler Street near her house. Taking the faucet with her that appellant had bought, Parenteau walked through the creek to her house. (37 RT 4598-4599, 4602.) 2. Testimony ofNorman Myers In 1998, Norman B. Myers worked as a caretaker and registered guests at the Middletown Motel on Calistoga Street in Middleton. (36 RT 4472-4475.) 40 Myers lived at motel; he was an alcoholic and drank regularly. On December20, 1998, Myers registered a male and female guest for one night. The female gave her nameas Starlene Parenteau; she paid $49.05 for the room. Attrial, Myers identified appellant as the male guest who arrived with Parenteau. Myers spoke only briefly with appellant when he and Parenteau checked in. (36 RT 4487-4488.) Myersidentified a motel receipt [People’s Exhibit No. 117] as the receipt he gave them at the time of their stay. (36 RT 4475-4484.) Myersidentified a photograph of a red car [People’s Exhibit No. 90] as the vehicle Parenteau and appellant parked outside their room. The next morning, Myers saw the guests drive awayin their red car. (36 RT 4484-4487.) 3. Testimony of Shiree Hardman Shiree Hardman had been previously convicted of drunk driving offenses, petty theft, and disturbing the peace. At the time oftrial, she was in a diversion program. (36 RT 4496-4500.) On December20, 1998, Hardman was living with Jeff Biddle at the Galaxy Resort in Lower Lake when Charlie Piper, appellant, and Starlene Parenteau came for a visit. Hardman had not previously met appellant or Parenteau. Hardman noticed their new car, which she identified at trial as similar to the one depicted in People’s Exhibit Nos. 90, 91, and 142. (36 RT 4500-4502.) During thevisit, Parenteau showed Hardman several rings and asked if she were interested in buying them. Hardman declined. (36 RT 4502-4504, 4516.) 41 Appellant and Parenteau stayed for several hours, ate dinner, watched television, and left after 11 p.m. According to Hardman, during appellant’s visit, he was calm and quiet. He wasvery polite, subdued, and acted like a normal individual. (36 RT 4504-4505.) At somepoint duringtheir visit, Jeff Biddle left to obtain some drugs for appellant and returned with methamphetamine. Hardman and appellant smoked methamphetamine from a pipe; Parenteau and Biddle wentinto the bathroom where, Hardman assumed, they injected methamphetamine. (36 RT 4505-4514.) Appellant said they were going to the Twin Pines Casino. (36 RT 4514- 4515) He gave Biddle a piece ofpaper with some information abouta female . [People’s Exhibit No. 115]. Appellant asked Biddle whether Hardman would use the information on the paperto verify a credit card if someone from the casino called. Appellant said he would give them $50 to verify the credit card if the casino called. (36 RT 4515, 4517.) Hardman told Biddle that “no way” would she do so. Hardman later put the piece ofpaper [People’s Exhibit No. 115] with her otherbills and papers. Hardman never saw appellant again after he and Parenteau left on the night of December 20, 1998. About two weeks after appellant and Parenteau visited her home, Hardman gavethe piece ofpaper [People’s Exhibit No. 115] to Det. Carlisle. (36 RT 4511-4514.) K. Fingerprint Evidence DepartmentofJustice criminalist Galen Nickey processed Ellen Salling’s 42 homeforlatent fingerprints on the night ofDecember 19, 1998. (38 RT 4818- 4822.) Noneofthe various latent fingerprints Nickey lifted matched appellant’s rolled fingerprints. (38 RT 4822-4830.) In Nickey’s opinion, appellant couldnot have madeany ofthe latent fingerprints he lifted throughout Salling’s house. (38 RT 4832-4836.) Nickeyalso lifted latent fingerprints from the interior and exterior of Salling’s red Mercury Sable after it was recovered along Walker Ridge Road on December 21, 1999. (38 RT 4836-4840.) Rolled fingerprints of appellant’s index and middle fingers, left and right palms, and left thumb matched 11 latent prints lifted from the inside rear view mirror, steering wheel, radio control panel, exterior door handle, driver’s door and window,hood,and top of Salling’s car. (38 RT 4840-4842.) Nickey also compared Starlene Parenteau’s fingerprints on file with the DOJ with all latent and photographic fingerprints in this case. In Nickey’s opinion, Parenteau was not the source of any ofthe fingerprints in this case and could be ruled out as the source of any ofthe latent lifts or photographic prints in this case. (38 RT 4847-4848.) L. Blood and DNA Evidence DepartmentofJustice criminalist Michael Potts examined and typed samples of Salling’s and appeilant’s blood. He also typed blood found on appellant’s blue corduroy shirt [People’s Exhibit No. 103-B] and on appellant’s 43 jeans [People’s Exhibit No. 101-B] found in Starlene Parenteau’s homeafter appellant’s arrest. (39 RT 4957-4958.) | Potts determined that Salling had ABO blood Type A, PGM 1+, ACP Type A andthat appellant had ABO Type O, PGM 2-1+, ACP Type B. Potts did not run ABOtesting on the bloodstains, as, in his opinion, PGM and ACPtyping were morediscriminating. Bloodstains on the left and right knee of appellant’s Wranglerjeans found in Parenteau’s house revealed PGM 1+ and ACP Type A consistent with Salling’s blood. Blood stains from the upperleft thigh of appellant’s jeans were consistent with appellant’s blood and not from Salling. — Stains on the left and right cuffs of appellant’s blue corduroy shirt revealed PGM 1+ and ACPType A consistent with Salling’s blood; she, not appellant, could have been source ofblood on the cuffs of his corduroy shirt. Because Salling’s ABO, PGM,and ACPtypestogether were consistent with four percent of the population, Potts could only conclude that Salling could have been a source of blood on appellant’s pants and shirt, but not definitely the source. (39 RT 4939- 4943, 4950-4951.) Potts also determined that the patterned stain found on the trunk of Salling’s Mercury Sable wasblood. (39 RT 4932-4936.) Potts found bloodstains inside the Mercury, as well, on the driver’s seat, passenger seat, and console. Blood and human tissue were foundinside the trunk. (39 RT 3936-4938.) In Pott’s opinion, appellant’s blue corduroy shirt [People’s Exhibit No. 103-B] could have madepatterned blood impressions on wood paneling in the entryway of 44 Salling’s home and, as shown in People’s Exhibit No. 94, the patterned impression on the trunk of Salling’s red Sable. (39 RT 4928-4936.) In addition, Potts had backgroundandtraining in respect to bloodspatters and cast-offblood. Potts examined appellant’s Wrangler jeans found in Parenteau’s homeafter his arrest. He found blood ontheleft thigh area, both knees, and bottom cuff area. He also found blood and bloodstains on the rear of the pants, back of legs, and sides. Potts further examined photographsofdents, blood, and blood spatters on the wood paneling next to where Salling’s body was found. In Potts’ opinion, dent marks on the paneling were consistent with an object of sufficient force hitting the paneling, moving anddistorting the wood fibers. In Pott’s opinion,all blood spots and spatters on the wood paneling were consistent with medium to high velocity and with an object striking the victim’s head and with blood from the object coming off in a 360 degree radius. (39 RT 4958-4971.) In Potts’ further opinion, based on his examination ofthe paneling next to where Salling’s body was found, someblood wascast-off and some wasspatter. In Pott’s opinion someofthe blood traveled from right to left and downward. Other blood spatters came from all directions. Except for cast-off spatters coming from a blunt object, other spatters were consistent with having originated in the head. In Potts’ further opinion, somefine, high velocity, spatters could have come from cuts on the victim’s lip or from coughing. Blood drops on top ofblood drops indicated multiple bows and pooling ofblood on the head. In Potts’ further 45 opinion, marks and dents on the paneling revealed anywhere from six to seven separate marks, indentations, or dents on paneling, each from a separate blow consistent with a blunt force object at or near the time blood was deposited on the paneling. All of the marks or dents, their direction and size, indicated multiple, consecutive blood spatters caused by both upward and downwardbluntforce. (39 RT 4769-4979.) In Pott’s opinion, the majority ofblood spatters occurred while the victim was on the floor next to the paneling with the exception of a few cast- off spatters traveling in an upward direction from a moving object. (39 RT 4979- 4980.) It was stipulated that no two human beings, except identical twins, have the same DNA.It was further stipulated that blood samples from appellant [People’s Exhibit Nos. 53-B-1], Ellen Salling [People’s Exhibit No 97-A], and on various items of evidence were tested and analyzed for DNA by DOJ criminalist Armand Tcheong using the RFLP testing method. Tcheong concluded that DNA obtained from a bloodstain on the right knee area of appellant’s Wranglerjeans [People’s Exhibit No. 101-B] was the same as the DNAofEllen Salling. DNA obtained from a bloodstain on the left knee area ofthe same jeans [People’s Exhibit No. 101-B] was the same as DNA from appellant. DNA obtained from bloodstains on both the left and right cuff areas of a blue corduroy shirt [People’s Exhibit No. 103-B] was the same as the DNA ofEllen Salling. DNA obtained from a blood stain on carpet found inside the trunk wheel well of Salling’s Mercury Sable, was the same as DNA ofEllen Salling. DNA obtained from a piece ofhumantissue 46 from the trunk panel of the Mercury Sable was same as DNAofEllen Salling. DNAobtained from blood on pieceoffinished wood [Exhibit 176-A] was same as DNAofEllen Salling. It was finally stipulated that these DNA RFLPtesting results were estimated to occur at random among unrelated individuals in approximately 1 in 55 trillion Hispanic individuals,1 in 140 trillion African- American individuals, and 1 in 77 trillion Caucasian individuals. (339 RT 4952- 4955; 40 RT 5117; 1 CT [Court Exhibits] 9-11.) It was stipulated that the amount ofDNA obtained from a rubberseal inside the trunk of Salling’s Mercury Sable was insufficient for RFLP testing. Senior DOJ criminalist Margaret Aceves thus used PM+DQAI DNAtesting and concluded that DNA obtained from the rubberseal inside the trunk was consistent with DNA ofEllen Salling. It was stipulated that DNA obtained from blood on piece ofwood(portrayed as item CL-5 in People’s Exhibit No. 188) and found in trunk of the Mercury Sable was consistent with DNA ofEllen Salling. DNA obtained from blood stains on the Ottoman [People’s Exhibit No. 127-B] was consistent with DNAofEllen Salling. It was stipulated that PM+DQA1testing results are estimated to occur at random among unrelated individuals in approximately 1 in 18,000 Hispanic individuals, 1 in 520,000 African-Americans, and 1 in 9,400 Caucasians.(39 RT 4955-4957; 1 CT [Court Exhibits] 11.).) M. Wood and Wood Reconstruction Evidence Criminalist Michael Potts also examined wood from the Ottoman,a tree 47 limb [People’s Exhibit No. 50-B], a piece ofraw wood[People’s Exhibit No. 38- A-2] and bark [People’s Exhibit No. 38-A-3] recovered from inside Salling’s homeor car. Potts did not find any traces ofblood onthe tree limb, signifying that it could not have been usedto beator strike Ellen Salling. (39 RT 4957-4958, 4980-4984; see also 39 RT 4986-4991, 4992-4994.) Potts reconstructed the missing leg of the Ottoman from pieces foundat the ‘crime scene, in the trunk of Salling’s car, and the hillside where the Ottoman had been recovered. (39 RT 4915-4920.) In Potts’ opinion, a corner piece of the Ottoman leg contained human headhair and blood. (39 RT 4621-4625.) Potts also found human-type hair on several broken pieces of the Ottoman [People’s Exhibit No. 124-B]. (39 RT 4925-4927.) N. Handwriting Evidence Retired DOJ document examiner Bill Conner examineda blue note pad and other writings pertaining to this case in March 1999. (38 RT 4850-4856.) Comparing and examining known handwriting exemplars provided by appellant [People’s Exhibit Nos. 179-A and 179-B], Jeff Biddle, Shiree Hardman, and Starlene Parenteau [People’s Exhibit Nos. 177A-178B] with notes on yellow and white paper [People’s Exhibit Nos. 75-A [yellow note] 115 [written note on white paper], and 183], Connorwas ofthe opinion that appellant probably was the writer ofthe note on the yellow paper. (38 RT 4856-4859.) In Connor’s further opinion, a note on white paper with credit card information (previously obtained from Jeff 48 Biddle [People’s Exhibit No. 115]) was also written by appellant and, byvirtue of matching indentations, originated from the blue notepad found on and seized from appellantat the time ofhis arrest. (38 RT 4859-4869; 40 RT 5117.) If. PENALTY TRIAL —- PROSECUTION CASE A. 1980 Burglary Conviction It was stipulated that appellant was convicted ofburglary in Arizona as referred to in People’s Exhibits Z-58-A through Z-58-G. (49 RT 6240-6241; 1 CT [Court Exhibits] 49.) B. 1988 Pamela Martin Assault Pamela Martin and appellant lived together for three or four months in 1988 whenshe was 26 years old. They may have metat an Alcoholic’s Anonymous (AA) meeting. (46 RT 5706-5708.) Their relationship did not work out, as appellant was pretty violent. (46 RT 5704.) Martin told appellant that she wanted to break up. While Martin was showering, appellant entered the bathroom andstarted banging on the shower door. He called her names and broke the shower door. Martin got out ofthe shower and wentinto the bedroom to use the telephone. Appellant accused Martin of “prancing around”in a towel in front of other people and called her a slut and | other names. At the time of this incident, Martin’s cousins and a friend were stayingat their home. (46 RT 5706-5708.) Appellant ripped the telephone from the bedroom wall and grabbed Martin 49 by the neck. (46 RT 5706.) He pushed her against the bathroom wall, punched her in the chest, and threatened to kill her. The incident ended when appellant’s stepfather, Bryant Johnson,’° arrived and took appellant away from the house. (46 RT 5701-5706.) Lake County Deputy Sheriff Steven Jones arrested appellant in Clearlake Oaks on August 28, 1988. (49 RT 6199-6202.) Appellant gave a statementto Jones in which he acknowledged getting upset at Martin, calling her a slut, and ripping the telephone from the wall after she told him she was goingtocall the police. Appellant also told Jones that he pushed Martin against the showerdoor, causing herto fall into the bathtub. When Martin started laughing at him, appellant grabbed her by the throat with both hands. Not wanting to hurt Martin, appellant released her. (49 RT 6202-6206.) Appellant additionally told Jonesthat his stepfather, who happenedto be outside at the time ofthe incident, entered the residence and calmed appellant down. (49 RT 6205-6206.) C. 1992 Jennifer VonSeggern Killing It was stipulated that appellant was convicted ofvoluntary manslaughterin 1993 as documented by a California Department of Corrections section 969b prison packet. [People’s Exhibit No. 154]. (49 RT 6240-6241; 1 CT [Court '0/ Appellant’s mother, Rosie Johnson, married Bryant Johnsonafter the death of his biological father. Appellant was about 6 months old whenhis biological father died; he was about 5 years old when his mother married Bryant Johnson. Bryant Johnson considered himself appellant’s “natural father” as he had known appellant since he was eight monthsold. 50 Exhibits] 49.) According to Department of Corrections records, appellant was committed to state prison following his manslaughter conviction on November8, 1993 and released on parole on May 16, 1996. (49 RT 6236-6238.) Jennifer Lisa VonSeggern lived in an apartment in Santa Rosa, Sonoma County, in 1992. (46 RT 5725-5728.) She owned a Nissan Sentra [People’s Exhibit Nos. Z-4 and Z-5]. Appellant was a frequent visitor to her apartment and often stayed overnight. (46 RT 5728-5730.) Accordingto friends Kathleen Frank and Paul Sundquist, both VonSeggern and appellant were frequent methamphetamine users. (46 RT 5734-5735, 5742.) A few weeks before her disappearance, VonSeggern told Kathleen Frank that she was scared to death of appellant. (46 RT 5732-5734.) According to appellant’s friend, Frank Molles, appellant was using and injecting drugs in October 1992. Mollestestified that appellant displayedall the symptomsofdrug use, including being nervous, scared, and paranoid, and showing personality changes. (46 RT 5754-5755.) Molles told a police officer investigating Jennifer VonSeggern’s disappearancethat appellant was subjectto severe mood swings from his use of drugs. Molles also reported that appellant would appear normal and then switch to being angry, mad, and unstable. (46 RT 5757-5759.) | James Vaughn anda girlfriend named Desiree met appellant at the Golden Penny Motel in Santa Rosa on October 1992. (46 RT 5784-5787.) At the time of trial, Vaughn was a convicted felon and on parole. In 1992, Vaughn was about 22 31 years old, and Desiree was about 21; both were homeless. (46 RT 5787, 5791- 5794.) Needing a place to stay in October 1992, Vaughn “ran a con on appellant,” telling him that he knew howto “cook” or manufacture methamphetamine in exchangefor getting a place to stay. (46 RT 5791-5794, 5816-5818.) Appellant told Vaughn and Desiree that he would let them stay at his place in exchangefor Vaughn’shelp in manufacturing methamphetamine. (46 RT 5791-5794.) Appellant drove Vaughn and Desiree and their possessions to his residence in Santa Rosa. Appellant told them to wait in his truck in the parking lot. After short time, appellant returned and brought Vaughn and Desireeintohis apartment. Appellant told Vaughn that he had to makesure his girlfriend was not at home; that was appellant’s excuse for making them wait in the parkinglot. (46 RT 5800- 5801.) Nooneelse wasin the apartment when Vaughn and Desiree arrived. One ofthe bedroomswas kept locked. Appellant said that the room belonged to his girlfriend’s kids. (46 RT 5801-5804.) Appellant may also have told Vaughn that his girlfriend and herkids left to go to her mother’s house. (46 RT 5811-5814.) Vaughn and Desiree lived together in appellant’s apartmentonly for a few days. Vaughn never met Jennifer VonSeggern. (46 RT 5797-5800.) Vaughn slept on the couch; Desiree slept in appellant’s bedroom. After they arrived, appellant gave Desiree some clothes and costume jewelry. Vaughn never saw anyoneelse in the apartment. (46 RT 5803-5804.) Onthefirst night Vaughn and Desiree stayedin the apartment, appellant left for a period oftime. 52 Vaughn was unsure how long appellant was gone. Appellantdid nottell Vaughn where he went. (46 RT 5806-5807.) After a few days, Vaughn movedout, but Desiree stayed with appellant. Vaughn failed to deliver on his promise to manufacture methamphetamine;he did not know how. (46 RT 5807.) Before Vaughn left, appellanttried to sell him the Nissan. Vaughn told appellant he would buy the car after making some money from cooking methamphetamine. According to Vaughn, the Nissan appellant offered to sell him was dirty and muddy. It lookedlike it had been in a mudpit. (46 RT 5805-5806.) About a week after he left the apartment, Vaughn returned and stole a stereo. (46 RT 5804-5805.) Paul Sundquist was acquainted with Jennifer VonSeggern. They had dated for a couple ofyears. On October 16 or 17, 1992, Sundquist went to visit . VonSeggern at her apartment. (46 RT 5736-5737.) A man, whoidentified himself as “Jerry,” answered the door. Sundquist asked if “Jenny”still lived there. Jerry told Sundquist that “Jenny”did not live there and that he never heard of a “Jenny” living there. (46 RT 5737-5739.) Attrial, Sundquist identified appellant as looking similar to the man who answeredthe door at VonSeggern’s apartment. (46 RT 5742.) Sundquist also observed a second man about 25-30 yearsold sitting on a couch in the apartment and crouched overa table. (46 RT 5741.) According to Frank Molles, appellant normally drove a pickup truck. Onat least three occasions in October 1992, Molles saw appellant driving a Nissan Sentra depicted in People’s Exhibit Nos. Z-4 and Z-5. Appellant first told Molles 53 that his girlfriend had taken offwith a female friend. On the next occasion, appellant said that she left with a neighbor. On the third occasion, appellanttold Mollesthathis girlfriend was kidnapped by the Hell’s Angels. (46 RT 5751-5754.) Appellant asked Mollesifhe wanted to buy the car. Declining the offer, Molles directed appellant to a used car lot on Santa Rosa Avenue. Later, appellant told Molles that he had sold the car. (46 RT 5755-5756.) Don Daley owned a usedcar lot on Santa Rosa Avenue in Santa Rosa. On October 19, 1992, Daley bought a Nissan Sentra from a person named “Johnson” for $600. Daley identified the Nissan depicted in People’s Exhibit Nos. Z-4 and Z-5 as the vehicle he purchased from appellant. As the car was registered to Jennifer VonSeggern, appellant told Daley that he needed to take the paperwork to his girlfriend for her signature. Appellant later called Daley and said that he got the paperwork signed. Appellant broughtthe signedtitle and transfer documents to Daley. In turn, Daley gave appellant a check. He also gave appellant a ride back to his apartment. (47 RT 5824-5827.) Daley never saw Jennifer VonSeggern. (47 RT 5827-5831.) In October 1992, Rodney Wright worked as an auto detailer at American Auto Detailing in Santa Rosa. He cleaned VonSeggem’s car purchased by Don Daley. On cleaning the vehicle, Wright noticed blood stains on the backseat floorboard. The stains kept comingto the surface every time he applied shampoo, stain remover, soap, and a degreaser. Thestains smelled musky and foul. Wright reportedthe stains to Daley. (47 RT 5831-5835.) 54 Santa Rosa Police Officer Francis Thomas spoke with Daley aboutthe purchase and sale ofVonSeggern’s car. Daley told Officer Thomas that although he issued a check to appellant and VonSeggerm,appellant hadfirst asked for cash, explaining that if he accepted a check it might interfere with her welfare checks. (47 RT 5835-5838.) Officer Thomas also spoke with Rodney Wright who cleaned VonSeggern’s car in October 1992. Wright reported to him that the car had a foul smell in the backseat, Whenheapplied a solventto the backseat, it turned into a color he believed was blood. Becausea lot of old cars were dirty and stained, Wright did not report his observations to the police. Wright also told Thomasthat the car was dirty with mud. In Wright’s opinion, someone had driven the car off road and through brush. (47 RT 5838-5839.) Thomassubsequently had a stain found in VonSeggern’s car, as described by Wright, tested for blood. Because the car had been contaminated with cleaning products, the test proved inconclusive. (47 RT 5855-5856.) In an interview with Officer Thomas, James Vaughn said that whenhefirst arrived at his apartment, appellant said that his girlfriend was gone. (47 RT 5841- 5842.) In a subsequentpolice interview, Vaughn reported that appellant made him and his girlfriend wait for over an hour in the parking lot until the coast wasclear. Vaughn noticed that appellant had changed clothing. Appellant told Vaughn that he had gotten rid ofhis girlfriend. (47 RT 5842-5843.) During this subsequentpolice interview, Vaughn told Thomasthat when 55 appellant gave clothing and jewelry to Desiree, he referred to his own girlfriend and said, “she’s not going to need them anymore.” (47 RT 5843-5844.) Vaughn also reported to police that while staying in the apartment, appellant told him that VonSeggern wasdead andthat she was goingto be put in a ditch. (47 RT 5844.) On October 26, 1992, Officer Thomas and Det. Jim Miller interviewed appellant at his apartment, 966 Borden Villa Drive, Apartment 204, in Santa Rosa. Appellant explained he last saw VonSeggern on October 16, 1992 and that she told him she was going to leave. Appellant reported that VonSeggern seemed in desperate need of money. Heloaned her $500 in exchangefor the pink slip to her car as collateral. Appellant said he did not know where VonSeggern went and did not hear from her. When VonSeggern did not return, he sold her car at A & B Motors on Santa Rosa Avenue. (47 RT 5844-5847.) On January 12, 1993, VonSeggern’s body was found by Sonoma County Road Department employeesin a creek area adjacent to Gericke Road in Sonoma County, near the Marin County line. At that location, Gericke Road was wet and muddy. (46 RT 5764-5765; see also 1 Supp CT [Court Exhibits] 38.) When found, VonSeggern’s body was wrappedin a red sleeping bag and boundwith several items, including Christmas tree lighting and electrical cording. (46 RT 5759-5768.) There were no obvioussigns oftraumaor injury to VonSeggern’s body. (46 RT 5769.) Cording and lighting found during a subsequentsearch of VonSeggern’s apartment were identical to the cording andtree lighting found on her body. (47 RT 5869-5874; 47 RT 5881-5887.) A piece ofblack strap also 56 found on VonSeggern’s body was identical to a portion of a black strap missing from a purse found in her apartment. (47 RT 5874-5875.) Appellant was evicted from VonSeggern’s apartment on January 13, 1993. (47 RT 5869-5873.) An autopsy on the body ofJennifer VonSeggern was performed by Dr. Ervin J. Jindrich in Santa Rosa on January 13, 1993. Dr. Jindrich formerly had been the Marin County Coroner and the Coroner for the City and County of San Francisco. (47 RT 5856-5860, 5887-5890.) In Dr. Jindrich’s opinion,the victim had been dead for a period of time. (47 RT 5890.) Severedelectrical cording bound the victim’s neck, ankles, and feet. During the autopsy, green wiring and strap-material were also removed from the victim’s throat and body. (47 RT 5856-58601 47 RT 5865-5867.) There was no evidence of injuries or wounds, and Dr. Jindrich could not determine a cause of death. Specifically, it could not be determined whethereither the cording around VonSeggern’s neckorthe plastic bag over her head had anything to do with the cause of death. Indeed, it was not possible to determine even whetherthe she died from someother modality (47 RT 5891-5894.) Dr. Jindrich sent out samples ofthe victim’s blood for toxicology testing. Hewaslater informed that some methamphetamine waspresent in the victim’s blood. (47 RT 5891-5894.) Because of decomposition, it was impossible to determine whether there were injection sites on the body or whether drugs contributed to the victim’s death. (47 RT 5894-5896.) Given the level of 57 decomposition and the absence oftrauma, it was not possible for Dr. Jindrich to determine whether a drug overdose may have caused her death or whether drugs played anyrole in her death. In Dr. Jindrich’s opinion, the cause ofVonSeggern’s death could not be determined because of decomposition. (47 RT 5896-5897.) Bob Stettler was a retired Orange County Sheriff's Department document examinerliving in Lake County at the time oftrial. At the request ofthe Lake County prosecutor, Stettler examined known documents signed by Jennifer VonSeggern and comparedhersignature with the handwriting on the documents relating to the transfer and sale ofher vehicle by appellant to Don Daley in Santa Rosa[People’s Exhibit Nos. Z-50 and Z-51]. In Stettler’s opinion, VonSeggern’s signature on the vehicle transfer documents werefictitious, nongenuine imitations ofher genuine signature [People’s Exhibit Nos. Z-4, Z-52, and Z-55]. (47 RT 5876-5881.) D. Margaret Johnson Killing Margaret Johnsonlived alone in a mobile homeat 9375 Leila Street (corner ofBarbara Street) in Glenhaven, Lake County. (47 RT 5940-5941.) She was born on January 4, 1933. (49 RT 6217-6218.) She had been married to appellant’s grandfather. (47 RT 5941-5943.) According to Bryant Johnson," appellant was 7 Bryant Johnson’s father married Margaretafter his father’s first wife (Bryant’s mother) died. Bryant’s father and Margaret were married for about 25 years. Bryant’s father predeceased Margaret by about four years. Margaret Johnson was thus Bryant’s stepmother and appellant’s step-grandmother. (47 RT 5941-5943.) 38 absolutely welcome at her home. Bryant saw them together frequently. Appellant played bingo with her on many occasions. (47 RT 5950-5951, 957- 5958.) Onthe night ofDecember4, 1998, Johnson played bingo with herfriend Mary Marshat the Robinson Rancheria. Johnson left about 10:30 p.m. and drove home. Johnson called Marsh at about 11:10 p.m., saying that she had arrived homesafely. Johnson told Marsh she was goingto turn on the heat asit was cold. (47 RT 5908-5910.) In the past, Marsh had seen appellant and someofhis relatives at the casino with Margaret Johnson. According to Marsh, Margaret Johnson got along very well with appellant. (47 RT 5912-5914.) On the morning ofDecember 5, 1998, Doris Lent, a Glenhaven residence and close friend ofMargaret Johnson’s, received a call from Sunol Grayhorse, the Glenhaven postmaster. Grayhorse asked Lent to check on Johnson because she had not arrived for work at the post office that morning. (47 RT 5935-5937.) In Lent’s experience, Johnson was always on time. Lent drove two blocks to where Johnson lived and saw flames shooting out ofher home. She then drove to Elizabeth Childers’ home nearby,and called 911. (47 RT 5914-5918.) Lent returned to Johnson’s hometo awaitthearrivaloffirefighters. Childers also drove over and tried unsuccessfully to enter Johnson’s homethrough sliding glass doors. (47 RT 5926-5928.) Both Lent and Childers observed loose change on the driveway near Margaret Johnson’scar. (47 RT 5920-5921, 5928- 59 5929.) Margaret Johnson alwayscarried a cell phone and post office keys. She also owned a portable police scanner that she used to track police calls. (47 RT 5910-5912, 5921-5922, 5964-5965, 5989.) | Bryant Johnson wascalled to Johnson’s sometime during thefire and arrived while the fire was in progress. He went into her home manytimesafter the fire had been extinguished. He was unableto find her purseorcell phone. (47 RT 5944-5946.) According to Bryant Johnson, Margaret Johnson hada lot of flammable liquids at her home. She had a keroseneheater by the front door. There werepaint thinners as Johnson’s husbanddid a lot ofpainting before he died,lighter fluid for barbeques, and extra gas around their home. (47 RT 595 1- 5952.) Bryant Johnsontried to inventory Margaret Johnson’s property after her death. Many items had been burnedin the fire. Bryant himselfprobably removed somejewelry after the fire. Bryant’s father and Margaret Johnson used to do swap meets and thus had boxesofjewelry all over their place. Bryant did not find a portable scanner after Margaret Johnson’s death, only a plug-in scanner. ‘He found several purses, all ofwhich had been damagedbyfire; there were purses everywhere. (47 RT 5952-5957.) RaymondJones, the Clearlake Oaks postmaster and Clearlake Oaks voluntary fire engineer and investigator, responded to the fire at Margaret Johnson’s homeat 9:34 a.m. on December 5, 1998. (47 RT 5968-5971.) When 60 Jones arrived, Johnson’s mobile home wasfully engulfed in fire with flames shooting out the front window and venting through the roof. (47 RT 5968-5972.) After the fire had been extinguished, Jones and firefighter Dan Copas searched the home. They found the exterior doors locked. Margaret Johnson’s charred body, as depicted in People’s Exhibit Nos. Z-30-Z-34, was found by another fire team at about 10:38 a.m. The body was located in a bedroom under debris from the fire. (47 RT 5973-5978:) Johnson was found wearinga red shirt and one tennis shoe. (47 RT 5978-5979.) The other shoe was in proximity to the body and might have been dislodged duringfire suppression efforts. (47 RT 5978- 5979.) Raymond Jones subsequently spent several hours investigating the cause and origin ofthe fire. In Jones’ opinion,the fire originated at floor levelin | Johnson’s bedroom ator adjacent to her body. (47 RT 5972-5979, 5981.) In Jones’ opinion,the fire had been going anywhere from 40 minutesto 3 hours before the firefighters arrived. Because Jones did not see any indicationsthat the fire was a slow burningfire, Jones was ofthe opinionthatthe fire likely started within 40 minutesofthe firefighters’ arrival. (47 RT 5990-5992, 5998.) In Jones’ opinion, the door to Johnson’s bedroom had been closed duringthe fire. Atleast part of the floor area under Johnson’s body had been protected from thefire, signifying that the body was onthefloorpriorto the fire. (47 RT 5979-5981, 5992-5995.) A candle and candleholder were found ontherightside next to the body. A piece ofmirror from the candleholder was found protected from thefire 61 under Johnson’s body, signifying that the candleholder and mirror must have broken beforethe fire. (47 RT 5982-5983.) In Jones’ opinion,the fire was not caused by an electrical problem orfaulty wiring. There were no indications of arcing in the wires. The hot water heater fueled by propane waseliminatedas the causeofthe fire. An electric blanket cord found near Johnson’s body in her bedroom was in the offposition. (47 RT 5986- 5988.) In Jones’ opinion,the fire started as a “hot set” rather than by a “delayed device” using a candle. A candle,if lit, would have gone outprior to starting the fire. However, the candle definitely could have started the fire; indeed, Jones was unable to rule out the candle as the cause of the fire, because it was found in the vicinity of origin. (47 RT 6001-6003, 5988-5989, 5995-5998.) Oninspecting other portions ofJohnson’s homeafter the fire, Jones observed a purse on a couchin the front or living room. The contents of the purse had been dumpedoutand spread on the couch. Telephone lines appeared to have been pulled out ofthe wall and had not suffered fire damage. (47 RT 5983-5986.) Carpeting found under Johnson’s body and her red shirt were collected by Raymond Jones and Greg Smith, Supervising Investigator, California Department of Forestry and Fire Protection. (47 RT 5981-5982; 48 RT 6025-6029.) Considering that testing had confirmed the presence ofan ignitable liquid in the Isoparraffin class, Jones wasofthe opinion that a delay device was used andthat the fire was started by a hot set. (47 RT 6000-6001.) According to Jones,if someone had used a flammableliquid to start the fire and put fluid directly on the 62 bodyitself, the shirt would have been consumedin thefire. (47 RT 6001-6003.) In Greg Smith’s opinion,the fire started in Johnson’s bedroom and then traveled to other areas ofthe home. (48 RT 6029-6036, 6049-6052.) The areas of lowest burn and mostintense burning occurred around Johnson’s body. Although Smith found several potential, accidental causes, including an electric blanket and candle holder, he eliminated both as the cause or sourceofthefire. (48 RT 6040- 6043.) He also eliminated the water heater and wiring as causeofthe fire. (48 RT 6054-6056.) In Smith’s opinion,the electric blanket cord wasin the offposition, and it would have been difficult for the candle inside the glass container to cause a fire. Smith observed debris both under and on top of the candle holder indicating that it probably fell during the fire from one ofthe dressers. (48 RT 6032-6044, 6059-6062.) Smith removed cloth samples from Johnson’s body and from the carpet directly underneath andto the side ofthe body for testing and analysis. (48 RT 6047-6049.) Based on the absence of debris under the body andthat fact that clothing on Johnson’s back had not been burned, Smith wasofthe opinion that the body wasonthefloorat that location during the fire. (48 RT 6045-6047.) Based on his investigation without reference to test results, Smith was ofthe opinion that the fire was set by an unidentified person using an open flame. There was no evidence of a delay device, although that could not be ruled out with complete certainty in Smith’s opinion. (48 RT 6056-6057.) According to Smith, the laboratory results revealed the presence of an 63 Isoparaffin ignitable fluid, such as polishor lighter fluid, on both the clothing and carpet under Johnson’s body. Smith’s opinion that the fire was intentionally set was strengthened by the laboratory test results. (48 RT 6057-6059, 6062.) DepartmentofJustice criminalist Michael Potts tested the piece of carpeting and clothing providedto his laboratory by Greg Smith. (48 RT 6064- 6069.) Potts determined that an ignitable Isoparaffin-type fluid or accelerant was present on both the carpeting and clothing. (48 RT 6064-6069.) In Potts’ opinion, the test results showed that more Isoparaffin was present on the clothing than on the carpet consistent with someofthe cloth material falling onto the carpet. (48 RT 6074-6076.) In addition, Potts sent a piece ofcarpet and clothing to the Department of Justice Crime Laboratory in Modesto for further testing and analysis. Senior Criminalist Sarah Yoshida confirmed the presence ofIsoparaffin on the carpet and clothing. (48 RT 6069-6074, 6077-6081.) Dr. Jason Trent performed autopsies on the body of Margaret Johnson on December 7, 1998 and again on December14, 1998. (49 RT 6256.) In Dr. Trent’s opinion, there was no evidence ofan assault and no evidenceofinjury caused by a falling object. (49 RT 6262-6266.) Dr. Trent did not find any evidence of aspirated soot in Margaret Johnson’s respiratory tubes, trachea, and bronchi. The carbon monoxide level ofJohnson’s blood was very low -- less than 2 percent rather than the 40-80 percentit would be if she werealive duringthefire -- indicating there was noaspiration ofthe products of combustion. The lungs 64 showed pulmonary edema and backupfluid as in cardiac failure. In Dr. Trent’s opinion, the cause ofMargaret Johnson’s death was lack ofblood supply to the heart due to ischemic or coronary heart disease. (49 RT 6266-6271, 6271-6274.) In Dr. Trent’s opinion, stress could have, but did not necessarily, lead to Margaret Johnson’s death. Acute or suddenstress could have led to metabolic hormonal changes and spasm of coronary arteries and/or ventricular fibrillation. (49 RT 6275-6279.) According to Dr. Trent, the stressful event occurred probably minutes prior to death. Dr. Trent also acknowledged that the fire itself could have been the stressful event causing Margaret Johnson’s death. (49 RT 6290-6291.) Dr. Whie Oh,a cardiologist, had treated Margaret for coronary heart disease in 1998. On two occasions in 1998, Dr. Oh performed an angioplasty on Margaret Johnson. (49 RT 6241-6250.) Dr. Oh’s would not have expected Margaret Johnsonto die of heart problems on December5, 1998 so soonafter his November12, 1998 angioplasty procedure. In Dr. Oh’s opinion, acute and severe psychological stress could have caused Margaret Johnson, suffering from coronary heart disease, to suffer ventricular fibrillation and die from sudden death syndrome, a rhythmic disturbance. (49 RT 6250-6253.) Dr. Oh was unable to determine the actual cause of Margaret Johnson’s death. There was no way to measure the amountofstress needed to trigger sudden death syndrome. (49 RT 6253-6256.) Dr. Samuel M.Sobol, a clinical professor of cardiology at the University of 65 California, San Francisco, reviewed Margaret Johnson’s medical and autopsy records that confirmed she had coronary heart disease, with hardening of the arteries, and symptomsofangina. (49 RT 6303-6311.) Based on Margaret Johnson’s records, Dr. Sobol would have been surprised by her death in December 1998 from heart disease. (49 RT 6311.) In response to a hypothetical question, assuming Margaret Johnson’s medical condition and death, considering the autopsy report, and hypothetical encounter with an individual in her home engagedin theft, described as male, 37- years old, 6’ tall, 180 pounds, Dr. Sobol wasofopinion that the cause of death could beattributed to a sudden surge of adrenaline, the marked increase in heart rate and blood pressure, and constriction or narrowing of coronary arteries, causing extensive ischemia or impaired blood flow to heart muscle, electrical instability (usually ventricular fibrillation), and fatal cardiac arrhythmias. (49 RT 6311-6314, 6322-6329.) According to Dr. Sobol, the overwhelming medical evidence suggested that | Margaret Johnson was not breathing whenthe fire began, although it was possible she wasalive for a very short time after the fire began. Dr. Sobol acknowledged that the cause of death could also have beenstress by being onfire. (49 RT 6314- 6315.) At the timeoftrial, Sandra Cramerwasin state prison for felony embezzlement and welfare fraud. In early December 1998, Cramer wasat Starlene Parenteau’s home on Schindler Street. Also present were Cramer’s 66 husband, Starlene Parenteau, Starlene’s brother (Luther Gene Weathers), and Charlie Farmer. (48 RT 6021-6022.) Cramer wasnot well acquainted with appellant. On one occasion in her presence, appellant had used drugs. In Cramer’s opinion, appellant was a very nice man. Whenshe needed help with parenting classes, appellant offered to pay for her gas to allow herto get to class. (48 RT 6024.) Parenteau asked Cramer to help her and appellant use a credit card to get money from Western Union. Appellant told Cramerthat the credit card belonged to a friend; Cramer could not rememberthe name but thoughtit bore the samelast nameas appellant. (48 RT 6021-6022.) At trial, Cramer described the credit card as blue and white and embossed with the name “Margaret.” (48 RT 6018.) Both appellant and Parenteau told Cramerthat they previously tried to use the card at the casino but appellant-did not have identification with him. (48 RT 6018.) When Cramer first attempted to obtain the moneyorder, she was informed that the wrong address had been used. She asked appellant for the address. He used a telephone book to obtain the address which she then provided to Western Union. About 20 minutes after Cramer called Western Union, appellantleft Parenteau’s hometo pick up a moneyorderfor $250. (48 RT 6012-6018.) Starlene Parenteau identified two pieces ofjewelry with the names “Marge” and “Margie”inscribed on back that appellant had given to her in December 1998. (48 RT 6132-6134.) A review of Parenteau’s telephonebill for December 1998 showedthat she 67 received a telephonecall from appellant at 1:56 a.m. on December5, 1998. Parenteau did not rememberthatcall. (48 RT 6135.) Parenteau acknowledged that she was acquainted with Sandra Cramer and that she had asked Cramer some time in December 1998to use a credit card in a call to Western Union. Appellant had askedherif she knew howto get cash from a bank card. Parenteau in turn asked Cramer who suggested using Western Union. Parenteau did not know whosecredit card was used to obtain money from Western Union. (48 RT 6134-6135.) Parenteau’s brother, Luther Gene Weathers, had been previously convicted ofthree felony drug offenses in 1980, 1989, and 1999. He had servedtimein state prison. In December 1998, Weathers movedto a residence on Plaza Streetin Clearlake Oaks. Weathers had been acquainted with appellant for many years. (48 RT 6115-6117, 6126-6129.) Weathers thought he knew appellant very well. The murderofEllen Salling struck Weathers “like it’s not the person I know.” (48 RT 6126-6129.) Weathers acknowledged that while he wasliving on Plaza Street in December 1998 appellant gave him a police scanner, cell phone, and stereo. In return, Weathers gave appellant some cash and owed him moneyforthe balance. Appellant assured Weathers that the items were not stolen. Weathers later turned the scanner, cell phone, and stereo over to the police. (48 RT 6121-6123.) Weathers was arrested in late December 1998 andthereafter confined in Lake County Jail on various chargesrelating to his possession ofthe items he 68 obtained from appellant. He saw and spoke with appellant who was also being held in the same jail. On one occasion, Weathers got mad at appellant and told him to “kill me; I’m not an old woman.” Appellantreplied, “it wasn’t necessary, and it wasn’t right.” Later, when Weather again met appellant in jail, appellant denied responsibility and “made the same statement he’s always made”to him that he “didn’t do it.” (48 RT 6121-6123, 6125.) Det. Chris Rivera searched Margaret Johnson’s fire-damaged mobile home on December 11, 1998. He seized operating manuals for a police scanner (Bearcat model No. BC120XLT)and a cordless telephone. Rivera did notfind the items to which the manuals pertained. (48 RT 6136-6138.) On December18, 1998, Det. Rivera and Det. Carl Stein contacted Starlene Parenteau’s brother, Luther Gene Weathers, as to appellant’s whereabouts. . Weathers told the officers that he had obtained property from appellant, including a Bearcat scanner, cell phone, and stereo. In a search ofWeathers’ home,the officers seized the items Weathers had obtained from appellant. Theserial numberofthe scanner found in Weathers home matchedthe serial number on the manual Rivera previously found in Margaret Johnson’s mobile home. Theserial numberofthe cell phone matched the serial number ofMargaret Johnson’scell phone as obtained from her telephone company. (48 RT 6138-6141; 49 RT 6212- 6213.) Pursuant to a search warrant, Det. Rivera searched appellant’s van on June 30, 1999 at a secured storage facility in possession ofthe district attorney. Rivera 69 found and seized a Soundesign instruction manual from appellant’s van and a cordless telephone. The cordless telephone matchedthe information in the operating manual previously seized from Margaret Johnson’s mobile home on December 11, 1998. Various keys were also seized from appellant’s van during the search. Rivera showedthe keys to Postmaster Sonol Grayhorse whoidentified many ofthem as post office keys issued to Margaret Johnson. (48 RT 6142-6144.) Attrial, Grayhorse identified 12 keys seized from appellant’s van [as shown in People’s Exhibit No. Z-45] as post office keys given to Margaret Johnson. (47 RT 5931-5935, 5937.) It was stipulated that between January 10, 1997 and December 24, 1998 Margaret Johnson hadcellular telephone service with U.S. Cellular Wireless Communication. Johnson did not report the loss or theft ofher cell phone on or before December 5, 1998. More than 40 outgoing calls were made from Johnson’s cell phone from December 5 to December 11, 1998. (49 RT 6210-6211; 1 Supp CT [Court Exhibits] 42.) It was also stipulated that Margaret Johnson possessed a Petelco Credit Union Visa credit/debit card bearing number 4266150001073471. Her account was opened on August 6, 1997 and closed on June 14, 1999. Johnson did not report the loss or theft of the credit/debit card on or before December 5, 1998. Her credit card was used eight times between December 5 and December 15, 1998in the total amount of $1,123.53. (49 RT 6213-6211; 1 CT [Court Exhibits] 43-44.) According to Capital One ofRichmond Virginia, Margaret Mary Johnson 70 possessed a Capital One Visa credit card bearing number 4121741361487395 on or before December 5, 1998. Her account was opened March 27, 1996 and closed on January 15, 1999. Margaret Johnsondid notreport the lossor theft ofher Capital Onevisa credit card on or before December 5, 1998. The credit card was usedat least six times between December 5 and December18, 1998in thetotal amount of $495.81. Johnson’s Capital One Visa credit card wasalso used at an ATM machine at Bank ofthe West in Clearlake in the early morning hours of December5, 1998. Hercredit card could only be used at an ATM machine and with a personal identification (PIN) number. (49 RT 6213-6217; 1 CT [Court Exhibits] 45-46.) A Bank of the West videotape [People’s Exhibit No. Z-61-A] from its Clearlake branch in Lake County was admitted into evidence. The videotape showed appellant using Johnson’s Capital One credit card on December5, 1998 from 2:21 through 2:24 a.m. at thebank’s ATM machine. (49 RT 6186-6190; 6223-6228; 1 CT [Court Exhibits] 51-52.) E. Appellant’s Post-Arrest Admissions Det. Carl Stein interviewed appellant on December 23, 1998 at the Lake County Jail. (48 RT 6160-6164.) He drafted a written statementafter the interview which appellant signed [People’s Exhibit No. Z-59]. (48 RT 6147- 6151, 6165-6168.) Stein told the jury that after being confronted during the interview with various items of evidence pertaining both to Margaret Johnson and 71 Ellen Salling, appellant, who was very distraught and crying, stated,“T really fucked up, I need help.” (48 RT 6164, 6167.) In his written statement, appellant acknowledged burglarizing Margaret Johnson’s mobile home. He said she was not at homeatthe time; he left Margaret Johnson’s housein the early evening. Appellant said he took a scanner,cell phone,and stereo. He denied taking any jewelry or credit cards in the burglary. (48 RT 6151-6156.) In his statement, appellant said that he was pursued in his van by thepolice on December19, 1998. After bailing out of his van, he came down hills into Lucerne and hitchhiked back to Clearlake Oaks. From there, appellant said he went to his mother’s house. As no one was at home,he took a shower and changed clothes. Appellant denied ever staying overnight at Starlene Parenteau’s home. (48 RT 6151-6156.) Asto the red car he wasdriving prior to his arrest, appellant first told Det. Stein he did not remember how hegot the car. (48 RT 6158-6159.) Later, appellant told Stein that he obtainedit from a friend named Scott. He did not know Scott’s last name or where he lived. Appellant said he could probably find Scott around Luther Gene Weathers’ house. Appellant said that Scott owned him money. Onseeing him at a Super Cheapergas station, appellant took his car. (48 RT 6156-6158.) /// HTT 72 F. Victim Impact Testimony Ellen Salling’s daughter, Henni Ray, offered victim impact testimonyat the penalty trial. (See 50 RT 6344-6363.) Ray’s penalty trial victim impact testimony covers approximately 20 pagesoftrial transcript. (50 RT 6344-6363.) Raytestified about her relationship with her motherafter her father died and informed the jury about the devastation she suffered after her mother was killed. (50 RT 6344-6345.) Ray regular spoke with her mother several times each week; they were best friends. She or her mother wouldcall every Sunday,even if they spoke the day before on Saturday. (50 RT 6350.) According to Ray,her mother’s close friend, Bill Ellis, and otherrelatives in her family were also devastated by her mother’s death. (50 RT 6359-6363.) Raytold the jury that her mother had workedhard all her life and kept her home in Lake County in immaculate condition. Her mother loved gardening and had a beautiful garden. Ray’s mother was very active at her age; Ray thought of her mother as 50 years old rather than 75. (50 RT 6354-6356.) Her mother was very sociable and outgoing. She was delighted when Ray and her husbandgot a puppy. Ray’s motherhadjoined a bowling league, square danceclub, the Clearlake SPCA,and volunteered at the Lucerne Senior Center. (50 RT 6348.) Ray’s mother always whistled while cleaning, cooking, or making cookies. Her mother alwayshad a fear of dying alone and not having her body discovered, as had happenedtoher sister. Ray’s mother thoughtit was the mosthorrible thing just to be lying there without anyone aware ofit. (50 RT 6358-6359.) Ray herself 73 said she was in the courtroom every day during trial because “my mother shouldn’t be here alone” Not a day went by without Ray thinking of her mother. Her death was alwaysin her mind,as well as the brutality, senselessness, pain, and suffering that she went through. Those feelings would be with Ray forthe rest of herlife. (50 RT 6359-6363.) According to Ray, her mother regularly visited her 99 year old mother-in- law wholivedin a care facility in Nice, Lake County. Ray could not bring herself to tell her grandmotherthat her “beloved Ellen” had died. Instead, Ray implied her mother was on vacation and would soon return. Ray’s grandmotherdied in January 1999 shortly after her mother was killed. (50 RT 6357-6358.) Ray and her husbandsold their car dealership in Needles in 1994 and moved to Fort Bragg in order to be close to her mother. Ray and her husbandalso planned to moveto the Clearlake area. Ray and her husband usually visited her mother at Christmas. They cooked and bakedtogether, talked, had a wonderful time in each other’s presence, and used to talk for hours abouttheir lives and future plans. Ray, her husband, and mother always shared a three-way hug before bedtime whenthey visited at Christmas. (50 RT 6348-6350.) Ray had not celebrated Christmas since her mother’s death; it was not the same andthe memories were too painful. As Ray and her husbandlived in a remote area, they usually boughtpresents for each other and had them shipped to her mother’s home. Ray’s mother played Santa’s helper by keeping straight what Ray and her husband each boughtfor the other. Ray’s mother always took pleasure in knowing 74 what everybody was getting and in keepingit secret. (50 RT 6350-6352.) Ray last spoke with her mother on the day before her death on December 18, 1998 while en route to her home. Shedid not have the chanceto tell her mother everything she wantedto tell her, and there was so muchleft unsaid. Ray and her husband learned ofher mother’s death at 2:00 a.m. while staying overnight in a motel. A sheriff's deputy pounded on their motel room door, yelling for them to open the door and saying there had been a death in Lake County. In total shock from the news, Ray and her husband packed, grabbedtheir dog, and drove to Lake County, arriving early in the morning at her mother’s home. Ray and her husband found her mother’s home blocked by yellow crime tape. She prayed that it was a mistake. (50 RT 6352-6354.) Ray entered her mother’s homeon the afternoon ofDecember20, 1998. She inventoried the house for missing items on behalf ofthe sheriff. She later wrapped up her mother’s estate and sold her home. (50 RT 6354-6355.) Raytried to maintain her mother’s garden after she died as long as they had the house. (50 RT 6356.) Gerald Ohman,the father of Jennifer Lisa VonSeggern,testified that he lived in Santa Rosa for 40 years. He andhis late wife had three children: James, Frederick, and Jennifer who was the oldest. Ohman identified People’s Exhibit Nos. Z-2 and Z-3 as photographs ofhis daughter. (48 RT 6099-6100.) Ohman testified that at the time ofher death, his daughter had two small boys, although their father, not Jennifer, had been awarded custody. About six 75 weeks before her death, Jennifer was evicted from trailer in which she lived and moved to an apartment. She was living in the apartment with appellant. (48 RT 6099-6100.) At the time ofher death, Jennifer was trying to get a job and getoff welfare. In October 1992, Jennifer missed a custody hearing for her children and had not spoken with Ohman or his wife for about a week. Ohman called her apartment and spoke with an unknown person,not appellant. That person told Ohman that Jennifer was not at the apartment. Ohman then wentto Jennifer’s apartment. He spoke with twoor three people whosaid they had no idea where Jennifer was and that somebody had rented the apartment to them. Ohman then went to the police to report his daughter missing. (48 RT 6104-6106.) Ohman cooperated with the police in looking for his daughter and was notified in January 1993 that her body had been found. Ohman and his wife had to make arrangements aboutraising their daughter’s children. Ohman’s wife was very nervous,distraught, and withdrawn onlearning that Jennifer’s body had been found. Prior to Jennifer’s death, Ohman’s wife was very happy and outgoing; she belonged to many organizations. After Jennifer’s death, Ohman’s wife only involved herself in Jennifer’s death and organizations involving families ofmurder victims. She died from cancer in 1997. Ohman was sure that his daughter’s murdercontributed to his wife’s death in that she was reluctant to do anything about her disease, gave up looking for medicalhelp, and essentially withdrew from outsidelife. The only thing on his wife’s mind wasthe death oftheir 76 daughter. (48 RT 6106-6109.) Ohman told the jury he was continually reminded ofhis daughter. When he saw people wholookedliked Jennifer, it brought back memoriesofher. It was difficult to raise Jennifer’s children or answertheir questions, such as “where’s mommy?” Jennifer’s children were never told of the circumstancesofher death. (48 RT 6109-6110.) Ohman andhis wife only obtained a few items from Jennifer’s apartment after her death. Her apartmenthad beentotally trashed; virtually nothing was left in the apartmentafter her death. Until the time oftrial, Jennifer’s death tumed Ohman’slife inside out and upside down. (48 RT 6110-6111.) If. PENALTY TRIAL -—- DEFENSE CASE A. Testimony of Bryant Johnson Bryant Johnsontestified that while growing up, appellant was conscientious and “his mother andI just couldn’t believe the way he took to old people andlittle kids.” (47 RT 5958-5959.) For several years, Bryant and his wife thought appellant had been doing well. Living at times with his parents, appellant was working, and he behaved very well. Appellant was considerate, thoughtful, and did everything for his mother from cleaning house to cooking meals. Appellant worked with Bryant in his shop, whatever the job happenedto be. (47 RT 5960- 5962.) Bryant was very much awarethat appellant had gotten into a considerable 77 amountoftrouble, including now his murder conviction with special circumstances. Although aware ofreports that appellant had a violent nature as an adult, Bryant never saw any violence. He knew appellant had used drugsin the past, because appellant had gotten into trouble with drugs. Bryant had been aware of appellant’s drug use for about 8 or 9 years. (47 RT 5959-5960.) Bryant knew that appellant had spent time in prison. He visited appellant several times in prison. Appellant’s demeanor then seemed good, and he acted appropriately. Bryant was not aware that appellant had any trouble in prison. (47 RT 5962-5964.) B. Testimony of Appellant Appellant’s mother, Rosie Johnson, married his stepfather, Bryant Johnson, about four or five years after his biological father died of colon cancer. Before she remarried, appellant’s mother and appellant lived with his grandmother. The grandmother mostly raised appellant until his mother remarried. (50 RT 6369.) Appellant acknowledged that he completed high school, got his diploma, and wasnotin any type ofspecial education while in school. Hebriefly attended junior college, studying the administration ofjustice and accounting, but did not earn any college credits. He was pretty good with accounting while in prison and did sometyping. (50 RT 6467-6468.) 1. 1980 Burglary Conviction Appellant acknowledged his 1980 burglary conviction. He explainedthat 78 he went to Arizona as a temporary workerfor the U.S. Geological Surveyafter working in a similar capacity in Lake County. Appellant and four friends shop- lifted somebeerand other items from a Circle K convenience store. They were pursued by an off-duty police officer. During the chase, appellant and a friend tossed items from their pickup to elude capture. Appellant pled guilty to third- degree burglary, spent a weekendin jail, and was released. (50 RT 6372-6377.) 2. 1988 Pamela Martin Assault Appellant acknowledged assaulting Pamela Martin whom he had metat an AA meeting. (50 RT 6379-6381.) Appellant, Martin, and her two children lived together in Lake County for about 3 or 4 months. Appellant got into an argument with Martin after he saw her wearing just a towel in front ofhouse guests. Appellant confronted Martin in the bathroom and pushedheragainst the shower door. The door broke, cutting Martin’s ankle and forearm. Duringthe incident, appellant pulled the telephone cord from the wall. He also grabbed Martin by the throat. (50 RT 6381-6382.) Martin sustained a small red bruise on her neck and bruises on her arm where appellant had grabbedher. (50 RT 6382.) Appellant was ultimately charged with vandalism involving the telephone. He was placed on probation and ordered to pay $200in restitution and to stay away from Martin. (50 RT 6384.) 3. 1992 Jennifer VonSeggern Killing Appellant met Jennifer VonSeggern when he and friend were looking for 79 a source ofmethamphetamine in December 1991. (50 RT 6388-6389.) After a few weeks, VonSeggern invited appellant to move in with her. They had a love- hate relationship; VonSeggern arguedat lot. Appellant and VonSeggern lived together in her mobile homefor several months. Appellant subsequently moved out but became reacquainted with VonSeggern by chance in Santa Rosa. Bythis time, appellant was a heavy user of methamphetamine. (50 RT 6389-6391.) Both he and VonSeggern used methamphetamine. (50 RT 6391-6392; 50 RT 6455-6457.) | In October 1992, appellant met James Vaughn andhisgirlfriend in Rohnert Park. After Vaughn told appellant he could cook dope but needed a place to stay, appellant invited Vaughn andhisgirlfriend to stay at his apartment. Appellant drove Vaughn andhis girlfriend to. the apartment he and VonSeggern shared. Leaving Vaughn in the parking lot, appeliant went inside to speak with VonSeggern. She was “slamming dope”at the time. VonSeggern hadjust injected herselfwith methamphetamine; the needle wasstill on the table when appellant arrived. (50 RT 6392-6393, 6457-6460.) Appellant and VonSeggern got into a big argument whenhetold her about his friends waiting in the parking lot. VonSeggern started screaming at appellant and got into a very severe “hassle” with appellant. VonSeggern hit her head on a coffee table when he pushed her down. VonSeggern stopped breathing after hitting her head. Appellant panicked. Because VonSeggern wasstill bleeding through her noseafter she died, appellant put a plastic bag over head. Heput 80 VonSeggern’s bodyin a sleeping bag andtied her up with cord and wire found in their apartment. Appellant put VonSeggern’s body in her car and dumpedthe body. (50 RT 6455-6457.) He was not exactly sure where he took the body other than it was out toward the coast. (50 RT 6483.) Appellant acknowledged“i]t wascallous” and wished he “could take it back.” (50 RT 6393, 6460-6461.) 4. Margaret Johnson Killing Appellant acknowledgedthat he burglarized the home ofMargaret Johnson on December5, 1998 and that she might have been homeat the time. He was aware that she was homefrom her parked car. Appellant was also aware that she had a heart condition. Appellant was heavily using methamphetamine and had been “up straight solid.” Using a key to enter her home, appellant took Johnson’s scanner, two telephones, includinghercell phone, and other items. He went through Johnson’s purse. Appellant did not see or encounter Margaret Johnson at all. The door to her bedroom was closed. After leaving Margaret Johnson’s home,appellant used her credit card at the Bank ofthe West to obtain some money. He then drove to Luther Weathers’ home, giving him someofthe stolen property in exchange for methamphetamine. (50 RT 6403-6405, 6438-6439, 6464- 6465.) Appellantinsisted that he never saw his grandmother while in her home, never encountered her, and he absolutely denied setting Johnson or her home on fire. (50 RT 6405-6407, 6496.) Appellant could not havestarted the fire. He 81 would not have been able to drive up the driveway about an hour or hour and a halfbefore the fire was discovered. Everyone would have heard his noisy van, and dogs would have barked. Appellant said he first learnedofthe fire a couple of days later. (50 RT 6407-6408, 6484.) He was aware that Margaret Johnson was dead whenhe usedhercredit card on December14, 1998. (SO RT 6469-6471.) 5. Ellen Salling Murder Appellant acknowledged killing Ellen Salling on December 9, 1998. He had been using methamphetamine constantly and heavily for several days. (S50 RT 6408-6411, 6426-6428.) After wrecking his van on High Valley Road and managing to evade pursing officers, appellant walked to Kono Tayee Estates. At approximately 8:00 a.m., he knocked unsuccessfully at a couple of houses before he approached Ellen Salling’s home. Appellant was holding a very light willow branch that he had used as a walking stick. (50 RT 6466-6467.) Seeing Salling in the kitchen window, appellant knockedat her door, which Salling opened almost immediately. Appellant told Salling that he had just wrecked his van and asked to use her telephone. (50 RT 6411-6417.) Appellant’s only intent on entering Salling’s home wasto use her telephone. (50 RT 6478-6479.) Atfirst, Salling let appellant enter her home. As soonas Salling saw that he looked like a mess, she told him to get out ofher house. Appellant then did not know exactly what happened. He got angry, started shaking and trembling, violently and uncontrollably. Appellant told the jury he then attacked Salling. (50 82 RT 6417-6420, 6465-6466, 6478-6479.) Appellant could not rememberthedetails ofthe attack, although he conceded it was vicious. (50 RT 6418-6419.) Appellant acknowledgedkilling Salling and took full responsibility for his actions. After killing Salling, appellant panicked and started running around her house. He decided to steal only after the killing. (50 RT 6479-6482, 6495-6496, 6499-6501.) He went through her drawers, although he did not know why. He washedhis hands in the kitchen sink and kept asking himself “oh, my God; oh, my God; my God, what have I done.” From the kitchen, appellant went upstairs into Salling’s bedroom and bathroom. He took some jewelry. Back downstairs, appellant picked up the footstool that he had used to beat Salling. He also picked up pieces from the footstool that were all over. He wentinto the garage and saw a car. He put the footstool and other items into the trunk and then drove away. (50 RT 6419.) Except for Salling’s driver’s license and credit cards, appellantlater dumped everythingelse in the hills. (50 RT 6466-6467.) Asto why he used Salling’s money, wentto casinos, and engagedin “rather callous behavior,” appellant said his mind was “like in a dream.” (50 RT 6420, 6488.) Appellant told the jury he still suffered nightmares from Salling’s death and couldstill hear her screaming. He was ableto sleep only for a few hours because of the nightmares. Appellant said he had been going to churcha lot and prayed a lot for forgiveness. (50 RT 6430-6431.) Hi | /T1 83 C. Drug Use and Addiction Appellant started using methamphetaminein high schoolafter his family moved to Lake County. (50 RT 6371-6372.) To fuel his drug habit, appellant stole money from his parents, from his father’s business, and from places where he worked. (50 RT 6402-6403.) He stole money to buy dope. (50 RT 6463-6464.) For many years, appellant has severe cravings for methamphetamine. This craving was always running through appellant’s head whenever around methamphetamine. According to appellant, methamphetamine wasvery prevalent in Lake County; it was everywhere. (50 RT 6472-6474.) Methamphetamine made appellantfeel really good. When using methamphetamine, appellant could never get enough,and he could not stop. (50 RT 6376.) Appellant said he functioned better with methamphetamine. He was morealert, and his senses and perceptions were better. (50 RT 6376, 6446-6448.) In 1985, appellant was sentto live with an uncle in Los Angeles. He got a job delivering televisions and VCRs. One ofhis coworkers was a cocaine dealer. Appellant started using cocaine. In six months, appellant squandered everything just to get more rock cocaine. In 1987, appellant’s grandmother drove him back to Lake County. Both his mother and grandmother demandedthat appellant get help. Heentered a short-term recovery program whichdid not resolve his addiction,as he continued to think about cocaine. (50 RT 6377-6379.) In 1989, appellant started using drugs again. He quit his job in Lake County and movedto San Franciscoto help in a friend’s painting companyandto 84 help rebuild his friend’s homein the Marina District after the San Francisco earthquake. His friend was a big-time methamphetamine and cocaine dealer who kept appellant well supplied with drugs. Appellant used about a gram per day and was quite addicted. (50 RT 6385-6387.) In 1990, appellant’s parents demanded that he seek help for his addiction. (50 RT 6387-6388.) Appellant started a short-term Salvation Army program in Healdsburg. There, hefirst started attending church. The Salvation Army helped appellant obtain a commercial driver’s license and hired him to drive one oftheir trucks. Appellant worked as a driver for the Salvation Army for nine months. (50 RT 6388-6389.) In 1998, after being released from prison for parole violation, appellant got a job at the Sentry Market in Clearlake Oaks. Initially, he did not use methamphetamine while working at the market. However, he started using again in November1998after running into Starlene Parenteau at the homeofa friend in Clearlake Oaks. He helped Parenteau moveinto her new home on Schindler Street. Parenteau was a heavy drug user. Once his addiction started again, appellant could not get enough methamphetamine. Hestarted using again because he was aroundother drug users. He loved speed so muchthat he just could not control himselfwhen aroundit. (50 RT 6397-6399.) Appellant used between one-halfand a gram ofmethamphetamine per day after he met Parenteau. Parenteau’s brother, Luther Weathers, was his main supplier and kept him well supplied with drugs. (50 RT 6401-6402.) Appellant 85 was unable to stop. When using methamphetaminefor long periods, appellant got edgy, angry, and would blow upattheslightest thing. He was not a nice person when underthe influence. (50 RT 6428-6429.) Appellant told the jury he was taking medication in jail to help him through nightmares. He even tried to commit suicide in jail. He acknowledged, however, that he nevertried to communicate with Ellen Salling’s family or friends and never wrotea letter of apology. (50 RT 6466.) D. Testimony of Correctional Officer Robert Fogelstrom Lake County Correctional Officer Robert Fogelstrom worked at the Lake County Correctional Facility. Although he did not have daily contact with, appellant, Fogelstrom interacted with appellant several times per month over a period of 2% years. (51 RT 6514-6516.) In Fogelstrom’s opinion, appellant was a model inmate. According to Fogelstrom, appellant’s model behavior was not very common amongjail inmates. (51 RT 6512-6514.) EK. Testimony of Mildred Mallory Mildred Mallory and her husband had conducted churchservices for 13 years at the Lake County Jail. They became acquainted with appellant who | attended their services. Services were held in a locked library at the jail; no correctional officers were present during churchservices, although correctional officers were able to look into the services from above. (51 RT 6519-6522.) Appellant wasneverin restraints during churchservices. (51 RT 6522-6523.) 86 According to Mallory, appellant’s behavior was always pleasant; he was neverthreatening in any way. (51 RT 6516-6518.) While attending services, appellant “‘accepted Christ as his savior.” According to Mallory, “when you becomea Christian, you have a new nature, I know that.” (51 RT 6517-6518, 6521-6522.) F. Testimony of Dr. Raymond Deutsch Dr. Raymond Deutsch M.D.was at the time oftrial an Assistant Clinical Professor ofPsychology at the University ofCalifornia at Fresno. He had worked in addiction medicine for 10 years and was involvedin both the detoxification and rehabilitation of substance abusers. Dr. Deutsch had previously qualified as an expert on the effects ofmethamphetamine and had numerous court appearances as a medical expert on addiction and dependencyissues. (51 RT 6523-6528.) Dr. Deutsch described addiction as a neurological disease and brain disorder. He described an addict’s drug seeking behavior as a pattern or constellation of actions insuring access to drugs, including theft and lossofself- control. Dr. Deutsch personally evaluated appellant at the Lake County Jail on August 4, 1998. (51 RT 6528-6531.) In Dr. Deutsch’s opinion, appellant metall the criteria for drug addition and had been addicted to methamphetaminefor | approximately 29 years, including the period through December 1998. (51 RT 6531-6534, 6575-6584.) In Dr. Deutsch’s opinion, methamphetamine addiction caused nervousness, 87 changesin perceptionofreality, extreme mood swings, delusions, and paranoia. (51 RT 6534-6538, 6592.) According to Dr. Deutsch, the daily use of 4 to 1 gram of methamphetamineover a three-week period would disrupt and distort thinking and perceptions, cause impulsive behavior, and outbursts of rage. (51 6538-6543.) Dr. Deutsch concededthat violence and rage reaction could be the samething. (51 RT 6585-6586.) In Dr. Deutsch’s opinion, based onthe facts of this case, appellant’s methamphetamineuse lowered his threshold for violence and caused an explosive or rage reaction on encountering Ellen Salling, leading to her death. In Dr. Deutsch’s opinion, when appellant killed Ellen Salling, his behavior was consistent with a rage reaction, not deliberative thought. (51 RT 6548-6551, 6569- 6575.) According to Dr. Deutsch, appellant’s behavior, ransacking Salling’s home after the murder, occurred after an explosive rage reaction and wasnotpart of a predetermined plan. (51 RT 6543-6548.) Appellant’s actionsafter the killing, including his drug-seeking behavior, were due to his craving for more methamphetamine andtoxicity. Appellant simply was unable to plan any type of getaway from the problemscaused by Salling’s murder. (51 RT 6546.) Dr. Deutsch conceded that by remainingin the area and using stolen property and credit cards, appellant might not have been the “smartest individual” or “outofhis mind” but may havebeeninstead a callous criminal, unconcerned aboutgetting caught. (51 RT 6587-6589.) 88 IV. PENALTY TRIAL -- REBUTTAL A. Testimony of Paul Sundquist Paul Sundquist had an intimate relationship with Jennifer VonSeggern for several years. Although he was aware that VonSeggern used drugs, Sundquist only used methamphetamine with VonSeggern on two occasions. Sundquist never saw VonSeggern sell drugs; she was not the type. He never saw VonSeggern inject methamphetamine with a needle, never saw a needle in her home, and never saw any evidence ofneedle marks on VonSeggern whenheslept with her. (47 RT 6650-6654, 6656-6657.) B. Testimony of Kathleen Frank Kathleen Frank had regular contact with Jennifer VonSeggern during the last year ofher life. They saw each other often. Frank was aware that VonSeggern used methamphetamine. VonSeggern “snorted” methamphetamine. Frank never saw VonSeggern inject drugs and never saw needles or syringes around her house. Frank did not know where VonSeggern kept drugsin her house. According to Frank, VonSeggern was scared ofneedles and had previously spoken with Frank about howgrossit was to use a needle. Frank never saw VonSeggern sell drugs. Most ofthe time, VonSeggern was broke; she never had extra money. Frank never saw strangers in VonSeggern’s home. (47 RT 6657- 6661, 664.) 89 A. Guilt Trial Issues and Assignments of Error I THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR CHANGEOF VENUE; DENIAL OF APPELLANT’S CHANGE OF VENUE MOTION VIOLATED HIS RIGHTSTO A FAIR TRIAL, TO DUE PROCESS, AND TO A RELIABLE PENALTY DETERMINATION GUARANTEEDBYTHE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION A. Factual and Procedural Background Appellant moved for a change ofvenue on May30, 2000. (1 CT 182-207.) In support of his change ofvenue motion, appellant offered public opinion surveys,pretrial publicity, exhibits, and other evidence showing that 64% ofthe population in Lake County was awareofthe Salling murderin this case; 42% of the population had already prejudged guilt; and 46% ofthe population had prejudged penalty. (See 1 CT 151-181.) Separate, more limited polling by a defense investigatorofpotential jurors in Lakeport, Lake County, confirmed an exceedingly high percentage ofprejudgmentin this case: Every single subject polled at random by a defense investigator was aware ofthe case and had formed someopinion aboutit. (See 1 CT [Confidential] 2-4.) In light of the significant percentages ofpublic awareness aboutthe case and prejudgmentofboth guilt and penalty, appellant’s expert witness, Dr. Stephen J. Schoenthaler, Professor of Criminal Justice, California State University at Stanislaus, concluded that there was a reasonable likelihood that appellant could not receive fair trial in Lake County. (See 1 CT 151-181; see also 13 RT 234- 90 243 [testimonyas to public opinion on penalty if appellant found guilty and Defense Exhibit Nos. E-G].) At the change ofvenue hearing, Dr. Schoenthalertestified that based on his samplings and surveysofpotential jurors in Lake County, a total of49% ofthe population believed that appellant was probably guilty (14 RT 319, 339-342); 36% believed he should be sentencedto death if found guilty; and approximately 30% ofpotential jurors living in Lake County were aware ofthis case based on exposureto all types ofmedia andpretrial publicity. (13 RT 207-234; 14 RT 311, 325-342.) According to Dr. Schoenthaler, the extremely high percentages of prejudgmentas to both guilt and penalty in this case were far in excess of prejudgment percentages deemed acceptable by courts in other cases in which change ofvenue had been granted. (13 RT 234-243; see also 14 RT 303-307, 312.) Opposing appellant’s motion for change ofvenue, the prosecution presented an analysis of the defense survey by, and the testimony of, Dr. EbbeB. Ebbesen, Professor, Department ofPsychology, University of California, San Diego, whofaulted the defense survey and the methodology of Dr. Schoenthaler. (See 2 CT 299-358.) Thoroughly pro-prosecution, Dr. Ebbesen had regularly and repeatedly testified as a prosecution witness opposing change ofvenue motionsin other cases.’? (14 RT 440-453.) In the present case, Dr. Ebbesen asserted that a "2 See, for example, People v. Famalaro (2011) 52 Cal.4th 1, 20 and Peoplev. Davis (2009) 46 Cal.4th 539, 571-572.) It is of further significance that in Davis, after the parties were unable to agree on a new venuesite, the trial court independently appointed appellant’s expert in the present case, Dr. Stephen Schoenthaler, to conduct telephone surveysofthe four candidate counties as well 91 public opinion survey was only one factor to be considered in change ofvenue cases. According to Dr. Ebbesen, he had never seen an adequate defense survey in respect to pretrial publicity or prejudgmentofpotential jurors. (See 14 RT 445; 15 RT 532.) Dr. Ebbesen wasofthe opinion thatpretrial publicity posed very little problem in selecting a fair jury in Lake County. (15 RT 548-549.) Based on Dr. Ebbesen’s work and testimony, the prosecutor argued that voir dire would be sufficient to weed out those potential jurors who had already prejudgedeither guilt or penalty or both. (See 15 RT 608-610.) In opposing appellant’s motion, the prosecutor focused almost exclusively on pretrial publicity, rather than on the issue ofprejudgment. The prosecutor argued appellant failed to establish a reasonablelikelihood that a fair and impartialtrial could not be had in Lake County. (See 1 CT 242-298.) Stressing that neither the victim in this case nor appellant was prominent in community; that both were residents, not outsiders; and that the quality of defense survey was not good, the prosecutor argued that there was not much depth ofprejudgment in Lake County andthat juror selection and voir dire would be adequate to reveal biases and prejudgment. (15 RT 609- as Sonoma County (used as a basis for comparison). (See People v. Davis, supra, 46 Cal.4th at p. 570.) In other cases, Dr. Ebbesen had been used exclusively by the prosecution (in non-change ofvenuecases) to rebut and dispute, for example, defensecritiques of eyewitnessreliability. (See, for example, People v. Kogut (2005) 10 Misc.3d 305, 309-310 [806 N.Y.S.2d 366]; People v. Williams (2006) 14 Misc.3d 571, 575 [830 N.Y.S.2d 452]; People v. Legrand (2002) 196 Misc. 179, 188 [747 N.Y.S.2d 733]; United States v. Hines (1999) 55 F.Supp. 62, 63, 71.) Indeed, Dr. Ebbesen appears to devote muchofhis time outside academiato testifying solely on behalf of the prosecution in various cases throughout the country. 92 610.) On July 6, 2000, the court denied appellant’s change ofvenue motion. The © court ruled that appellant failed to meet his burden of showing a reasonable likelihood that a fair and impartial trial could not be had in Lake County. Totally ignoring the related allegations concerning the death ofMargaret Johnson,the court noted that the case involved a single murder; moderate publicity which did not sensationalize the murder; and, although small, a spread-out population. The court emphasizedthat the victim was not prominent in the community andthat there was no dispute amongcounty officials as to the costs ofprosecution. (See 1 CT 377; 16 RT 630-641.) B. Standard of Review State law provides that a change ofvenue must be granted when the defendant demonstrates a reasonable likelihoodthat a fair trial cannot be held in the county wherethe crime or crimes occurred. (§ 1033; People v. Vieira (2005) 35 Cal.4th 264, 278-279.) On appeal, the court’s independent evaluation ofthe venue determination is based on a consideration offive factors: (1) the nature and gravity ofthe offense; (2) the nature and extent ofthe media coverage; (3) the size ofthe community; (4) the community status ofthe defendant; and (5) the prominence ofthe victim. (People v. Sully (1991) 53 Cal.3d 1195, 1237; People v. Panah (2005) 35 Cal.4th 395, 447.) On appeal, the appellate court conducts a de novo review ofthe evidence 93 presented in the superior court to determine whether the court should have granted a change ofvenue. (People v. Jenkins (2000) 22 Cal.4th 900, 943.) In addition, the defendant must show “both that the court erred in denying the change ofvenue motion, i.e., that at the time of the motion it was reasonably likely that a fair trial could not be had, andthat the error was prejudicial, i.e. that it [is] reasonably likely that a fair trial was not infact had.” (/bid.) | C. The Court Erred and Abusedits Discretion on Denying Appellant’s Motion for Change ofVenue A trial court should grant a change ofvenue when the defendant demonstrates a reasonable likelihood that in the absence of suchrelief, he cannot obtain a fair trial. (People v. Weaver (2001) 26 Cal.4th 876, 905.) | According to the United States Census Bureau, Lake County hada | population of 58,309 out of a total California population of 33,871,648 in the year 2000. (U.S. Census Bureau, Census 2000 Redistricting Data.) There were but 17 small townsorcities in the county in 2000, each with a relatively small population numbering in the thousands. Clearlake, Lake County’s largest town, had a population ofjust 13,142 people in the year 2000; in the entire county, there were only 44,247 people 18 years and older. (United States Census Bureau, Census 2000, Lake County, California, DP-1. Profile of General Demographic Characteristics: 2000.) In respectto the change ofvenue motion,the trial court was presented with copies ofnumerous newspaperarticles and other print media that appearedin the 94 community after the two alleged murders. (See 1 CT 264-298[press articles].) The publicity in the present case was pervasive and prejudicial to appellant. (See also 1 CT 194-196 [nature and extent ofmedia coverage as sensational and inflammatory].) One newspaperarticle in the Lake County Record Bee,for example, referred to a spate of “horrendous” murders, including thekilling of Ellen Salling and the death ofMargaret Johnson as to both ofwhich appellant had allegedly been linked. (See 1 CT 295-296.) In an opinion piece, for example, the Lake County Record Bee quoted readers expressing rage at the murderofEllen Salling. (See 1 CT 279.) Other newspaperarticles described the charged murder, described the victim, described appellant and his background, and recountedthe fear amongresidents ofthe neighborhoods where the crimes occurred. Articles focused on the apprehension andarrest of appellant, his background andparole status, and other sordid details of this case. The articles invariably linked appellant to and alleged involvementin the death ofMargaret Johnson andeither explicitly or implicitly accused appellant ofkilling her and committing arson to cover up the crime. As further discussed infra, subsequent juror questionnaires confirmed that potential prejudice from the media coverage had not attenuated by the passage oftime. (See People v. Welch (1999) 20 Cal.4th 701, 744.) Appellant acknowledges that while strong media coverage may weigh in favor of a change ofvenue, this factor does not necessarily require a change of venue. For example, in People v. Ramirez (2006) 39 Cal.4th 398, the Court upheld the trial court’s denial of a motion for change ofvenue by an accusedserialkiller, 95 even though thetrial court itself had described the media coverage ofthe murders and defendant’sarrest as “saturation.” (/d. at p. 434.) Trial in the Ramirez case, of course, occurred in Los Angeles County with millions ofpotential and prospective jurors. Here, unlike the Ramirez case, Lake County had a vastly smaller population, venire, and jury pool. Moreover, while the fact that prospective jurors may have been exposed to pretrial publicity about the case does not necessarily require a change ofvenue (People v. Proctor (1992) 4 Cal.4th 499, 527), here, a large percentage ofboth unsworn and sworn jurors knew aboutthe case and were affected by it.° This information, based largely on juror questionnaire responsesandtrial voir dire developedafter the ruling on the change ofvenue motion,is highly relevant in showing both prongs required in People v. Jenkins, supra,i.e., that it was reasonably likely that a fair trial could not be had andthatit is reasonably 13’ Information as to jurors’ relationships with Margaret Johnson andtheir knowledge of her alleged murder by appellant comes primarily from responses to the juror questionnaires. As subsequently noted by defense counsel duringtrial, the jury was notvoir dired on the issue ofMargaret Johnson’s death. Hence, “we don’t know how manyofthese potential jurors may have some kind ofknowledge about that incident or may -- or may have already formed some type of opinion about that incident.” (41 RT 5154.) Asthus confirmed by counsel’s statement duringtrial, appellant’s defense and penalty strategy had been placed in an untenableposition attrial in respect to the alleged killing ofMargaret Johnson:either (1) explore thoroughly during jury selection potential juror bias based on awareness and knowledge ofMargaret Johnson’s death, thereby runningtherisk of revealing prejudicial and inflammatory evidenceofher death (that had otherwise been excluded from the guilt trial), or (2) avoid voir dire questioning on this subject, thereby running the risk of impaneling biased or prejudiced jurors as to penalty. Thetrial court previously overlooked that a change ofvenue would havevitiated these prejudicial, incompatible choices. 96 likely that a fair trial was not in fact had. For example, during jury selection prospective juror Chalmers-Fancher noted a ripple of fear and concern in the community after the murderin this case. (See 27 RT 2968 [Becauseit’s a small community, and when the event took place, there was a ripple of fear and concern and every -- you know,it was the topic of conversation at the time.”].) Prospective juror Catherine Hobbs noted she lived close to the Kono Tayeearea:“I remember thinking that it was, you know -- it was more ofinterest to me than other cases becauseit wassort of close by. ... I was relieved to hear [defendant] was captured since, you know,welive across the lake from there.” (27 RT 2910.) Prospective juror Joe Doom, as had manyofthe prospective jurors, had already formed an opinion about the case, largely because ofpress articles and through conversations with others in the community, including neighbors ofthe victim. (See 8 CT 2133; 24 RT 2408, 2412.) With respect to the size ofthe community, this factor weighed strongly in favor of a change ofvenue. Lake County certainly is not a major metropolitan area with a large population. Wherethereis a large, diverse pool ofpotential jurors, the suggestion that 12 impartial individuals could not be empanelledis hard to sustain. (Skilling v. United States (2010)561U.S.___,__— [130 S.Ct. 2896, 2915, 177 L.Ed.2d 619].) Here, however, the population ofLake County was modest, concentrated in a few locations, and everyone seemed to know everyone else (as repeatedly stated by prospective jurors in this case). Here,too, this circumstance weighed heavily in favor of a change ofvenue. (People v. Leonard 97 (2007) 40 Cal.4th 1370, 1396; see also People v. Ramirez, supra, 39 Cal.4th at p. 434; People v. Pride (1992) 3 Cal.4th 195, 224.) While certainly not dispositive, the nature ofthe crimes and theintensity of publicity, as present in most multiple or capital murders (see People v. Dennis (1998) 17 Cal.4th 468, 523), also weighed in favor of a change ofvenue. (People v. Prince (2007) 40 Cal.4th 1179, 1213).) Because ofthe very small population of Lake County atthe timeoftrial, it was more likely that pretrial publicity, preconceptions, and prejudgment became imbeddedin the public consciousness. Unlike larger counties, the small population ofLake County could not neutralize or dilute the impact of adverse publicity. (See People v. Jennings (1991) 53 Cal.3d 334, 363; People v. Dennis, supra, 17 Cal.4th at p. 523.) For example, prospective juror Jack Nieve heard a lot of information about this case and knewthata lot of people had already made up their minds which wasprobably “negative”for appellant. (See 27 RT 2833.) Prospective juror Richard Chase read aboutthe murder, and Dorothy Woodsfelt, by the press coverage, that she had already prejudged the case and convicted appellant. (See 27 RT 2878, 2796.) Although neither appellant nor Ellen Salling nor Margaret Johnson-- the penalty trial alleged arson and murder victim -- was prominentor notorious, Salling was a well respected and extremely sympathetic memberofher local Kono Tayee community, and Margaret Johnson workedin the local postoffice in her area and was a well-known memberofher community as well. The postoffice is the heart and soul of the local community, particularly in rural areas. Prospective 98 juror Patricia West worked with Margaret Johnson in the postoffice. (26 RT 2614, 2658.) Danny Vaars, another post office employee, was exposedto this case through the newspaper; it was difficult for him to be fair because ofthe pretrial publicity and the information disclosed about appellant’s drug use. (23 RT 2264.) Prospective juror Antonia Ledoux was acquainted with Margaret Johnson. (30 RT 3577-3578.) Prospective juror Tyler read about crime in the local Record Bee, was awareofthe facts and circumstancesofthe crime, and was acquainted with key prosecution witness Det. Chris Rivera. Det. Rivera lived in the same neighborhoodand had opened a coffee shop with his wife near Tyler’s house. (See 25 RT 2539-2541.) The nature andgravity ofthe offenses involved in this case weighed heavily in favor ofa change ofvenue. Appellant was charged with onecapital murder; in the penalty phase, he was charged with another capital crime involving the arson death ofhis step-grandmother whoalso lived in Lake County. In short, the nature and gravity of the offenses involvedin this case could not have been more serious. This factor, too, thus militated in favor of a change ofvenue, particularly in such a small community as Lake County. (See People v. Leonard, supra, 40 Cal.4th at pp. 1395-1396; People v. Ramirez, supra, 39 Cal.4th a p. 434.) Becauseofthe small population ofLake County, the unique featuresofthis case gave Ellen Salling and appellant, as well as Margaret Johnson,great prominence militating in favor of a change ofvenue. For example, prospective 99 juror James Wright could notbe fair or impartial because ofhis personal relationship with Salling over the course of 20 years. (See 23 RT 2132.) Prospective juror Gail Good wasa personalfriend of Salling’s; she wanted to see the death penalty imposedin this case. (26 RT 2707.) A host of other prospective jurors confirmed what Dr. Schoenthaler’s surveys showed -- most membersofthe community were exposed to inflammatory pretrial publicity as a consequence of which there was an unusually high percentage ofprejudgmentin the venire. Because ofthe small population in Lake County, and the small communities involved, a host ofprospective jurors -- far more so than in other capital cases in larger counties -- knew the people involved and had prejudged the outcome. For example, prospective juror Donald Wetmore bowled with Ellen Salling. He read manyarticles about the case; the impression he received from the pretrial publicity was that of a brutal crime and repugnant murder. (See 8 CT 2079; 24 RT 2356.) Prospective juror Betty Jeppesen was acquainted with Salling and manyofthe witnesses. (8 CT 2241; 24 RT 2475.) Prospective juror Carole Margaret had prejudged appellant’s guilt prior to trial. Ellen Salling was her hair salon client; Margaret thus had a personalrelationship with the victim. (24 RT 2476.) Prospective juror Judy Haskins lived in Kono Tayee; she had beena friend of Salling’s. (27 RT 2973.) Prospective juror Joe Riddle subscribed to two local newspapers and was aware of and familiar with the details of Salling’s killing; he stressed that Lake County was a small community. (30 RT 3433-3435.) 100 Prospective juror Joseph Martinez lived about half a mile away from EllenSalling. He followed the case closely, because it occurred near wherehelived;for that reason, it was hard for him to be fair and impartial. (31 RT 3797-3803.) Certainly, the publicity attending the killing oftwo elderly women in two separate Lake County communities full ofretirees created bias and prejudice in favor of a change ofvenue. (See People v. Williams (1989) 48 Cal.3d 1112, 1129.) This elementofpossible prejudice would not necessarily have followedthe case to other venues where larger populations with greater age diversity would have diluted the numberofpotential jurors drawn from the affected communities or with backgroundssimilar to the victims in this case. (See People v. Dennis, supra, 17 Cal.4th at p. 523; see also People v. Cooper (1991) 53 Cal.3d 771, 806.) It was also unreasonable here to conclude that the memoriesofprospective jurors who read these newspaperstoriesorlistened to these television reports would have dimmedbythepassage oftime. (See Patton v. Yount (1984) 467 U.S. 1025, 1034 [104 S.Ct. 2885, 81 L.Ed.2d 847].) Indeed, a significant percentage of prospective jurors not only recalled the nature andfacts of this case but also were aware ofthe second unadjudicated Lake County murderinvolving Margaret Johnson allegedly committed by appellant, evidence as to which the prosecutor intended to offer during the anticipated penalty trial. The bulk ofthe pretrial publicity in this case was generated aroundthe time of occurrence in December 1998 and following appellant’s apprehension and arrest. Appellant was tried, however, only a year and half after the killing. 101 While the passage oftime can ordinarily blunt the prejudicial impact of widespread publicity (see People v. Jenkins, supra, 22 Cal.4th at p. 944; People v. Dennis, supra, 17 Cal.4th at p. 524; People v. Robinson (2005) 37 Cal.4th 592, 623), here, both the preliminary hearing andtrial shortly followed the crime. Thus, even though potential and seated jurors may not have read or watched news reports concerning the case against appellant that may have been disseminated during jury selection and the ensuingtrial, all of the jurors, as all Lake County, were nonetheless exposed to press and television coverage shortly before trial becausethe events did not long precedetrial in this case. For example, prospective juror Richard Edison recalled reading about the case and learning the general facts from pretrial publicity. (31 RT 3722-3752.) Prospective juror Arthur Widdifield was aware of essential features of this case. He recalled people talking about the case whenhe workedat a gas station in Clearlake. He recalled learning that an elderly woman had beenkilled, her car stolen, and that there had been a car chase down the highway. (31 RT 3752-3776.) Appellant acknowledges that pervasive publicity alone does notestablish prejudice. (People y. Panah, supra, 35 Cal.4th at p. 448.) Jurors exposed to publicity still may serve.“It is sufficient if the juror can lay aside his impression or opinion and rendera verdict based on the evidence presented in court.”([bid.; see also People v. Coffman and Marlow (2004) 34 Cal.4th 1, 45.) Here, however, in denying appellant’s change ofvenue motion,the trial court overlooked surveys that clearly showed very high percentages ofboth knowledge about the case 102 amongall Lake County residents and prejudgment as to both guilt and penalty. Indeed, as expressed by prospective juror Kristina Talaugon, it would be hard for appellantto get a fair trial in such a small community as Lake County. Everyone knew everybody else and everybody knew what was happening in the community. As other Lake County residents, Talaugon was also acquainted with at least two prospective witnesses in this case. (See 23 RT 2066.) The superior court’s confidencethat, despite the publicity, the venire would consist primarily ofpersons who had not formed an opinion as to defendant’s guilt wasnot borne out by subsequent proceedings. As typical of a small community as Lake County, and as evidencedby the jury questionnaires and voir dire during jury selection,'* numerous potential or prospective jurors (1) heard about and were '“/ See, for example, 5 CT 1134, 1161, 1242, 1323, 1350, 1377; 6 CT 1431,1512, 1539, 1647; 7 CT 1755, 1844; 8 CT 2079 [prospective juror acquainted with ' victim through bowling league; read manyarticles], 2133, 2154, 2187, 2241, 2268, 2322; 9 CT 2403, 2430, 2457, 2511 [prospective juror spoke with local officer day after murder; learned details ofcrime from officer; aware of appellant’s prior prison record and that he “was one person who should never have been released from prison”), 2565; 10 CT 2673 [prospective juror acquainted with victim; shocked at her murder; believed appellant guilty according to what she read], 2727 [prospective juror aware of details through newspapers and conversations with a witness’s mother], 2781, 2835 [as local resident, prospective juror knew ofcircumstances and acquainted with friends who knew both victim and appellant], 2941; 11 CT 2968, 3076 [street gossip as reported by prospective juror]; 3130 [prospective juror read every newspaperprinted about appellant and awareofdetails ofboth Salling’s murder and Margaret Johnson’skilling], 3183; 12 CT 3372, 3426, 3480, 3587; 13 CT 3641, 3695, 3722, 3803, 3856, 3910; 14 CT 3937, 4019, 4126, 4153, 4203, 4230; 15 CT 4312, 4339, 4394, 4422; 16 CT 4584, 4664, 4691, 4718 [prospective juror referred to emotional impact case had on everyone involvedor hearing about it], 4765, 4820 [prospective juror relieved when appellant arrested]; 17 CT 4874, 4901, 4928, 4979; 18 CT 5060, 5087, 5141, 5168, 5195, 5222, 5276; 19 CT 5303, 5501, 5573; 21 CT 5973, 6081; 22 CT 6216, 6270, 6378, 6405, 6644, 6482; 23 CT 6520, 6590, 6644, 6725, 6779; 24 CT 6833, 103 familiar with details of the case through local press, newspaperarticles, television, and radio broadcasts; (2) were aware of “brutal” murders or appellant’s prior crimes; (3) were acquainted with the victim or victims; and (4) had conversed with friends, family, or coworkers who were acquainted with the victims or family members. In light of these questionnaire responses, the denial of change ofvenue wasprejudicial to appellant. There wasstrong, ifnot overwhelming, evidence that the jury pool in this case was comprised ofLake County residents who were both aware ofthe facts and circumstancesofthe deaths ofEllen Salling or Margaret Johnson or both, personally knew either or both ofthese women, were personally acquainted with witnessesattrial, and had already prejudged guilt or penalty or both. (See, in contrast, People v. Famalaro (2011) 52 Cal.4th 1, 24 [no evidence that potential jury pool in Orange County was comprised ofpersons who personally knew murdervictim; factor as weighing against change ofvenue].) Finally, prejudice was also manifested by the composition ofthe jury ultimately seated in this case. Unlike virtually every other change ofvenuecase, here, at least one-third ofthe sworn jurors whoactually servedat trial, and, additionally, all three alternate jurors, had been exposedto pretrial publicity, were aware ofthe facts or circumstancesofthe charged murder, and many had personal acquaintancewith thetrial judge, parties or witnesses, suggesting emotional bias and prejudgment and confirmingthe results of Dr. Schoenthaler’s pretrial change 6860, 6914, 6941, 6995, 7049; 20 CT 5627, 5654, 5708, 5735, 5762, 5815, 5842; and 25 CT 7130). 104 ofvenue survey. The assurancesor statements of these jurors during voir dire not to have formed an opinion concerning guilt or otherwise to have been prejudiced by publicity were “not conclusive.” (People v. Jennings, supra, 53 Cal.3dat p. 361.) For example, trial juror # 200002970 had seen articles about this case in local newspapers and read most ofthem at work. (22 RT 1884.) Juror # 200034886 knew Starlene Parenteau, taught Parenteau’s son, and disapproved of the way Parenteau neglected her son; this juror also read aboutthe case in the local Record Bee. (See 24 RT 2281-2286; see also 7 CT 1971 and 1 CT [Court Exhibits] 4-5.) Juror # 200002970also indicated she was familiar with appellant’s family. (24 RT 2281.) Juror # 200019102 disclosed that Judge Crone’s mother was a tenant on property he managed andthat he regularly saw the judge andhis mother whoalso was “good friends with my wife’s mother.” (39 RT 3786.) This juror acknowledged during voir dire that “we’re a small community, so you know a lot ofpeople.” (31 RT 3786.) Juror # 200012964 read about the case in the newspaperas it happened. Her husband was acquainted with the victim’s son-in-law as a customer. (See 7 CT 1998; 24 RT 2314-2315 [remembered headlines in the Clearlake Observer; aware ofkilling and general facts of case].) Juror # 200010689 not only was acquainted with witnesses in this case but had readarticles about the case in the local press and was generally aware ofthe Kono Tayee (Salling) murder and circumstancesofthe crime. (See 10 CT 2700; 26 RT 2770-2773; 26 RT 2768- 105 2773.) In addition, juror # 200010689 had previously worked for the “only veterinarian in town” and thus knew everyone whohad animals, including many prospective witnesses. (See 26 RT 2769-2770.) Juror # 200002006 read about the case in the local newspaper and favored the death penalty. (See 15 CT 4366.) Juror # 200012964 was aware of newspaper headlines about the case and was aware that a woman had been killed in Kono Tayee and her car taken. Thepress headlines got her attention; although she did not buy a newspaperoften, she bought the newspaperprecisely becauseofthe headlines about the murderin this case. (24 RT 2314.) Juror # 200014476 learned about the case from a coworker; this juror also provided transportation to defense counsel to and from the local airport. (See 24 RT 2450.) Juror # 200002006 hadread pressarticles about the case when it happened; he boughtthe local Observer every Wednesday and Saturday. (See 30 RT 3579- 3600.) Alternate juror # 200014476told the court after the trial had begun that she knew key prosecutionguilt trial witnesses Jeff Biddle and Shiree Hardman. (See 1 CT [Court Exhibits] 2; 34 RT 4064.) This same juror also disclosed, during the trial, knowing a “Charlie Farmer” whoalsotestified in this case. (34 RT 4064.) In light of the entire record in this case, and considering the nature and gravity ofthe offenses with which appellant was charged, the nature and extent of the media coverage, the miniscule size of the community, appellant’s status as an alleged double murderer in two separate, related incidents, and therelative prominence ofthe victimsin this case, there was a reasonable likelihood thata fair 106 trial could not be held in Lake County. Consequently, the trial court erred andin denying appellant’s motion for a change ofvenue, and the error was prejudicial as to both the determinations of guilt and penalty. D. Denial ofAppellant’s Change of Venue Violated His Rights to a Fair Trial, Due Process of Law, and to a Reliable Penalty Determination Guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution The Sixth Amendmentsecures to criminal defendants the right to trial by an impartial jury. By constitutional design,that trial occurs “in the State where the ... Crimes .. . have been committed.” (Art. II, § 2, cl. 3; see also Amendment VI [right to trial by “jury ofthe State and district wherein the crime shall have been committed”].) The Constitution’s place-of-trial prescriptions, however, do not impede transfer ofthe proceedingto a different district at the defendant’s request if extraordinary local prejudice will preventa fair trial -- a “basic requirement of due process.”(Jn re Murchison (1955) 349 U.S. 133, 136 [75 S.Ct. 623, 99 L.Ed. 942].) The theory ofour trial system is that “the conclusions to be reached in a case will be induced only by evidence and argumentin open court, and not by any outside influence, whetherofprivate talk or public print.” (Patterson v. Colorado ex rel. Attorney General ofColo. (1907) 205 U.S. 454, 462 [27 S.Ct. 556, 51 L.Ed. 879] (opinion for the Court by Holmes,J.).) In the ultimate analysis, only the jury can strip a man ofhis life. In the language ofLord Coke,ajuror must be as “indifferent as he stands unsworne.” (Co.Litt. 155b.) The verdict must be based upon the evidence developedat the 107 trial. This is true, regardless of the heinousnessofthe crime charged, the apparent guilt of the offenderor the station in life which he occupies. It was so written into our law as early as 1807 by Chief Justice Marshall in 1 Burr’s Trial 416 (1807): “The theory of the law is that a juror who has formed an opinion cannot be impartial.” (Reynolds v. United States (1879) 98 U.S. 145, 155 [25 L.Ed. 244].) Prejudice is presumed whenpretrial publicity is sufficiently prejudicial and inflammatory andthe prejudicialpretrial publicity saturated the community where trial is held. (See, for example, Sheppard v. Maxwell (1966) 384 U.S. 333 [86 S.Ct.1507, 16 L.Ed.2d 600] [defendant need only show “reasonablelikelihood” that prejudicial newspriorto trial will prevent fair trial]; Coleman v. Kemp (11th Cir. 1985) 778 F.2d 1487, 1489-1490.) The standard wasclearly stated in Mayola v. Alabama(Sth Cir. 1980) 623 F.2d 992, 997: “where a petitioner adduces evidence of inflammatory, prejudicial pretrial publicity that so pervades or saturates the community as to render virtually impossible a fair trial by an impartial jury drawn from that community,‘[jury] prejudice is presumedandthere is no further duty to establish bias.’” (quoting in part from United States v. Capo (5th Cir. 1979) 595 F.2d 1086, 1090, cert. denied (1990) 444 U.S. 1012 [100 S.Ct. 660, 62 L.Ed.2d 641].) A reviewing court must independently examine the exhibits containing newsreports aboutthe case for volume, content, and timing to determine if they were prejudicial. (See, e.g., Patton v. Yount, supra, 467 U.S.at p. 1035 [104 S.Ct. 2885, 81 L.Ed.2d 847]; United States v. McDonald (9th Cir. 1978) 576 F.2d 1350, 108 1354, cert. denied sub nom. Besbris v. United States (1978) 439 U.S. 927 [99 S.Ct. 312, 58 L.Ed.2d 320]; United States v. Green (9th Cir. 1977) 554 F.2d 372, 376.) Even overwhelming evidence of guilt or arguments that the facts provedat trial were such that death was the only appropriate sentence are not dispositive in assessing a change ofvenue claim. In Rideau v. Louisiana (1963) 373 U.S. 723 [83 S.Ct. 1417, 10 L.Ed.2d 663], the evidence ofguilt was also overwhelming; the Supreme Court nevertheless presumedprejudice. To hold otherwise would mean an obviously guilty defendant would havenorightto a fair trial before an impartial jury, a holding which would be contrary to the well established and fundamental constitutional right of every defendantto a fair trial. In Irvin v. Dowd (1961) 366 U.S. 717, 722 [81 S.Ct. 1639, 6 L.Ed.2d 751], the Supreme Court stressed that a fair trial in a fair tribunal is a basic requirement ofdue process. Here,a pattern ofpresumed prejudice and prejudgmentpresent throughout Lake County was clearly reflected in the responses ofprospective juror after prospective juror who expressed knowledge aboutthe facts of the case, acquaintance with witnesses or with victim Ellen Salling or victim Margaret Johnson, opinions on appellant’s guilt and penalty, and other manifestations of prejudgment. With such opinions permeating the mindsofthe county and venire, it would be difficult to say that jurors in this case could have excluded preconceptionsofguilt or penalty from their deliberations. The influencethat lurks in an opinion once formedis so persistent that it unconsciously fights detachmentfrom the mental processes of the average man. (See Delaney v. United 109 _ States (Ast Cir. 1952) 199 F.2d 107, 112-113.) And as stated by Mr. Justice Jackson, concurring, in Krulewitch vy. United States (1949) 336 U.S. 440, 453 [69 S.Ct. 716, 93 L.Ed. 790]: “The naive assumption that prejudicial effects can be overcomebyinstructionsto the jury, .. . all practicing lawyers knowto be unmitigated fiction.” Thepress publicity and newsstories about appellant were certainly not kind, and they also contained prejudicial information of the type readers could not reasonably be expected to shut from sight. Appellant’sflight from the police, referencesto his prior convictions, reference to the Margaret Johnson arson- murder, and other sordid details ofthe crimes involvedin this case werelikely to be indelibly imprinted in the mind of anyone exposedto this type of inflammatory information. Pretrial publicity, in a community already shocked andstirred by the crimesin this case, were highly biased against appellant and prejudicial. All ofthe pretrial publicity invited prejudgment of appellant’s culpability and penalty. High court decisions do not stand for the proposition that juror exposure to newsaccounts ofthe crime alone presumptively deprives the defendant ofdue process. (Murphy v. Florida (1975) 421 U.S. 794, 798-799 [95 S.Ct. 2031, 44 L.Ed.2d 589]; see also, e.g., Patton v. Yount, supra, 467 U.S. 1025 [104 S.Ct. 2885, 81 L.Ed.2d 847].) Prominence does not necessarily produce prejudice, and juror impartiality “does not require ignorance.” (Irvin v. Dowd, supra, 366 U.S.at p. 722 [jurors not requiredto be totally ignorant ofthe facts and issues involved]); Reynolds v. United States, supra, 98 U.S.at pp. 155-156 [25 L.Ed. 244] [“every 110 case ofpublic interest is almost, as a matter of necessity, broughtto the attention ofall the intelligent people in the vicinity, and scarcely any one can be found among thosebestfitted for jurors who has not read or heard ofit, and whohasnot some impression or someopinion in respectto its merits.”].) Nevertheless, where a procedure employed by thestate involves such a probability that prejudice will result, it is deemed inherently lacking in due process. Such a case was In re Murchison, supra, 349 U.S. at p. 136, where Justice Black for the Court pointed up with his usual clarity and force: “A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absenceofactualbias in thetrial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. ... [T]o perform its high function in the best way ‘justice must satisfy the appearance ofjustice.’” And, as ChiefJustice Taft said in Tumey v. Ohio (1927) 273 U.S. 510, 532 (47 S.Ct. 437, 71 L.Ed. 749], almost 30 years before: “the requirement of due process of law in judicial procedureis not satisfied by the argumentthat men ofthe highest honorandthe greatest self-sacrifice could carry it on without danger of injustice. Every procedure which would offer a possible temptation to the average man... to forget the burden ofproofrequired to convict the defendant, or which might lead him notto hold the balance nice, clear and true betweenthe State and the accused,denies the latter due process oflaw.” Asthis Court and other state appellate courts, the United States Supreme Court has emphasizedin prior decisions the size and characteristics of the 111 community in which the crime occurred. In Rideau v. Louisiana, supra, 373 US. 723, for example, the high court noted that the murder was committed in a parish of only 150,000 residents. Here, even more so than in Rideau, appellant’s crime -- and the alleged killing ofMargaret Johnson -- were both committed in a much smaller community of 58,000 residents. Unlike far more populouscities and towns, there wererelatively few individuals eligible for jury duty in all of Lake County. Given the very small and nondiverse poolofpotential jurors in Lake County, it was questionable whethera truly impartial panel of 12 individuals could be empanelled. In contrast, in Mu’Min v. Virginia (1991) 500 U.S. 415, 429 [111 S.Ct. 1899, 114 L.Ed.2d 493] the potential for prejudice was mitigated by the size ofthe metropolitan Washington D.C.statistical area which had a population of over 3 million. In Gentile v. State Bar ofNevada (1991) 501 U.S. 1030, 1044 [111 S.Ct. 2720, 115 L.Ed.2d 888], there was a reducedlikelihood ofprejudice where the venire, unlike here, was drawn from a poolofover 600,000 individuals. Unlike other cases in which years elapsed between a murderandtrial, here the murderofEllen Salling, and the previous and inflammatory arson-murder of Margaret Johnson were linked together in the press. Because ofthe very small population of Lake County at the timeoftrial, it was morelikely thatpretrial publicity, preconceptions, and prejudgment became imbeddedin the public consciousness. Unlike larger counties, the small population of Lake County could not neutralize or dilute the impact of adverse publicity. Appellant’s jury reached verdicts after but a few hours ofboth guilt and 112 penalty deliberations (see 2 CT 426-433; 44 RT 5573-5574 [length ofguilt deliberations; 3:35 hours]; 3 CT 768-779; 54 RT 6881-6882 [length ofpenalty deliberations; slightly more than one hour]) and did not acquit him ofanyofthe numerous charged crimes, special circumstances, or enhancements. Asin other cases involving prejudgmentandpretrial publicity (see Rideau v. Louisiana, supra; Estes v. Texas (1965) 381 U.S. 532 [85 S.Ct. 1628, 14 L.Ed.2d 543]; and Sheppard v. Maxwell, supra, 384 U.S. 333 [86 S.Ct. 1507, 16 L.Ed.2d 600]), here, the jury’s verdicts did not assuagethe risk ofjurorprejudgmentor the prejudicial impactofpretrial publicity. In Murphy v. Florida, supra, 421 U.S. at pp. 799-800 [95 S.Ct. 2031, 44 L.Ed.2d 589], the high court revieweda trial in which manyjurors had heard of the defendant through extensive news coverage. The court recognizedthat qualified jurors need not be totally ignorant of the facts and issues involved. (See also Irvin v. Dowd, supra, 366 U.S.at p. 722.) At the same time, the court recognized that juror assurances that they are equal to the task cannot be dispositive of an accused’srights to a fair trial by an impartial jury. (Jd. at p. 800.) Here, however, because ofthe small population in Lake County, and the small communities involved, a host ofprospective jurors -- far more so than in other capital cases in larger counties -- knew the people involved and had prejudgedthe outcome. Indeed,a significant percentage ofprospective jurors not only recalled the nature and facts of this case but also were aware ofthe second unadjudicated Lake County murder involving Margaret Johnson allegedly committed by 113 appellant, evidence as to which the prosecutor intended to offer during the anticipated penalty trial. In denying appellant’s motion for change ofvenue,thetrial court overlooked surveys that clearly showed very high percentages ofboth knowledge about the case amongall Lake County residents and prejudgmentas to both guilt and penalty. Indeed, as expressed by at least one prospective juror who knew the community well, it would be hard for appellant to get a fair trial in such a small community as Lake County. Everyone knew everybody else and everybody knew what was happening in the community. The fact that a jury was ultimately empanelled and sworn in this case cannot overcomethe extremely high indicia ofprejudgment in the community as manifested by the pretrial surveys conducted in this case and the overwhelming exposure ofthe seatedjurors to pretrial publicity and their numerous connections to the parties, their families, or witnesses. Here, two highly publicized murders of elderly women occurred in two separate areas of a small, rural county. The notion that none ofthe seated jurors expressed overt hostility to appellant, and were hence unaffected by the murders, must be disregarded in light of the fact that the community as a whole were not only awareofthe circumstances oftwo murders but were actively linked to the victims by numerousstrands and bondstypical of small communities. (See Murphy v. Florida, supra, 421 U.S.at p. 802 [indicia of impartiality during voir dire tending to indicate no overt hostility toward defendant may be disregarded where significant percentage ofveniremen admit to 114 disqualifying prejudice; under these circumstances,it is more probable that seated jurors are part of a community deeply hostile to the accused and morelikely that they may unwittingly have been influencedbyit].) In Irvin v. Dowd, supra, 366 U.S. 717, for example, the high court noted that a great percentage ofthose examinedon the point were inclined to believe in the accused’s guilt, and the trial court had excused for this cause 268 ofthe 430 veniremen. Jrvin also heldthatlittle weight could be attachedto self-serving statements or protestations of impartiality byjurors in light of their knowledge of the facts of the case and exposureto pretrial publicity in the community. (/d.at p. 728.) In Rideau, Irvin, and Stroble v. California (1952) 343 U.S. 181 [72 S.Ct. 599, 96 L.Ed. 872], the pretrial publicity occurred outside the courtroom and could not be effectively curtailed. In Turner v. Louisiana (1965) 379 U.S. 466 [85 S.Ct. 546, 13 L.Ed. 424], the probability ofprejudice was present through the use of deputy sheriffs, who were also witnesses in the case, as shepherds for the jury. No prejudice was shown butthe circumstances were held to be inherently suspect, and, therefore, such a showing was notheld to be a requisite to reversal. Likewise, in this case, the application of this principle is especially appropriate. Thepretrial publicity was pervasive throughout rural Lake County. In this case, it is even clearer that the failure to order a change ofvenue resulted in the denial ofdue process of law, denial of appellant’s fair trial rights, and denial ofthe constitutionally compelled requirement ofa reliable penalty 115 verdict. There was strong evidence that the jury pool in this case was comprised ofpeople who were both aware ofthe facts and circumstancesofthe deaths of Ellen Salling or Margaret Johnson or both and personally knew either or both of these women. At least four of the regular jurors andall three alternates had been exposed to pretrial publicity and were aware ofthe facts or circumstancesofthe charged murder. Many had personal acquaintance with the parties or witnesses.’ During voir dire these and other prospective jurors were not asked questions which were calculated to elicit the disclosure ofthe existence of actual prejudice, the degree to which the jurors had been exposedto prejudicial publicity, and how such exposure had affected the jurors’ attitude towardsthe trial. (See Calley v. Callaway (Sth Cir. 1975) 519 F.2d 184, 208-209,cert. denied (1976) 425 U.S. 911 [96 S.Ct. 1505, 47 L.Ed.2d 760.) Instead, leading questions and conclusory answers were typical ofthe manner in which appellant’s voir dire was conducted. (See,i.e., 24 RT 2210 [where court simply asked juror # 200009114 -- who acknowledged receiving two local newspapers-- “you don’t believe you’ve read or heard anything about this case before comingto court; is that true?”’]; 24 RT 2317-2318 [where court asked juror # 200012964 whether “she could set aside anything that you feel you’ve read that’s connected with this case or heard about this case” even though juror had previously expressed opinion to others, based on pretrial exposure to newspaperarticles, that “it was horrible that someone was '5/ E.g., trial jurors 200012964, 200010689, 200002006, 200034886, 200019102 [alternate], 200002970[alternate], 200014476 [alternate]. 116 killed”].) Based on the entire record, including the evidence admitted at the hearing on appellant’s change of venue motion and the subsequentjury selection process and voir dire, it is evident that the extent and nature ofpretrial publicity in such a small county caused such a build up ofprejudice that excluding the preconception of guilt and penalty from the jury’s deliberations would betoo difficult. (See United States ex rel. Bloeth vy. Denno (CA2 1963) 313 F. 2d 364, 372.) The requirementthat a jury’s verdict must be based upon the evidence developedat the trial goes to the fundamentalintegrity of all that is embraced in the constitutional conceptoftrial by jury. “The jury is an essential instrumentality -- an appendage-- ofthe court, the body ordained to pass upon guilt or innocence. Exercise of calm and informed judgmentby its membersis essential to proper enforcementoflaw.” (Sinclair v. United States (1929) 279 U.S. 749, 765 [49 S.Ct. 471, 73 L.Ed. 1938].) Mr. Justice Holmesstated no more than a truism whenhe observedthat “Anyjudge whohassat with juries knowsthatin spite of forms they are extremely likely to be impregnated by the environing atmosphere.” (Frank v. Mangum (1915) 237 U.S. 309, 349 [35 S.Ct. 582, 59 L.Ed. 969] (dissenting opinion).) Asthe high court majority itself stressed in Mangum,ifthestate, “supplying no corrective process, carries into execution a judgment ofdeath” based upona verdict thus produced, “the state deprives the accusedofhislife or liberty without due process of law.” (/d. at p. 335.) Here, the corrective process 117 mandated change ofvenue. Therisk that taint ofwidespread publicity regarding the odiousnatureofthe facts of this case coupled with appellant’s criminal background, known to virtually every prospective and, eventually, virtually every seated juror, infected the jury’s deliberations was apparent. The court’s failure to grant appellant’s motion underthe circumstancesofthis case resulted in the denial of due process of law anda fair trial, and, equally significant, denial of appellant’s fundamental constitutional right to a reliable guilt and penalty verdict guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. 118 I THE TRIAL JUDGE’S YEARS-LONG CLOSE PERSONAL AND PROFESSIONAL RELATIONSHIP WITH THE PROSECUTOR, AND THE CONSEQUENT APPEARANCEOFBIAS, PRESUMEDBIAS, AND ACTUAL BIAS, REQUIRED THE JUDGE TO DISQUALIFY HIMSELFIN THIS CASE; THE COURT’S FAILURE TO DO SO DEPRIVED APPELLANT OF HIS FUNDAMENTAL RIGHTSTOA FAIR TRIAL, DUE PROCESS OF LAW, AND TO A RELIABLE PENALTY DETERMINATIONIN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION; FURTHER, AS STRUCTURAL ERROR, THE FAILURE TO DISQUALIFY WAS PREJUDICIAL AND REVERSIBLE PER SE A. Factual and Procedural Background On June 27, 2000, Judge Robert L. Crone was assignedto preside overthis case for all purposes. (2 CT 367.) Pursuantto the trial court’s disclosure obligations, Judge Crone(as a former District Attorney of Lake County) advised the parties on the same date of his long-standing personal and professional relationship with prosecutor Stephen Hedstrom (also a former District Attorney of Lake County and Judge Crone’s successorin office). Prosecutor Hedstrom had recently been elected as a superior court judge in Lake County. (See 13 RT 127- 130.) Following his election to judicial office, Hedstrom wasretained as a contract prosecutorsolely to prosecute this case. As a judge-in-waiting, Hedstrom intended to remain on the prosecutorial side until conclusion oftrial in this case at which time he then plannedto take the oath ofjudicial office and thus join Judge Crone-- his friend, mentor, election advisor, and former boss-- on the bench. Judge Crone disclosed a long-standing friendship with prosecutor 119 Hedstrom. Amongother disclosures, Judge Cronestated that prosecutor Hedstrom had servedas a pallbearer at his mother’s funeral. Judge Crone had urged Hedstrom to run for judicial office. He had advised Hedstrom about running for judicial office and helped Hedstrom during his election campaign. Previously, while serving himself as District Attorney ofLake County, Crone had put Hedstrom in charge ofthe district attorney’s office while Crone prosecuted a grueling change ofvenue murdercase that had been transferred to Butte County. Judge Crone disclosed that he and Hedstrom had been very close personal friends for a numberofyears. Judge Crone wasin close and frequent contact with Hedstrom. Judge Cronestated he did not have to disqualify himselfbut invited parties to do so if they so chose. (13 RT 130.) Contrary to his personal opinion, Judge Crone’s disclosures gaverise to a reasonable doubt about whether he could be impartial. In light ofboth presumed bias based on his disclosures, and the appearance ofpossible bias (see Subsection D,infra), a reasonable person might doubt whether Judge Crone could be impartial in this capital case such that his disqualification was required. Appellant was not personally admonished aboutthe possibility ofbias, the appearance of bias, presumedbias, or actual bias stemming from therelationship between Judge Crone and prosecutor Hedstrom. Appellant was neither asked nor did he personally waive the presumed,potential, or actual bias involving Judge Crone and prosecutor Hedstrom,orthe inherentrisks that such bias would pose to his defense, interests, fundamental rights, and, indeed, his very life. (See 13 RT 120 127-131.) B. Standard of Review On appeal, the focus is whether judicial bias was so prejudicial that it deprived defendantofa fair trial. (People v. Snow (2003) 30 Cal.4th 43, 78.) Ifa reasonable memberofthe public at large, aware ofall the facts, would fairly entertain doubts concerning a judge’s impartiality, disqualification is required. Actual biasis not required. (Flier v. Superior Court (1994) 23 Cal.App.4th 165, 170, quoting United Farm Workers ofAmerica v. Superior Court (1985) 170 Cal.App.3d 97, 104; People v. Brown (1993) 6 Cal.4th 322, 336-337.) This Court has not fully resolved the issue ofwhich standard of review on appeal applies to judicial disqualification or to a determination involving the appearanceofpartiality. In People v. Brown, supra, 6 Cal.4th at pp. 336-337,the Court indicated, although not explicitly, that disqualification is reviewed de novo. (See Flier v. Superior Court, supra, 23 Cal.App.4th at p. 171.) Other appellate courts havestated that the question ofwhether ajudge should have been disqualified because ofan appearanceofpartiality is a question of law, reviewable de novo, where the facts are not in dispute. (See, e.g., Briggs v. Superior Court (2001) 87 Cal.App.4th 312, 319 [“On undisputed facts this is a question of law for independent appellate review.”]; Sincavage v. Superior Court (1996) 42 Cal.App.4th 224, 230 [“Where, as here, the underlying events are not in dispute, disqualification becomes a question of law which this court may determine.”].) 121 In deciding whethera trial court has manifested bias, this Court has said that a violation occurs where the judge created the impression that he was allying himselfwith the prosecution. (People v. Clark (1992) 3 Cal.4th 41, 143.) Given the Judge Crone’s disclosures andthe facts of this case, actual bias, presumedbias, and the appearanceofbias all were inherentin the relationship between Judge Crone and prosecutor Hedstrom. C. Waiver; Ineffective Assistance of Counsel Defense counsel did not seek the judge’s recusal or object at trial to judicial acts that could have been perceived and objected to as manifesting bias, presumed bias, or actual bias. If a judge refusesor fails to disqualify herself, a party may seek the judge’s disqualification. The party must do so, however,at the earliest practicable opportunity after discovery ofthe facts constituting the ground for disqualification. (People v. Scott (1997) 15 Cal.4th 1188, 1207.) As was the case in Scott, defense counsel here never claimed before or duringtrial that the judge should recuse or disqualify himself or that appellant’s constitutional rights were threatened or being violated becauseofjudicial bias or the improperunity of interest between the court and prosecutor.. In People v. Brown, supra, 6 Cal.4th at p. 335, this Court held that a constitutionally based challenge asserting judicial bias could be raised on appeal and was notbarred bythe provisions of Code of Civil Procedure section 170.3, subdivision (d). The Court indicated that a defendant whoraised a claim of 122 judicial bias at trial may always assert on appeal a claim ofdenial of the due processright to an impartial judge. As noted by the Court in Brown, “a defendant has a due processright to an impartial judge, andthat violation ofthis right is a fatal defect in the trial mechanism.”(/d. at p. 333; see also People v. Mayfield (1997) 14 Cal.4th 668, 811).) Appellant’s Eighth Amendmentclaim of unreliability in the penalty determination is also cognizable where based on the samefacts as the due processclaim. (See People v. Yeoman (2003)31 Cal.4th 93, 133 [due process and equalprotection claims sufficiently preserved Eighth Amendment claim based on samefacts].) In People v. Harris (2005) 37 Cal.4th 310, 346, although the defendant failed to object to allegedly improper acts on grounds ofjudicial bias or seek the judge’s recusal, this Court declined to decide whether the defendant forfeited his claim but, instead, addressedits merits. (See also People v. Snow, supra, 30 Cal.4th at p. 78; People v. Seaton (2001) 26 Cal.4th 598, 698; People v. Hines (1997) 15 Cal.4th 997, 1041; People v. Wright (1990) 52 Cal.3d 367, 411; Code Civ. Proc., § 170.1, subds. (a)(6)(C),(c).) Appellant further offers that if defense counsel is deemed to have waived on appellant’s behalf, or forfeited, this assignmentoferror, then trial counsel rendered appellant ineffective assistance ofcounsel under the United States and California Constitutions. (U.S. Const. Amends. 6th, 14th; Cal. Const. Art. I, §§ 15, 24; Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052,80 L.Ed.2d 674].) 123 In assessing claims ofineffective assistance oftrial counsel, the Court considers whether counsel’s representation fell below an objective standard of reasonableness underprevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome.(Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Gamache (2010) 48 Cal.4th 347, 391.) The reviewing court will indulge in a presumption that counsel’s performancefell within the wide range ofprofessional competence and that counsel’s actions and inactions can be explained as a matter of soundtrial strategy. The defendant on appeal thus bears the burden ofestablishing constitutionally inadequate assistance of counsel. (Strickland v. Washington, supra, at p. 687; In re Andrews (2002) 28 Cal.4th 1234, 1253.) If the record on appeal sheds no light on why counsel actedorfailed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation andfailed to provideone, or there simply could be no satisfactory explanation. (People v. MendozaTello (1997) 15 Cal.4th 264, 266,italics added; People v. Carter (2003) 30 Cal.4th 1166, 1211; People v. Wilson (1992) 3 Cal.4th 926, 936.) In light of the very real judicial bias disclosed by Judge Croneat the commencementoftrial, defense counsel rendered ineffective assistancein failing to seek the judge’s disqualification. There was no possible reason for counsel to refrain from objecting to the assignment ofJudge Croneto this case considering his personal and professional relationship with the prosecutor or to conclude thatit 124 was in appellant’s best interest not to raise seek his disqualification. The record affords no basis for thereby concluding that counsel’s omissions were based on an informed tactical choice to permit an obviously biasedjudge from presiding over this death penalty case. Strategy meansa “plan, method,or series ofmaneuversor stratagemsfor obtaining a specific goal or result.” (Random House Dictionary 1298 (Rev.ed. 1975).) It need not be particularly intelligent or even one most lawyers would adopt, but it must be within the range of logical choices an ordinarily competent attorney would assess as reasonable to achieve a specific goal. (See Conev. Bell (6th Cir. 2001) 243 F.3d 961, 978; see also Washington v. Hofbauer (6th Cir. 2000) 228 F.3d 689, 704 [court must assess whetherthe strategy itself was constitutionally deficient].) In short, counsel’s trial strategy itself must be objectively reasonable. (See Strickland v. Washington, supra, 466 U.S.at p. 681.) Here, counsel’s failure to seek Judge Crone’s disqualification for presumed or actual bias did not reflect a reasonable strategy. Appellant had everything to gain from having an unbiasedjudge assigned to this case. A defense strategy that permits a judge closely tied to the prosecutor to preside over a death penalty trial is not reasonable; any effective attorney under these circumstances would seek to disqualify such a potentially or actually biased judge based on intertwined personal andprofessional relationships with the prosecutor. Therecord in this case is noteworthy because ofthe relative absence of objections by defense counselat all stages of the trial. Throughouttrial, counsel 125 just seemed to be going through the motions ofrepresenting appellant.’® Anyfailure on trial counsel’s part resulting in a biased judge over presiding overa trial where appellant’s life hung in the balance thus fell below the standard of vigorous advocacy required of competent counsel. (See People v. Cunningham (2001) 25 Cal.4th 926, 1003 [ineffective assistance claim cognizable on appeal where no satisfactory explanation could exist to explain counsel’s conduct].) The prejudice caused by counsel’serror is clear, since it resulted, at least in part, in the denial of appellant’s motion for change ofvenue (see ArgumentI, supra) and the introduction of inadmissible evidence andinstructions to the jury during the '67 While the nature and magnitudeofcounsel’s substandard performanceis partially evident on the appellate record, a substantial quantum ofthe pertinent facts and evidence in support of such claimslie outside the record on appeal. Consequently, in deference to this Court’s pronouncements that claims regarding counsel’s ineffectiveness are best suited for collateral proceedings in habeas’ corpus(see, e.g., People v. Lopez (2008) 42 Cal.4th 960, 972 [except in rare instances wherethere is no conceivable tactical purpose for counsel’s actions, claims of ineffective assistance of counsel should be raised on habeas corpus,not on direct appeal]; People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267 [claim that trial counsel rendered ineffective assistance in failing to make a motion to suppress evidence wasnot suitable for resolution on appeal because the record did not show the reasons for counsel’s failure to do so]), and, out of an abundance of caution in an effort to avoid procedural bars triggered by the failureto raise claims on appeal(see,e.g., In re Waltreus (1965) 62 Cal.2d 218, 225 [arguments raised and rejected on appeal may not be raised again through habeas corpus proceeding]; Jn re Dixon (1953) 41 Cal.2d 756, 759 [writ ofhabeas corpuswill not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgmentofconviction]), appellate counsel has limited such claims to instances wherethereis potentially sufficient support on the appellate record for a cognizable claim or, alternatively, has asserted ineffective assistance of counsel in anticipation of the state’s routine and invariable claims ofwaiverorforfeiture. Habeas counsel for Mr. Johnson will present a petition for writ ofhabeas corpus on his behalf and will supplement appellate counsel’s claims, as appropriate. 126 penalty trial (see ArgumentVI,infra), in violation ofthe clear state and federal constitutional proscriptions against double jeopardy, as well as other statutory and constitutional violations asserted by appellant. (Strickland v. Washington, supra, 466 U.S.at p.687 [prejudice shown wherecapital trial’s result is unreliable].) D. The AppearanceofImpartiality, Presumed Bias, and Actual Bias Required the Court to Disqualify Itself; the Trial Court’s Failure to Do So Violated Appellant’s Rights to a Fair Trial and Due Process of Law Guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 7 and 15 of the California Constitution; the Error Was Both Prejudicial and Reversible Per Se Underthe Fifth Amendmentto the United States Constitution,“[n]o person shall . . . be deprivedoflife, liberty, or property, without due process oflaw.” (See also U.S. Const., 14th Amend.[“[n]o state shall . . . deprive any personoflife, liberty, or property, without due process of law”].) In almost identical words, the California Constitution likewise guarantees due processoflaw. (Cal. Const., art.I, §§ 7, subd. (a) [A person may notbe deprivedoflife, liberty, or property without due process of law”], 15 [Persons maynot . . be deprived oflife, liberty, or property without due process of law”].) The constitutional guarantees ofdue process of law require a fair tribunal and a fair judge. (Withrow v. Larkin (1975) 421 U.S. 35, 46 [95 S.Ct. 1456, 43 L.Ed.2d 712].) Atall times in this case, appellant thus had a fundamental due processright to an impartial trial judge under the state and federal Constitutions. (Arizona v. Fulminante (1991) 499 U.S. 279, 309 [111 S.Ct. 1245, 113 L-Ed.2d 127 302].) Asalternatively stated, the entitlement of a criminal defendantto a fair trial must never be compromised. (People v. Chatman (2006) 38 Cal.4th 879, 364.) In every case, the judge must ensure that every litigant receives a fair trial. (Id.) A fair tribunal is one in which the judgeis free ofbias for or against a party. (People v. Harris, supra, 37 Cal.4th at p. 346.) Biased decision makers are constitutionally impermissible and even the probability ofunfairness is to be avoided. (Withrow v. Larkin, supra, 421 U.S.at p. 47 [95 S.Ct.1456, 43 L.Ed.2d 712]; In re Murchison (1955) 349 U.S. 133, 136 [75 S.Ct. 623, 99 L.Ed. 942].) For these reasons, the Due Process Clause of the Fourteenth Amendmentrequires fairtrial in a fair tribunal before a judge without bias against the defendantor an interest in the outcomeofhis particular case. (Withrow v. Larkin, supra, 421 U.S.at p. 46 [95 S.Ct. 1456, 43 L.Ed.2d 712]; see also Aetna Life Ins. Co. v. Lavoie (1986) 475 U.S. 813, 821-822 [106 S.Ct. 1580, 89 L.Ed.2d 823]; Bracy v. Gramley (1997) 520 U.S. 899, 904-905 [117 S.Ct. 1793, 138 L.Ed.2d 97].) | A structural error or defect demands automatic reversal. Structural errors are those affecting the framework within which thetrial proceeds, rather than simply an errorin the trial process. (See People v. Stewart (2004) 33 Cal.4th 425, 462.) Structural error “deflies] analysis by ‘harmless error standards’” because the error has “consequencesthat are necessarily unquantifiable and indeterminate.” (United States v. Gonzales-Lopez (2006) 548 U.S. 140, 148, 150 [126 S.Ct. 2557, 165 L.Ed.2d 409].) Trial by a judge who lacks impartiality was given as an 128 example of structural error in Arizona v. Fulminante, supra, 499 U.S.at p. 309 [111 S.Ct. 1246, 113 L.Ed.2d 302] (citing Tumey v. Ohio, supra, 273 U.S. 510 [47 S.Ct. 437, 71 L.Ed. 749] [judicial conflict of interest]; see also People v. Vasquez (2006) 39 Cal.4th 47, 69, fn. 12.) In Withrow v. Larkin, supra, 421 U.S.at p. 47, the United States Supreme Court additionally noted: “Not only is a biased decision-makerconstitutionally unacceptable but ‘our system of law has always endeavored to prevent even the probability of unfairness.’” Asalso stressed by the high court in Jn re Murchison, supra, 349 U.S.at p. 136, “[flairness of course requires an absence ofactual bias in the trial of cases. But our system of law has always endeavoredto prevent even the probability ofunfairness. To this end no man. . . is permitted to try cases where he hasan interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered.”(Italics added.) Earlier, the United States Supreme Court stressed that “[e]very procedure which would offer a possible temptation to the average man as a judge... . which might lead him not to hold the balance nice, clear and true between the State and the accused, deniesthe latter due process oflaw.” (Tumey v. Ohio, supra, 273 U.S. at p. 532 [47 S.Ct. 437, 71 L.Ed. 749].) “Such a stringent rule may sometimes bar trial by judges who havenoactual bias and who would do their very best to weigh the scales ofjustice equally between contending parties. But to perform its high function in the best way ‘justice must satisfy the appearanceofjustice.’” (Offutt v. United States (1954) 348 U.S. 11, 14.) 129 This Court in the past has declined to fix rigid procedures for the protection offair procedure rights. (See Ezekial v. Winkley (1977) 20 Cal.3d 267, 278.) But, as noted in Applebaum v. Board ofDirectors ofBarton Memorial Hospital (1980) 104 Cal.App.3d 648, 658,“it is inconceivable . . . that such rights would not include impartiality of the adjudicators.” Indeed, the court in Applebaum discussed that where potential conflicts are revealed, impartiality cannot be presumedandtheriskofrisk ofprejudgment or bias is too high to maintain the guaranteeoffair procedure. (/d. at p. 660, citing Withrow v. Larkin, supra, 421 U.S.35.) In Hambarian v. Superior Court (2002) 27 Cal.4th 826, the Court reiterated relevant disqualification principles: Where the evidence showsthat a conflict of interest exists that would renderit unlikely that the defendant would receivea fair trial, the trial judge should be disqualified. In People v. Eubanks (1996) 14 Cal.4th 580, the Court explained that a conflict exists whenever the circumstances ofa case present a reasonable possibility that the functions of office may not be exercised in an evenhanded manner. (Id. at p. 592; see also People v. Conner (1983) 34 Cal.3d 141, 148.) A conflict is disabling if it is so grave as to render it unlikely that the defendant will receivefair treatmentduring all portions of the criminal proceedings. (Peoplev. Eubanks, supra, 14 Cal.4th at p. 594.) Appellant acknowledgesthat an adverse or erroneousruling, especially those that are subject to review,do not necessarily establish as well a charge of 130 judicial bias. (People v. Guerra (2006) 37 Cal.4th 1067, 1112.) In this case, however, Judge Crone was evidently biased and had a clearly manifested and pervasive unity of interest with the prosecutor, his dear friend and associate. This unity of interest was so severe as to disqualify him from presiding overthetrial in this case. Aside from his close personal and family relationship with the prosecutor, Judge Crone wasselected to preside overthis capital trial having just served as the same prosecutor’s closest advisor and mentorin a recently- concluded and successful race for judicial office. Under these circumstances there wassuch a strong appearanceofbias,and actual bias, such that Judge Crone had a responsibility to disqualify himself. In view ofhis long-standing, on-going professional and close personal relationship with the prosecutor, Judge Crone overlooked that fair hearing and due process were not matters of discretion but were required by law. Judge Crone’sties to the prosecutorin this case posed such a risk of actual bias or prejudgmentthat he should not have presided overthis case “if the guarantee of due process [were] to be adequately implemented.” (Withrow v. Larkin, supra, 421 U.S.at p. 47.) This is not a case where the judge simply had been a former prosecutorat sometimein the past or was simply acquainted with the prosecutor. While virtually all judges are drawn from the ranksofthe legal profession, prior relationships are neither unusual nor dispositive. (People v. Carter (2005) 36 Cal.4th 1215, 1242; see also United Farm Workers ofAmerica v. Superior Court, 170 Cal.App.3d at p. 100 [proper performanceofjudicial duties does not require 131 a judge “to withdraw from society andlive an ascetic, antiseptic and socially sterile life. Judicial responsibility does not require shrinking every time an advocateasserts the objective and fair judge appears to be biased.”’}.) Neither doesthis case simply involve so-called institutional bias against defendants, or the bias of ajudge and former prosecutor toward his successor, or even the bias of a judge who was succeededin office by the prosecutor and who also has been recently electedjudge and is about to assume judicial office. (See People v. Panah (2005) 35 Cal.4th 395, 466 [dismissing mere institutional bias].) In Bracy v. Gramley, supra, 520 U.S. 899 [117 S.Ct. 1793,138 L.Ed.2d 97], the United States Supreme Court explained that most questions concerning a judge’s qualifications to hear a case are not constitutional ones, because the Due Process Clause ofthe Fourteenth Amendmentestablishes a constitutional floor, not a uniform standard. However,the floor established by the Due Process Clause clearly requires fair trial in a fair tribunal, before a judge with no actual bias against the defendantorinterest in the outcomeofhis particular case.(/d. at pp. 904-905.) In Richardson v. Quarterman (5th Cir. 2008) 537 F.3d 466,the wife ofthe judge in a murder case wassimply friend ofthe victim. The Court ofAppeals for the Fifth Circuit determined that the judge “did not face a significant temptation to be biased against Richardson. Hedid notstand to gain personally or professionally if Richardson were sentenced more harshly by the jury. It may havepleased his wife or her friends and acquaintances ... if Richardson received 132 a harsh sentence, but this is not the type of ‘possible temptation’ that would lead the average judge ‘notto hold the balancenice,clear and true.’” (Richardsonv. Quarterman, supra, 537 F.3d at p. 476.) In contrast to the relatively benign relationship that existed in Richardson, in Caperton v. A.T. Massey Coal Co. (2009) 556 U.S. 868 [129 S.Ct. 2252, 173 L.Ed.2d 1208], a West Virginia appellate court justice refused to recuse himselfin an appeal ofa $50 million damage award against a company in which thelargest individual contributor to the justice’s election campaign was the chairman, chief executive officer, and president. The Supreme Court, in holding recusal was required, reviewedits precedent on the issue of bias. The Supreme Court held that actualbias is not the pertinent inquiry because “the Due Process Clause [of the Fourteenth Amendment] has been implemented by objective standards that do not require proofofactual bias. [Citations.] In defining these standards, the Court has asked whether, ‘undera realistic appraisal ofpsychological tendencies and human weakness,’ the interest ‘poses such a risk of actual bias or prejudgmentthat the practice must be forbidden if the guarantee of due processis to be adequately implemented.’ [Citation.]” (Caperton v. A.T. Massey Coal Co., supra, 556 U.S.at pp. 883-884.) The Caperton court noted that it had previously concludedthat the Due Process Clause incorporated the common-law rule that a judge must recuse himselfwhenhehas a direct, personal, substantial, pecuniary interest in a case. (Caperton y. A.T. Massey Coal Co., supra, 556 U.S.at p. 876.) However,at the 133 same time, the Caperton court also observedthat it was concerned with more than the traditional prohibition on direct pecuniary interest. It was concerned with a more general conceptofinterests that tempt adjudicators to disregard neutrality. (Id. at p. 878.) In Aetna Life Insurance Co. v. Lavoie (1986) 475 U.S. 813 [106 S.Ct. 1580, 89 L.Ed.2d 823], the high court further clarified the reach ofthe Due Process Clause vis-a-vis a judge’s interest in a case. The Court stressed that it was not required to decide whetherin fact the justice was influenced. The proper constitutional inquiry is “whethersitting on the case then before the [court] ‘would offer a possible temptation to the average . . . judge to . . . lead him notto hold the balancenice, clear and true.’” (dd. at p. 822.) In People v. Chatman (2006) 38 Cal.4th 344, the mere fact that the judge’s daughter had been the victim of a knifepoint robbery at a photograph store many years before did not disqualify him from presiding over a murdertrial with allegations ofrobbery and a robbery-murder special circumstance. (Jd. at pp. 353, 362-363.) Here, unlike Chatman, for example, in addition to a strong risk ofan appearanceofbiasorpartiality in this case [see Aetna Life Insurance Co. v. Lavoie, supra, 475 U.S. at p. 825 [Due Process Clause “may sometimesbar trial by judges whohave no actual bias and who would dotheir very best to weigh the scales ofjustice equally between contending parties. But to perform its high function in the best way,‘justice must satisfy the appearance ofjustice.’”]), the 134 actions of the prosecutor and Judge Crone also support a finding of actual bias and prejudgment. In the present case, the record discloses that the prosecutor, assisted by Judge Crone, had been recently successful in his campaign for election to judicial office; he was only waiting for the conclusionofthis case before assuming judicial office. (See 2 RT [May 3, 1999] 20-24 [showing eagernessofprosecutor Hedstrom to proceed to trial as he had been elected judge and could not assume judicial office until conclusionoftrial].) For this reason, as the record further discloses, the prosecutor did everything possible to speedtrial. (See 2 RT 26-46 [prosecutor Hedstrom objected to appointment of defense counsel through preliminary hearing only since appointment ofnew defense counselafter preliminary hearing would causedelayoftrial]; 5 RT 56-63 [prosecutor interferes with appointmentofdefense counsel in order to speedtrial]; 10 RT 119 [prosecutor objects to Marsden [People v. Marsden (1970) 2 Cal.3d 118] procedure as causing delay oftrial]; 2 RT 23-30 [prosecutor expresses concern that financial considerations as to the appointment of defense counsel interfere with appellant’s rights to representation and to a speedy trial and to People’s right to a speedytrial]; 3 RT 29, 36-39 [at hearing on appointment of defense counsel, prosecutor invokes People’s right to a speedytrial; invokes defendant’s right to a speedy disposition, and pushes for appointment of counselto speedtrial]; 9 RT 101 [prosecutor invokes People’s speedytrial rights] 10 RT 91-94, 122 [in response to appellant’s Marsden motion, prosecutor expresses desire to push case 135 to trial and complains ofpreliminary hearing delay]; 12 RT 113-122 [prosecutor pushesfor early trial, asks court to continue case on day-to-day basis]; and 15A RT 617 [prosecutor complains about defense questioning during preliminary hearing, so that “we could be here forever’’].) A changeofvenue,if granted, would necessarily have resulted in the delay oftrial in this case. In that event, the prosecutor either would have been obligated to transfer prosecution responsibilities to another memberofthe district attorney’s office in order to assumethejudicial office to which he had been recently elected, or the prosecutor would have been forced to delay his assumption ofjudicial office in orderto try this case in another county after change ofvenue. Atthe heart of Capertonis the circumstancethat the judgein that case was aware ofhis significant connection to the appellant, yet did not disqualify or recuse himself. Those circumstancesare also presentin this case; the circumstancesofthis case, both subjectively and objectively, reveal an “interest” that would result or actually resulted in bias. Unlike the situation, for example, in Richardson v. Quarterman, supra, 537 F.3d 466, or in People v. Williams (1997) 16 Cal.4th 636, 651-653 [no due process violation where nephew ofjudge’s son-in-law was both a witness and the grandsonofthe victim in a murdercase], here, the record disclosesthat, because of his close personal and professional ties to the prosecutor, Judge Crone had a personalinterest and motive -- apart from the merits ofthe matter -- to deny appellant’s change of venue motion. 136 Denial of change ofvenue directly furthered and benefited the prosecutor’s career. Indeed, the record shows that even before the change ofvenue motion had been fully heard or argued, Judge Crone had already decided the issue and fully intended to deny change ofvenue to benefit the prosecutor. For example,prior to the hearing on the change ofvenue motion, Judge Crone was already discussing with counsela trial schedule in Lake County, implying that he already had decided the issue before it was heard or submitted and intended to deny a change ofvenue. (See 11 RT 97-110.) At the end of a hearing before the hearing on the change of venue motion, Judge Crone again commentedas totrial scheduling, further indicating hehad prejudged appellant’s motion and intended to deny change of venue prior to any evidentiary hearing. (See 13 RT 234-290-294.) Still again, before considering and ruling on change ofvenue,the judge discusses with counseltrial scheduling, the use ofjury questionnaires, and othertrial matters confirming prejudgment in order to benefit the prosecutor’s interests. (See 14 RT 375-376.) Prior to conclusion ofthe evidentiary portion of appellant’s change of venue motion, the judge again discussedtrial scheduling and inquired of defense counsel his availability for trial in Lake County. (See 14 RT 423.) Preyudgmentofappellant’s change ofvenue motionin orderto benefit the prosecutor’s personal and professional interests is a manifestation of unconstitutional judicial bias in violation of the constitutional guarantees of due process of law andthe right to a fair trial. The entitlement of a criminal defendant to a fair trial should never be compromised. (People v. Chatman, supra, 38 Cal.4th 137 at p. 364.) Any reasonable person, awareofthe facts in this case would certainly entertain a doubtas to the judge’s impartiality in this case. In California, the law tracks the high court’s ruling in Caperton: a public perception ofpartiality, that is, the appearance ofbias, is an explicit ground for judicial disqualification is. (See (Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii); Christie v. City ofEl Centro (2006) 135 Cal.App.4th 767, 776 [Disqualification is mandatedifa reasonable person would entertain doubts concerning the judge’s impartiality.”].) Here, the record reveals more than the appearanceofpartiality. The record affirmatively showsthat the judge assignedto this case -- because ofhis present and continuing close personal and professionalties to the prosecutor -- was not able to be impartial in hearing and ruling on appeilant’s change ofvenue motion. Becausesuch impartiality and conflicted interests constituted grounds for disqualification, appellant’s state and federal due process andfair trial rights to an impartial judge were violated. (Caperton v. A.T. Massey Coal Co., supra, 556 U.S. at pp. 883-884; People v. Brown, supra, 6 Cal.4th at pp. 334, 336.) E. The Denial of Appellant’s Right’s to a Fair Trial in a Fair Tribunal Before an Impartial Judge Also Rendered the Guilt and Penalty Determinations Unreliable in Violation of the Eighth and Fourteenth Amendments to the United States Constitution While due processis an elusive concept, its exact boundaries indefinable, and its content varies according to specific factual contexts (Hannah v. Larche 138 (1960) 363 U.S. 420, 442 [80 S.Ct. 1502, 4 L.Ed.2d 1307]),at its very core is the notion of fair play and trial before an impartial judge tribunal. (Larson v. Palmateer (9th Cir. 2007) 515 F.3d 1057, 1067.) Indeed, the source ofjudicial poweris the faith of the citizenry in the ability to have a fair hearing. (Catchpolev. Brannon (1995) 36 Cal.App.4th 237, 253.) The floor established by the Due Process Clause ofthe Fourteenth Amendmentclearly requiresa fair trial in a fair tribunal before an impartial judge without bias toward or against the defendantor an interest in the outcomeofhis particular case. (Withrow v. Larkin, supra, 421 U.S.at p. 46 [95 S.Ct. 1456, 43 L.Ed.2d 712].) Appellant was constitutionally entitled to a fair trial before an impartial trial judge. (Arizona v. Fulminante, supra, 499 U.S.at p. 309 [111 S.Ct. 1246, 113 L.Ed.2d 302].) Appellant was not required to make Eighth and Fourteenth Amendment cruel and/or unusual punishment arguments in thetrial court in order to preserve them on appeal. As this Court has previously ruled, an Eighth Amendment appellate claim is of a kind that required no objection to preserve it. The claim involves no facts or legal standards different from those involving constitutional due process oflaw andfair trial standards also raised on appeal but additionally asserts that these errors had the additional legal consequencesofviolating the state and federal proscriptions against cruel and/or unusual punishment. (See Peoplev. Virgil (2011) 51 Cal.4th 1210, 1233, fn. 4; People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.) In these circumstances, appellant’s constitutional arguments are not 139 forfeited on appeal. (See People v. Partida (2005) 37 Cal.4th 428, 433-439.) The essence of due processandfair trial is the protection ofthe individual against arbitrary action. (Ohio Bell Telephone Co. v. Public Utilities Com. (1937) 301 U.S. 292, 302 [57 S.Ct. 524, 81 L.Ed. 1093].) The extent to which these rights must be afforded the recipient is influenced by the extent to which he may be “condemnedto suffer grievous loss.” Joint Anti-Fascist Refugee Committee v. McGrath (1951) 341 U.S. 123, 168 [71 S.Ct 624, 95 L.Ed. 817] (Frankfurter, J., concurring).) The greater the potential loss, the greater the process due. Becausea capital trial inherently potentially entails the most serious type of “grievousloss” -- deprivation oflife by the state -- due process andfair trial invariably have been constitutionally compelled. The consequencesofa capital trial are so severe to invoke the basic requisites of due process and fairtrial. What is being protected not only is life itself but the right to a fair determination ofthe facts upon which the state would deprive a person oflife and liberty. In the present case, given the constitutional impactofa trial with an impartial or biasedjudge contrary to fundamental constitutional due process and fair trial precepts, the jury’s verdict as to both guilt and penalty cannot, as well, be considered reliable and therefore cannotstand in the face ofthe Eighth Amendmentprohibition against cruel and unusual punishment. 140 Ii THE EVIDENCE WASINSUFFICIENT UNDER THE DUE PROCESS CLAUSES OF THE FOURTEENTH AMENDMENTTO THE UNITED STATES CONSTITUTION AND THE CALIFORNIA CONSTITUTION (ART.I, § 15) TO SUPPORT APPELLANT’S CONVICTION OF CARJACKING ON COUNT4 (§ 215, SUBD. (a) AND FIRST DEGREE FELONY-MURDER ON COUNT1 (§ 187) PREDICATED ON THE COMMISSION ORATTEMPTED COMMISSION OF A CARJACKING A. Factual and Procedural Background Asset forth in the Statement of the Case, supra, appellant was charged on count 1 with the first degree murder of Ellen Salling in violation of Penal Code section 187, subdivision (a). He was also charged withburglary and robbery in counts 2 and 3. Further, the information charged appellant on count 4 with carjacking in violation of section 215, subdivision(a). In addition to first degree murderinstructions based on premeditation and deliberation in the language ofCALJIC No.8.20 (3 CT 597), the court gave instructions on felony-murder,including an unlawfulkilling during the commission or attempted commission of carjacking in the language of CALJIC No. 8.21. (See 3 CT 602; 43 RT 5427-5428 [where prosecutor discusses four first degree murder theories,including carjacking-felony murder]; 44 RT 5522.) The court also instructed the jury on carjacking in the language ofCALJIC No.9.46. (See 3 CT 621; 42 RT 5331; 44 RT 5535-5538.) During the conference on jury instructions, appellant argued there was no evidence of any taking ofproperty priorto the killing. (See 42 RT 5317-5319.) During closing argument, the 141 prosecutor acknowledgedthat appellant did not take any property before the killing. (See 43 RT 5386-5391.) The prosecutor stressed that appellant “ransacked” Salling’s houseonly after the killing. (See 43 RT 5398-5401.) Asto the carjacking, the prosecutor stressed that the fact that Salling’s car was located in her garage adjacentto her residence satisfied the immediate presence requirement of carjacking as charged in count4 in violation of section 215. (See 43 RT 5412- 5414.) | | In addition to first degree murderin violation of section 187, subdivision (a) on count1, the jury found appellant guilty of carjacking in violation of section 215, subdivision (a) on count 4. (3 CT 720-721, 726-727; 44 RT 5574-5578.) Appellant contends that the evidence wasinsufficient to support the judgmentofconviction ofboth the count 4 carjacking and the count 1 murderto the extent that it was predicated in whole or in part on a carjacking felony-murder theory. B. Standard of Review In evaluating a criminal conviction challenged as lacking evidentiary support, a reviewing court must consider the whole recordin the light most favorable to the judgment to determine whetherit discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonabletrier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Nelson (2011) 51 Cal.5th 198, 210; People v. Hillhouse (2002) 27 142 Cal.4th 469, 496.) The reviewing court does not reweigh evidenceor reevaluate a witness’s credibility. (People v. Guerra (2006) 37 Cal.4th 1067, 1129.) A judgmentshould be upheldif, after viewing all the evidencein the light most favorable to the prosecution, any rationaltrier of fact could have found the elements of the crime beyond a reasonable doubt. (People v. Miranda (1987) 44 Cal.3d 57, 86.) The samestandard ofreview applies to cases in which the prosecution has relied mainly on circumstantial evidence (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) In addition, the reviewing court must acceptlogical inferencesthat the jury might have drawn from the circumstantial evidence. (Id. at p. 11.) However, the judgment must be supported by “substantial evidence,” which has been defined as evidence that reasonably inspires confidence and is of solid value. (People v. Bassett (1968) 69 Cal.2d 122, 139; People v. Javier A. (1985) 38 Cal.3d 811, 819.) C. Constitutional Due Process Standards A conviction or other finding whichis not supported by sufficient evidence constitutes not just an error of California law, but also a denial of due process and a violation of federal constitutional rights, particularly the Fourteenth Amendment to the United States Constitution. Jackson v. Virginia (1979) 443 U.S. 307, 309 [99 S.Ct. 2781, 61 L.Ed.2d 560].) The federal constitutional standard for determining the sufficiency of the evidenceis identical to the standard under 143 California law. (People v. Staten (2000) 24 Cal.4th 434, 460.) Under both, reversal is required if one ofthe essential elements ofthe crimeis not supported by substantial evidence. (People v. Hernandez (1988) 47 Cal.3d 315, 345-346.) D. Insufficiency of the Evidence of Carjacking and Felony-Murder Penal Code section 189 provides in relevantpart that “[a]ll murder . . which is committed in the perpetration of, or attempt to perpetrate, . . . carjacking . is murderofthe first degree.” As this Court recently reiterated, “[i]t is the duty ofthis court in construinga statute to ascertain and give effect to the intent of the Legislature.” (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1048.) Penal Code section 215, subdivision (a) defines carjacking as “the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle ofhis or her possession, accomplished by meansofforce or fear.” The typical carjacking involvesthe active taking of a motor vehicle driven or occupied by the carjacking victim. (See, e.g., People v. Grandy (2006) 144 Cal.App.4th 33, 37 [victim driving Cadillac when confronted by armed carjacker who demandedcar and money]; People v. Ramirez (2006) 141 Cal.App.4th 1501, 1504 [armed carjacker approachedvictims in car demanding purse and car keys; second carjacker drives awayin victims’ car]; People v. Fish (2005) 131 Cal.App.4th 1210 [victim 144 approached by armed gunman and orderedoutofhis car at gunpoint; carjacker drives awayin victim’scar].) The use of force or fear as an essential element of carjacking must be motivated by an intentto steal. (See People v. Green (1980) 27 Cal.3d 1, 54 [the act of force or intimidation by which the taking is accomplished must be motivated by the intent to steal; if the larcenous purpose doesnotarise until after the force has been usedagainstthe victim,there is no joint operation of act and intent], overruled on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3.) The requisite intent -- to deprive the possessor ofpossession -- must exist before or during the use of force or fear. (Pen. Code § 20; People v. Marshall (1997) 15 Cal.4th 1, 34 [to support robbery conviction evidence must showthat the requisite intent to steal arose either before or during the commission ofthe act of force].) In People v. Lopez (2003) 31 Cal.4th 1051, the Court analyzed the legislative history of section 215 to ascertain the Legislature’s intent in making carjacking a separate offense. “The legislative history reveals the underlying purposefor creating the new crime of carjacking: ‘Accordingto the author [of the legislative bill]: [{]] There has been considerable increase in the numberofpersons whohave been abducted, many have been subjected to the violent takingoftheir automobile and some have had a gun usedin the taking ofthe car. This relatively “new”crime appears to be as muchthrill-seeking as theft of a car. If all the thief wanted wasthe car, it would be simpler to hot-wire the automobile without 145 running the risk of confronting the driver. People have been killed, seriously injured, and placed in great fear, andthis calls for a strong message to discourage these crimes. Additionally law enforcementis reporting this new crimeis becomingthe initiating rite for aspiring gang membersandthe incidentsare drastically increasing. [{] Under current law there is no carjacking crimeper se and many carjackings cannot be charged as robbery becauseitis difficult to prove the intent required of a robbery offense (to permanently deprive one ofthe car) since many ofthese gang carjackingsare thrill seeking thefts. There is a need to prosecute this crime.’ (Assem. Com. on Pub.Safety, Analysis of Sen. Bill No. 60 (1993-1994 Reg. Sess.) July 13, 1993, p. 1.)” (People v. Lopez, supra, 31 Cal.4th at p. 1057.) In further significant discussion and analysis, this Court also stressed in Lopezthatthe legislative history of carjacking indicates that it was specifically concerned with the considerable increase in the number ofpersons who have been abductedin their vehicles and the associated dangerto the driver or passenger. Thus,in its Lopez decision, the Court analogized the crime of carjacking with kidnapping. (People v. Lopez, supra, 31 Cal.4th at p. 1062; see also People v. Hill (2000) 23 Cal.4th 853, 859-860.) As the Court succinctly stated in Lopez, “section 215, subdivision (a), requires ‘the felonious taking of a motor vehicle...from... [the] person or immediate presence’ of the possessor or passenger.” (People v. Lopez, supra, 31 Cal.4th at p. 1063.) In People v. Antoine (1996) 48 Cal.App.4th 489, the Court ofAppeal 146 similarly observed that the Legislature’s reason for enacting a special statute with a penalty greater than that for second degree robbery wasthat “carjackingis a particularly serious crimethat victimizes persons in vulnerablesettings”and, because ofthe nature of the offense, creates the great potential for harm not only to the victim and perpetrator but also the public at large. (/d. at p. 495; see also People v. Hamilton (1995) 40 Cal.App.4th 1137, 1144 [victim forced to surrender his place in the vehicle and suffer loss oftransportation]; Assem. Com. on Pub. Safety Analysis of Sen. Bill No. 60 (1993-1994 Reg. Sess.) Feb. 23, 1993, p. 5 [discussing the bill’s penalty provision and noting that “opening a car door and pushing outthe driver would subject the perpetrator to a maximum 15-year penalty”].) Legislative history therefore strongly indicates that the carjacking statute was enacted to address a specific problem -- the forcible taking ofa motor vehicle directly from its driver or occupants. The Legislature sought to impose a severe penalty on those whocreated a specific risk by directly confronting a vehicle’s occupants. (People v. Lopez, supra, 31 Cal.4th at p. 1057; People v. Antoine, supra, 48 Cal.App.4th at p. 495.) From evidencethat a defendant killed another person,and at the time of the killing took a car from that person, ajury ordinarily may reasonably infer that the defendantkilled the victim to accomplish the taking and thus committed the offense of carjacking. (See People v. Hughes (2002) 27 Cal.4th 287, 357; People v. Kipp (2001) 26 Cal.4th 1100, 1128.) Here, however, the evidence in the 147 present case was insufficient to establish that the intent to deprive Ellen Salling of her car existed at the same timeas the use of force or fear. The prosecutor acknowledged that appellant did not take any property before the killing and that appellant ransacked Salling’s house only after the killing. There was no evidence at trial that appellant even took Salling’s keys before her death or carried out the killing in order to take thecar itself. (See, in contrast, People v. Nelson, supra, 51 Cal.4th at p. 211 [jury entitled to conclude that defendant, having taken victim’s car keys, would then take the car itself].) Moreover, Salling was not going to her car when she was killed and was not in her car or anywherenearhercar at the time ofthe homicide. Unlike every other reported carjacking decision, Salling was cooking or baking in her kitchen when killed. Her car was parked in her garage. There was no evidencethat the garage door was openorthat appellant even knew Salling had a car when he entered her home andkilled her. Virtually every carjacking involvesa victim drivinghisor her car at the time ofthe crime, a victim next to or around his or her vehicle, or a victim in some mannerclosely associated with the vehicle and its use at the time ofthe crime. (See, for example, People v. Hamilton, supra, 40 Cal.App.4th at p. 1144 [usual case ofcarjacking involves occupant or multiple occupants ofmotorvehicles all subjected to threats of violence]; People v. Palacios (2007) 41 Cal.4th 720, 723 [victim driving his car and stopped at gas station when carjacked]; see also People v. Hill, supra, 23 Cal.4th at p. 859; People v. Alvarado (1999) 76 Cal.App.4th 148 156.) In this case, there was no evidencethat Salling was holding her car keys when the killing occurred or that her car keys were taken directly from heras in People v. Gomez (2011) 192 Cal.App.4th 609, 614 [victim assault was sufficient evidence to support inference that defendant took car keys directly from carjacking victim].) Indeed, the evidence was to the contrary: Salling was in the middle of an activity in her home; she was not about to go anywhere whenthe homicide and purported carjacking occurred. A review ofthe entire record thus does not reveal an intent to take possession of Salling’s car before or during appellant’s assault on her. Nor was there strong circumstantial evidence ofappellant’s specific intent to take Salling’s car prior to her death. (See People v. Beeman (1984) 35 Cal.3d 547, 558-559 [specific intent must often be inferred from circumstantial evidenceas “[d]irect evidence ofthe mental state of the accused is rarely available except through his or her testimony”’].) There is nothing in the record showing that appellant was even aware of Salling’s car in her garage. There was no evidence, beyond pure speculation and conjecture, that appellant knew that Salling had car keys or where they were kept. There is simply no solid or credible evidence of any action of any kind priorto the killing in this case that suggests any intent by appellant to take Salling’s car before the killing. Whenappellant entered Salling’s home, she wasin the kitchen cooking or baking. Her workin the kitchen did not suggest that she was on her wayto or 149 from a vehicle. The evidence rather suggests that after a brief verbal exchange betweenSalling and appellant, unrelated to her car, appellant in a rage began hitting, beating, and kicking the victim, actions that caused her death. The fact that appellant did not take any property before the killing, as the prosecutor conceded,also tended to imply the absenceofan intent to take either Salling’s car keys or her car before the killing. (See People v. Gomez, supra, 192 Cal.App.4th at p. 622 [act of taking a car by one whosteals the keys can imply that the key thief intended to steal the car when he tookthe keys; the failure to take, mention, ask about, or look for the vehicle when the keys are taken implies the absenceofan intent to take the car].) An inference that appellant intended to take Salling’s car because he was in flight from law enforcementauthorities founders on total lack of evidence or proof that appellant knew ofthe existence of the vehicle when he approached her homeand saw her working in the kitchen. Proofofthe requisite specific intent to deprive Salling ofher vehicle surely required some evidence that appellant knew she had a car, knew whereit was kept, or knew ofthe existence of car keys before her death. In addition, the evidence wasinsufficient to establish that Salling’s vehicle was taken from her immediate presence. Carjacking is the felonious taking ofa motor vehicle in the possession of another, from his or her person or immediate presence againsthis or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by meansofforceor fear. (§ 215, subd. (a).) The crime 150 of carjacking, like the crime ofrobbery, may thus be established not only when the defendant has taken property out ofphysical presence ofthe victim, but also when the defendant exercises dominion and control over the victim’s property through force or fear. (People v. Hoard (2002) 103 Cal.App.4th 599, 608.) Presence depends upon the circumstances of each case and implies an area with no metes and bounds. (People v. Belenger (1963) 222 Cal.App.2d 159, 168.) The broad meaning of “immediate” has been defined in Webster’s New International Dictionary (Third edition): “Being near at hand; notfar apart or distant.” (See also People v. Lavender (1934) 137 Cal.App. 582, 585; Peoplev. Hayes (1990) 52 Cal.3d 577, 515, 519.) In Hayes, the Court disapproved an expansive interpretation of “‘immediate presence’ for purposes ofrobbery.” As the Court explained,“to ignore the distance between the act oftaking and the application of ‘force or fear’ would deny meaning to the separate requirement of robbery that the property be ‘tak{en]’ from the victim’s person or “immediate presence.” (/d. at p. 628.) Here, there was no evidencethat appellant exercised dominion or control of Salling’s car through force or fear or while she was alive. At the same time, the evidence did not establish that Salling’s vehicle was taken from her immediate or physical presence. The purpose ofthe carjackingstatute is not servedin this case, where the victim’s car was in her garage, the victim waskilled before the car was taken, the victim was not entering or leaving her car, and her only connection to her stolen automobileat the time ofthe killing was that the car keys were 151 somewherein her home. Section 215 was designed to address “a particularly serious crime that victimizes persons in vulnerable settings and, because ofthe nature of the taking, raises a serious potential for harm to the victim, the perpetrator and the public at large.” (People v. Antoine, supra, 48 Cal.App.4th at p. 495.) Because the nature of the taking here did not involve the type ofharm that section 215 was designed to address, it would be an unwarranted extension ofthe statute to conclude that appellant’s actions against a woman at homein her kitchen baking constituted carjacking under section 215. In People v. Hayes, supra, 52 Cal.3d 577, this Court discussed the immediate presence requirement. According to the Court, “[a] thing is in the [immediate] presence of a person . . . which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possessionofit.” (/d. at pp. 626-627.) A vehicle is within a person’s immediate presence for purposes of carjackingif it is thus sufficiently within his control so that he could retain possession ofit if not prevented by force orfear. (People v. Medina (1995) 39 Cal.App.4th 643, 648.) In Medina, the victim was lured into a motel room by an accomplice of the defendant. There, the defendant and accomplices bound the victim, took his car keys, then took his car. (/d. at pp. 646-647.) The defendant challenged his conviction for carjacking, arguing that actual physical proximity of the victim to the vehicle is required. (/d. at p. 649.) The Court ofAppeal 152 disagreed, explaining that the “only reason [the victim] was notin the car whenit was taken andthis wasnota ‘classic’ carjacking, was because he had been lured awayfrom it by trick or device.” (/d. at pp. 651-652.) In People v. Hoard, supra, 103 Cal.App.4th 599, the defendant entered a jewelry store and ordered two employees to give him the keys to the jewelry cases and to the car belonging to one of the employees. (/d. at p. 602.) The employees complied and were then directed into a back room and bound.(Jbid.) The defendant tookjewelry from the cases and the employee’scar. (Jbid.) Relying on Medina,the court in Hoard affirmed the defendant’s carjacking conviction by explaining: “Although [the employee] was not physically present in the parking lot when[the defendant] drove the car away, she had beenforced to relinquish her car keys. Otherwise, she could have kept possession and controlofthe keys and her car.” (People v. Hoard, supra, 103 Cal.App.4th at p. 609(italics added).) In People v. Coleman (2007) 146 Cal.App.4th 1363, the owner of a glass shop drove his Chevrolet Silverado to the shop in the morning,putthe keysto the Silverado in a back work area ofthe shop, then drove away in truck he used in his business. (/d. at p. 1366.) While the owner was away, the defendant entered the shop, pointed a gun at the office manager, andtold her to give him the keys to the Silverado. (Jbid.) The office manager walked to the back of the shop, grabbed the keys to the Silverado, and gave them to the defendant. (Jbid.) The defendant was convicted ofrobbery and carjacking.(/d. at pp. 1365, 1367,fn. 2.) The Court ofAppeal reversed the conviction for carjacking in Coleman. 153 (Id. at p. 1374.) Although the court acknowledgedthat a carjacking may occur whereneither the possessor nor the passenger is inside or adjacent to the vehicle,it nevertheless concludedthat the circumstances of the case “were simply toofar removedfrom the type ofconductthat [the carjacking statute] was designed to | address.” (Id. at p. 1373 (italics added).) The construction and application of section 215, coupled with its legislative history, demonstrate that the statute was designed to address the serious problems andrisks arising primarily from the theft of vehicles from living drivers or occupants ofvehicles contemporaneously or near in time with their use or possession of the vehicle. As repeatedly emphasized by this Court in People v. Lopez, supra, 31 Cal.4th at page 1061, “the legislative history indicates that the Legislature was specifically concerned with the ‘considerable increase in the numberofpersons who have been abducted’ while in their vehicles and the associated dangerto the driver or passenger.” (Accord, People v. Duran (2001) 88 Cal.App.4th 1371, 1376 [section 215 “was passed in 1993 to address what was then an increasingly dangerous problem ofpeople being abducted from their cars, sometimesat gunpoint”].) Appellant acknowledges that a carjacking may occur where the owneror occupantis notinside or immediately adjacentto the vehicle. (See, e.g., People v. Coryell (2003) 110 Cal.App.4th 1299, 1302-1303 [evidence supported carjacking conviction where the driver was in a phone booth next to the vehicle and the knife- wielding defendant chased him away, and the passenger who witnessed the 154 confrontation then ran from the vehicle].) In Coryell, the driver was not in or near the car, but was actively using his vehicle and clearly associated with it at the time of the carjacking. Here, it cannot be concluded beyond a reasonable doubt under any scenario that a carjacking had been committed, where there was no evidencethat appellant was awareprior to the killing that the victim owneda car; where the victim was killed while working in the kitchen in her home; where the car waslocated in a closed garage at the timeofthe killing and could not be seen from thestreet at the time of appellant’s approach; where there was no evidencethat Salling was actively using or aboutto drive or use her car; and where there was no evidence that appellant was aware of car keys, looked for them, or made any effort to take the victim’s keys before her death. The circumstancesofthe present case are simply too far removed from the type of conductthat section 215 was designed to address. To find that appellant’s actions amounted to a carjacking would beto disregard both the language of section 215, cautioning that the statute must not be construed to supersede the offense ofrobbery,’ and legislative intent demonstrating that the statute was designed to address the violent nature ofvehicle takings committed against drivers and occupants. (People v. Hill, supra, 23 Cal.4th at pp. 859-860; People v. Duran, supra, 88 Cal.App.4th at p. 1376.) For these reasons, the evidence cannot support '7/ Section 215, subd. (c) provides in part: “This section shall not be construed to supersede or affect Section 211. 155 appellant’s conviction of carjacking on count4 in violation of section 215, subdivision(a). Moreover, the evidencealso failed to support the jury’s verdict offirst degree murder on count | to the extent that it was predicated on a carjacking- felony-murder theory ofliability. Considered as a whole, the evidence of carjacking and felony-murder predicated on the commission of a carjackingis nether strong nor substantial. As discussed above,no rational trier of fact could have foundthat appellant perpetrated a carjacking within the meaning ofsection 215, subdivision (a), where the victim was baking cookiesin her kitchen and her car was taken from an enclosed garage after her death. Although reasonable inferences must be drawn in support ofthe judgment, an appellate court may not“go beyond inference andinto the realm of speculation in order to find support for a judgment. A finding of first degree murder whichis merely the product of conjecture and surmise may not be affirmed.” (Peoplev. Memro (1985) 38 Cal.3d 658, 695-696.) Because the jury considered legally insufficient evidence in renderingits verdicts, appellant’s rights to due process of law and fair trial under the Fifth, Sixth, and Fourteenth Amendmentsto the United States Constitution were also violated. (Jackson v. Virginia, supra, 443 U.S.at pp. 319, 324 [99 S.Ct. 2781, 61 | L.Ed.2d 560].) The primary concern in the Eighth Amendmentcontext hasbeenthat the sentencing decision be based on the facts and circumstances ofthe defendant, his 156 background,and his crime.See, e. g., Spaziano v. Florida (1984) 468 U.S. 447, 460 [104 S.Ct. 3154, 82 L.Ed.2d 340]; Zantv. Stephens (1983) 462 U. S. 862, 879 [103 S.Ct. 2733, 77 L.Ed.2d 235]; Eddings v. Oklahoma (1982) 455 U.S. 104, 110-112 [102 S.Ct. 869, 71 L.Ed.2d 1] Lockett v. Ohio (1978) 438 U. S. 586, 601- 605 [98 S.Ct. 2954, 57 L.Ed.2d 973] (plurality opinion). In scrutinizing death penalty procedures under the Eighth Amendment, the Court has emphasized the “twin objectives” of “measured consistent application and fairness to the accused.” Eddings v. Oklahoma, supra, 455 U.S. at 110-111; see also Lockett v. Ohio, supra, 438 US.at p. 604 [emphasizing the importance ofreliability].) Here, absent sufficient evidence to support appellant’s conviction on count 4 and his conviction on count 1 predicated ona killing in the course of a carjacking, the penalty of death returned by the jury basedatleast in part on those crimes also violated the Eighth Amendment requirementofa reliable determination ofboth guilt and penalty. (Lockett v. Ohio, supra; Caldwell v. Mississippi (1985) 472 U.S. 320, 328-330 [105 S.Ct. 2633, 86 L.Ed.2d 231].) 157 IV THE EVIDENCE WASINSUFFICIENT UNDER THE DUE PROCESS CLAUSES OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE CALIFORNIA CONSTITUTION (ART.I, § 15) TO SUPPORT THE SPECIAL CIRCUMSTANCEFINDING IN COUNT 1 OF CARJACKING-MURDER PURSUANTTO§ 190.2, SUBDIVISION(a)(17)(L); INSUFFICIENCY OF THE EVIDENCE ALSO RENDERED THE SPECIAL CIRCUMSTANCEFINDING AND DEATH SENTENCE UNRELIABLEIN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION A. Factual and Procedural Background Asset forth in the Statement ofthe Case, supra, appellant was charged on count 1 with the first degree murder of Ellen Salling in violation of section 187, subdivision (a). In addition to the alleged count 1 murder, the information charged appellant on count 4 with carjacking in violation of section 215, subdivision(a). The information further alleged the special circumstance of murder during the commission or attempted commission of carjacking pursuantto section 190.2, subdivision (a)(17)(L). (1 CT 130-132.) In addition to first degree murder instructions based on premeditation and deliberation, the court gave instructions on felony-murder in the modified language of CALJIC No.8.21 which included carjacking. (See 3 CT 602 [jury instruction], 681 [jury copy]; see also 43 RT 5427-5428 [where prosecutor discusses four first degree murder theories, including carjacking-felony murder].) The court instructed the jury on carjacking in the language of CALJIC No.9.46 (see 3 CT 621, 700; 42 RT 5331; 44 RT 5535-5536), and, at the prosecutor’s 158 request, the court instructed the jury on the special circumstance ofmurderin the commission of a carjacking in the modified language ofCALJIC No.8.81.17, | requiring proof that the murder was committed while the defendant was engaged in the commissionofa carjacking.'* (See 3 CT 613 [modification of CALJIC No. 8.81.17], 692 [jury copy]; 42 RT 5311-5317, 5324-5335; see also 43 RT 5356- 5372 [jury instructions], 5421-5423 [argument of counsel as to carjacking special circumstance]; 44 RT 5528, 5530-5531.) During the conference on jury instructions, appellant argued there was no evidence of any taking ofproperty priorto the killing. (See 42 RT 5317-5319.) During closing argument, the prosecutor acknowledgedthat appellant did not take any property before the killing. (See 43 RT 5386-5391.) The prosecutorstressed that appellant “ransacked” Salling’s house only after the killing. (See 43 RT 5398- 5401.) As to the carjacking, the prosecutor stressed that the fact that Salling’s car waslocated in her garage adjacentto her residencesatisfied the immediate presence required of carjacking as chargedin count 4 in violation of section 215. (See 43 RT 5412-5414.) The prosecutor urged the jury not to construe the instructions in a “hypertechnical” manner. (43 RT 5428-5432.) In argumentto the jury, defense counsel concededthat appellant killed Ellen Salling. Defense counsel also conceded that the circumstantial evidence of '§/ In light of modifications and additions to CALJIC No.8.81.17, the prosecutor withdrew, with appellant’s assent, CALJIC No.8.80.1 [standard special circumstancesintroductory instruction] as already revised and included in CALJIC No. 8.81.17. (See 42 RT 5327-5328.) 159 guilt was overwhelming and further conceded sufficient evidence to support at least one theory offirst-degree murder, i.e., the “premeditated deliberation theory offirst-degree murder.” Defense counsel, however, contested the sufficiency of the evidence to prove carjacking. (See 43 RT 5440-5444; see also 43 RT 5451- 5463 [defense argument as to why murder was not committed during or to advance burglary, robbery or carjacking].) The jury found appellantguilty of first degree murderin violation of section 187, subdivision (a) on count 1. The jury also found appellant guilty of carjacking in violation of section 215, subdivision (a) on count 4. (3 CT 726-727.) The jury foundall three special circumstancestrue, including murder while engaged in the commission or attempted commission ofcarjacking pursuant to section 190.2, subdivision (a)(17)(L). (3 CT 720-721; 44 RT 5574-5578.) | B. Sufficiency of Evidence, Generally Substantial evidence must support a special circumstance finding. (People v. Jenkins (2000) 22 Cal.4th 900, 1022; People v. Lewis (2001) 26 Cal.4th 334, 366.) In reviewing the sufficiency of evidence for a special circumstance, a reviewing court asks whether, after viewing the evidence in the light most favorable to the People, any rationaltrier of fact could have found the essential elements of the allegation beyond a reasonable doubt. (People v. Mickey (1991) 54 Cal.3d 612, 678.) Here, the record does not contain substantial evidence that appellant murdered Ellen Salling while engaged in the commission or attempted 160 commission ofcarjacking. Specifically, as there is no indication in the entire record that appellant was even aware ofthe existence ofthe victim’scar orits presencein the victim’s closed garage before thekilling, he could not have formed the requisite intent to commit a carjacking before attacking and killing her. C. Insufficiency of the Evidence to Support the Special Circumstance Finding that the Murder Occurredin the Commission or Attempted Commission of a Carjacking In light ofthe entire record in this case, the evidence is not sufficient to support the special circumstancefinding that the murder occurred while appellant was engaged in the commission or attempted commission of carjacking. The evidenceis also insufficient to establish that appellant’s intent to steal aroseprior to the use offorce. The special circumstance ofmurder while engagedin the commissionor attempted commission ofa carjacking requires that the murder be committed in order to advance the independent felonious purpose of carjacking. The existence of a logical nexus between the felony and the murderin the felony-murdercontext, like the relationship between a robbery, for example, and the murderin the context ofthe felony-murderspecial circumstance, is not a separate element ofthe charged crimebut, rather, a clarification of the scope of an element. (Peoplev. Kimble (1988) 44 Cal.3d 480, 501.) As the Court stressed in People v. Hernandez (1988) 47 Cal.3d 315, 348, whether a killing occurred during the commission ofa felony is not “a matter of semantics or simple chronology.” Instead, “the focus is on the 161 relationship between the underlying felony andthe killing.”(/d. at p. 348.) In People v. Guzman (1988) 45 Cal.3d 915, 950-951, the Court concludedthat the statutory phrase “while engaged in the commission of” in section 190.2, subdivision (a)(17), carries the same meaning as “during the commission of” under section 190.2, former subdivision (c)(3). (See also People v. Jones (2001) 25 Cal.4th 98, 108, fn. 6.) Here, both appellant’s intent and the requisite nexus between the carjacking and the homicidal act are at issue. The carjacking-felony-murderspecial circumstanceis not established ifthe carjacking is merely incidental to the murder. (People v. Green (1980) 27 Cal.3d 1, 61; see also People v. Davis (2005) 36 Cal.4th 510, 568; People v. Horning (2004) 34 Cal.4th 871, 907-908.) In Green, the Court examined former section 190.2, subdivision (c)(3) -- which defined the felony-murder special circumstance-- and held that the special circumstancedid not exist if the felony was “merely incidental to the murder.” (People v. Green, supra, 27 Cal. 3d at pp. 59-61, construing Pen. Code, former § 190.2, subd. (c)(3), Stats. 1977, ch. 316, § 9, pp. 1257-1258.) The Court narrowly construed “during the commission or attempted commission of’, because the provision was supposedto distinguish “between those murderers who deserve to be considered for the death penalty and those who do not.” (dd.atp. 61, fn. omitted). In the presentcase, this rule wasreflected in CALJIC No. 8.81.17, which stated, as relevant here, that in order to find the carjacking felony-murder special 162 circumstancetrue, the jury must find that “[t]he murder was committed while the defendant was engaged in the commission of a carjacking.” As CALJIC No. 8.81.17 further provided, “In other words, the special circumstancereferred to in these instructionsis not established if the carjacking was merely incidental to the commission ofthe murder.” (3 RT 613.) In any given case, one may speculate about any numberofscenarios that may have occurred. A reasonable inference, however, maynot be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. A finding of fact must be an inference drawn from evidence rather than mere speculation as to probabilities without evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1133.) Section 215, subdivision (a) defines carjacking “the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger ofthe motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession ofthe motor vehicle of his or her possession, accomplished by meansofforce or fear.” The requisite intent-- to deprive the possessor ofpossession -- must exist before or during the useoract of force or fear. (Pen. Code § 20; People v. Marshall (1997) 15 Cal.4th 1, 34 [to support a robbery conviction, evidence must showthat the requisite intentto steal arose either before or during the commission ofthe act of force]; see also People v. Wallace (2008) 44 Cal.4th 1032, 1077.) 163 Here, the evidence was insufficient to establish that the intent to deprive Ellen Salling ofher car existed at the same time as the use of force. The prosecutor acknowledgedthat appellant did not take any property before the killing and that appellant ransacked Salling’s house only after the killing. There wasno evidenceattrial that appellant even took Salling’s keys before her death or carried outthe killing precisely in order to take her car. (See, in contrast, People v. Nelson (2011) 51 Cal.4th 198, 211 [jury entitled to conclude that defendant, having taken victim’s car keys, would thentake the car itself].) Nor was there strong circumstantial evidence ofan intent to take Salling’s car prior to her death. (See People v. Beeman (1984) 35 Cal.3d 547, 558-559 [specific intent must often be inferred from circumstantial evidence as “[d]irect evidence ofthe mental state of the accusedis rarely available except through his or her testimony’”].) Salling was not going to her car when she was killed and wasnot in her car or anywherenearhercar at the time of the homicide. Unlike every other reported carjacking decision, Salling was cooking or bakingin her kitchen when killed. There was no evidencethat the garage door was open or that appellant even knew Salling had a car when he entered her homeandkilled her. | Virtually every carjacking involves a victim driving his or her car at the time ofthe crime, a victim next to or aroundhisorher vehicle, or a victim in some manner closely associated with the vehicle andits use at the time ofthe crime. (See, for example, People v. Hamilton (1995) 40 Cal.App.4th 1137, 1144 [usual case of carjacking involves occupant or multiple occupants of motorvehiclesall 164 subjected to threats of violence]; People v. Palacios ((2007) 41 Cal.4th 720, 723 [victim driving his car and stopped at gas station when carjacked].) In this case, there was no evidencethat Salling was holding her car keys whenthekilling occurredor that her car keys were taken directly from her as in People v. Gomez (2011) 192 Cal.App.4th 609, 614 [victim assault was sufficient evidence to support inference that defendant took car keys directly from carjacking victim].) There is nothing in the record showing that appellant was aware of Salling’s car in her garage. There was no evidencethat appellant was even aware that Salling had car keys or where they were kept. There is no evidence of any action of any kindpriorto the killing in this case that suggest any intent by appellant to take Salling’s car before the killing. When appellant entered Salling’s home, she was in the kitchen cooking or baking. Her work in the kitchen did not suggest that she was on her wayto or from a vehicle. The evidence rather suggests that after a briefverbal exchange between Salling and appellant, unrelated to her car, appellant began hitting and beating her with the Ottoman. The fact that appellant did not take any property before the killing tended to imply the absenceofan intentto take either Salling’s car keys or her car before the killing. (See People v. Gomez, supra, 192 Cal.App.4th at p. 622 [act oftaking a car by one whosteals the keys can imply that the key thief intendedto steal the car whenhe took the keys; the failure to take, mention, ask about, or look for the vehicle when the keys are taken implies the absence ofan intent to take the car].) An inference that appellant intended to take Salling’s car because he wasin 165 flight from law enforcement authorities founders on a total lack of evidence or proofthat appellant knew ofthe existence of the vehicle when he approached her home and saw her workingin the kitchen. Proof ofthe requisite specific intent to deprive Salling ofher vehicle surely required some evidence that appellant knew she had a car, knew whereit was kept, or knew ofthe existence of car keys before her death. Thestatutory proscriptions against carjacking, carjacking-felony-murder, and the special circumstance ofmurder while engaged in the commission or attempted commission of a carjacking were designed to address serious criminal conduct involving the use and operation ofmotor vehicles. (See People v. Antoine (1996) 48 Cal.App.4th 489, 495.) Here, it cannot be concluded beyond a reasonable doubt under any scenario that the evidence was sufficient to prove the special circumstance ofmurder while engaged in the commission of a carjacking within the meaning of section 190.2, subdivision (a)(17)(L). Although reasonable inferences must be drawn in support of the judgment, an appellate court may not “go beyond inference and into the realm of speculation in order to find support for ajudgment. A finding of first degree murder whichis merely the product ofconjecture and surmise may notbe affirmed.” (People v. Memro (1985) 38 Cal.3d 658, 695-696.) Because the jury considered legally insufficient evidence in finding the carjacking special circumstancetrue in this case, appellant’s rights to due process of law and fair trial underthe Fifth, Sixth, and Fourteenth Amendments to the United States Constitution were also violated. 166 (Jackson v. Virginia, supra, 443 U.S.at pp. 319, 324 [99 S.Ct. 2781, 61 L.Ed.2d 560].) D. Insufficiency of the Evidence to Support the Special Circumstance Finding Also Led to an Unreliable Penalty Determination in Violation of Appellant’s Fundamental Rights Guaranteed by the Eighth and Fourteenth Amendmentsto the United States Constitution The Eighth Amendmentprovides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The provision is applicable to the states through the Fourteenth Amendment. (Furman v. Georgia (1972) 408 U. S. 238, 239 [92 S.Ct. 2726, 33 L.Ed.2d 346] (per curiam); Robinson v. California (1962) 370 U.S. 660, 666-667 [82 S.Ct. 1417, 8 L.Ed.2d 758].) The high court has discussed the concept ofenhancedreliability as a foundational prerequisite for imposition of the death penalty. Due to the unique nature ofthe death penalty, the Fighth Amendment demands “heightened reliability” in the determination whetherthe death penalty is appropriate in a particular case. (Sumner v. Shuman (1987) 483 U.S. 66, 72 [107 S.Ct. 2716, 97 L.Ed.2d 56].) Byprotecting even those convicted ofheinous crimes, the Eighth Amendmentreaffirms the duty ofthe governmentto respect the dignity ofall persons. Not only were appellant’s fundamental due process rights violated by the lack of sufficient evidence to support the carjacking-felony-murderspecial circumstancein this case (Subsection C, supra), but the constitutional proscription 167 against cruel and unusual punishment was also violated for the same reasons. The primary concern in the Eighth Amendmentcontext has been that the sentencing decision be based on the facts and circumstances ofthe defendant, his background,andhis crime.See, e. g., Spaziano v. Florida (1984) 468 U.S. 447, 460 [104 S.Ct. 3154, 82 L.Ed.2d 340]; Zant v. Stephens (1983) 462 U.S. 862, 879 [103 S.Ct. 2733, 77 L.Ed.2d 235]; Eddings v. Oklahoma (1982) 455 U.S. 104, 110-112 [102 S.Ct. 869, 71 L.Ed.2d 1] Lockett v. Ohio (1978) 438 U.S. 586, 601- 605 [98 S.Ct. 2954, 57 L.Ed.2d 973] (plurality opinion). In scrutinizing death penalty procedures under the Eighth Amendment, the high court has emphasized the “twin objectives” of “measured consistent application and fairness to the accused.” (Eddings v. Oklahoma, supra, 455 U.S. at 110-111; see also Lockett v. Ohio, supra, 438 U.S.at p. 604 [emphasizing the importanceofreliability].) Here, absent sufficient evidence to support appellant’s conviction on count 4, his conviction on count 1 predicated on a killing in the course of a carjacking, and the special circumstance ofmurder while engaged in the commission or attempted commissionofa carjacking, the penalty ofdeath returned by the jury predicatedat least in part on those crimesalso violated the Eighth Amendment requirementofa reliable determination ofboth guilt and penalty. (Lockett v. Ohio, supra; Caldwell v. Mississippi (1985) 472 U.S. 320, 328-330 [105 S.Ct. 2633, 86 L.Ed.2d 231], 168 B. Penalty Trial Issues and Assignments of Error V THE TRIAL COURT ERRONEOUSLY AND PREJUDICIALLY FAILED TO INSTRUCT THE JURY ON THE APPROPRIATE USE OF VICTIM IMPACT EVIDENCEIN VIOLATION OF APPELLANT’S RIGHTS TO A FAIR TRIAL, DUE PROCESS, AND TO A RELIABLE DETERMINATION OF PENALTY GUARANTEEDBYTHE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION; THE ERRORWAS NOT HARMLESS BEYOND A REASONABLE DOUBT A. Factual and Procedural Background Asset forth in the penalty trial statementof facts, supra, pursuant to section 190.3 (45 RT 5619-5620), the prosecutoroffered two types ofvictim impact evidence in this case: the testimony ofHenni Ray-- Ellen Salling’s daughter-- and the testimony of Gerald Ohman,the father of the 1993 victim, Jennifer. VonSeggern. (See 48 RT 6081-6083.) The testimony ofHenni Rayis reported in approximately 20 pagesofpenalty trial transcript; the testimony of Gerald Ohman occupies about 16 pagesoftranscript. (59 RT 6099-6015.) Thetestimony offered thus entailed twodistinct types ofvictim impact evidence. Pursuant to section 190.3, subdivision (a), the daughter of 1998 capital murdervictim Ellen Salling offered testimonyas to the direct impact ofher | mother’s death on her and her family. Unlike Henni Ray, however, Gerald Ohman could not anddid nottestify as to the impact ofthe capital murder victim’s death on him or his family. Ohman was unrelated to Salling, and there was no evidence that he had ever been acquainted with her. Rather, pursuantto section 169 190.3, subdivision (b), Ohman testified as to the impact on him andhis family of the killing of his daughter, Lisa VonSeggern, appellant’s 1992 manslaughter victim. In closing argument to the jury, the prosecutor stressed that victim impact evidence could be used and evaluated in the sound judgmentofthe jury and that such evidence stood in contrast to impact ofthe death verdict on appellant. According to the prosecutor, victim impact evidence was simply another method of informing the jury about the specific harm appellant caused by his crime, so that the jury could meaningfully assess his moral culpability and blameworthiness. (See, generally, 53 RT 6740-6745.) The prosecutoralso stressed that both Ellen Salling’s mother-in-law and Jennifer VonSeggern’s mother died shortly after their deaths: “And you’ve got to wonder whathis activity had to do with that.” (53 RT 6788-6789.) Appellant was thus blamedin the victim impact testimony and by the prosecutor for two additional deaths, which the jury thereby was permitted to consider. The court instructed the jury, inter alia, with CALJIC No.8.84.1, specifying the duties ofpenalty jurors (see 4 CT 927); CALJIC No.8.85,listing factors for the jury’s considerationin determining penalty (4 CT 928-929); modified CALJIC Nos. 8.86 and 8.87, requiring proofbeyonda reasonable doubt of a prior conviction orprior criminal activity offered in aggravation (see 3 CT 996, 1018); and CALJIC No.8.88,setting forth the concludinginstructions for the penalty phase. (4 CT 986.) 170 Paragraph (a) ofCALJIC No.8.85 informedthejury that in determining penalty, it must consider, take into accountand be guided by “(a) The circumstances ofthe crime ofwhich the defendant was convictedin the present proceeding and the existence of any special circumstances[{s] foundto betrue.” (4 CT 989; 53 RT 6821.) Paragraph (b) ofCALJIC No.8.85 providedthatin determining penalty, the jury must consider, take into account, and be guided by “[t]he presence or absenceofcriminalactivity by the defendant, other than the crimes for which the defendant has beentried in the present proceedings, which involved the use or attempted use of force or violence... .” (4 CT 989; 53 RT 6821 .) B. Admissibility of Victim Impact Evidence, Generally; Jury Instructions In Payne v. Tennessee (1991) 501 U.S. 808, 825 [111 S.Ct. 2597, 115 L. Ed.2d 720], the United States Supreme Court held that victim impact evidenceis not inadmissible per se under the United States Constitution becauseit “is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question ... .” As noted by this Court following Payne, such evidence “ofcourse” must conform to established limits on emotional evidence and argument. “[T]he jury must face its obligation soberly andrationally, and should not be given the impression that emotion may reign over reason.” (People v. Edwards (1991) 54 Cal.3d 787, 835.) The Eighth Amendmentto the United States Constitution thus permits the 171 introduction ofvictim impact evidence, or evidence ofthe specific harm caused by the defendant, when admitted in order for the jury to assess meaningfully the defendant’s moral culpability and blameworthiness. (Payne v. Tennessee, supra, 501 U.S.at p. 825.) Such evidence violates the Fourteenth Amendment’s due process clause whenit is so unduly prejudicial that it renders the trial fundamentally unfair. (Ibid.) Evidence ofthe effect of a capital murder on the victim’s loved ones and the larger community is admissible under section 190.3, factor (a) as a circumstanceofthe crime. (People v. Brady (2010) 50 Cal.4th 547, 574; People v. Burney (2009) 47 Cal.4th 203, 258; People v. Bramit (2009) 46 Cal.4th 1221, 1240.) In Burney, members ofthe victim’s family andhis fiancée testified about the “deleterious impact of the victim’s murder on themselves and others, how muchthey missed the victim, and the victim’s sweet and peaceful nature.” (Jd.at p. 258.) In People v. Boyette (2002) 29 Cal.4th 381, “[flamily members spoke of their love ofthe victims and how they missed having the victims in their lives.” Cd.at p. 444.) Victim impact witnesses are not limited to expressions of grief. This Court’s prior decisions permit a showing ofthe specific harm caused by the defendant (People v. Edwards, supra, 54 Cal.3dat p. 835), which encompasses the spectrum ofhuman responses, including anger and aggressiveness, fear, and an inability to work. (People v. Ervine (2009) 47 Cal.4th 745, 793.) Victim impact evidence is commonly provided by family members, colleagues, or friends. There 172 is no requirementthat family membersconfinetheir testimony about the impact of the victim’s death to themselves, omitting mention of other family members. (People v. Panah (2005) 35 Cal.4th 395, 495.) Asdiscussed in Subsection A, supra, the prosecutor not only introduced the victim impact testimony of Henni Raypertaining to the “circumstances ofthe crime”ofwhich appellant “was convicted in the present proceeding”(section 190.3, subd. (a); CALJIC No.8.85), but also introduced victim impact testimony by George Ohman,the father of 1992 victim Jennifer VonSeggern pursuantto section 190.3, subdivision (b) pertaining to other criminal activity by the defendant, other than the crime for which he has beentried in the present proceedings, which involvedthe use of force or violence. In People v. Virgil (2011) 51 Cal.4th 1210, the prosecutor offered evidence during the penalty phase ofa capital trial pertaining to an uncharged assault and robbery on a motel maid. The defendant had stayed at that same motel five days after the charged murder. The maidtestified in Virgil that the defendant seriously cut her finger with a knife during the assault. Shetestified that subsequent to the assault she underwent three surgeries to treat other injuries to her stomach andintestines. As a result ofthe defendant’s attack, the maid suffered persistent digestive problems and could eat only once a day. The attack left her face disfigured. Herleft eye drooped partially closed, impairing hervision. She haddifficulty sleeping and wasafraid to be alone. (/d. at pp. 1231-1232.) 173 On appealto this Court, the defendant arguedthat the trial court erred in failing to limit victim impact evidenceto the capital offense. He claimedhisstate and federal constitutional rights were violated by admission of testimony concerning the effects of his unrelated assault on the maid. Rejecting the defendant’s contention, the Court noted that the admission of evidence about the impacts of a capital defendant’s other violent criminalactivity does not violate the state or federal Constitutions. (Jd. at pp. 1275-1276.) The Court further ruled that “[t]he circumstances ofuncharged violent crimes, including the impact on victims of those crimes, are made expressly admissible by section 190.3, factor (b).” (Ud.at p. 1276; see also People v. Davis (2009) 46 Cal.4th 539, 618 [admissibility of victim impact evidence pertaining to a defendant’s prior crimes].) Here, the issue is not the admissibility ofthe two types ofvictim impact evidencein this case. Rather, appellant asserts that the trial court’s instructions were constitutionally defective under the Fifth, Sixth, Eighth, and Fourteenth Amendments precisely because the jury was not given any guidanceas to how the two types ofvictim impact evidence should be evaluated in determiningpenalty. Instead, the jury was permitted to consider victim impact evidence in a purely discretionary and arbitrary manner, untethered to any statutory and constitutional mandates or requirements. //1 HT HT 174 C. The Court Failed to Instruct the Jury on the Proper Use of Victim-Impact Evidence; the Error Was Not Harmless Beyond a Reasonable Doubt The Fifth, Sixth, and Eighth Amendments ofthe Constitution require that a capital sentencing scheme “suitably direct” and limit a sentencing jury’s discretion “so as to minimize the risk ofwholly arbitrary and capricious action.” (Lewis v. Jeffers (1990) 497 U.S. 764, 774 [110 S.Ct. 3092, 111 L.Ed.2d 606] (quoting Gregg v. Georgia (1976) 428 U.S. 153, 189 [96 S.Ct. 2909, 49 L.Ed.2d 859]). Pursuantto these protections, the high court will not permit the jury to consider aggravating factors that are impermissibly vague, overbroad,or otherwisefail to “genuinely narrow the class ofpersonseligible for the death penalty.” (Aravev. Creech (1993) 507 U.S. 463, 474 [113 S.Ct. 1534, 123 L.Ed.2d 188] (quoting Zant v. Stephens (1983) 462 U.S. 862, 877 [103 S.Ct. 2733, 77 L.Ed.2d 235]; accord Maynard v. Cartwright (1988) 486 U.S. 356, 364 [108 S.Ct. 1853, 100 L.Ed.2d 372] [invalidating an aggravating factor that “an ordinary person could honestly believe” applied to every eligible defendant). In sum, every court must ensure that aggravating factors put before a sentencing jury permitit “to make a principled distinction between those who deserve the death penalty and those who donot.” (Lewis v. Jeffers, supra, 497 U.S.at p. 776.) In the present case,the trial court did not give any instruction on the use, consideration, or evaluation ofvictim impact evidence. The jury was not instructed that such evidence was to be considered within the meaning of factors (a) and (b) ofCALJIC No.8.85, nor instructed that victim impact evidence did not 175 constitute separate aggravating circumstances, as in People v. Harris (2005) 37 Cal.4th 310, 358-359. Noinstructions were given that in any way informed the jury of the law regarding the proper consideration of victim-impact evidence. Appellant acknowledgesthat the Court has previously rejected, and continuesto reject, various claimsoferror in respect to victim impact evidence, the scope and nature of victim impact testimony, and the need for clarifying instructions. (See, e.g., People v. Brady (2010) 50 Cal.4th 547, 574, fn. 11; People v. Famalaro (2011) 52 Cal.4th 1, 38.) Thus, the Court has rejected claims that victim impact evidence deprives defendants of a state-created liberty interest (e.g., People v. Boyette (2002) 29 Cal.4th 381, 445, fn. 12) and that “circumstances of the crime,” as used in Penal Codesection 190.3, factor (a), is unconstitutionally vague, overbroad, subject to arbitrary decision-making,orfails to provide adequate notice. (E.g., People v. Carrington (2009) 47 Cal.4th 145, 197; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1057.) The Court has also rejected claimsthat victim impact evidence mustbe limited to the circumstances known to the defendant or foreseeable at the time ofthe commission ofthe crime.(See,e.g., People v. Hartsch (2010) 49 Cal.4th 472, 508; People v. Pollock (2004) 32 Cal.4th 1153, 1183.) Further, the Court has rejected claimsthat the trial court must give, on its own initiative, a precisely-worded clarifying instruction concerning the consideration and use of victim impact evidence in respect to the specific harm caused by the defendant’s crimes, or claims that the court failed to give a defense- proffered clarifying instruction deemed duplicative and argumentative. (See, e.g., 176 People v. Famalaro, supra, 52 Cal.4th at pp. 38-39; People v. Virgil (2011) 51 Cal.4th 1210, 1280; People v. Murtishaw (2011) 51 Cal.4th 574, 595.) Under well-settled California law,the trial court is responsible for ensuring that the jury is correctly instructed on the law. (People v. Murtishaw (1989) 48 Cal.3d 1001, 1022.) “In criminal cases, even absent a request, the trial court must instruct on generalprinciples of law relevantto the issues raised by the evidence.” (People y. Koontz (2002) 27 Cal.4th 1041, 1085.) The court mustinstruct sua sponte on those principles which are openly and closely connected with the evidence presented and are necessary for the jury’s proper understandingofthe case. (People v. Breverman (1988) 19 Cal.4th 142, 154.) Because ofthe importance ofthe jury’s decision in the sentencing phase of a death penalty trial, it is imperative that the jury be guided by properlegal principles in reaching its decision. . Allowing victim impact evidence to be placed before the jury without properinstructions on the jury’s use and consideration of that evidence has the clear capacity to taint the jury’s decision on whetherto imposedeath. This Court addressed proposed victim impactlimiting instructions in People v. Famalaro, supra, 52 Cal.4th at p. 38-39 and People v. Ochoa (2001) 26 Cal.4th 398, 445, for example, and held that the trial court properly refused such instructions because they was covered bythe language ofCALJIC No.8.84.1, an //1 //f 177 instruction which was also given in this case.’? (53 RT 6820-6821.) In Ochoaand again in People v. Hartsch, supra, 49 Cal.4th at pp. 510-511, the Court reasoned that “[t]he proposed instruction would not have provided the jury with any information it had not otherwise learned from CALJIC No. 8.84.1.” (Peoplev. Ochoa, supra, 26 Cal.4th at p. 455; accord, People v. Hartsch, supra, 49 Cal.4th at p. 511.) The Court’s reliance on the language of CALJIC No. 8.84.1 in Ochoa, Hartsch, and other similar decisions is unsound. Aboveall, the Court hasfailed to consider that CALJIC No. 8.84.1 does not refer specifically to victim impact evidence. It does nottell the jurors why victim-impact evidence was introduced either in respect to the circumstancesofthe charged capital crimeor in respect to 9) The modified version ofCALJIC No.8.84.1 given to appellant’s jury read as follows: “You will now beinstructed as to all of the law that applies to the penalty phaseofthistrial. “You must determine what the facts are from the evidence received during both the guilt and penalty phasesofthe trial. If the attorneys have stipulated or agreed to a fact during either the guilt or penalty phaseofthis trial, you must regard that fact as proven. You must accept and follow the law that I shall state to you. Disregard all other instructions given to you in the other phase of | thistrial. “You must neither be influenced by bias or prejudice against the defendant, nor swayed by public opinion or public feelings. Both the People and the Defendant have a right to expect that you will consider all of the evidence, follow the law, exercise your discretion conscientiously, and reach a just verdict.” (4 CT 988; 53 RT 6820.) 178 criminal activity other than the crime or crimes for which the defendant wasbeing tried. It does not caution the jurors against an irrational decision or warn the jurors not to consider what they may perceiveto be the opinions ofthe victim- impact witnesses -- a clearly improper factor. (See Payne v. Tennessee, supra, 501 U.S. at p. 830, fn. 2; People v. Pollock, supra, 32 Cal.4th at p. 1180; People v. Smith (2003) 30 Cal.4th 581, 622.) Nor does it admonish them not to employ the improper factor ofvengeancein their penalty determination. Although CALJIC No. 8.84.1 does admonish the jury that, “You must neither be influenced by bias nor prejudice against the defendant, nor swayed by public opinion orpublic feelings” (4 CT 988; 53 RT 6820),nothing in the instruction’s languageexplicitly refers to victim impact evidence. Arguably, the sorrowful testimony of family does notfall within the ambit of the “public opinion or public feelings” languagerecited in the instruction. Given the common-sense meaning ofthese terms, it would be reasonable for jurors to conclude that the victim impact evidence was not covered by this language. Similarly, the jurors would reason that the admonition against being swayed by “public opinion or public feeling” (4 CT 988; 53 RT 6820) did not applyto the private opinions of the victims’relatives(i.e., that appellant also indirectly caused at least two other deaths), or to any exhortation by the District Attorney to seek vengeance on behalf of the victims’ families or society as a whole. In every capital case, “the jury must face its obligation soberly and rationally, and should not be given the impression that emotion may reign over 179 reason.” (People v. Haskett (1982) 30 Cal.3d 841, 864.) Here, there was nothing in the instructions to dissuade the jury from incorporating these considerations into the sentencing calculus, including vengeance and the wishes or opinionsofthe victims’ families. The failure to deliver an appropriate victim impact instruction violated appellant’s right to a decision by an impartial and properly-instructed jury, his due processright to a fair trial, and his right to a fair andreliable capital penalty determination. (U.S. Const., 6th, 8th & 14th Amends.; Cal. Const., art.I, §§ 7, 15, 16, & 17.) The violations of appellant’s federal constitutional rights require reversal unless the state can show that they were harmless beyond a reasonable doubt. (Chapmanv. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].) Theviolations of appellant’s comparable or equivalent state rights also require reversal if there is any reasonable possibility that the errors affected the penalty verdict. (People v. Jackson (1996) 13 Cal.4th 1164, 1232; People v. Brown (1988) 46 Cal.3d 432, 447-448.) The United States Supreme Court has recognized the substantial equivalency ofthe reasonable possibility and reasonable doubt formulations. In a pre-Chapmanopinion,the high court stated the harmless error test this way: “The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” (Fahy v. Connecticut (1963) 375 U.S. 85, 86-87 [84 S.Ct. 229, 11 L.Ed.2d 171].) In Chapman,the high court noted that “[tJhereis little, if any, difference between our statements in Fahy v. 180 Connecticut about ‘whetherthere is a reasonable possibility that the evidence complained ofmight have contributed to the conviction’ and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained ofdid not contribute to the verdict obtained.” (Chapmanv. California, supra, 386 U.S.at p. 24.) Accordingly, the high court saidit did “no more than adhere to the meaning ofour Fahy case when wehold, as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” (Ibid.) Although the reasonable possibility standard has been considered the same, in substance andeffect, as the harmless beyond a reasonable doubt standard of Chapmanv. California, supra, 386 U.S. 18, 24 (People v. Jones (2003) 29 Cal.4th 1229, 1264, fn. 11; People v. Wallace (2008) 44 Cal.4th 1032, 1092), in Peoplev. Brown, supra, this Court stressed the applicability ofan even more exacting standard ofreview whenassessing the prejudicial effect of constitutionalor state- law errors at the penalty phase of a capital trial. (People v. Brown, supra, 46 Cal.3d at pp. 447-448.) The reason for the heightened standardis the different level of responsibility and discretion held by the sentencerin the penalty phase. (See also People v. Clark (2011) 52 Cal.4th 856 [because error occurredat penalty phaseofa capital trial more exacting standard applies].) In People v. Ashmus (1991) 52 Cal.3d 932, 983-984, for example, the Court invoked Brown, explaining that the prejudice standard required the reviewing court to reverse based on even the possibility that a hypothetical juror might have 181 reached a different decision absent the error. “We must ascertain how a hypothetical ‘reasonable juror’ would have,or at least could have, been affected.” (Id.) Given Brown and Chapman, which equate the reasonable possibility standard understate law with the federal harmless beyond a reasonable doubt standard, and the more exacting standard oferror applicable at the penalty phase of a capitaltrial, the trial court’s instructional error in respect to victim impact evidence cannot be considered harmless. Here, it was reasonably possible that withoutproperinstructional guidance, the purely emotional and excessively inflammatory victim-impact evidence presented in this case in respect to the deaths ofboth Ellen Salling’s mother-in-law and Jennifer VonSeggern’s mother, attributed somehow to appellant as further consequencesofhis crimes, and the prosecutor’s effective and extensive use ofthat evidence during his closing argument, unfairly infected the jury’s penalty deliberations and sentencing process. (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642 [94 S.Ct. 1868, 40 L.Ed.2d 431].) Consequently, reversal of the death judgmentis required. 182 VI THE TRIAL COURT ERRED BY PERMITTING THE STATE TO RETRY THE VONSEGGERN KILLING AND APPELLANT’S PRIOR 1993 MANSLAUGHTER CONVICTION, AND BY GIVING MURDER INSTRUCTIONSIN THE LANGUAGEOF CALJIC NOS. 8.00-8.21 AND ON AGGRAVATING FACTORS IN THE MODIFIED LANGUAGEOF CALJIC NO.8.87, THEREBY ALLOWING THE STATE TO ELEVATE THE PRIOR KILLING AND ADJUDICATED MANSLAUGHTER TO MURDERIN VIOLATION OF THE “PROSECUTED AND ACQUITTED” PROHIBITION OF PENAL CODE SECTION190.3, THE DOCTRINE OF COLLATERAL ESTOPPEL, THE CONSTITUTIONAL PROSCRIPTION AGAINST DOUBLE JEOPARDY, AND APPELLANT’S RIGHTS TO DUE PROCESS OF LAW, FAIR TRIAL, AND A RELIABLE PENALTY DETERMINATION GUARANTEEDBYTHE FIFTH,SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION A. Factual and Procedural Background Asset forth in the Statement ofthe Facts, supra, appellant was convicted by guilty (no contest) plea in 1993 ofthe manslaughter of Lisa VonSeggern in Santa Rosa, Sonoma County. At the penalty trial, the prosecutor called 16 witnesses and introduced other documentary evidencein order to prove that appellant’s crime was not actually manslaughter but the greater crimeoffirst degree murder, despite the charges and nature ofthe prosecution in thatcase, appellant’s prior plea, his manslaughter conviction, and that he had been actually prosecuted for and acquitted ofmurder. Whereas murder-- the greater crime-- is an unlawful killing with malice aforethought (§ 187), manslaughter-- the lesser included crime-- is an unlawful killing without malice. (§ 192.) In arguing the admissibility ofthe evidence of the VonSeggern killing, the 183 prosecutorstressed that he intended to introduce evidence of conduct to show that it was “more serious than what the defendant admitted to in the prior case. ... And we would be asking that the jury be instructed concerning the elements ofmurder with respectto his killing of Jennifer [VonSeggern].” (45 RT 5607.) Despite doubts expressed by the trial court whether the prosecutor could seek to “recharacterize”the killing “in a legal framework” (46 RT 5650), and despite the fact that appellant had only been convicted ofmanslaughter, an unlawful killing without malice, the prosecutor nevertheless argued that in addition to testimonial evidence in the VonSeggern case, photographic evidence and physical evidence would be offered as well to prove murder with malice. (See 45 RT 5607-5609; see also 45 RT 5628 [court verifies that prosecutor wanted instructions on both manslaughter and murder]; see also 46 RT 5637-5638 [arguing prosecutor permitted to elevate prior manslaughter conviction to murder during penalty trial]; 46 RT 5648-5651 [prosecutor further arguing that although appellant had been previously convicted ofmanslaughter, prosecution not precluded from introducing evidence showingthatkilling ofVonSeggern was something more than voluntary manslaughter and that prosecution wasentitled to murderinstructions].) The prosecutor’s relitigation of appellant’s prior manslaughter conviction covered 150 pagesofpenalty trial transcript and 40 pages of a police interview transcript with appellant regarding VonSeggern’s death that was also admitted into evidence and providedto the penalty jury. (See 46 RT 5707-5720, 5725-5743, 5751-5779; 47 RT 5824-5899; 52 RT 6650-6664;3 CT 794-835 [People’s Exhibit 184 Z-56].) The prosecutor’s efforts to retry appellant for the VonSeggern killing was central to the state’s case in aggravation against appellant. (See 46 RT 5672-5677 [prosecutor’s penalty trial opening argument].) At the prosecutor’s request, the trial court instructed the jury on both manslaughter and murderandpermitted the prosecutor, in his argument, to seek to elevate appellant’s prior manslaughter conviction to murder. (See 4 CT 959, 1020 [jury instruction,including prosecutor’s modifications ofCALJIC No. 8.87 with revised references to the “murder or voluntary manslaughter or involuntary manslaughter ofJennifer Lisa VonSeggern.”], 1022 [murderinstruction]; see also 51 RT 6607-6608-6609 [arguing recharacterization ofkilling was “issue for the jury”].) In his closing argument, prosecutor Hedstrom arguedthatthe killing of Jennifer VonSeggern “really was a murder,” not manslaughter. (53 RT 6719.) Further, in seeking to elevate the VonSeggern manslaughter to murder, prosecutor Hedstrom also stressed during closing argumentthat appellant’s manslaughter conviction was an aggravating circumstance which could and should be considered by the jury separate and distinct from the circumstances ofthe same crime alleged to be murder. (See 53 RT 6730-6733 [prosecutor’s closing argument emphasizing appellant’s voluntary manslaughter conviction as a factor (c) aggravating circumstance and, if murder, as a separate circumstance underfactor (b)]; see also 53 RT 6839 [modification ofCALJIC No.8.87 given by court to refer to the “murder or voluntary manslaughter or involuntary manslaughter of Jennifer Lisa VonSeggern”].) 185 Clearly awareofthe distinction between unadjudicated prior crimes and adjudicated prior crimes (see 51 RT 6608-6616 [where court distinguishes prior unadjudicated crimes, such as Pamela Martin incident requiring instructions on elements, from prior manslaughter conviction permitting only evidence of “underlying activity”], the court nevertheless in its instructions to the jury permitted the jury newly to find appellant guilty of the murder of Jennifer VonSeggern and then to use that newly-found murderas a separate and additional factor in aggravation in its penalty deliberations. Specifically, the court instructed the jury in the modified language of CALJIC No.8.87 in relevant part as follows: “evidence has been introduced for the purpose of showing that the defendant has committed the following criminal acts: ... murder... of Jennifer Lisa VonSeggern... . If any juror is convinced beyond a reasonable doubtthat the criminalact occurred, that juror may consider that act as a fact in aggravation.” (4 CT 959, 1020.) Bytheinstructions given, the jury was thus not only permitted to consider appellant’s prior manslaughter conviction as an aggravating factor but to newly decide that he wasactually guilty ofmurderfor that prior crime and then useits new findingofmurderas an additional factor in aggravation. (See CALJIC No. 8.86 [permitting jury to consider prior manslaughter conviction as aggravating circumstance] and CALJIC No. 8.87 [permitting jury to consider as well murder of Jennifer Lisa VonSeggern as other criminal activity and additional fact in aggravation].) (See 4 CT 957-959; 53 RT 6838-6839.) 186 B. Retrial of Appellant for the MurderofVonSeggern as a Separate and Additional Factor in Aggravation, Was Prohibited by the “Prosecuted and Acquitted” Provision of Section 190.3 By felony complaint filed on February 11, 1993, in the Municipal Court of California, Sonoma County, appellant was charged with the murder ofJennifer Lisa VonSeggern in violation ofsection 187, subdivision (a).2° After a preliminary hearing on March 24, 1993, appellant was held to answeron count 1 (murderin violation of section 187, subd.(a)), as charged in the felony complaint. By subsequent information, filed on April 7, 1993, in the Superior Court of California, Sonoma County, appellant was again charged with the murder of Jennifer Lisa VonSeggern in violation of section 187, subdivision (a). At his arraignment for murder on April 7, 1993, and again on April 15, 1993, appellant pleaded not guilty to count 1. By first amended information, filed on October 12, 1993, in the Superior Court of California, Sonoma County, appellant was again charged in count 1 with the murder ofJennifer Lisa VonSeggern in violation of section 187, subdivision (a) and in count 2 with the lesser included crime of manslaughter ofVonSeggern in violation of section 192, subdivision (a). On the ?°/ Appellant requests that the court take judicial notice of the court files ofPeople v. Jerrold Elwin Johnson (Super. Ct. Sonoma County, 1993, No. 20425). See Evid. Code §§ 452, subd.(d) [judicial notice may be taken ofthe records of any court ofthis state], 452.5 [pertaining to court recordsrelating to criminal convictions]; 453 [judicial notice shall be taken of any matter specified in section 452 if the party requesting judicial notice (1) provides notice to the adverse party, and (2) furnishes the court with sufficient information to enableit to take judicial notice]; see also People v. Lawley (2002) 27 Cal.4th 102, 163, fn. 24.) 187 same date, appellant pleaded no contest to count 2 in violation of section 192, subdivision (a); the People’s moved to dismiss the alleged count 1 murderat time of sentencing. On November8, 1993, appellant was sentencedto state prison on count 2. Thetrial court dismissed the alleged count 1 murder. Attrial, it was stipulated that appellant was convicted ofvoluntary manslaughter in 1993 [Sonoma County Case No. SCR20425], as documented by a California Department ofCorrections section 969b prison packet. [People’s Exhibit No. 154]. (49 RT 6240-6241; see also 1 CT [Court Exhibits] 49; 3 CT 786-793 [prison packet including abstract ofjudgment in Sonoma County Case No. SCR20425reflecting appellant’s conviction by plea ofvoluntary manslaughterin violation of section 192, subdivision (a)].) Asset forth in Subsection (A), supra,the trial court instructed the jury on both manslaughter and murder and permitted the prosecutor, in his argument, to seek to elevate appellant’s prior manslaughter conviction to murder. The court instructed the jury in relevant part: “Evidence has been introduced for the purpose of showingthat the defendant has committed the following criminal acts: ... murder . . . of Jennifer Lisa VonSeggern ... . If any juror is convinced beyond a reasonable doubt that the criminal act occurred, that juror may considerthatactas a fact in aggravation.” (4 CT 959, 1020.) Pursuant to the court’s instructions, the jury was permitted not only to consider appellant’s prior manslaughter conviction as an aggravating factor but to newly decidethat he was actually guilty ofmurder for that prior crime and then use its new finding ofmurder as an additional factor 188 in aggravation. (See CALJIC No.8.86 [permitting jury to considerprior manslaughter conviction as aggravating circumstance] and CALJIC No. 8.87 [permitting jury to consider as well murder ofJennifer Lisa VonSeggern as other criminal activity and additional fact in aggravation].) (See 4 CT 957-959; 53 RT 6838-6839 .) Under both federal and California law, greater and lesser included offenses constitute the “same offense” for purposes ofdouble jeopardy. (People v. Bright (1996) 12 Cal.4th 652, 660-661, overruled on other grounds in People v. Seel (2004) 34 Cal.4th 535, 550, fn. 6.) In California, a conviction of a lesser included crimeor ona lesser degree of an offense is generally considered to be an implied acquittal of the greater crime. (See People v. Fields (1996) 13 Cal.4th 289, 299 [completed conviction on lesser offense barred subsequent conviction ofgreater offense}; Stone v. Superior Court (1982) 31 Cal.3d 503, 511, fn. 5 [“This court recognized the notion of implied acquittal as early as 1854”); see also People v. Gilmore (1854) 4 Cal. 376 [conviction for manslaughter is an acquittal of the charge ofmurder; the conviction “must, by legal operation, amountto an acquittal of every higher offense charged in the indictmentthan the particular one ofwhich the prisoneris found guilty.”].) Like mostjurisdictions, California recognizes that an offense expressly alleged in an accusatory pleading may necessarily include one or more lesser offenses. For example, section 1023 includes “an offense necessarily included therein, ofwhich [the defendant] might have been convicted under that accusatory 189 pleading” within the protection against subsequent prosecution after a conviction or acquittal. Under section 1023, as construed in People v. Greer (1947) 30 Cal.2d 589, 596-597, when an defendantis convicted of a lesser included offense, the conviction bars a subsequent prosecution for the greater offense. A lesser offenseis necessarily includedin a greater offenseifeither the statutory elements ofthe greater offense, or the facts actually alleged in the accusatory pleading,include all the elements ofthe lesser offense, such that the greater cannot be committed without also committing the lesser. (Peoplev. Valladares (2009) 173 Cal.App.4th 1388, 1395.) Manslaughter, an unlawful killing without malice, is a lesser included offense ofmurder. (§ 192; People v. Ochoa (1998) 19 Cal.4th 353, 422; People v. Koontz (2002) 27 Cal.4th 1041, 1086; People v. Lewis (2001) 25 Cal.4th 610, 645 [manslaughter, both voluntary and involuntary manslaughter, is a lesser included offenses ofmurder].) Malice is presumptively absent when a defendantkills “upon a sudden quarrelor heat ofpassion” (§ 192, subd. (a)), provided that provocationis sufficient to cause an ordinarily reasonable personto act rashly and without deliberation, and from passion rather than judgment. (People v. Berry (1976) 18 Cal.3d 509, 515.) In capital cases, section 190.3 permits the prosecution to present evidence of the facts surrounding a capital defendant’s prior felony convictions and violent criminal activity as part ofits case-in-aggravation at the penalty phase. (Peoplev. Stanley (1995) 10 Cal.4th 764, 818-820; People v. Benson (1990) 52 Cal.3d 754, 190 788; People v. Melton (1988) 44 Cal.3d 713, 754.) However, the statute also expressly provides that evidenceofprior criminal activity for an offense for which the defendant was prosecuted and acquitted is not admissible. (§ 190.3.) In People v. Bradford (1997) 15 Cal.4th 1229, the defendantin a capital case had beenoriginally charged in a prior case with 11 different counts in connection with an incident that occurred in 1983. The charged offensesfor that 1983 incident included two countsofforcible rape, two counts of sexual battery, two counts ofpenetration with a foreign object, and five counts of oral copulation. As a condition of defendant’s plea ofno contest to onecountofforcible rape, the prosecution dismissed the remaining ten counts. At the penalty phase ofthe later capital case in Bradford, the defendant unsuccessfully sought to excludeall evidence pertaining to the 1983 incident _ underlying the dismissed counts on the grounds of implied acquittal. The defendant contended that the doctrine ofimplied acquittal precluded the prosecution from introducing any aspect of the 1983 incident. The Court rejected the argument. (Jd. at p. 1375.) The Court agreed that section 190.3 provides that “in no event shall evidence ofprior criminal activity be admitted for an offense for which the defendant was prosecuted and acquitted.” The Court also recognized that pursuantto the doctrine of implied acquittal, a defendant’s conviction of a lesser degree or lesser included offense of that charged constitutes an implied acquittal of the greateroffense. Nonetheless, the Court heldthat the dismissal of the other charges in 1983, whether or not pursuant to a plea agreement, was not 191 the equivalent of, and did not constitute, an acquittal pursuant to section 190.3. (Ibid.) The Court’s ruling in Bradford is clearly distinguishable from appellant’s case and doesnot preclude the application of the implied acquittal doctrine here. According to the Court’s factual and procedural summary, noneofthe crimes previously dismissed in Bradford was chargedas,or constituted, a greater or lesser included crime of any other crime involved or charged in that incident. Each ofthe dismissed counts in Bradford was separate from the act constituting the convicted count. In appellant’s case in contrast, the killing ofVonSeggern constituted a single act -- a single crime. The greater offense ofmurder and the lesser included offense ofmanslaughter constituted the same offense. (Brown v. Ohio (1977) 432 U.S. 161, 164-169 [97 S.Ct. 2221, 53 L.Ed.2d 187].) Appellant was charged with and prosecuted for both the greater and lesser crimes for the single actofkilling VonSeggern. Thus, his conviction for manslaughter necessarily constituted an implied acquittal ofthe greater crime, even though his eventual conviction was by guilty (no contest) plea and the greater crime was dismissed on the People’s motion. (See § 1016, subd. 3 [no contest plea sameas guilty pleaforall purposes]: People v. Statum (2002) 28 Cal.4th 682, 688, fn. 2 [guilty plea as legal equivalent of guilty verdict reached by a jury and tantamountto a finding}; People v. Chadd (1981) 28 Cal.3d 739, 748 [guilty plea “ipso facto supplies both evidence and verdict.”].) 192 In People v. Johnson (1992) 3 Cal.4th 1183, during the penalty phase ofa capital case, the prosecution introduced evidence offacts underlying the defendant’s prior conviction ofvoluntary manslaughter The defendant contended on appealthat admission ofthe evidence violated section 190.3. On appeal, the Court rejected that the prior conviction ofvoluntary manslaughter constituted an implied acquittal ofmurder. The Court noted that the information filed in the earlier proceeding charged only manslaughter, not murder. The Court also stressed that the prosecutor in Johnson never suggested that the jury should considerthe prior killing as the equivalent ofmurder, nor was the jury instructed it could do so. (Id. at pp. 1240-1241.) Here, unlike Johnson, appellant wasoriginally charged only with murder and, later, with both murder and manslaughter for killing VonSeggern in the same information. Unlike Johnson, the prosecutor argued and urged the jury to find that the prior killing was “really” murder. And, again, unlike Johnson, the jury here wasexplicitly instructed that it could find appellant guilty ofmurder and then use that determination as a separate, additional factor in aggravation. Byreason ofthe foregoing, appellant’s 1993 prosecution forfirst degree murder in the VonSeggern killing, resolved by subsequent conviction of the lesser included crime ofvoluntary manslaughterin violation of section 192, subdivision (a), constituted an implied acquittal the greater offense ofmurder. Therefore, retrial of the VonSeggern killing, and the elevation of appellant’s prior manslaughter conviction to murder by evidence, argument, andjury instructions 193 during the penalty trial in this case, was barred by the explicit “prosecuted and acquitted”provisions of section 190.3. C. Principles of Collateral Estoppel and Res Judicata Barred the State From Retrying Appellant’s 1992 Manslaughter Conviction During the Penalty Trial in Order to Elevate the Crime to Murder Collateral estoppelis a distinct aspect ofthe doctrine ofres judicata. (Arias v. Superior Court (2009) 46 Cal.4th 969, 985.) The doctrine of res judicata gives conclusive effect to a formerjudgment in subsequentlitigation between the same parties. A priorjudgment on the same causeofaction is a complete bar to the new action. (Rymerv. Hagler (1989) 211 Cal.App.3d 1171, 1178; see also Ashev. Swenson (1970) 397 U.S. 436, 444-445 [90 S.Ct. 1189, 25 L.Ed.2d 469] [federal constitutionalbasis ofcollateral estoppel doctrine]; People v. Catlin (2001)26 Cal.4th 81, 123 [collateral estoppel doctrine “is a componentofthe Fifth Amendment’s double jeopardy clause.”}.) Collateral estoppel involves a second action between the sameparties on a different cause of action. Thefirst action is not a complete mergeror bar, but operates as an estoppel or conclusive adjudication as to such issues in the second action which were actually litigated and determinedin thefirst action. (Preciado v. County of Ventura (1982) 143 Cal.App.3d 783, 786-787, fn. 2; Rymer v. Hagler, supra, 211 Cal.App.3d at p. 1178.) As elsewhere stated by the Court in Arias v. Superior Court, supra, 46 Cal.4th 969,“[c]ollateral estoppel precludesrelitigation of issues that were necessarily decidedin priorlitigation, but it operates only 194 against those who wereparties, or in privity with parties, to that priorlitigation and whoare thus boundbytheresulting judgment.” (/d. at p. 985.) The doctrine ofcollateral estoppel, or issue preclusion,is firmly embedded in both federal and California commonlaw.It is grounded on the premise that once an issue has been resolved in a prior proceeding, there is no further fact- finding function to be performed. (Parklane Hosiery Co. v. Shore (1979) 439 U.S. 322, 336, fn. 23 [99 S.Ct. 645, 58 L.Ed.2d 552]; Murray v. Alaska Airlines, Inc. (2010) 50 Cal.4th 860, 861.) Collateral estoppel thus both promotesjudicial economy andprotects personsorlitigants from the burdenofrelitigating an identical issue with the sameparty orhis privy. (Parklane Hosiery Co. v. Shore, supra, 439 U.S.at p. 326, fn. omitted.) | In People v. Steele (2002)-27 Cal.4th 1230, the prosecutor sought to admit evidence during the guilt phase of a capital trial of a prior killing for which the defendant had been convicted of second degree murder. In her dissent as to the admissibility ofthe evidence ofthe prior killing, Justice Kennard, in language pertinent to the present case, discussed collateral estoppel as the basis for excluding such evidence: “A second theory might be that the verdict in the prior [murder] case was wrong-- that the [prior second-degree] murder wasactually a premeditated murder, from which the jury here could infer the [present] murder wasalso premeditated. The prosecutor’s argumentattrial hinted at this theory. But defendant’s conviction of second degree murderin the [prior] case is an acquittal of first degree murder, and principles of collateral estoppel and double 195 jeopardy preventthe state from relitigating the issue ofpremeditation in the [prior] case. (See Ashe v. Swenson (1970) 397 U.S. 436, 444-445 [90 S.Ct. 1189, 1194- 1195, 25 L.Ed.2d 469]; People v. Santamaria (1994) 8 Cal.4th 903, 912.)” (People v. Steele, supra, 27 Cal.4th at p. 1284.) In answer to Tustice Kennard’s concernsin her dissent, the majority opinion in Steele concededthe issue: “In responseto the dissent’s collateral estoppel and double jeopardy argument(dis. opn., post, at p. 1284), no one is seeking to relitigate the [prior] murder. That conviction was and remains second degree murder.” (People v. Steele, supra, 27 Cal.4th at p. 1245, fn. 2.) In People v. Koontz (2002) 27 Cal.4th 1041, the defendant challenged, on due process, double jeopardy, and collateral estoppel grounds, penalty phase evidence that he had sexually assaulted a previous victim in 1983. The defendant argued that the charges against him in 1983 had been dismissed on the prosecutor’s motion for insufficient evidence. The defendant argued that the dismissal was thus tantamountto an acquittal and that evidence ofprior charges of which a defendant was acquitted may not be presented to the jury as part of the prosecutor’s case in aggravation. This Court disagreed with the defendant’s premise, holding instead that dismissal of the charges did not constitute an acquittal and thus did not dictate exclusion ofthe evidence of the underlying incident. (/d. at p. 1087.) The Court further explained that the defendant was not previously placed in jeopardy on the dismissed charges, and the lack of any findings on the prior charges rendered thecollateral estoppel doctrine inapplicable 196 in that case. (Ibid.) The Court’s holding in Koontz, ofcourse, is readily distinguishable. Here, unlike Koontz, appellant was charged with murder for killing VonSeggern. In pleading guilty to the lesser included crime ofmanslaughter, he was necessarily acquitted ofmurder underthe doctrine of implied acquittal. Unlike Koontz, the prosecutor here relitigated the underlying crime andretried appellant for murder despite his acquittal. The trial court instructed the jury on murder and permitted the jury newly to find that appellant’s previously adjudicated and lesser crime of manslaughter was now the greater crime murder ofwhich he had been acquitted. AsJustice Kennard correctly noted in her dissent in Steele, appellant’s manslaughter conviction constituted an acquittal ofmurder -- whetherofthe first or second degree. In contrast to Koontz, the doctrine ofcollateral estoppel was therefore fully applicable and precluded the prosecutor from retrying that crime in the penalty phaseoftrial. The prerequisite elements for applying the doctrine ofcollateral estoppelto either an entire cause ofaction or one or more issues are the same:(1) the claim or issue to be precluded must beidentical to that decided in the prior proceeding;(2) the issue must have been actually litigated at that time; (3) the issue must have been necessarily decided; (4) the decision in the prior proceeding mustbefinal and on the merits; and (5) the party against whom preclusion is sought mustbe in privity with the party to the former proceeding. (People v. Barragan (2004) 32 Cal.4th 236, 252-253; People v. Ochoa (2011) 191 Cal.App.4th 664, 668-669; 197 Brinton v. Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550, 556.) Theparty asserting collateral estoppel bears the burden of establishing these threshold requirements. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.) Here,all ofthe threshold requirements for application of res judicata- finality of the prior decision are present. The first element of collateral estoppel requiresthat the issue sought to be precluded be identical to onelitigated in the prior adjudication; i.e., it asks whether “identical factual allegations” were at stake in the two proceedings. (Castillo v. City ofLos Angeles (2001) 92 Cal.App.4th 477, 481.) In order for the determination ofan issue to be given preclusive effect, it must have been necessary to ajudgment. This requirement prevents the incidental or collateral determination of a nonessential issue from precluding reconsideration of that issuein later litigation. The requirementis necessary in the nameofproceduralfairness, if not due processitself, so that parties to litigation havesufficient notice and incentive to litigate matters in earlier proceedings which may bind them in subsequent matters. (McMillin Development, Inc. v. Home Buyers Warranty (1998) 68 Cal.App.4th 896, 906-907, quoting Sandberg v. Virginia Bankshares, Inc. (Ath Cir. 1992) 979 F.2d 332, 346.) The “necessarily decided” requirement generally meansonly that the resolution of the issue was not “entirely unnecessary” to the judgmentin the initial proceeding. (Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 83.) The final judgmentprerequisite requires that the time for seeking a new trial or appealing the judgmenthas expired and any appealis final. In other words, the judgmentis 198 notfinal and preclusiveifit is still subject to direct attack. (People v. Summersville (1995) 34 Cal.App.4th 1062, 1067-1068; Abelson v. National Union Fire Ins. Co. (1994) 28 Cal.App.4th 776, 787.) The conceptof“privity” is highly dependent upon the facts and circumstancesin each case, but generally “involves a person so identified in interest with anotherthat he represents the samelegalright.” (Zaragosa v. Craven (1949) 33 Cal.2d 315, 318.) Appellant’s culpability for killing Jennifer VonSeggern in the original manslaughter case was identical to the issue raised andlitigated by the prosecutor during the penalty trial of appellant’s current case. Thetwo actions involved the same alleged wrong. The contexts ofthe two casesare also identical in that both adjudicated appellant’s criminal culpability for killing Jennifer VonSeggern. The standard ofproof applicable to the prior manslaughtercase andinrelitigating appellant’s manslaughter conviction to murderin the present case are identical. The doctrineof collateral estoppel requires that when an issue ofultimate fact has once been determined bya valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. (Ashev. Swenson, supra, 397 U.S.at pp. 443, 445.) Appellant wastried in 1993 for killing Jennifer VonSeggerm;unlike People v. Johnson (2006) 142 Cal.App.4th 776, 788, for example, a “mélange” of issues was not present in appellant’s 1992 murder case. Appellant’s culpability for the death of Jennifer VonSeggern was established by his guilty plea and conviction. (See People v. Vogel (2007) 148 Cal.App.4th 131, 136 [applicability of collateral estoppel where all requirements 199 andcriteria present for applying doctrine].) It was inherently unfair to require appellant to relitigate in the penalty phaseoftrial the criminal event previously resolved in the prior proceedings involving the same act and parties. In the 1993 case, charged with murder, appellant pleaded no contest to manslaughter; by his plea and conviction, appellant was necessarily found not guilty of the greater crime of murder. At the penalty trial, however, the prosecutor retried appellant’s culpability and by evidence, argument, and jury instructions sought to convict appellant of the greater crime of murder for the same killing. Appellant’s prior manslaughter conviction was a final judgment on the merits. It wasnotsubject to direct attack. Finally, as in appellant’s manslaughtercase, the parties in the presentcase are identical -- appellant and the People ofthe State of California. Appellant’s plea to manslaughter necessarily included an admissionthat there was a factualbasis for the plea. (See § 1192.5; People v. Holmes (2004) 32 Cal.4th 432, 438; People v. Hoffard (1995) 10 Cal.4th 1170, 1181.) Appellant’s plea, whether no contestor guilty, had the samelegal effect for all purposes. (§ 1016, subd. 3.) His plea admitted every elementofthe crime charged (Peoplev. Thomas (1986) 41 Cal.3d 837, 844, fn. 6) and was the legal equivalent of a verdict and tantamountto a finding. (People v. Statum (2002) 28 Cal.4th 682, 688,fn. 2.) Given thusthe collateral estoppel bar operative because of appellant’s prior manslaughter conviction for killing Jennifer VonSeggern, the penalty jury in the present case should not have been instructed on murderasto that crimeor to have 200 been newly allowedto find appellant guilty ofthe murder ofJennifer VonSeggern whenhehad been previously convicted ofmanslaughterfor that very same crime. Moreover,to give preclusive effect to a prior conviction is consistent with section 190.3 which permits introduction of evidence during the penalty trial of both prior adjudicated and unadjudicated criminal conduct. The death penalty law in respect to aggravating factors only permits introduction of evidence showing prior convictions and evidence as to underlying conduct, not the retrial or relitigation ofprior crimes or convictions. While a court maynotgive preclusive effect to the decision in a prior proceeding if doing so is contrary to the intentofthe legislative body that established the proceedingin whichres judicata or collateral estoppel is urged (Brosterhous v. State Bar (1995) 12 Cal.4th 315, 326), here, there is nothing in the statutory death penalty scheme permitting evidence ofadjudicated and unadjudicated crimes showing that the Legislature contemplated as well theretrial ofprior adjudicated crimes as evidence in aggravation. This Court has repeatedly lookedto public policies underlying the doctrine of collateral estoppel before concluding thatit should be applied in a particular setting. (Lucido v. Superior Court, supra, 51 Cal.3d at pp. 342-343.) Here, the doctrine ofcollateral estoppel will best be served by applying the doctrineto the particular factual setting ofthis case. Thosepolicies include conserving judicial resources and promoting judicial economy by minimizingrepetitive criminal litigation, the policy favoring the finality of criminal judgments, and the 201 prevention of inconsistentjudgments which undermine the integrity ofthe judicial system, and avoiding burdening all parties in capital cases with repeatedlitigation or challenges to prior final judgments of conviction. (Allen v. McCurry (1980) 449 U.S. 90, 94 [101 S.Ct. 411, 66 L. Ed.2d 308]; Montanav. United States (1979) 440 USS. 147, 153-154 [99 S.Ct. 970, 59 L.Ed.2d 210].) Fundamental due processfairness also strongly militates in the finality of prior convictions at the penalty trial in a death penalty case. For example,if defendants are precluded, generally, from introducing evidence and arguing in a subsequentproceedingthat a prior conviction is actually a lesser crime than as reflected in the abstract ofjudgment, fundamental fairness dictates that the People as well should be estopped in a death penalty case from showingthat the prior conviction is actually a greater crime than as reflected in the abstract ofjudgment. (See, e.g., People v. Wallace (2004) 33 Cal.4th 738, 750-751 [defendant who enters into a negotiated disposition gains benefits that, assuming the plea meets various requirements, bar him or her from asserting at a later date that there was insufficient evidence of guilt to support the ensuing conviction].) Here, the People’s relitigation ofthe prior crime to appears to violate the principles and holding of Wallace. Just as Wallace precludes a defendant from attacking or undermininga priorjudgmentofconviction, that decision,collateral estoppel, and principles of due process should havebarred the prosecution from doing the same as well here by elevating appellant’s prior manslaughter conviction to murder. 202 In Ohio v. Johnson (1984) 467 U.S. 493 [104 S.Ct. 2536, 81 L.Ed.2d 425], the United States Supreme Court explained that due process and double jeopardy principles protect against (1) a second prosecution for the same offense after conviction and (2) multiple punishmentfor the same offense.(Id. at p. 498.) The bar against a subsequentprosecution after conviction ensures that the state does not make repeated attempts to convict an individual, while increasing the risk of an impermissibly enhanced sentence. (Jbid.) Here, by virtueofthe doctrine of collateral estoppel as a componentofdue process and double jeopardy,thetrial court was obligated during the penalty trial to give preclusive effect to appellant’s prior 1992 manslaughter conviction. Consistent with these fundamental principles, the court should not have permitted the prosecutorto relitigate | appellant’s prior manslaughter convictionor, by its instructions, to have allowed the jury to elevate appellant’s manslaughter conviction to murder. D. Retrial of Appellant’s Manslaughter Conviction Was Barred by the Proscription Against Double Jeopardy Embodied in the Fifth and Fourteenth Amendments to the United States Constitution and California Constitution, Article I, Section 15 A guilty plea is the “legal equivalent” ofa “verdict”(e.g., People v. Valladoli (1996) 13 Cal.4th 590, 601) and is “tantamount”to a “finding” (People v. Statum (2002) 28 Cal.4th 682, 688, fn. 2; People v. Gaines (1980) 112 Cal.App.3d 508, 514; see also In re Yurko (1974) 10 Cal.3d 857, 863). A guilty plea concedesthat the prosecution possesses legally admissible evidencesufficient 203 to prove defendant’s guilt beyond a reasonable doubt. (People v. Thurman (2007) 157 Cal.App.4th 36, 43.) In respect to double jeopardy, a plea of guilty is the equivalent of a verdict of guilty for purposes of the defense of former jeopardy in a subsequent proceeding. (People v. Mims (1955) 136 Cal.App.2d 828, 830.) The Fifth Amendmentto the United States Constitution provides: “No person shall... be subject for the same offence to be twice put in jeopardy oflife or limb... .” This federal protection is enforceable against the states through the Fourteenth Amendment. (Benton v. Maryland (1969) 395 U.S. 784, 794 [89 S.Ct. 2056, 23 L.Ed.2d 707] [federal double jeopardy clause applicable to the states]; see also § 1023.) The policy underlying the double jeopardy clauseis that the state with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense. (Serfass v. United States (1975) 420 U.S. 377, 387-388 [95 S.Ct. 1055, 43 L.Ed.2d 265]; Green v. United States (1957) 355 U.S. 184, 187 [78 S.Ct. 221, 2 L.Ed.2d 199].) The purpose of the double jeopardy clause “wouldbe negated were weto afford the government the opportunity for the proverbial ‘secondbite at the apple.’” (People v. Salgado (2001) 88 Cal.App.4th 5, 13.) Protection against double jeopardy is also embodiedin article I, section 15 ofthe California Constitution, which declares that “[p]ersons may not twice be put in jeopardy for the sameoffense.”“[T]he California Constitution is a document of independentforce andeffect that may be interpreted in a manner moreprotective of defendants’ rights than that extended by the federal Constitution, as construed 204 by the United States Supreme Court.” (People v. Fields (1996) 13 Cal.4th 289, 297-298.) Penal Code, section 1023 implements the protections of the state constitutional prohibition against double jeopardy, and, more specifically, the doctrine of included offenses. (/d. at pp. 305-306.) Section 1023 provides: “When the defendant is convicted or acquitted or has been once placed in jeopardy upon an accusatory pleading, the conviction, acquittal, or jeopardyis a bar to another prosecution for the offense charged in such accusatory pleading, or for an attempt to commit the same, or for an offense necessarily included therein, ofwhich he might have been convicted underthat accusatory pleading.” Under section 1023, as construed in People v. Greer (1947) 30 Cal.2d 589, 596-597, for example, when an accusedis convicted ofa lesser included offense, the conviction bars a subsequent prosecution for the greater offense. (See also People v. Fields, supra, 13 Cal.4th at p. 306; Porter v. Superior Court (2007) 148 Cal.App.4th 899, 906 [California’s constitutional protection against double jeopardy as implemented by section 1023 bars further prosecution of greater offenses].) The constitutional protection against double jeopardy affords a defendant three basic protections: “[{] [It] protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” (Brownv. Ohio (1977) 432 U.S. 161, 165 [97 S.Ct. 2221, 53 L.Ed.2d 187], quoting North Carolina v. Pearce (1969) 395 U.S. 711, 717 [89 205 S.Ct. 2072, 23 L.Ed.2d 656]; see also Ohio v. Johnson (1984) 467 U.S. 493, 498 [104 S.Ct. 2536, 81 L.Ed.2d 425].) In respect to protecting against further prosecution for the same offense after conviction (Brown v. Ohio, supra, 432 U.S. at p. 165), the federal double jeopardy clause also prohibits “attempts to secure additionalpunishmentafter a prior conviction and sentence.” (Id at p. 166,italics added.) The high court in Brown v. Ohio, supra, 432 U.S. 161 established the general rule that the double jeopardy clause prohibits a state or the federal governmentfrom trying a defendantfor a greater offense after it has convicted him ofa lesser included offense. [Jd. at pp. 168-169; see also Jeffers v. United States (1977) 432 U.S. 137, 150 [97 S.Ct. 2207, 53 L.Ed.2d 168] (plur. opn.).) Here, having originally convicted appellant ofmanslaughter, the state was simply precluded by fundamental principles ofdouble jeopardy (e.g., Blackledge v. Perry (1974) 417 U.S. 21, 30-31[94 S.Ct. 2098, 40 L.Ed.2d 628]) from retrying appellant on the moreserious and greater crime ofmurderfor the same act and incident. (See also J/linois v. Vitale (1980) 447 U.S. 410, 421 [100 S.Ct. 2260, 65 L.Ed.2d 228] [‘‘a person who has been convicted of a crime . . . may not subsequently be tried for a lesser-included offense... . [T]he reverseis also true; a conviction on a lesser-included offense bars subsequenttrial on the greater offense.”].) This Court has repeatedly has distinguished between the admissibility of facts and circumstances ofa prior crime during the penalty phaseoftrial from the 206 relitigation ofthose facts and circumstancesto show a greater or different crime. In People v. Monterroso (2004) 34 Cal.4th 743, for example, the defendant was convicted of fighting in public arising from the assault on a rival gang memberin 1989 and wasconvicted ofbattery and vandalism arising from an attack in 1990. The facts and circumstances underlying those convictions were offered as factors in aggravation at the defendant’s penalty trial. The defendant in Monterroso argued on appealthat thetrial court erred in admitting the facts and circumstances underlying those convictions to the extent those facts tended to show that his conduct was more egregious than is revealed by the bare fact of conviction. In the defendant’s view,reliance on facts and circumstances beyondthe conviction itself or those minimally necessary to establish a conviction ofthose crimes violated the federal constitutional prohibition against double jeopardy. The Court rejected the claim in Monterroso (id. at p. 774), as it had repeatedly donein the past. (See, e.g., People v. Hart (1999) 20 Cal.4th 546, 641-642; People v. Osband (1996) 13 Cal.4th 622, 710-711) “The facts presented to the jury, in each instance, constituted merely the circumstancesofthe crime ofwhich defendant was convicted. (Peoplev. Monterroso, supra, 34 Cal.4th at p. 774; see also People v. Seaton (2001) 26 Cal.4th 598, 678.) In People v. Lewis (2001) 25 Cal.4th 610, the defendant in a capital case contended that he was placed twice in jeopardy within the meaningofthe federal Constitution’s double jeopardy clause by the presentation during the penalty trial 207 of evidencerelating to the facts underlying a prior felony conviction, characterizing such evidence asa retrial ofthe prior offense. The Court noted that it had previously considered and rejected this contention, finding no double jeopardy bar to the presentation ofthe details underlying a prior conviction at a later proceeding on the separate issue ofpenalty for a subsequent offense. (Jd.at p. 660.) Significantly, the Court also stressed that it had previously considered and rejected a more specific argument that Bullington v. Missouri (1981) 451 U.S. 430 [101 S.Ct. 1852, 68 L.Ed.2d 270] compels the conclusion that the defendant was again placed in jeopardy when the jury was permitted to consider evidence ofthe his prior robbery. In rejecting the defendant’s contention, the Court noted that in Bullington, the United States Supreme Court held that double jeopardy protections prohibit the state from seeking the death penalty on retrial after a trial court’s granting of a new trial motion where the jury had set the penalty at life imprisonmentrather than death. As the Court concluded: “Here, by contrast, no attempt has been madeto prosecute orpunish defendant anewfor the crime he committed in 1980.” (People v. Lewis, supra, 25 Cal.4th at p. 661, italics added.) In People v. Melton (1988) 44 Cal.3d 713, the defendantin a capital case argued that evidenceofprior criminalactivity that previously had been subject to | a plea bargain should not have been admittedat the penalty phase. The Melton Court concluded, however,that“one is not placed ‘twice in jeopardy for the same offense’ whenthe details ofmisconduct which hasalready resulted in conviction and punishment,or in dismissal pursuant to a plea bargain or for witness 208 unavailability, are presented in a later proceeding on the separate issue ofthe appropriate penalty for a subsequent offense.”(/d. at p. 756, fn. 17.) Meltonis readily distinguishable. In the present case, unlike Melton, the prosecutornot only introduced evidence ofthe circumstances of appellant’s prior manslaughter but soughtto retry appellant for that crime, arguing that his criminal culpability was greater than established by the prior manslaughter conviction. Citing People v. Melton, supra, the Court in People v. Sheldon (1989) 48 Cal.3d 935, 951, acknowledged “that double jeopardy and due processprinciples would bar retrial of ‘final verdicts of guilt or innocence (includinglesser included and greater inclusive offenses).”” In People v. Stanley (1995) 10 Cal.4th 764, the defendant contended that the trial court erred prejudicially in permitting introduction in evidenceofthe facts and circumstances underlying his prior conviction for the second degree murder of his second wife. The defendant argued additionally that permitting evidence of the circumstances surroundingthe prior conviction, including evidence suggesting defendant had premeditated and deliberated that murder, allowed the prosecutorto imply, and the jury to infer, that the offense actually was ofthe first degree. The defendant asserted that because he had been previously convicted of second degree murderfor that crime, the introduction of evidence suggesting the defendantin fact had premeditatedand deliberated his wife’s murderviolated his constitutional protection against double jeopardy. The Court in Stanley rejected the argument, noting that the record did not 209 support his contention. Ofrelevance to the present case, the Court emphasized that the prosecution neither presented evidence nor argued that the defendant was actually guilty of the first degree murder of his second wife. The court instructed the jury only on the elements of second degree murderin relation to the defendant’s prior convictionfor killing his wife and specifically told the jury deliberation and premeditation were not elements ofthe offense. (/d. at p. In the present case, unlike Melton, Lewis, and Stanley, appellant’s prior manslaughter conviction was actually relitigated; he was retried for the prior VonSeggern killing during the penalty phaseofthis case, violating not only the double jeopardy prosecution against a second prosecution for the same offense after conviction but also the equally fundamental proscription against multiple punishment for the same offense. (See also People v. Guerrero (1988) 44 Cal.3d 343, 355 [to allow thetrier of fact to look to the entire record ofthe conviction is reasonable andfair: “it effectively bars the prosecution from relitigating the circumstances of a crime committed years ago and thereby threatening the defendant with harm akin to double jeopardy”].) Unlike Stanley, the prosecutor here argued that appellant’s prior manslaughter was actually murder, and the court instructed the jury on first degree murder, thereby permitting the jury to elevate appellant’s adjudicated criminal culpability for that prior crime. Under both the federal and state constitutions, the double jeopardy clause serves as a restraint on courts and prosecutors. (People v. Fields, supra, 13 Cal.4th at p. 298.) The proscription against double jeopardy forbids a secondtrial for the 210 purpose of affording the prosecution another opportunity to supply evidence which it failed to musterin the first proceeding. (Burks v. United States (1978) 437 U.S. 1, 11 (98 S.Ct. 2141, 57 L.Ed.2d 1]; see also Schiro v. Farley (1994) 510 U.S. 222, 231-232 [114 S.Ct. 783, 127 L.Ed.2d 47] [“The stateis entitled to ‘onefair opportunity’ to prosecute a defendant, . . . and that opportunity extends not only to prosecution at the guilt phase, but also to present evidence at an ensuing sentencing proceeding.”].) Here,that constitutional restraint on the court and prosecutor did not occur. With superior resources, the prosecutor was allowed to overbear justice in this case. Appellant was tried twice for the killing ofJennifer VonSeggern,and the jury was permitted to use its second determination of guilt as an additional factor for imposing the death penalty in this case. Because the burden and expensein defending a penalty phasetrial is as great as in defending a substantive criminal charge, and because the risk -- a death sentence-- is uniquely important, the trial of a.death penalty proceedingis in practical terms akin to a substantive criminal trial. A proceeding which moreliterally places an accusedin “jeopardy of life and limb” can hardly be imagined. Indeed, as stated by the United States Supreme Court in Louisiana ex rel. Francis v. Resweber (1947) 329 U.S. 459, 462 [67 S.Ct. 374, 91 L.Ed. 422]: “Our minds rebel against permitting the same sovereignty to punish an accused twice for the same offense.” By any measure or standard,the state and federal proscriptions against double jeopardy were violated in this case. The error requires reversal ofthe 211 penalty imposed by the jury in this case. (See Price v. Georgia (1970) 398 U.S. 323, 331-332 [90 S.Ct. 1757, 26 L.Ed.2d 674] [Double Jeopardy Clauseis cast in terms ofthe risk or hazardoftrial and conviction, not ofthe ultimate legal consequences of the verdict; thus, Chapmanharmlesserror analysis does not apply].) However, even if the Chapman standard were to apply to the double jeopardy violation in this case, the error could not have been harmless,as discussed in Subsection E, infra. E. Appellant Did Not Waive or Forfeit the Claims ofError; Ineffective Assistance of Counsel Appellant did not object during the penalty trial to the prosecutor’s relitigation of his prior manslaughter conviction, did not object to argument that the prior crime was “really” murder rather than manslaughter, did not raise the “prosecuted and acquitted”prohibition of section 190.3, and did not object to the trial court’s instructions permitting the jury to revisit the prior manslaughter conviction and newly findthat appellant was actually guilty ofmurder. Appellant also did notraise collateral estoppel as a bar or the fundamental state and federal proscriptions against double jeopardy, or object on due process groundsto the retrial of his prior manslaughter conviction. The question ofan effective waiver of a federal constitutional right in a proceedingis governed by federal standards. (Boykin v. Alabama (1969) 395 USS. 238, 243 [89 S.Ct. 1709, 23 L.Ed.2d 274].) Waivers of constitutional rights not only mustbe voluntary but must be knowing,intelligent acts done with sufficient 212 awarenessofthe relevant circumstances and likely consequences. (Brady v. United States (1970) 397 U.S. 742, 748 [90 S.Ct. 1463, 25 L.Ed.2d 747].) Here, the record on appeal doesnotaffirmatively show that appellant, with sufficient awarenessofthe relevant circumstances, intelligently and voluntarily waived the fundamentalconstitutional proscription against double jeopardy. (Johnsonv. Zerbst (1938) 304 U.S. 458, 464 [58 S.Ct. 1019, 82 L.Ed. 461] [courts indulge every reasonable presumption against waiver of fundamental constitutional rights and do not presume acquiescencein the loss of fundamental rights; a waiveris ordinarily an intentional relinquishment or abandonmentofa known right or privilege]; Patton v. United States (1930) 281 U.S. 276, 312 [50 S.Ct. 253, 74 L.Ed. 854] [waiver of fundamental constitutionalrights requires the express andintelligent consent of the defendant.].) Appellant further offers that if defense counsel is deemed to have waived on appellant’s behalf, or forfeited, any of the statutory and constitutional assignments oferror asserted herein, then trial counsel rendered appellant ineffective assistance ofcounsel underthe United States and California Constitutions. (U.S. Const. Amends. 6th, 14th; Cal. Const. Art. I, §§ 15, 24; Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052, 80 L.Ed.2d 674]; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) In People v. Scott (1997) 15 Cal.4th 1188, 1201, the Court held that a plea of once in jeopardy cannot beraisedfor the first time on appeal except in the context of a claim ofineffective assistance of counsel. (See also People v. Catlin, 213 supra, 26 Cal.4th at p. 129-130.) In People v. Marshall (1996) 13 Cal.4th 799, the defendant raised a double jeopardy claim forthe first time on appeal. The Court rejected the Attorney General’s waiver and forfeiture argument as follows: “Defendantraises his double jeopardy claim for the first time on appeal, and the Attorney General argues the argumentis therefore waived and should not be considered on appeal. If, however, a plea of former jeopardy had merit andtrial counsel’s failure to raise the plea resulted in the withdrawal of a crucial defense, then defendant would have been denied the effective assistance of counsel to which he wasentitled. (People v. Belcher (1974) 11 Cal.3d 91, 96 [acknowledging general rule ofwaiver, but addressing double jeopardy argument on direct appeal and concludingtrial counsel’s failure to timely raise plea of former jeopardy constituted a denial of effective assistance of counsel]; see Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674].) Consequently, although the Attorney General is technically correct in arguing the issue was waived, as in Belcher we nevertheless must determine whether such a plea would have had merit.” (People v. Marshall, supra, 13 Cal.4th at p. 824, fn. 1.).) In assessing claims ofineffective assistance of trial counsel, the reviewing court considers whether counsel’s representation fell below an objective standard of reasonableness underprevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington, supra, 466 U.S. 214 at p. 694; People v. Gamache (2010) 48 Cal.4th 347, 391.) The reviewing court will indulge in a presumption that counsel’s performancefell within the wide range ofprofessional competence and that counsel’s actions and inactions can be explained as a matter of soundtrial strategy. The defendant on appeal thus bears the burden ofestablishing constitutionally inadequate assistance of counsel. (Strickland v. Washington, supra, at p. 687; In re Andrews (2002) 28 Cal.4th 1234, 1253.) If the record on appeal sheds no light on why counselacted orfailed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation andfailed to provide one, or there simply could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266,italics added; People v. Carter (2003) 30 Cal.4th 1166, 1211; People v. Wilson (1992) 3 Cal.4th 926, 936.) Here,in light of strong and viable collateral estoppel and double jeopardy claimsthat could have been asserted in respectto relitigation of appellant’s prior manslaughter conviction, defense counsel rendered ineffective assistance in failing to object or raise the absolute constitutional bar that existed in this case. There was no possible reason for counsel to refrain from invoking the doctrine of collateral estoppel or the constitutional bar ofdouble jeopardy. In People v. Morales (2003) 112 Cal.App.4th 1176, the defendant raised the doctrine of collateral estoppelfor the first time on appeal. Noting,correctly, that collateral estoppel is a componentofthe double jeopardy clause ofthe Fifth Amendment, the court addressed the Attorney General’s argumentthat the 215 defendant waived the conviction byfailing to raise it in the trial court. The court summarily rejected the argument: “Tf, indeed, double jeopardy applied, we can conceive ofno legitimate tactical reason for failing to raise it.” (/d. at p. 1185.) Here, the record does not afford any basis for concluding,or even inferring, that counsel’s omissions were based on an informedtactical choice. Strategy meansa “plan, method, or series ofmaneuvers or stratagemsfor obtaining a specific goal or result.” (Random House Dictionary 1298 (Rev.ed. 1975).) It need not be particularly intelligent or even one most lawyers would adopt, but it must be within the range of logical choices an ordinarily competent attorney would assess as reasonable to achievea specific goal. (See Cone v. Bell (6th Cir. 2001) 243 F.3d 961, 978; see also Washington v. Hofbauer (6th Cir. 2000) 228 F.3d 689, 704 [court must assess whetherthe strategy itselfwas constitutionally deficient].) In short, counsel’strial strategy itselfmust be objectively reasonable. (See Strickland v. Washington, supra, 466 U.S.at p. 681.) As in Morales, counsel’s actions in failing to raise the doctrine of collateral estoppel or double jeopardy served no conceivable or reasonable strategy or tactical purpose. Appellant had everything to lose and nothing to gain from relitigating his prior manslaughter conviction and from having the VonSeggem killing elevated to murder, and considered by the jury as such,in its penalty deliberations on appellant’s fate. Anyfailure on trial counsel’s part thus fell below the standard ofvigorous advocacy required ofcompetent counsel. (See People v. Cunningham (2001) 25 216 Cal.4th 926, 1003 [ineffective assistance claim cognizable on appeal where no satisfactory explanation could exist to explain counsel’s conduct].) The prejudice caused by counsel’s error is clear. In light of the trial court’s instructions, any one juror could have found appellant guilty ofmurdering VonSeggern despite his prior manslaughter conviction for that crime. Any one juror easily would have concluded, on newlyfinding appellant guilty of murder as urged by the prosecutor, that appellant previously had literally and figuratively gotten away with murder and thus was far more deserving ofdeath as the appropriate penalty. Because the prosecutor’sretrial of appellant’s VonSeggern manslaughter conviction violated appellant’s fundamental constitutionalrights and, at the sametime, played such a prominentrole in the factors in aggravation offered by the prosecutor, the jury’s death penalty verdict was necessarily unreliable to appellant’s prejudice. (See Strickland v. Washington, supra, 466 U.S.at p.687 [prejudice shown wherecapital trial’s result is unreliable].) F. Retrial of Appellant’s Manslaughter Conviction Violated Appellant’s Fundamental Constitutional Rights to a Fair Trial, Due Process, and to a Reliable Penalty Determination Guaranteed bythe Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution The penalty phaseofa capitaltrial is undertaken to assess the gravity ofa particular offense and to determine whetherit warrants the ultimate punishment;it is in many respects a continuation ofthetrial on guilt or innocenceofcapital murder.“It is ofvital importance”that the decisions madein that context “be, and 217 appear to be, based on reason rather than caprice or emotion.” (Gardnerv. Florida, supra, 430 U.S. at p. 358.) The United States Supreme Court has also repeatedly said that under the Eighth Amendment“thequalitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.” (California v. Ramos (1983) 463 U. S. 992, 998-999 [103 S.Ct. 3446, 77 L.Ed.2d 1171].) Because the death penalty is unique “in both its severity andits finality,” (Gardnery. Florida, supra, 430 U.S.at p. 357), the high court has required an acute needfor reliability in capital sentencing proceedings. (See Lockett v. Ohio (1978) 438 U.S. 586, 604 [98 S.Ct. 2954, 57 L.Ed.2d 973] (opinion of Burger,C. J.) [stating that the “qualitative difference between death and other penalties calls for a greater degree ofreliability when the death sentence is imposed”); see also Strickland v. Washington, supra, 466 U.S.at p. 704 (Brennan,J., concurring in part and dissenting in part) [“[W]Je have consistently required that capital proceedingsbe policedat all stages by an especially vigilant concern for procedural fairness and for the accuracy offact finding”).] That need for reliability in the penalty phase of a capital case accords with one ofthe central concerns animating the constitutional prohibition against double jeopardy. As the high court explained in Green v. United States, supra, 355 U.S. 184, the double jeopardy clause prevents states from “mak[ing] repeated attempts to convict an individual for an alleged offense... .” (7d. at pp. 187-188.) In Bullington y. Missouri, supra, the high court cited the heightened interest in 218 accuracyin the capital context. The high court noted that in a capital sentencing proceeding,as in a criminaltrial, “the interests of the defendant[are] of such magnitude that . . . they have been protected by standards ofproofdesigned to excludeas nearly as possible the likelihood of an erroneous judgment.” (Bullington v. Missouri, supra, 451 U.S. at p. 441.) In this state’s death penalty jurisprudence, the nature and consequences of capital sentencing proceedings are intertwined. Each jury in every capital penalty determination must make an individualized moral assessment onthe basis of the character of the defendant and the circumstancesofthe crime,includinghis prior adjudicated and unadjudicated criminalacts, and thereby decide which penalty is appropriate in the particular case. Indeed, the fundamental respect for humanity underlying the Eighth Amendmentrequires consideration ofthe character and record of the individual offender and the circumstancesofthe particular offense as a constitutionally indispensable part of the processofinflicting the penalty of death. (Woodson v. North Carolina (1976) 428 U.S. 280, 304 [96 S.Ct. 2978, 49 L.Ed.2d 944] (plurality opinion).) Relitigation of the prior VonSeggern killing during the penalty trial created a very real and present danger that the jury would punish appellant twice or more severely for that crime on finding that he was guilty ofmurder as urged by the prosecutor. Thatis the very reason whythe prosecutorinsisted on retrying appellant for andrelitigating that crime and in seeking to elevate the prior manslaughter to murder. The prosecutor was acutely awarethat the jury’s penalty 219 determination would be skewed toward death if appellant were guilty ofmurder, and not the lesser manslaughter, for killing VonSeggern, andifthe jury could use her killing as both factors (b) and (c) in aggravation. California’s constitutional prohibition against double jeopardy precludes the imposition ofmore severe punishment on resentencing. (People v. Hanson (2000) 23 Cal.4th 355, 357.) The rule protecting defendants from receiving a greater sentence is one instance where the courts haveinterpreted the state double jeopardy clause more broadly than the federal clause. (/d. at p. 364; see also People v. Bolton (2011) 192 Cal.App.4th 541, 548.) Asto the VonSeggern killing, we simply do not and cannot know the extent to which the jury’s death penalty verdict may have been basedonits determination, as urged by the prosecutor and permitted by the court’s instructions, that appellant was guilty of a crime far more serious than manslaughter ofwhich he had been previously convicted. We do know that the prosecutorcalled 16 witnesses anddevoted more than 150 pagesoftranscriptto prove that the VonSeggern killing was murder. It constituted a significant portion of the prosecution’s penalty case in aggravation. Wealso knowthat the prosecutor devoted page after page of closing argument during the penalty trial to convince the jury that appellant was more deserving ofdeath because he murdered Jennifer VonSeggern. (See People v. Powell (1967) 67 Cal.2d 32, 55-57 [prosecutor’s reliance on evidence during closing argumentasstrong indication of how crucial the prosecutor and so presumably the jury treated the evidence].) 220 Moreover,a finding, as permitted by the prosecutor’s argumentandthe court’s instructions, that appellant was actually guilty ofthe more serious crime ofmurder for killing VonSeggern, and not merely manslaughter, was likely to provoke a strong emotional bias against appellant and cause the jury to weigh penalty upon the basis ofextraneous, and unconstitutional, factors in aggravation. (See People v. Minifie (1996) 13 Cal. 4th 1055, 1070-1071.) Becauseofthe uniquely harmful aspects ofthe double jeopardy violation in this case, overemphasis of appellant’s culpability for the murder ofJennifer VonSeggerm,as urged by the prosecutor, constituted reversible error even when the underlying evidence was also admitted for a proper purpose. (See United States v. Vargas (7th Cir. 1978) 583 F.2d 380, 387.) Given the fundamental constitutional violation involved, the fundamental unfairness ofretrying appellant for murder despite his prior manslaughter conviction, and the undue emphasis assignedto it by the prosecutor as a strong factor in aggravation during closing argument, the jury’s capital verdict in this case was likely affected. (See People v. Thompson (1980) 27 Cal.3d 303, 317 & fn. 18 [such evidence “breeds” a tendency to condemn because defendant escaped punishmentfrom otheroffenses]; People v. Bean (1988) 46 Cal.3d 919, 938 [such evidence “tempt[s] the jury to condemn defendant because he has escaped adequate punishmentin the past”].) Manyofthe limits that the both United States Supreme Court andthis Court have placed on the imposition of capital punishmentare rooted in a concern that the sentencing process should facilitate the responsible and reliable exercise 221 of sentencing discretion. (Caldwell v. Mississippi, supra, 472 U.S. at p. 329.) The finality of the death penalty requires a greater degree ofreliability when it is imposed. (Murray v. Giarratano (1989) 492 U.S. 1, 8-9 [109 S.Ct. 2765, 106 L.Ed.2d 1]; see also Mongev. California (1998) 524 U.S. 721, 732 [118 S.Ct. 2246, 141 L.Ed.2d 615] [observing that there is an “acute need forreliability in capital sentencing proceedings”]; Woodson v. North Carolina (1976) 428 U.S. 280, 305 [96 S.Ct. 2978, 49 L.Ed.2d 944] (plurality opinion) [“Because ofthe qualitative difference [between a death sentence andlife imprisonment], there is a corresponding difference in the need forreliability in the determination that death is the appropriate punishmentin a specific case.”].) As the high court observed in California v. Ramos, supra, 463 U.S.at p. 999, “[iJn ensuring that the death penalty is not meted out arbitrarily or capriciously, the Court’s principal concern has been more with the procedure by which the State imposes the death sentence than with the substantive factors the State lays before the jury as a basis for imposing death... .” In the samevein, in People v. Bloom (1989) 48 Cal.3d 1194, 1228, the Court explained that the required reliability of the Eighth Amendmentis attained “when the prosecution has discharged its burden ofproofat the guilt and penalty phases pursuantto the rules of evidence and within the guidelines of a constitutional death penalty statute, the death verdict has been returned under properinstructions and procedures... . Ajudgment of death entered in conformity with these rigorous standards does not violate the Eighth Amendment 222 reliability requirements.” (See also People v. Clark (1992) 3 Cal.4th 41, 109.) A finding of murder by one or more jurors in this case, as permitted by the trial court’s instructions, allowed each juror to conclude, in an unreliable exercise of sentencing discretion, that appellant was more deserving of death because he had been insufficiently punished for the VonSeggern killing at the time ofhis manslaughter conviction. There is thus a very real likelihood that appellant’s death sentence was predicated on a fundamentally unreliable and unfair process in violation of the Fifth, Sixth, and Fourteenth Amendments (Beck v. Alabama (1980) 447 US. 625, 638 [100 S.Ct. 2382, 65 L.Ed.2d 392]), and on a crime,the conviction and punishment for which was barred by the Fifth and Fourteenth Amendments to the United States Constitution. In addition, relitigation of the prior VonSeggern killing, coupled with the likely determination by one or more jurors, as permitted bythe trial court’s instructions, that appellant was actually guilty ofmurder, had the further consequence of lessening the jury’s responsibility in this case for determining whether the death penalty should be imposed. Relitigation ofthe VonSeggern killing impermissibly allowed the jury to revisit the punishment appellant received for manslaughter followinghis prior conviction and to view the death penalty in this case as somehow ensuringthat appellant would be not again “get away with murder”as he did in the past. The likelihood thus that the death penalty was also being imposedfor a prior crime-- newly determined by the jury to be murder -- that had been insufficiently punished 223 in the past-- thoroughly underminedthe sentencing jury’s sense ofresponsibility in this case as required in Caldwell v. Mississippi, supra, 472 U.S. 320, 336 (plurality opinion). Such a diminution in the jury’s sense ofresponsibility precludedthe jury from properly performingits constitutional responsibility to make an individualized determination ofthe appropriateness ofthe death penalty. (Id. at 330-331 (O’Connor,J., concurring in part and concurring in judgment); see also Romano v. Oklahoma (1994) 512 U.S.1, 9 [114 S.Ct. 2004, 129 L.Ed.2d 1].) In the present case, the very real possibility, indeed likelihood, of a death sentence based on fundamentalconstitutional violationsis patently unfair and unreliable. Appellant should not have beenretried for the VonSeggern killing; his culpability for that crime was fixed at manslaughterat the time ofhis conviction. When punishment,as here, is based-- at least in part -- on a retrial of a prior crime that could not have been retried without violating double jeopardy and due process principles, all of the goals and policies ofthe Fifth, Eighth, and Fourteenth Amendments to the United States Constitutions were underminedand violated. 224 vil THE JURY INSTRUCTIONS ON THE MITIGATING AND AGGRAVATING FACTORS IN SECTION 190.3, AND THE JURORS’ APPLICATION OF THESE SENTENCING FACTORS, RENDERED APPELLANT’S DEATH SENTENCE CAPRICIOUS AND ARBITRARY IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION A. Factual and Procedural Background Thetrial court instructed the jury on the sentencing factors in section 190.3 in the language ofCALJIC No.8.85, the standard instruction regarding the statutory factors to be considered by the jury in determining whether to impose a sentence of death or life without the possibility ofparole. (4 CT 928-929; 53 RT 6820-6822.) The jury was also instructed in the language ofCALJIC No.8.88, the standard instruction on aggravating and mitigating factors, in relevant part as follows: It is now your duty to determine which of the two penalties, death or imprisonment in the state prison for life without the possibility of parole, shall be imposed on the defendant. After having heard all of the evidence, and after having heard and considered the arguments of counsel, you shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed. An aggravating factor is any fact, condition or event attending the commission of a crime which increasesits guilt or enormity, or addsto its injurious consequences which is above and beyond the elements of the crime itself. A mitigating circumstance is any fact, condition or event which 225 does not constitute a justification or excuse for the crime in question, but may be considered as an extenuating circumstance in determining the appropriateness of the death penalty. The weighing of aggravating and mitigating circumstances does not mean a mere mechanical counting of factors on each side of an imaginary scale, or the arbitrary assignment of weights to any of them. You are free to assign whatever moral or sympathetic value you deem appropriate to each and all of the various factors you are permitted to consider. In weighing the various circumstances you determine under the relevant evidence which penalty is justified and appropriate by considering the totality of the aggravating circumstances with the totality of the mitigating circumstances. To return a judgment of death, each of you must be persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstancesthatit warrants death instead of life without parole. * * % (4 CT 986; 53 RT 6858-6860.) Appellant here asserts a systemic challenge that section 190.3, the implementing instructions, and the jurors’ application ofthe sentencing factors, violate the narrowing requirement becauseits “eligibility” provisions (which includeall ofthe ways in which first degree murder may be committed), plus all of the special circumstances under section 190.2, viewed cumulatively, make virtually every murderer death-eligible. California’s death penalty statute and implementing instructions, as given in this case, make virtually every murder death-eligible, allow any conceivable circumstanceofa crimeto justify a verdict of death, and allow the decision to be 226 made withoutcritical reliability safeguards taken for granted in non-capitaltrials. Theresult is a “wanton and freakish” system (Furman v. Georgia (1972) 408 U.S. 238, 320 [92 S.Ct. 2726, 33 L.Ed.2d 346] (conc. opn. of Stewart, J.)) that, because it arbitrarily determinesthe relatively few offenders subjected to capital punishment, violates the Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution. Appellant acknowledgesthat this Court has consistently held that section 190.3, factor (a) [CALJIC No. 8.85(a)], which permitsthe jury to considerthe circumstancesofthe crime in deciding whether to impose the death penalty, adequately narrowsthe class ofpersonseligible for the death penalty (i.e., People v. Griffin (2004) 33 Cal.4th 536, 596; People v. Morrison (2004) 34 Cal.4th 698, 730; People v. Frye (1998) 18 Cal.4th 894, 1029; People v. Ray (1996) 13 Cal.4th 313, 356) and does notlicense the arbitrary and capricious imposition of the death penalty. (See, i.e., People v. Cruz (2008) 44 Cal.4th 636, 680; People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 333.) More specifically, the Court has rejected arguments that section 190.3 is applied in an unconstitutionally arbitrary and capricious mannerbecauseprosecutors in different cases may arguethat seemingly disparate circumstances, or circumstances present in almost any murder, are aggravating underfactor (a). (People v. Brown (2004) 33 Cal.4th 382, 401; People v. Carrington (2009) 47 Cal.4th 145, 200; People v. Watson (2008) 43 Cal.4th 652, 703.) For the reasonsset forth below, the Court’s analysis and reasoning are unsound and should be reevaluated. 227 B. The Instruction on Section 190.3, Subdivision (a) and Application of that Sentencing Factor Resulted in the Arbitrary and Capricious Imposition of the Death Penalty Section 190.3, subdivision (a) permits a jury deciding whether a defendant will live or die to consider the “circumstances ofthe crime.” Accordingly, the jury in this case was instructed pursuant to CALJIC No.8.85 to consider, take into account and be guided by “[t]he circumstances of the crimes ofwhich the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true.” (4 CT 928; 53 RT 6820-6821.) In Furman v. Georgia, supra, 408 U.S. 238, the United Supreme Court struck down capital sentencing schemesthat gave juries unfettered discretion in determining whether to impose a death sentence. The Court held that the Constitution requires states to channel the discretion of sentencing juries so as to avoid arbitrary and capricious imposition of the death penalty. (Seealsoid.at p. 213 (White, J., concurring) [invalidating capital punishmentstatute where thereis no meaningfulbasis for distinguishing the few cases in which the death penalty is imposed from the many cases in whichitis not]; see also Johnson v. Texas (1993) 509 U.S. 350 [113 S.Ct. 2658, 125 L.Ed.2d 290].) This standard thus requires a state to genuinely narrow the class of defendants eligible for a death sentence. (/d. at pp. 360-361; Zant v. Stephens (1983) 462 U.S. 862, 877 [103 S.Ct. 2733, 77 L.Ed.2d 235]. In 1994, the United States Supreme Court rejected a facial Eighth 228 Amendment vaguenessattack on this section, concludingthat -- at least in the abstract-- it had a “commonsense core ofmeaning” that juries could understand and apply. (Tuilaepa v. California (1994) 512 U.S. 967, 975 [114 S.Ct. 2630, 129 L.Ed.2d 750].) This Court has consistently relied on Tuilaepa as the underpinning of its holdings that section 190.3, factor (a) [CALJIC No. 8.85(a)} does not license the arbitrary and capricious imposition ofthe death penalty. (See,i.e., People v. Panah, supra, 35 Cal.4th at p. 499; People v. D’Arcy (2010) 48 Cal.4th 257, 308.) Appellantoffers that an analysis ofhow section 190.3, subdivision (a) is actually used by prosecutors in capital cases showsthat the essence ofthe Court’s judgmentin,and this Court’s reliance on, Tuilaepa , is incorrect. In fact, there is an extraordinarily disparate use ofthe circumstances-of-the-crime factor. Beyond question, whatever “commonsense core ofmeaning” subdivision (a) once may havehadis long gone. Asapplied, the California statute thus leads to the precise type of arbitrary and capricious decision-making that the Eighth Amendment condemns. The governingprinciples are clear. When a state chooses to imposecapital punishment, the Eighth Amendmentrequires the adoption of “procedural safeguards against arbitrary and capricious imposition ofthe death penalty.” (Sawyer v. Whitley (1992) 505 U.S. 333, 341 [112 S.Ct. 2514, 120 L.Ed.2d 268].) A state capital punishment scheme must comply with the Eighth Amendment’s “fundamental constitutional requirementfor sufficiently minimizingthe risk of wholly arbitrary and capricious action” in imposing the death penalty. (Maynardy. 229 Cartwright (1988) 486 U.S. 356, 362 [108 S.Ct. 1853, 100 L.Ed.2d 372].) Asapplied in California, however, section 190.3, subdivision (a) not only fails to “minimiz[e] the risk ofwholly arbitrary and capricious action”in the death process,it affirmatively institutionalizes such a risk. Prosecutors throughout California have argued that the penalty jury weigh aggravation in almost every conceivable circumstanceofthe crime, even those that -- from case to case -- reflect starkly opposite circumstances. For example, records in other capital cases before the Court”! reveal that prosecutors have arguedthat “circumstancesofthe crime”is an aggravating factor to be weighed on death’s side ofthe scale because: 1. The defendant struck manyblowsandinflicted multiple wounds; 2. The defendant killed with a single execution-style wound;” 3. The defendantkilled the victim for some purportedly aggravating motive (money, revenge, witness-elimination, avoidingarrest, sexual gratification);”* 4. The defendantkilled the victim without any motiveatall;”° 217 Evid. Code § 452, subd. (d) authorizes the Court to take judicial notice of the records of any court ofthis state. 721 See, e.g., People v. Morales (1989) 48 Cal.3d 527 -- RT 3094-3095 [defendant inflicted many blows]; People v. Lucas (1995) 12 Cal.4th 415 -- RT 2997-2998 [same]; People v. Carrera (1989) 49 Cal.3d 291 -- RT 160-161 [same]. 3/ See, e.g., People v. Freeman (1994) 8 Cal.4th 450 -- RT 3674, 3709 [defendant killed with single wound]; People v. Frierson (1991) 53 Cal.3d 730 -- RT 3026- 3027 [same]. 47 See, e.g., People v. Allison (1989) 48 Cal.3d 879 -- RT 968-969 [money]; People v. Belmontes (1988) 45 Cal.3d 744 -- RT 2466 [eliminate a witness]; People v. Coddington (2000) 23 Cal.4th 529 -- RT 6759-6760 [sexual gratification]. 230 5. The defendantkilled the victim in cold blood;”® 6. The defendantkilled the victim during a savage frenzy;”” 7. The defendant engaged in a cover-up to conceal his crime;”* 8. The defendant did not engage in a cover-up and so must have been proudofit;”° 9. The defendant madethe victim enduretheterror ofanticipating a violent death;*° 10. The defendantkilled instantly without any warning;*! 11. The victim had children;** 12. The victim hadnotyet had a chance to havechildren;** **/ See, e.g., People v. Edwards (1991) 54 Cal.3d 787 -- RT 10544 [defendant killed for no reason]; People v. Osband (1996) 13 Cal.4th 622 -- RT 3650 [same]); People v. Hawkins (1995) 10 Cal.4th 920 -- RT 6801 [same]. *°/ See, e.g., People v. Visciotti (1992) 2 Cal.4th 1 -- RT 3296-3297 [defendant killed in cold blood]. 77/ See, e.g., People v. Jennings (1991) 53 Cal.3d 334 -- RT 6755 [defendant killed victim in savage frenzy (trial court finding)]. *8/ See, e.g., People v. Stewart (2004) 33 Cal.4th 425 -- RT 1741-1742 [defendant attempted to influence witnesses]; People v. Benson (1990) 52 Cal.3d 754 -- RT 1141 [defendantlied to police]. °/ See, e.g., People v. Adcox (1988) 47 Cal.3d 207-- RT 4607 [defendantfreely informsothers about crime]; People v. Morales, supra, 48 Cal.3d 527 -- RT 3093 [defendantfailed to engage in a cover-up]. *o/ See, e.g., People v. Webb (1993) 6 Cal.4th 494 -- RT 5302. 317 See, e.g., People v. Freeman, supra, 8 Cal.4th 450 -- RT 3674 [defendant killed victim instantly]; People v. Livaditis (1992) 2 Cal.4th 759 -- RT 2959 same]. D See, e.g., People v. Zapien (1993) 4 Cal.4th 929 -- RT 37 (January 23, 1987) [victim had children]. 3/ See, e.g., People v. Carpenter (1997) 15 Cal.4th 312 -- RT 16752 [victim had not yet had children]. 231 13. Thevictim struggled prior to death;** 14. The victim did not struggle;?® 15. The defendanthada priorrelationship with the victim;** and 16. The victim was a complete stranger to the defendant.”” The above examples show that although a plausible argument can be made that the circumstances-of-the-crime aggravating factor once may have had a “commonsense core ofmeaning,” that position can be maintained only by ignoring how the term actually is now being used in California. In fact, as the above-referenced cases indicate, prosecutors urge juries to find this aggravating factor and place it on death’s side ofthe scale based on diametrically-opposed or squarely-conflicting circumstances. This demonstrates that the term has no commonor core meaningor significance but is so malleable that it can be applied or invokedin virtually every case. It therefore cannot withstand Eighth and Fourteenth Amendmentscrutiny. Ofequal importance to the arbitrary and capricious use ofthe circumstances-of-the-crime factors to support a penalty of death is the fact thatit 47 See, e.g., People v. Dunkle (2005) 36 Cal.4th 861 -- RT 3812 [victim struggled]; People v. Webb, supra, 6 Cal.4th 494 -- RT 5302 [same]; People v. Lucas (1995) 12 Cal.4th 415 -- RT 2998 [same]. 357 See, e.g., People v. Fauber (1992) 2 Cal.4th 792 -- RT 5546-5547 [no evidenceofa struggle]. 36/ See, e.g., People v. Padilla (1995) 11 Cal.4th 891 -- RT 4604 [prior relationship]; People v. Waidla (2000) 22 Cal.4th 690 -- RT 3066-3067 [same]; People v. Kaurish (1990) 52 Cal.3d 648, 717 [same]. 37 See, e.g., People v. McPeters (1992) 2 Cal.4th 1148 -- RT 4264 [noprior relationship]. 232 is applied so broadly as to subsumethe entire spectrum of circumstances invariably present in every homicide, including age of victim, methodofkilling, motive, andlocation ofcrime. For example, prosecutors have argued, andjuries have been permitted to find, that factor (a) [CALJIC No. 8.85(a)] is an aggravating circumstance because: 1. The victim was a child, an adolescent, a young adult, in the prime of life, or elderly;*® 2. The victim was strangled, bludgeoned, shot, stabbed, or consumed by fire;>? 3. The defendantkilled for money,to eliminate a witness, for sexual gratification, to avoid arrest, for revenge, or for no motiveatall;* 38/ See, e.g., People v. Deere (1991) 53 Cal.3d 705 -- RT 155-156 [victims were young, ages 2 and 6]; People v. Bonin (1988) 46 Cal.3d 659 -- RT 10,075 [victims were adolescents, ages 14, 15, and 17]; People v. Kipp (2001) 26 Cal.4th 1100 -- RT 5164 [victim was a young adult, age 18]; People v. Carpenter, supra, 15 Cal.4th 312 -- RT 16752 [victim was 20], People v. Phillips (1985) 41 Cal.3d 29, 63 [26-year-old victim was “in the primeofhis life”); People v. Samayoa (1997) 15 Cal.4th 795 -- 40 RT 49 [victim was an adult “in her prime”]; People v. Bean (1988) 46 Cal.3d 919 -- RT 4715-4716 [victim was “elderly”. °9/ See, e.g., People v. Clair (1992) 2 Cal.4th 692 -- RT 2474-2475 [strangulation]; People v. Kipp, supra, 26 Cal.4th 1100 -- RT 2246 [same]; People v. Fauber, supra, 2 Cal.4th 792 -- RT 5546 [use ofan axe]; People v. Benson (1990) 52 Cal.3d 754 -- RT 1149 [use of a hammer]; People v. Cain (1995) 10 Cal.4th 1 -- RT 6786-6787 [use of a club]; People v. Jackson (1996) 13 Cal.4th 1164 -- RT 8075-8076 [use of a gun]; People v. Scott (1997) 15 Cal.4th 1188 -- RT 847[fire]. “°/ See, e.g., People v. Howard (1992) 1 Cal.4th 1132 -- RT 6772 [money]; People v. Allison, supra, 48 Cal.3d 879 -- RT 969-970 [same]); People v. Belmontes, supra, 45 Cal.3d 744 -- RT 2466 [eliminate a witness]; People v. Coddington (2000) 23 Cal.4th 529 -- RT 6759-6761 [sexual gratification]; People v. McLain (1988) 46 Cal.3d 97 -- RT 31 [revenge]; People v. Edwards (1991) 54 Cal.3d 787 -- RT 10544 [no motive atall]. 233 4. The victim was killed in the middle ofthe night, late at night, early in the morning,or in the middle ofthe day;”! and 5. The victim was killed in her own home,in a public bar, in a city park, or in a remotelocation.” The foregoing examplesillustrate how the factor (a) circumstances-of-the- crime aggravatoractually is being applied and demonstrate beyond doubtthatit is applicable and used in every case regardless ofthe facts or circumstances, by every prosecutor, without any limitation whatsoever. As a consequence, from case to case, prosecutors turn entirely opposite facts -- or facts that are inevitable variations of every homicide -- into aggravating factors that are offered to every jury as unique factors weighing on death’s side ofthe scale. This is precisely the kind of arbitrariness and capriciousness proscribed by Eighth and Fourteenth Amendmentreliability and due processprinciples. Each ofthe concurring opinions in Tuilaepa clearly stated -- in varying degrees of explicitness -- that the high court was making no judgment whether California’s special circumstances “collectively perform sufficient, meaningful narrowing” to pass muster under the Eighth Amendment. (See, i.e., Tuilaepav. 4!/ See, e.g., People v. Fauber, supra, 2 Cal.4th 792 -- RT 5777 [early morning]; People v. Bean (1988) 46 Cal.3d 919 -- RT 4715 [middle ofthe night]; People v. Avena (1996) 13 Cal.4th 394 -- RT 2603-2604 [late at night]; People v. Lucero (2000) 23 Cal.4th 692 -- RT 4125-4126 [middle of the day]. "27 See, e.g., People v. Cain (1995) 10 Cal.4th 1 -- RT 6787 [same]; Peoplev. Freeman (1994) 8 Cal.4th 450 -- RT 3674, 3710-3711 [public bar]; People v. Ashmus (1991) 54 Cal.3d 932 -- RT 7340-7341 [city park]; People v. Carpenter, supra, 15 Cal.4th 312 -- RT 16,749-16,750 [forested area]. 234 California, supra, 512 U.S.at pp. 975 [majority opn. of Kennedy, J.] and 984 [concurring opn. of Stevens, J.]; see also id. at pp. 994-995 [dissenting opn., Blackmun,J.].) As a prelude to resolving the vagueness claim at issue in Tuilaepa, Justice Kennedy’s majority opinion made a general statement about “two different aspects of the capital decision-making process:the eligibility and the selection decision.” The opinion stated that the “aggravating circumstances” that make a defendant “eligible for the death penalty” -- which, as the high court recognized,is a “special circumstance” under the California statute -- must meet two requirements. First, “the circumstance may not apply to every defendant convicted ofmurder; it mustapply only to a subclass ofdefendants convicted ofmurder.” Second,the aggravating circumstances may not be unconstitutionally vague. (Tuilaepa v. California, supra, 512 U.S.at p. 972.) All of the opinions in Tuilaepa makeclear, a death penalty statutory schemepasses constitutional musteras longas all of the eligibility factors, viewed cumulatively, make fewer than “all murderers” death eligible. (See Tuilaepa v. California, supra, 512 U.S. at pp. 975, 980, 985, 994-995.) Asauthority for the phrase used in Tuilaepa -- “may not apply to every defendant convicted ofa murder”-- Justice Kennedy quoted language in Aravev. Creech (1993) 507 U.S. 463 [113 S.Ct. 1534, 123 L.Ed.2d 188] that “[i]f the sentencerfairly could conclude that an aggravating circumstance applies to every defendant eligible for the death penalty, the circumstanceis constitutionally 235 infirm.” (Arave v. Creech, supra, 507 U.S. at p. 474.) As the quoted statement indicates, Creech involved a challengeto the single eligibility factor ofwhich the defendant was convicted. (See id. at p. 478.) Creech, however, did not involve the kind of systemic challenge raised by appellantin this case. Third, the sentence in Creech that Justice Kennedy quoted in Tuilaepa originated in turn in two other high court cases that struck down eligibility factors that were so vague a sentencer could interpret them as applying toall or almostall murders. (See Arave v. Creech, supra, 507 U.S.at p. 474, citing the holdings in Maynard v. Cartwright (1988) 486 U.S. 356, 364 [108 S.Ct. 1853, 100 L.Ed.2d 372] and Godfrey v. Georgia (1980) 446 U.S. 420, 428-429 [100 S.Ct. 1759, 64 L.Ed.2d 398].) It is one thing, in striking down an eligibility factor, for the Supreme Court to describe just how overbroad the factoris, as was the case in Cartwright and Godfrey. It is quite another to turn that description into a limitation on the “constitutionally required narrowing function” to whichthis Court referred to in People v. Beames (2007) 40 Cal.4th 907, 934, for example. (See also People v. Jurado (2006) 38 Cal.4th 72, 146 (conc. opinion by Kennard, J.).) The United States Supreme Court did not do so in Cartwright or Godfrey, nor did it do so in Creech. To the contrary, the Supreme Court in Creech found the “utter disregard”eligibility factor at issue there constitutional because,in its construction ofthe factor, the Supreme Court ofIdaho had “narrowed in a meaningful way” the category ofdefendants upon whom capital punishment may be imposed. (Arave v. Creech, supra, 507 U.S.at p. 476.) 236 Thus, to comply with the Eighth Amendment, evensingle eligibility factors still must narrow in a meaningful way the category of defendants upon whom capital punishment may be imposed. The Court’s suggestion that this principle is no longer the case (People v. Beames, supra, 40 Cal.4th at p. 934) is incorrect and contrary to high court jurisprudence. Consequently, it also necessarily follows that an entire statutory scheme, viewed cumulatively, must do so. (Kansas v. Marsh (2006) 548 U.S.163 [126 S.Ct. 2516, 2527, fn. 6, 165 L.Ed.2d 429].) C. The Instruction on Penal Code Section 190.3, Subdivision (b) and the Jurors’ Application of that Sentencing Factor Violated Appellant’s Constitutional Rights to a Fair Penalty Trial, DueProcess, Equal Protection, Trial by Jury and a Reliable Penalty Determination 1. Introduction In addition to CALJIC Nos. 8.85(a) and 8.88, as discussed in Subsection B, supra,the trial court instructed the jury in the language ofCALJIC Nos. 8.85(b) and modified 8.87 that, as aggravating factors under section 190.3, subdivision (b), the jury could consider “[t]he presence or absence of criminalactivity by the defendant, other than the crimes for which the defendant has beentried in the present proceedings, which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.” (4 CT 928; 53 RT 6821,) As modified, CALJIC No.8.87 instructed the jury in relevant part as follows: Evidence has been introduced for the purpose of showing that the defendant has committed the following criminal acts: battery upon Pamela Braden 237 also known as Pamela Martin, murder or voluntary manslaughter or involuntary manslaughter of Jennifer Lisa Von Seggern, burglary at the residence of Margaret Mary Johnson, arson at the residence of Margaret Mary Johnson, and murder of Margaret Mary Johnson, which involved the express or implied use of force or violence or the threat of force or violence. Before a juror may consider any criminal acts as an aggravating circumstance in this case, a juror must first be satisfied beyond a reasonable doubt that the defendant did in fact commit the criminal acts. A juror may not consider any evidence of any other criminal acts as an aggravating circumstance. It is not necessary for all jurors to agree. If any juror is convinced beyond a reasonable doubt that the criminal act occurred, that juror may consider that act as an fact in aggravation. Ifa juror is not so convinced,that juror must not consider that evidence for any purpose. (4 CT 959; 53 RT 6839.) The jury was told it could rely on these aggravating factors in the weighing process to determine if appellant should be executed. As quoted above, the jury - was also told that it was not necessary for all jurors to agree. Indeed, the jury was explicitly instructed that unanimity as to factor (b) was not required. Thus, the sentencing instructions contrasted sharply with those given at the guilt phase, wherethe jurors were told they had to agree unanimously on appellant’s guilt and the special circumstancesallegations. This aspect of section 190.3, subdivision (b) and CALJIC No.8.87, permitting the jury to sentence appellant to death by relying on evidence on whichit did not necessarily agree unanimously, violated both the Sixth Amendmentrightto a jury trial and the Eighth Amendment’s ban on 238 unreliable penalty phase procedures. 2. The Use ofUnadjudicated Criminal Activity as Aggravation Renders Appellant’s Death Sentence Unconstitutional Appellant acknowledges that the Court has consistently ruled that the jury may properly consider evidence ofunadjudicated crimes undersection 190.3, factor (b) [CALJIC Nos. 8.85(b) and 8.87]. (People v. Friend (2009) 47 Cal.4th 1, 90; People v. Panah, supra, 35 Cal.4th at p. 499.) The Court’s reasoning and analysis in this regard are unsound and should be reevaluated. The instruction on factor (b) aggravation was upheld against an Eighth Amendment vaguenesschallenge in Tuilaepa v. California, supra, 512 U.S.at p. 977. However, the instructions and evidencein this case violated the Eighth Amendment, because they permitted the jury to consider unreliable evidence of appellant’s alleged unadjudicated criminal conduct. The admission into evidence ofunadjudicated criminal conduct as aggravation violated appellant’s rights to due process under the Fourteenth Amendment, trial by an impartial jury under the Sixth Amendment, anda reliable determination ofpenalty under the Eighth Amendment. (State v. McCormick (Ind. 1979) 397 N.E.2d 276 [prohibiting use ofunadjudicated crimes as aggravating circumstances under Eighth and Fourteenth Amendments]; see also State v. Bobo (Tenn. 1987) 727 S.W.2d 945, 954-955 [prohibiting use ofunadjudicated crimes as aggravating circumstance basedonstate constitution with due process and 239 impartial jury provisions comparable to United States and California Constitutions].) Thus, the trial court’s instructions in this case that expressly permitted the jury to consider such evidence in aggravation violated those same constitutionalrights. In addition, because California does not allow unadjudicated offenses to be used in noncapital sentencing, the use ofthis evidence in a capital proceeding violated appellant’s equal protection rights under the California and United States Constitutions. (Myers v. Yist (9th Cir. 1990) 897 F.2d 417, 421.) Further, because the state applies its law in an irrational manner by providing more sentencing rights in non-capital cases, the use of this evidence in a capital sentencing proceeding also violated appellant’s California and United States constitutional rights to due process and equalprotection ofthe laws. (Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [100 S.Ct. 2227, 65 L.Ed.2d 175]; U.S. Const., 6th & 14th Amendments; Cal. Const., art. I, §§ 7 and 15.) 3. The Failure to Require a UnanimousJury Finding on the Unadjudicated Acts ofViolence Denied Appellant His Right to a Jury Trial Guaranteed by the Sixth and Fourteenth Amendments and Requires Reversal ofHis Death Sentence Even assuming for purposes of argumentthat the evidenceof alleged prior and subsequent unadjudicated acts was constitutionally admissibleat the penalty trial, the failure ofthe trial court’s instructions pursuantto section 190.3, subdivision (b) [CALJIC Nos. 8.85(b) and 8.87] to require juror unanimity on the 240 allegations that appellant committed prior, unadjudicated acts ofviolence renders his death sentence unconstitutional.” Appellant acknowledges that the Court has previously and consistently rejected the argument that the California sentencing schemeis constitutionally flawed because it does notrequire the penalty jury to agree unanimouslythat a particular aggravating circumstanceexists. (People v. Burney (2009) 47 Cal.4th 203, 268; People v. Carrington (2009) 47 Cal.4th 145, 199-200.) The Court’s constitutional analysis and reasoning in this regard are unsound and should be reevaluated. The Sixth Amendment guaranteesthe right to a jury trial in all criminal cases. The United States Supreme Court has held, however,that the application of the Sixth Amendmentto the states through the Fourteenth Amendment doesnot require that the jury be unanimous in non-capital cases. (Apodaca v. Oregon (1972) 406 U.S. 404, 406 [92 S.Ct. 1628, 32 L.Ed.2d 184] [upholding conviction by a 10-2 vote in non-capital case]; Johnson v. Louisiana (1972) 406 U.S. 356, 362, 364 [92 S.Ct. 1620, 32 L.Ed.2d 152], [upholding a conviction obtained by a 9-3 vote in non-capital case].) Nor doesit require the states to empanel 12 jurors in all non-capital criminal cases. (Williams v. Florida (1970) 399 U.S. 78, 102-103 7/ Argument VIII,infra, discusses the constitutional burden ofproof requirements, jury unanimity, and fact-finding determinations madeby capital sentencing jury in California. This argument addressessolely the use of unadjudicated acts under factor (b) [CALJIC No. 8.85(b)], including the absence ofjury unanimity as to unadjudicated acts under factor (b) [CALJIC No.8.87 as modified]. 241 [90 S.Ct. 1893, 26 L.Ed.2d 446] [approving the use of six-person juries in criminal cases].) The United States Supreme Court also has made clear, however, that even in non-capital cases, when the Sixth Amendment does apply, there are limits beyond which the states may not go. For example, in Ballew v. Georgia (1978) 435 U.S. 223 [98 S.Ct. 1029, 55 L.Ed.2d 234], the Court struck down a Georgia law allowing criminal convictions with a five-person jury. Moreover, the Court also has held that the Sixth Amendmentdoes not permit a conviction based on the vote of five of six seated jurors. (Brown v. Louisiana (1979) 447 U.S. 323 [100 S.Ct. 2214, 65 L.Ed.2d 159]; Burch v. Louisiana (1978) 441 U.S. 130, 139 [99 S.Ct. 1623, 60 L.Ed.2d 96].) Thus, when the Sixth Amendmentapplies to a factual finding -- at least in a non-capital case -- although jurors need not be unanimousas to the finding, there must at a minimum besignificant agreement amongthe jurors.“ Prior to June of 2002, the United States Supreme Court’s law on the Sixth Amendmentdid not apply to the aggravating factors set forth in section 190.3. “47 The United States Supreme Court often has recognized that becausedeath is a unique punishment, there is a corresponding need for procedures in death penalty cases that increasethereliability ofthe process. (See, e.g., Beck v. Alabama, supra, 447 U.S. 625; Gardnerv. Florida, supra, 430 U.S.at p. 357.) It is arguable, therefore, that where the state seeks to impose a death sentence,the Sixth Amendment does not permit even a super-majority verdict, but requires true unanimity. Because the instructions in this case did not even require a super- majority ofjurors to agree that appellant committed the alleged prior and subsequent unadjudicated acts of violence, there is no need to reach this question here. 242 Priorto that date, the Sixth Amendmentright to jury trial did not apply to aggravating factors on which a sentencer couldrely to impose a sentence of death in a state capital proceeding. (Walton v. Arizona (1988) 497 U.S. 639, 649 [110 S.Ct. 3047, 111 L. Ed. 2d 511.) In light of Walton,it is not surprising that this Court had, on manyoccasions,specifically rejected the argumentthat a capital defendant had a Sixth Amendmentright to a unanimousjury in connection with the jury’s findings as to aggravating evidence.(See, e.g., People v. Taylor (2002) 26 Cal.4th 1155, 1178; People v. Hines (1997) 15 Cal.4th 997, 1077; Peopley. Ghent (1987) 43 Cal.3d 739, 773.) In Ghent for example, the Court held that such a requirement was unnecessary under “existing law.” (People v. Ghent, supra, 43 Cal.3d at p. 773.) On June 24, 2002, however, the “existing law” changed. In Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556], the United States Supreme Court overruled Walton and held that the Sixth Amendmentright to a jury trial applied to “aggravating circumstance[s]} necessary for imposition of the death penalty.” (Id. at p. 609; accord id. at p. 610 (conc. opn. of Scalia, J.) [noting that the Sixth Amendmentrightto ajury trial applies to “the existence ofthe fact that an aggravating factor exist[s]’”].) In other words, absent juror unanimity in connection with the aggravating factor set forth in section 190.3, subdivision (b), this section violates the Sixth Amendmentas applied in Ring. This Court’s conclusionto the contrary (Peoplev. Verdugo (2010) 50 Cal.4th 263, 304-305; People v. D’Arcy, supra, 48 Cal.4th at p. 243 308; People v. Carrington, supra, 47 Cal.4th at p. 200; People v. Mendoza (2007) 42 Cal.4th 686, 707), that Ring did not alter California death penalty jurisprudence is unsoundand should be reevaluated. In light of the high court’s other related decisions in Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856]; Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] and Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403], this Court’s rejection of the applicability ofRing is untenable. Finally, the error here cannot be deemed harmless. On this record,thereis no waytotell if all 12 jurors agreed that appellant murdered Jennifer VonSeggern (see also ArgumentVI, supra), committed arson at the residence ofMargaret Johnson, or murdéred Margaret Johnson with which he was never charged and about which there had been noprior proceedings or testimony. (See People. v. Crawford (1982) 131 Cal.App.3d 591, 599 [instructional failure which raises possibility that jury was not unanimousrequires reversal unless the reviewing court can tell that all 12 jurors necessarily would have reached a unanimous agreement on the factual point in question]; People v. Dellinger (1985) 163 Cal.App.3d 284, 302 [same].) 4. Absent a Requirement ofJury Unanimity in Respect to the Alleged Unadjudicated Acts ofViolence, the Instructions on Section 190.3, Subdivision (b) Allowed Jurors to Impose the Death Penalty on Appellant Based on Unreliable Factual Findings That Were Never Deliberated, Debated, or Discussed The United States Supreme Court has recognized that “death is a different 244 kind ofpunishmentfrom any other which may be imposedin this country.” (Gardnerv. Florida (1977) 430 U.S. 349, 357 [97 S.Ct. 1197, 51 L.Ed.2d 393].) Because death is such a qualitatively different punishment, the Eighth and Fourteenth Amendments require “a greater degree ofreliability when the death sentence is imposed.” (Lockett v. Ohio (1978) 438 U.S. 586, 604 [98 S.Ct. 2954, 57 L.Ed.2d 973].) For this reason, the high court has not hesitated to strike down penalty phase procedures that increase the risk that the fact-finder will make an unreliable determination. (Caldwell v. Mississippi (1985) 472 U.S. 320, 328-330 [105 S.Ct. 2633, 86 L.Ed.2d 231]; Green v. Georgia (1979) 442 U.S. 95 [99 S.Ct. 2150, 60 L.Ed.2d 738]; Lockett v. Ohio, supra, 438 U.S. at pp. 605-606; Gardner v. Florida, supra, 430 U.S.at pp. 360-362.) The Supreme Court has madeclear that defendants have “a legitimate interest in the character of the procedure which leads to the imposition of sentence even if [they] may have norightto objectto a particular result of the sentencing process.” (Gardnerv. Florida, supra, 430 U.S. at p. 358.) The California Legislature has provided that evidence of a defendant’s act which involved the use or attempted use of force or violence can be presented during the penalty phase. (§ 190.3, subd. (b).) Before the fact-finder may consider such evidence, it must find that the state has proven the act beyond a reasonable doubt. The jurors also are instructed, however, in the language of CALJIC No. 8.87 that they need not agree on this, and that as long as any one juror believes the act has been proven,that one juror may considerthe act in aggravation. This 245 instruction was given here. (1 CT 959; 53 RT 6839-6840.) Thus, as noted above, any juror individually could have relied on any one or more aggravating factor each juror deemedproper, as longas the jurors all agreed on the ultimate punishment. Because this procedure totally eliminates the deliberative function of the jury as a whole that guards against unreliable factual determinations,it is inconsistent with the Eighth Amendment’s requirement of enhancedreliability in capital cases. (See Johnson y. Louisiana, supra, 406 U.S. at pp. 388-389 (dis. opn. ofDouglas, J.); Ballew v. Georgia, supra, 435 U.S. 223; Brown v. Louisiana, supra, 447 U.S. 323.) In Johnson v. Louisiana, supra, 406 U.S.at pp. 362, 364, a plurality of the United States Supreme Court held that the Sixth Amendmentrightto jury trial that applied to the states through the Fourteenth Amendmentdid not require jury unanimity in state criminaltrials, but permitted a conviction based on a vote of 9 to 3. In dissent, Justice Douglas pointed out that permitting jury verdicts on less than unanimousverdicts reduced deliberation between the jurors and thereby substantially diminished thereliability ofthe jury’s decision. This occurs, he explained, because “nonunanimousjuries need not debate and deliberate as fully as must unanimousjuries. As soon as the requisite majority is attained, further consideration is not required . . . even though the dissident jurors might, if given the chance, be able to convince the majority.” (dd. at pp. 388-389 (dis. opn. of Douglas).) The high court subsequently embraced Justice Douglas’s observations 246 aboutthe relationship betweenjury deliberation andreliable fact-finding. In striking down a Georgia law allowing criminal convictions with a five-person jury, the Court observedthat such a jury was lesslikely “to foster effective group deliberation. At somepointthis decline[injury number] leads to inaccuratefact- finding. . ..” (Ballew v. Georgia, supra, 435 U.S.at p. 232.) Similarly, in precluding a criminal conviction on the vote offive out of six jurors, the Supreme Court has recognized that “relinquishment of the unanimity requirement removes any guarantee that the minority voices will actually be heard.” (Brownv. Louisiana, supra, 447 U.S.at p. 333; see also Allen v. United States (1896) 164 U.S. 492, 501 [17 S.Ct. 154, 41 L.Ed. 528] [“The very object of the jury system is to secure uniformity by a comparison ofviews, and by arguments amongthe jurors themselves.”].) The United States Supreme Court’s observations aboutthe effect ofjury unanimity on group deliberation and fact-finding reliability are even more applicable in this case for two reasons. First, since this is a capital case, the need for reliable fact-finding determinations is substantially greater. Second, unlike the Louisiana schemesat issue in Johnson, Ballew, and Brown,the California scheme embodied in CALJIC No.8.87, as modified in this case, does not require even a majority ofjurors to agree on factor (b) evidence before relying on such unadjudicated conduct to impose a death penalty. Consequently,“no deliberation at all is required” onthis critical factual issue, which wasrelied upon by the jurors to sentence appellant to death. (Johnson v. Louisiana, supra, 406 U.S. at p. 388, 247 (dis. opn. of Douglas, J.).) Given the constitutionally significant purpose served by jury deliberation on factual issues and the enhanced needforreliability in capital sentencing, a procedurethat allowsindividual jurors to impose death on the basis of less than unanimousfactual findings that they have neither debated, deliberated nor even discussed is unreliable and, therefore, constitutionally impermissible. A new penalty trial is required. (See Johnson v. Mississippi (1988) 486 U.S. 578, 586 [108 S.Ct. 1981, 100 L.Ed.2d 575] [harmlesserror analysis inappropriate when trial court introduces evidence that violates Eighth Amendment’sreliability requirements at defendant’s capital sentencing hearing].) D. The Failure to Require the Jury to Base a Death Sentence on Written Findings Regarding the Aggravating Factors Violates Appellant’s Constitutional Rights to Meaningful Appellate Review and Equal Protection of the Law Theinstructions given in this case under CALJIC No.8.85 and No. 8.88 did not require the jury to make written or other specific findings about the aggravating factors they found and considered in imposing a death sentence. The failure to require such express findings deprived appellant of his Fourteenth Amendmentdue process and Eighth Amendmentrights to meaningful appellate review as well as his Fourteenth Amendmentright to equal protection of the law. (California v. Brown (1987) 479 U.S. 538, 543 [107 S.Ct. 837, 93 L.Ed.2d 934]; Gregg v. Georgia, supra, 428 U.S. at p. 195.) California juries havetotal, unguided discretion on how to weigh aggravating and mitigating circumstances 248 (Tuilaepa v. California, supra, 512 U.S. at pp. 979-980). There can be no meaningful appellate review unless juries make written findings regarding those factors, becauseit is impossible to “reconstruct the findingsofthe state trier of fact.” (See Townsendv. Sain (1963) 373 U.S. 293, 313-316 [88 S.Ct. 745, 9 L.Ed.2d 770].) Indeed, written findings are essential for a meaningful review of the sentence imposed. Thus, in Mills v. Maryland (1988) 486 U.S. 367 [108 S.Ct. 1860, 100 L.Ed.2d 384], the requirement of written findings applied in Maryland death cases enabled the Supreme Court to identify the error committed under the prior state procedure and to gauge the beneficial effect ofthe newly-implemented state procedure.(/d.at p. 383, fn. 15.) Appellant acknowledgesthat the Court has previously held that nothing in the United States Constitution requires the penalty phase jury to make written findings of the factors it finds in aggravation and mitigation. (See, i.e., People v. Enraca (2012) 53 Cal.4th 735, 769; People v. Burney (2009) 47 Cal.4th 203, 267- 268.) For the reasonsset forth below, the Court’s reasoningin this regardis unsound and should be reevaluated. While this Court has held that the 1978 death penalty schemeis not unconstitutional in failing to require express jury findings (People v. Fauber (1999) 2 Cal.4th 792, 859), it has treated such findings as so fundamental to due processas to be requiredat parole suitability hearings. A convicted prisoner who alleges that he was improperly denied parole must proceedbya petition for writ of habeas corpus and mustallege the state’s wrongful conduct with particularity. (In 249 re Sturm (1974) 11 Cal.3d 258.) Accordingly, the parole board is required to state its reasons for denying parole, because “[i]t is unlikely that an inmate seeking to establish that his application for parole was arbitrarily denied can make necessary allegations with the requisite specificity unless he has some knowledgeofthe reasonstherefor.” (Id. at p. 267.) By parity of reason, the same requirement must apply to the far graver decision to put someone to death. (See also People v. Martin (1986) 42 Cal.3d 437, 449-450 [statement ofreasons esequtial to meaningful appellate review].) Further, in noncapital cases the sentencer is required by California law to state on the record the reasons for the sentence choice. (Jbid.; § 1170, subd. (c); Cal. Rules of Court, rule 4.420(e).) Under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, capital defendants are entitled to morerigorous protections than noncapital defendants. (Harmelin v. Michigan (1991) 501 U.S. 957, 994 [111 S.Ct. 2680, 115 L.Ed.2d 836].) Since providing greater protection to noncapital than to capital defendants under similar circumstancesviolates the equal protection clause ofthe Fourteenth Amendment (see generally Myers v. Yist, supra, 897 F.2d at p. 421), the sentencerin a capital case is constitutionally required to identify for the record in somefashion the aggravating circumstances found upon whichhe basesthe decision to impose death. The mere fact that a capital-sentencing decisionis “normative” (People v. Hayes (1990) 52 Cal.3d 577, 643), and “moral” (People v. Hawthorne (1992) 4 250 Cal.4th 43, 79), does not mean its basis cannot be articulated in written findings. In fact, the importance ofwritten findings in capital sentencing is recognized throughoutthis country. Ofthe post-Furmanstate capital sentencing systems, over 20 require some form ofwritten findings specifying the aggravating factors the jury relied on in reaching a death judgment. Nineteen ofthose states require written findings regarding all penalty aggravating factors found true, while the remaining seven require a written finding asto at least one aggravating factor relied on to impose death.** California’s failure to require such findings renders its death penalty procedures unconstitutional in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. //1 //1 //1 **/ See Ala. Code, §§ 13A-5-46(f) and 47(d) (1982); Ariz. Rev. Stat. Ann., § 13- 703.01(E) (2002); Ark. Code Ann., § 5-4-603(a) (Michie 1993); Colo. Rev.Stat., § 18-1.3-1201(2)(b)dI) and § 18-1.3-1201(2)(c) (2002); State v. White (Del. 1978) 395 A.2d 1082, 1090;Fla. Stat. Ann., § 921.141(3) (West 1985); Ga. Code Ann., § 17-10-30(c) (Harrison 1990); Idaho Code, § 19-2515(8)(a)-(b) (2003); Ky. Rev. Stat. Ann., § 532.025(3) (Michie 1992); La. Code Crim. Proc. Ann., art. 905.7 (West 1993); Md. Ann. Codeart 27, § 413(i) (1993); Miss. Code Ann., § 99-19- 103 (1993); Mont. Code Ann., § 46-18-305 (1993); Neb. Rev.Stat. § 29-2521(2) and § 29-2522 (2002); Nev. Rev. Stat. Ann. § 175.554(3) (Michie 1992); N.H. Rev. Stat. Ann., § 630.5 (IV) (1992); Okla. Stat. Ann., tit. 21, § 701.11 (West 1993); 42 Pa. Cons. Stat. Ann., § 9711 (1982); S.C. Code Ann. § 16-3-20(C) (Law. Co-op. 1992); S.D. Codified Laws Ann., § 23A-27A-5 (1988); Tenn. Code Ann., § 39-13-204(g) (1993); Tex. Crim. Proc. Code Ann., § 37.07(c) (West 1993); Va. Code Ann., § 19.2-264(D) (Michie 1990); Wyo.Stat. § 6-2-102(e) (1988). 251 E. Even ifthe Absence of the Previously Addressed Procedural Safeguards Does Not Render California’s Death Penalty Scheme Constitutionally Inadequate to Ensure Reliable Capital Sentencing, Denying Them to Capital Defendants Such as Appellant Nevertheless Violates Equal Protection Requirements of the Fourteenth Amendmentto the United States Constitution Asnoted above (Subsections C and D,supra), the United States Supreme Court repeatedly has asserted that a heightened standard or heightenedreliability is required in capital cases and that courts must be vigilant to ensure procedural fairness and accuracyin fact-finding. (See, e.g., Woodson v. North Carolina (1976) 428 U.S. 280, 305 [96 S.Ct. 2978, 49 L.Ed.2d 944] (plurality opinion of Stewart, Powell, and Stevens, JJ.); see also Godfrey v. Georgia, supra, 446 U.S. at pp. 427-428 (1980); Monge v. California (1998) 524 U.S. 721, 731-732 [118 S.Ct. 2246, 141 L.Ed.2d 615].) Despite this directive ofthe high court, California’s death penalty schemeaffords significantly fewer procedural protections to defendants facing death sentences than to those charged with noncapital crimes. This differential treatment violates the constitutional guarantee of equal protection ofthe laws under the Fourteenth Amendment. Equalprotection analysis begins with identifying the interest at stake. In California, Chief Justice Wright wrote for a unanimous Court that “personal. liberty is a fundamental interest, second onlyto life itself, as an interest protected underboththe California and the United States Constitutions.” (People v. Olivas (1976) 17 Cal.3d 236, 251.) “Aside from its prominent place in the Due Process Clause,the rightto life is the basis of all other rights. ... It encompasses,in a 252 sense, ‘the right to haverights’ (Trop v. Dulles (1958) 356 U.S. 86, 102 [78 S.Ct. 590, 2 L.Ed.2d 630]).” (Commonwealth v. O’Neal (Mass. 1975.) 327 N.E.2d 662, 668.) In the case ofinterests identified as “fundamental,” this Court and others have “adopted an attitude of active andcritical analysis, subjecting the classification to strict scrutiny.” (Westbrook v. Milahy (1970) 2 Cal.3d 765, 784- 785.) A state maynot create a classification schemeaffecting a fundamental interest without showing that a compelling interest justifies the classification and that the distinctions drawn are necessary to further that purpose. (People v. Olivas, supra; Skinner v. Oklahoma (1942) 316 U.S. 535, 541 [62 S.Ct. 1110, 86 L.Ed. 1655].) | California cannot meet that burden here. In the contextofcapital punishment, the equal protection guarantees ofthe California and United States Constitutions must apply with greater force, the scrutiny ofthe challenged classification mustbestrict, and any purported justification of the discrepant treatment must be even more compelling, because the interest at stake is not simply liberty, butlife itself. The differences between capital defendants and noncapital felony defendants justify more, not fewer, proceduralprotections in order to make death sentences morereliable. F. Conclusion For the reasons set forth above, both separately and in the aggregate, 253 appellant’s death sentence violates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and their California counterparts, and musttherefore be reversed. 254 Vill PENAL CODE SECTION190.3 AND IMPLEMENTING JURY INSTRUCTIONS(CALJIC NOS.8.84-8.88) ARE UNCONSTITUTIONAL, BECAUSE THEYFAIL TO SET OUT THE APPROPRIATE BURDEN OF PROOF OR CONTAIN OTHER CONSTITUTIONALLY COMPELLED SAFEGUARDS AND PROTECTIONS REQUIRED BY THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION A. Introduction The California death penalty statute and the instructions given in this case (CALJIC Nos. 8.84-8.88) fail to assign a burden ofproofwith regardto the jury’s choice between the sentences of life without possibility ofparole and death. (See 4 CT 926 [CALJIC No.8.84]; 927 [CALJIC No. 8.84.1]; 928 [CALJIC No. 8.85]; 957 [CALJIC No.8.86]; 959 [CALJIC No. 8.87]; 986 [CALJIC No. 8.88]; see also 53 RT 6819-6860 [penalty instructions].) The instructions do not delineate a burden ofproofeither with respect to the preliminary findings that a jury must make before it may impose a death sentenceor the ultimate sentencing decision. Neither the statute nor the instructions require jury unanimity as to the existence of aggravating factors utilized by the jury as the basis for imposing a sentence of death. As shown below,these and othercritical omissions in the California capital sentencing scheme embodiedin section 190.3 and CALJIC Nos. 8.84-8.88 violated appellant’s rights to trial by jury, fair trial, unanimousverdict, reliable penalty determination, due process, and equal protection of the laws guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States 255 Constitution. B. The Statute and Instructions Unconstitutionally Fail to Assign to the State the Burden of Proving Beyond a Reasonable Doubt the Existence of an Aggravating Factor, that the Aggravating Factors Outweigh the Mitigating Factors, and that Death is the Appropriate Penalty In California, before sentencing a person to death, the jury must be persuadedthat “the aggravating circumstances outweigh the mitigating circumstances” (§ 190.3), that “the aggravating circumstancesare so substantial in comparison with the mitigating circumstancesthat it warrants death” (4 CT 986; 53 RT 6860), and that “death is the appropriate penalty underall the circumstances.” (People v. Brown (1985) 40 Cal.3d 512, 541, rev'd on other grounds, California v. Brown (1987) 479 U.S. 538 [107 S.Ct. 837, 93 L.Ed.2d 934]; see also People v. Cudjo (1993) 6 Cal.4th 585, 634. Under the California scheme, however, neither the aggravating circumstancesnorthe ultimate determination ofwhether to impose the death penalty need be provedto the jury’s satisfaction pursuant to any delineated burden ofproof.” Here,the jury wasspecifically instructed in the language ofCALJIC No. 8.84 and No.8.88 that it must determine whether the death penalty or “imprisonmentin the state prison for life without possibility ofparole” shall be imposed. (4 CT 926, 986; 53 RT 6858.) No burden ofproofwasspecified or 467 There is one exception to this lack of a burden ofproof. The aggravating factor ofunadjudicated violent criminalactivity (§ 190.3, subd. (b)) must be proved beyond a reasonable doubt. Appellant further discusses the defects in § 190.3, subd.(b), infra, as well as in Argument VII, supra. 256 required by the trial court to guide the jury in determining penalty. Thefailure to assign or impose a burden ofproofas a prerequisite for a jury’s sentence of death renders both the California death penalty scheme and implementinginstructions unconstitutional, and,in this case, renders appellant’s death sentence unconstitutional and unreliable in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. In recent death penalty cases, this Court has consistently ruled that the failure to require that the jury unanimouslyfind the aggravating circumstances true beyond a reasonable doubt, to find unanimously and beyond a reasonable doubt that aggravating circumstances outweigh mitigating circumstances, or to require a unanimous finding beyond a reasonable doubtthat death is the appropriate penalty does not violate the Fifth, Eighth, or Fourteenth Amendment guarantees of due process anda reliable penalty determination. (See,i.e., People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 333; People v. Prince (2007) 40 Cal.4th 1179, 1297-1298; People v. Morrison, supra, 34 Cal.4th at p. 731.) The Court hasalso repeatedly ruled that neither Apprendi v. New Jersey, supra, 530 U.S. 466, Ring v. Arizona, supra, 536 U.S. 584, Blakely v. Washington, supra, 542 U.S. 296, nor, more recently, Cunningham vy. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856], applies to the penalty phaseofa capital trial under California’s death penalty law. (See People y. Lee (2011) 51 Cal.4th 620, 651-652; People v. Thomas (2011) 51 Cal.4th 449, 506; People v. Friend (2009) 47 Cal.4th 1, 89; People v. Salcido (2008) 44 Cal.4th 93, 167.) 257 The Court’s reasoning for this determination wasset forth in People v. Cox (2003) 30 Cal.4th 916, 971. The Court in Cox overlooked that in Cunningham v. California, supra, the United States Supreme Court rejected this Court’s interpretation ofApprendi and found that California’s Determinate Sentencing Law (“DSL”) requires a jury finding beyond a reasonable doubt of any fact used to enhance a sentence above the middle range spelled out by the legislature. (Cunningham v. California, supra, 127 S.Ct. at pp. 868-873.) In so doing,it explicitly rejected the reasoning used by this Court in such cases as Cox to find that Apprendi and Ring have no application to the penalty phaseofa capitaltrial. In Cunningham,the principle that any fact which exposed a defendantto a greater potential sentence must be found by ajury to be true beyonda reasonable doubt wasapplied to the California’s DSL. The high court examined whether or not the circumstances in aggravation were factual in nature and concluded they were. (/d. at p. 863.) As the Supreme Court held, “[e]xcept for a prior conviction, ‘any fact that increases the penalty for a crime beyondthe prescribed statutory maximum must be submitted to a jury, and found beyond a reasonable doubt.”” (Cunningham vy. California, supra, 127 S.Ct. at p. 868.) In the wake of Cunningham,it is clear that in determining whether or not Ring and Apprendi apply to the penalty phase of a capital case, the sole relevant question is whether or not there is a requirementthat any factual findings be made before a death penalty can be imposed. In resisting the mandate ofApprendi, this Court has held that since the 258 maximum penalty for one convictedoffirst degree murder with a special circumstance is death (see Pen. Code § 190, subd. (a)), Apprendi doesnot apply. (See People v. Anderson (2001) 25 Cal.4th 543, 589.) After Ring, this Court repeated the same analysis: “Because any finding of aggravating factors during the penalty phase doesnot ‘increase the penalty for a crime beyondthe prescribed statutory maximum’[citation omitted], Ring imposes no new constitutional requirements on California’s penalty phase proceedings.” (People v. Prieto (2003) 30 Cal.4th 226, 263; see also People v. Prince, supra, 40 Cal.4th at pp. 1297- 1298.) The Court’s interpretation is wrong. As section 190.2, subdivision (a) indicates, the maximum penalty for any first degree murder conviction is death. Thetop of three rungs is obviously the maximum sentence that can be imposed pursuant to the DSL, but Cunningham recognized that the middle rung was the most severe penalty that could be imposed by the sentencing judge without further factual findings: “In sum, California’s DSL,and the rules governingits application, direct the sentencing court to start with the middle term, and to move from that term only whenthe court itself finds and places on the record facts -- whetherrelated to the offense or the offender -- beyond the elements ofthe charged offense.” (Cunningham v. California, supra, 127 S.Ct. at p. 862.) Even with the finding of factual aggravating factors that were required to support a death sentence in Ring, the judicial sentencing choice between life and death remained discretionary, becausethe statute specified that a life sentence 259 should be imposed,ifthere were “mitigating circumstancessufficiently substantial to call for leniency.” (Ring v. Arizona, supra, 536 U.S.at p. 593.) Ring nevertheless held the state statute unconstitutional, because the finding of aggravating circumstances was not made by a unanimous jury. (7d. at p. 609.) Instead, Ring held that the Sixth and Fourteenth Amendmentrequired a unanimous jury finding of any “aggravating circumstance necessary for imposition ofthe death penalty.” (Zbid.) Contrary to the United States Supreme Court’s pronouncementin Williams v. New York (1949) 337 U.S. 241 [69 S.Ct. 1079, 93 L.Ed. 1337], a California death sentence cannot be imposedfor “no reasonatall.” Apprendi makes clear that the distinction is between sentencing schemes requiring a factual finding and those which allow a judge to impose an increased sentence as a discretionary choice, as long as the increased sentenceis still within the maximum range permitted based on the facts admitted by defendant’s guilty plea, or necessarily established by the guilty verdict. (Apprendi v. New Jersey, supra, 530 U.S.at p. 487.) Thus, under Apprendi’s reasoning, findings of aggravating circumstances are necessary under California law to increase a sentence for special circumstances murderfrom life imprisonment withoutthe possibility ofparole to death. This requirementis evident for several reasons. First, in order to return a death sentence, both section 190.3 and CALJIC No.8.88 require the jury to find that the aggravating circumstances outweigh mitigating circumstances. (See, e.g., CALJIC No.8.88 [To return a judgment of 260 death, each ofyoumustbe persuadedthat the aggravating circumstancesare so substantial in comparison with the mitigating circumstancesthat it warrants death insteadof life without parole.”]; see 4 CT 986; 53 RT 6860.) Manifestly, before substantial aggravating circumstances can outweigh mitigating circumstances, there mustfirst be aggravating circumstances to consider. The mere finding of guilt on special circumstances murderis insufficient, because this Court has repeatedly recognized that Penal Code section 190.3, factor (a) -- the circumstancesofthe crime -- may be mitigating as opposed to aggravating in any given case. (People v. Pollock (2004) 32 Cal.4th 1153, 1189; People v. Smith (2003) 30 Cal.4th 581, 639; People v. Haskett (1990) 52 Cal.3d 210, 229,fn. 5.) Thus, the jury mustfirst find somethingthatis truly aggravating whichis defined as “a circumstance above and beyondthe essential constituents of a crime which increases its guilt or enormity or addsto its injurious consequences.” (People v. Davenport (1985) 41 Cal.3d 247, 289; accord, CALJIC No.8.88.) Second, as explained above, not only mustthe jury find the presence of aggravating circumstances, it must also find that they are so substantial in comparison to mitigation that death is warranted. As the Court recognized in People v. Murtishaw (1989) 49 Cal.3d 1001, 1027, in order to vote for the death penalty, a jury “must believe aggravationis so relatively great, and mitigation so comparatively minor, that the defendant deserves death rather than society’s next most serious punishment, life in prison without parole.” (See also People v. Breaux (1991) 1 Cal.4th 281, 318 [a jury can “return a death verdict, only if 261 aggravating circumstances predominated and death is the appropriate verdict”].) Third, the California requirement that a death sentence cannot be returned unless there is not only aggravation butit is so substantial in comparison to mitigation that it warrants death, is similar to the Arizona standard found unconstitutional in Ring because of the failure to honor the Arizona defendant’s Sixth and Fourteenth Amendmentrights to a juryfinding on any aggravating circumstance necessary to support a death sentence. As observed by the United States Supreme Court in Ring, the Arizona statute permitted a defendant to be sentenced “to death, only if there is at least one aggravating circumstance and ‘there are no mitigating circumstances sufficiently substantial to call for leniency.’” (Ring v. Arizona, supra, 536 U.S.at p. 593.) Ofcourse, a California capital defendant does have the right to have a unanimousjury decide the ultimate question of life or death. The Sixth Amendment, however, requires more than the mereright to a jury trial; the right to jury trial is meaningless withoutthe corollary requirements of a unanimous finding, beyond a reasonable doubt, on each fact essential to a death sentence. Indeed, Ring specifically holds that “[i]f a State makes an increase in a defendant’s authorized punishmentcontingenton the finding ofa fact, that fact no matter how the State labels it must be found by ajury beyond a reasonable doubt.” (dd.at p. 602.) Further, both Apprendi v. New Jersey, supra, 530 U.S.at p. 483 and Blakely v. Washington, supra, 542 U.S.at p. 313, expressly require those findings to be made by a unanimousjury. 262 Lest there be any doubt whether aggravating factors constitute the type of finding covered by the Sixth Amendment, Justice Scalia, concurring in Ringv. Arizona, supra, 536 U.S.at p. 610, stressed “that the fundamental meaningofthe jury-trial guarantee ofthe Sixth Amendmentis thatall facts essential to imposition ofthe level ofpunishmentthat the defendantreceives -- whether the statute calls them elements ofthe offense, sentencing factors, or Mary Jane -- must be found by the jury beyond a reasonable doubt.” Justice Scalia also concluded his analysis by stating that “wherever factors [required for a death sentence] exist, they must be subject to the usual requirements ofthe commonlaw,andto the requirement enshrined in our Constitution in criminal cases: they must be found by the jury beyond a reasonable doubt.”(Id. at p. 612.) Therefore, Apprendi, Ring, Blakely, and Cunninghamall apply to the California death penalty statute. While, as this Court has stated (People v. Hayes (1990) 52 Cal.3d 577, 643; People v. Lennart (2004) 32 Cal.4th 1107, 1136-1137), a sentencer’s finding that the aggravating factors substantially outweigh the mitigating factors involves a mix of factual and normative elements,this does not make the finding any less subject to Apprendi, Ring, Blakely, and Cunningham. Indeed,this Court has overlooked that in Blakely itself, the State ofWashington argued that Apprendi and Ring should not apply becausethestatutorily enumerated grounds for an upward sentencing departure wereillustrative only, not exhaustive, and henceleft the sentencing judge free to identify and find an aggravating factor on his or her own -- a finding which, appellant submits, must 263 inevitably involve both normative and factual elements. The United States Supreme Court in Blakely rejected the State’s contention, finding Ring and Apprendi fully applicable, even where the sentenceris authorized to makethis sort ofmixed normative/factual finding, as long as the finding is a prerequisite to an elevated sentence. (Blakely v. Washington, supra, 542 U.S.at pp. 304-305.) Consequently, whether the finding is a Washington state sentencer’s discernment of a non-enumerated aggravating factor or a California sentencer’s normative determination that the aggravating factors substantially outweigh the mitigating factors, the findings must be made by a jury and must be made beyond a reasonable doubt. Asdiscussed above, absent additional findings of fact at the penalty phase of a capital trial in California, the maximum sentence that can be imposedislife withoutthe possibility ofparole. (§ 190.4, subd. (b).) The only way that a death sentence can be imposedis ifjurors first find the existence of one or more aggravating circumstances and then find that they are so substantial in comparison with the mitigating circumstances that death is the warranted penalty instead of life imprisonment without the possibility ofparole. (CALJIC No. 8.88; 4 CT 986; 53 RT 6860.) Additional factual findings -- beyond “substantiality” -- are clearly required at the penalty phaseto justify imposition ofa death sentence in this state; those findings must be found by a unanimous jury beyond a reasonable doubt. For the foregoing reasons, the Court should reconsider its rejection of claimsthat the California death penalty statutory scheme and sentencing 264 instructions are unconstitutional to the extent that they (1) fail to require proof beyond a reasonable doubtas to any finding that an aggravating factor exists; (2) fail to require proofbeyond a reasonable doubtthat the aggravating factors outweigh the mitigating factors, and (3) fail to require that any aggravating factor relied upon as basis for death be found by a unanimousjury. C. The California and United States Constitutions Require an Instruction That the Jury May Imposea Sentence of Death Only if Persuaded Beyond a Reasonable Doubtthat the Aggravating Factors Outweigh the Mitigating Factors and That Death is the Appropriate Penalty Appellant acknowledgesthat this Court has consistently held that the California and United States Constitutions doe not require that the jury must be persuaded beyonda reasonable doubt that aggravating factors outweigh mitigating factors and that death is the appropriate penalty section. (See, 1.e., People v. Bivert (2011) 52 Cal.4th 96, 124 [death penalty statutes do not require that the jury find beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors or that death is the appropriate penalty]; People v. Letner and Tobin (2010) 50 Cal.4th 99, 208 People v. Blair (2005) 36 Cal.4th 686, 753; People v. Griffin (2004) 33 Cal.4th 536, 593; and People vy. Hawthorne (1992) 4 Cal.4th 43, 79.) Forthe reasonsset forth below, the Court’s analysis and reasoning are unsound and should be reevaluated. 1. Factual Determinations The outcomeofajudicial proceeding necessarily depends on an appraisal 265 ofthe facts. “[T]he procedures by whichthe facts ofthe case are determined assume an importancefully as great as the validity of the substantive rule of law to be applied. And the more importantthe rights at stake the more important must be the procedural safeguards surrounding those rights.” (Speiser v. Randall (1958) 357 U.S. 513, 520-521 [78 S.Ct. 1332, 2 L.Ed.2d 1460].) The primary procedural safeguard implanted in the criminal justice system relative to fact assessmentis the allocation and degree ofthe burden ofproof. The burden ofproofrepresents the obligation of a party to establish a particular degree ofbelief as to the contention sought to be proved. In criminal cases the burden is rooted in the due processclauses ofthe Fifth and Fourteenth Amendmentsto the United States Constitution. (Jn re Winship (1970) 397 U.S. 358, 364 [90 S.Ct. 1068, 25 L.Ed.2d 368].) In capital cases,“the sentencing process, as well as the trial itself, must satisfy the requirements ofthe Due Process Clause.” (Gardnerv. Florida, supra, 430 U.S.at p. 358; see also Presnell v. Georgia (1978) 439 US. 14, 16-17 [99 S.Ct. 235, 58 L.Ed.2d 207] [fundamental due processprinciples and proceduralfairness apply with no less force at the penalty phaseofa trial in a capital case than they doin the guilt-determining phase of any criminaltrial].) Aside from the question of the applicability of the Sixth Amendmentto California’s penalty phase proceedings, the burden ofproof for factual determinations during the penalty phase of a capital trial, whenlife is at stake, must be beyond a reasonable doubt. This is required by both the due process clauses ofthe Fifth and Fourteenth Amendments as well as the Eighth Amendment 266 to the United States Constitution. 2. Imposition ofLife or Death The requirements of due processrelative to the burden ofpersuasion generally depend uponthe significance ofwhat is at stake and the social goal of reducing the likelihood of erroneousresults. (In re Winship, supra, 397 U.S.at pp. 363-364; see also Addington v. Texas (1979) 441 U.S. 418, 423 [99 S.Ct. 1804, 60 L.Ed.2d 323].) The allocation of a burden ofpersuasion symbolizes to society in general andthejury in particular the consequences ofwhatis to be decided. In this sense,it reflects a belief that the moreserious the consequences of the decision being made, the greater the necessity that the decision-maker reach “a subjective state of certitude”that the decision is appropriate. (Jn re Winship, supra, 397 U.S.at p. 364.) Selection of a constitutionally appropriate burden of persuasion is accomplished by weighing “three distinctfactors . . . the private interests affected by the proceeding;the risk of error created by the State’s chosen procedure; and the countervailing governmental interest supporting use ofthe challenged procedure.” (Santosky v. Kramer (1982) 455 U.S. 745, 755 [102 S.Ct. 1388, 71 L.Ed.2d 599]; see also Matthewsv. Eldridge (1976) 424 U.S. 319, 334-335 [96 S.Ct. 893, 47 L.Ed.2d 18].) On examiningthe “private interests affected by the proceeding,”it is impossible to conceive of an interest more significant than human life. Ifpersonal liberty is “an interest oftranscending value” (Speiser v. Randall, supra, 375 U.S. 267 at p. 525), how much moretranscendent is human life itself? Far less valued interests are protected by the requirement ofproofbeyond a reasonable doubt before they may be extinguished. (See In re Winship, supra, 397 U.S.p. 364 [adjudication ofjuvenile delinquency]; People v. Feagley (1975) 14 Cal.3d 338 [commitment ofmentally disordered sex offender]; People v. Burnick (1975) 14 Cal.3d 306 [same]; People v. Thomas (1977) 19 Cal.3d 630 [commitmentof narcotic addict}; Conservatorship ofRoulet (1979) 23 Cal.3d 219 [appointment of conservator].) The decision to take a person’s life must be made undernoless demanding a standard. Due process mandates that our social commitmentto the sanctity of life and the dignity of the individual be incorporated into the decision-making process by imposing uponthe state the burden to prove beyond a reasonable doubt that death is appropriate. Asto the “risk of error created by the State’s chosen procedure,” (Santosky v. Kramer, supra, 455 U.S.at p. 755), the United States Supreme Court reasoned: [Ijn any given proceeding, the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants. ... When the State brings a criminal action to deny a defendant liberty or life, ... “the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment.” [Citation]. The stringency of the “beyond a reasonable doubt” standard bespeaks the ‘weight and gravity’ of the 268 private interest affected [citation], society’s interest in avoiding erroneous convictions, and a judgment that those interests together require that “society impos[e] almostthe entire risk of error uponitself.” (Santosky v. Kentucky, supra, 455 US. at p. 755 (quoting Addington v. Texas, supra, 441 U.S.at pp. 423, 424, 427).) Moreover,there is substantial room for error in the procedures for deciding betweenlife and death. The penalty proceedings are muchlike the child neglect proceedings dealt with in Santosky. They involve“imprecise substantive standards that leave determinations unusually open to the subjective values of the [jury].” (Santosky v. Kentucky, supra, 455 U.S. at p. 763.) Nevertheless, imposition of a burden ofproofbeyond a reasonable doubt can be effective in reducingthis risk of error, since that standard has long proven its worth as “a primeinstrumentfor reducing the risk of convictions resting on factual error.” (In re Winship, supra, 397 U.S.at p. 363.) The final Santosky benchmark, “the countervailing governmentalinterest supporting use of the challenged procedure,”also calls for imposition of a reasonable doubt standard. Adoption of that standard would not deprivethestate ofthe powerto imposecapital punishment; it would merely serve to maximize “reliability in the determination that death is the appropriate punishmentin a specific case.” (Woodson v. North Carolina (1976) 428 U.S. 280, 305 [96 S.Ct. 2978, 49 L.Ed.2d 944].) The needforreliability is especially compelling in capital cases. (Beckv. 269 Alabama (1980) 447 U.S. 625, 637-638 [100 S.Ct. 2382, 65 L.Ed.2d 392].) No greater interest is ever at stake. (See Mongev. California, supra, 524 US.at p. 732.) In Monge, the Supreme Court expressly applied the Santosky rationale for the beyond a reasonable doubt burden ofproofrequirement to capital sentencing proceedings: “/7]n a capital sentencingproceeding,as in a criminaltrial, ‘the interests of the defendant[are] of such magnitudethat ... they have been protected by standards ofproof designed to excludeas nearly as possible the likelihood of an erroneous judgment.” (Mongev. California, supra, 524 U.S.at p. 732 (quoting Bullington v. Missouri (1981) 451 U.S. 430, 441 [101 S.Ct. 1852, 68 L.Ed.2d 270] (quoting Addington v. Texas, supra, 441 U.S. at pp. 423-424)) [italics added].) The sentencer of a person facing the death penalty is required by the due process and Eighth Amendmentconstitutional guarantees to be convinced beyond a reasonable doubt not only that the factual basesfor its decision are true, but that death is the appropriate sentence. This Court has long held that the penalty determination in a capital case in California is a moral and normative decision, as opposed to a purely factual one. (See e.g., People v. Griffin, supra, 33 Cal.4th at p. 595.) Other states, however, have ruled that this sort ofmoral and normative decision is not inconsistent with a standard based on proofbeyond a reasonable doubt. This conclusion follows because a reasonable doubt standard focuses on the degreeofcertainty needed to reach the determination, which is something not only applicable but particularly appropriate to a moral and normative penalty decision. As the Supreme Court of 270 Connecticut recently explained on rejecting an argument that the jury determination in the weighing process is a moral judgmentinconsistent with a reasonable doubt standard: Wedisagree with the dissent of Sullivan, C.J., suggesting that, because the jury’s determination is a moral judgment, it is somehow inconsistent to assign a burden of persuasion to that determination. The dissent’s contention relies on its understanding of the reasonable doubt standard as a quantitative evaluation of the evidence. We have already explained in this opinion that the traditional meaning of the reasonable doubt standard focuses, not on a quantification of the evidence, but on the degree of certainty of the fact finder or, in this case, the sentencer. Therefore, the nature of the jury’s determination as a moral judgment does not render the application of the reasonable doubt standard to that determination inconsistent or confusing. On the contrary, it makes sense, and, indeed, is quite common, when making a moral determination, to assign a degree of certainty to that judgment. Put another way, the notion of a particular level of certainty is not inconsistent with the process of arriving at a moral judgment; our conclusion simply assigns the law’s most demanding level of certainty to the jury’s most demanding and irrevocable moral judgment. (State v. Rizzo (Conn. 2003) 833 A.2d 363, 408, fn. 37.) In sum,the needforreliability is especially compelling in capital cases. (Beck v. Alabama, supra, 447 U.S.at pp. 625, 637-638; Mongev. California, supra, 524 U.S.at p. 732.) Under the Eighth and Fourteenth Amendments to the United States Constitution, a sentence ofdeath may not be imposedunless the 271 sentencer is convinced beyonda reasonable doubt not only that the factual bases for its decision are true, but that death is the appropriate sentence. D. The Fifth, Sixth, Eighth, and Fourteenth Amendments Require that the State Bear Some Burden of Persuasion at the Penalty Phase In addition to failing to impose a reasonable doubt standard on the prosecution,the trial court in its penalty phase instructionsfailed to assign any burden ofpersuasion regarding the ultimate penalty phase determinations the jury had to make. Althoughthis Court has recognized that “penalty phase evidence may raise disputed factual issues,” (see,. i.e., People v. Murtishaw (2011) 51 Cal.4th 574, 596; People v. Superior Court (Mitchell) (1993) 5Cal.4th 1229, 1236), it also has held that a burden ofpersuasion at the penalty phaseis inappropriate given the normative nature of the determinations to be made.(See, i.e., People v. Gonzales (2011) 51 Cal.4th 894, 956; People v. Mendoza (2007) 42 Cal.4th 686, 707 [jury need not find aggravating factors true beyond a reasonable doubt, and no instruction on burden ofproofis required]; People v. Hayes, supra, 52 Cal.3d at p. 643.) Appellant urges the Court to reconsider that ruling becauseit is constitutionally unsound underthe Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. First, allocation of a burden of proofis constitutionally necessary to avoid the arbitrary and inconsistent application of the ultimate penalty of death. “Capital punishment must be imposedfairly, and with reasonable consistency,or notat 272 all.” (Eddings v. Oklahoma (1982) 455 U.S. 104, 112 [102 S.Ct. 869, 71 L.Ed.2d 1].) Whena single, consistent standard ofproofis not articulated, there is a reasonable likelihood that different juries will impose different standards ofproof in deciding whether to impose a sentence of death. Who bears the burden of persuasion as to the sentencing determination also will vary from case to case. Such arbitrariness undermines the requirementthat the sentencing schemeprovide a meaningful basis for distinguishing the few cases in which the death penalty is imposed from the many in whichit is not. Even if it werenot constitutionally necessary to impose on the prosecution such a heightened burden ofpersuasion as reasonable doubt, some burden ofproofmustbearticulated, if only to ensurethat juries faced with similar evidence will return similar verdicts, that the death penalty is evenhandedly applied from case to case, and that capital defendants are treated equally from caseto case. It is unacceptable under the Eighth and Fourteenth Amendmentsthat, in cases where the aggravating and mitigating evidence is balanced, one defendant should live and another die simply because one jury assigns the burden ofproof and persuasion to the state while another assignsit to the accused, or because one juror applied a lower standard and foundin favorofthe state and another applied a higher standard and found in favor ofthe defendant. (See Proffitt v Florida (1976) 428 U.S. 242, 260 [96 S.Ct. 2969, 49 L.Ed.2d 913] [punishment should not be “wanton”or “freakish”]; Mills v. Maryland, supra, 486 U.S.at p. 374 [impermissible for punishmentto be reached by “height of arbitrariness”].) 273 Second, while the current schemefails to set forth a burden of prooffor the prosecution, the prosecution obviously has some burden to show that the aggravating factors are greater than the mitigating factors. This necessarily follows because a death sentence may not be imposed simply by virtue of the fact that the jury has foundthe defendant guilty ofmurder and has foundat least one special circumstance true. The jury must impose a sentenceoflife without possibility ofparole if the mitigating factors outweigh the aggravating circumstances (see §190.3), and may imposesuch a sentence even ifno mitigating evidence waspresented. (See People v. Duncan (1991) 53 Cal.3d 995, 979.) Third, the statutory language suggests the existence of somesort of finding that must be “proved” by the prosecution and reviewed bythetrial court. Section 190.4, subdivision (e) requires the trial judge to “review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstances referred to in Section 190.3,” and to “make a determination as to whether the jury’s findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented.’”*” A fact cannotbe established-- i.e., a fact finder could not makea finding -- without imposing somesort ofburden on the parties presenting the evidence 47/ As discussed below,in requiringreliability in capital sentencing proceedings (Mongev. California, supra, 524 U.S.at p. 732; Johnson v. Mississippi, supra, 486 U.S.at p. 584; Gardnerv. Florida, supra, 430 U.S. at p. 359), the United States Supreme Court has consistently held that a capital sentencing proceedingis similarto a trial in its format and in the existence of the protections afforded a defendant. 274 upon whichthe finding is based. The failure to inform the jury ofhow to make factual findings and the failure to articulate a proper burden ofproofis thus constitutional error in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. It is inevitable that one or more jurors on a given jury will find themselves torn between sparing and taking a defendant’s life, or between finding and not finding a particular aggravator. A tie-breaking rule is needed to ensure that such jurors -- and the juries on which theysit -- respond in the same way,so the death penalty is applied evenhandedly. “Capital punishment [must] be imposedfairly, and with reasonable consistency,or notat all.” (Eddings v. Oklahoma, supra, 455 USS. at p. 112.) It is unacceptable -- indeed “wanton”and“freakish” (Proffitt v. Florida, supra, 428 U.S. at p. 260) -- the “height of arbitrariness” (Mills v. Maryland, supra, 486 U.S.at p. 374)-- that one defendant should live and another die simply because onejuror orjury can break a tie in favor of a defendant and another can do so in favor ofthe state on the same facts, with no uniformly applicable standards to guide either. Similarly, in the alternative, were it permissible not to have any burden of proofatall, the trial court erred prejudicially by failing to articulate that to the jury. The burden ofproof in any case is one ofthe most fundamental concepts in our system ofjustice, and any errorin articulating it is automatically reversible error. (Sullivan v. Louisiana (1993) 508 U.S. 275, 277 [113 S.Ct. 2078, 124 L.Ed.2d 182] [reasonable-doubtinstructionalerror not subject to harmless 275 error review].) The reason is obvious. Without an instruction on the burden of proof, jurors may notuse the correct standard, and each mayinstead apply the standard heor she believes appropriate in any given case. The sameistrue if there is no burden ofproof and the jury is not so told. Jurors whobelieve the burden should be on the defendant to prove mitigation at the penalty phase would continueto believe that. Such jurors do exist. This raises the constitutionally unacceptable possibility ajuror would vote for the death penalty because of a misallocation of an allegedly nonexistent burden ofproof. The failure to give any instruction at all on the subject violates the Fifth, Sixth, Eighth, and Fourteenth Amendments becausethe instructions given fail to provide the jury with the guidance required for administration ofthe death penalty to meet constitutional minimum standards. Theerrorin failing to instruct the jury on the proper burden ofproof, or the lack of such a burden,is reversible perse. (Sullivan v. Louisiana, supra, 508 U.S.at pp. 275, 281-282.) E. The Instructions Violated the Sixth, Eighth, and Fourteenth Amendments by Failing to Require Juror Unanimity on Aggravating Factors The jury was notinstructed that its findings on aggravating circumstances needed to be unanimous. Thetrial court failed to require even that a simple | majority ofthe jurors agree on any particular aggravating factor, let alone agree that any particular combination of aggravating factors warranted a death sentence. Indeed,as to unadjudicated criminalactivity, the trial court instructed the jury that 276 “it is not necessary for all jurors to agree.” (4 CT 959; 53 RT 6839.) Asa result, the jurors in this case were not required to deliberate at all on critical factual issues. Indeed,it is impossible to determine precisely on what factors the jury relied in imposing death. Asto the reason for imposing death, a single juror may haverelied on evidencethat only he or she believed existed in imposing appellant’s death sentence. Such a process leads to a chaotic and unconstitutional penalty verdict. (See, e.g., Schad v. Arizona (1991) 501 U.S. 624, 632-633 [111 S.Ct. 2491, 115 L.Ed.2d 555].) Appellant recognizes that this Court has previously held that when an accused’slife is at stake during the penalty phase, “there is no constitutional requirementfor the jury to reach unanimous agreement on the circumstances in aggravation that support its verdict.” (See, i.e., People v. Taylor (1990) 52 Cal.3d 719, 749 275 [“unanimity with respect to aggravating factors is not required by statute or as a constitutional procedural safeguard”); People v. Prieto (2003) 30 Cal.4th 226; People v. Bacigalupo (1991) 1 Cal.4th 103, 147.) Nevertheless, appellant asserts that the failure to require unanimity as to aggravating circumstances encouragedthe jurors in appellant’s case to act in an arbitrary, capricious, and unreviewable manner, slanting the sentencing processin favor of death. The absence ofa unanimity requirementis inconsistent with the Sixth Amendmentjury trial guarantee, the Eighth Amendment requirement of enhanced reliability in capital cases, and the Fourteenth Amendment requirements of due process and equalprotection. (See Ballew v. Georgia, supra, 435 U.S.at pp. 232- 277 234; Woodson v. North Carolina, supra, 428 U.S.at p. 305.) With respect to the Sixth Amendment argument, this Court’s reasoning and decision in Bacigalupo-- particularly its reliance on Hildwin v. Florida (1989) 490 U.S. 638, 640 [109 S.Ct. 2055, 104 L.Ed.2d 728] -- should be reconsidered. In Hildwin, the Supreme Court noted that the Sixth Amendmentprovidesnoright to jury sentencing in capital cases, and held that “the Sixth Amendment does not require that the specific findings authorizing the imposition ofthe sentence of death be made bythe jury.” (/d. at pp. 640-641.) This is not, however, the same as holding that unanimity is not required. Moreover, the United States Supreme Court’s holdings in previously-discussed Ring and Blakely make the reasoning in Hildwin highly questionable and constitutionally suspect, undercutting as well the constitutional underpinningsofthis Court’s analysis and ruling in Bacigalupo. Applying the Ring and Blakely reasoning here, jury unanimity is required under the overlapping principles of the Sixth, Eighth, and Fourteenth Amendments. “Jury unanimity .. . is an accepted, vital mechanism to ensure that real and full deliberation occurs in the jury room,and that the jury’s ultimate decision will reflect the conscience ofthe community.” (McKoy v. North Carolina (1990) 494 U.S. 433, 452 [110 S.Ct. 1227, 108 L.Ed.2d 369] (Kennedy,J., concurring).) Indeed, the Supreme Court has held that the verdict ofeven a six- 48/ The absence of historical authority to support such a practice is an additional reason whythe absence ofjury unanimity violates ofthe Sixth, Eighth, and Fourteenth Amendments. (See, e.g., Murray's Lessee v. Hoboken Land & Improvement Co. (1855) 59 U.S. 272, 276 [18 How. 272]; Griffin v. United States (1991) 502 U.S. 46, 51-52 [112 S.Ct. 466, 116 L.Ed.2d 371].) 278 person jury in a non-petty criminal case must be unanimousto “preserve the substanceofthe jury trial right and assure the reliability of its verdict.” (Brown v. Louisiana, supra, 447 U.S.at p. 334.) Given the “acute needforreliability in capital sentencing proceedings” (Mongev. California, supra, 524 U.S.at p. 732; accord Johnsonv. Mississippi, supra, 486 U.S. at p. 584; Gardner v. Florida, supra, 430 U.S.at p. 359; Woodson v. North Carolina, supra, 428 U.S. at p. 305), the Sixth and Eighth Amendmentsare likewise notsatisfied by anything less than unanimity in the crucial findings of a capital sentencing jury. In addition, the California Constitution assumes -- indeed, is fundamentally predicated on -- jury unanimity in criminaltrials. The first sentence ofarticle I, section 16 ofthe California Constitution providesthat “[t]rial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury mayrendera verdict.” (See also People v. Wheeler (1978) 22 Cal.3d 258, 265 {confirming inviolability ofunanimity requirement in criminaltrials].) The failure to require that the jury unanimously find the aggravating factors true also stands in stark contrast to rules applicable in California to noncapital cases.”” For example, in cases where a criminal defendant has been charged with */ Significantly, the federal death penalty statute also providesthat a “finding with respect to any aggravating factor must be unanimous.” (21 U.S.C. § 848(k).) In addition, numerous death penalty statutes require that the jury unanimously agree on the aggravating factors proven. See Ariz. Rev. Stat., § 13-703.01(E) (2002); Ark. Code Ann., § 5-4-603(a) (Michie 1993); Colo. Rev. Stat. Ann. § 18- 1.3-1201(2)(b)(ID(A) (West 2002); Del. Code Ann., tit. 11, § 4209(c)(3)b.1. (2002); Idaho Code, § 19-2515(3)(b) (2003); La. Code Crim.Proc. Ann., art. 905.6 (West 1993); Md. Ann. Codeart. 27, § 413(i) (1993); Miss. Code Ann.§ 99-19-103 (1993); Neb. Rev.Stat., § 29-2520(4)(f) (2002); N.H. Rev. Stat. Ann. § 279 special allegations that may increase the severity of his sentence, the jury must render a separate, unanimousverdict on the truth of such allegations. (See, e.g., § 1158, subd. (a).) Since capital defendants are entitled to more rigorous protections than those afforded noncapital defendants (see Monge v. California, supra, 524 U.S.at p. 732; Harmelin v. Michigan, supra, 501 U.S.at p. 994), and since the provision of greater protections to a noncapital defendant than to a capital defendant would violate the equal protection clause ofthe Fourteenth Amendment (see, e.g., Myers v. Yist, supra, 897 F.2d at p. 421), it follows that unanimity with regard to aggravating circumstancesis constitutionally required. To apply the requirement ofunanimity to an enhancement finding that may carry only a maximum punishmentofone year in prison, but not to a finding that could have “a substantial impact on the jury’s determination whether the defendant should live or die” (People v. Medina (1995) 11 Cal.4th 694, 763-764), would by its inequity violate the fundamental constitutional requirement ofequal protection, and byits irrationality violate both the due process and cruel and unusual punishmentclauses of the California and United States Constitutions, as well as the Sixth Amendment’s guaranteeofa trial by jury. In Richardson v. United States (1999) 526 U.S.813, 815-816 [119 S.Ct. 707, 143 L.Ed.2d 985], the United States Supreme Court interpreted 21 U.S.C. 630:5(IV) (1992); Okla. Stat. Ann.tit. 21, § 701.11 (West 1993); 42 Pa. Cons. Stat. Ann. § 9711(c)(1)(iv) (1982); S.C. Code Ann. § 16-3-20(C) (Law. Co-op. 1992); Tenn. Code Ann., § 39-13-204(g) (1993); Tex. Crim. Proc. Code Ann.§ 37.071 (West 1993). 280 section 848(a), and held that the jury must unanimously agree on whichthree drug oesviolations constituted the “continuing series of violations’” necessary for a continuing criminal enterprise [CCE] conviction. The high court’s reasonsforthis holding are instructive: The statute’s word “violations” covers many different kinds of behavior of varying degrees of seriousness. ... At the same time, the Government in a CCE case may well seek to prove that a defendant, charged as a drug kingpin, has been involved in numerous underlying violations. The first of these considerations increases the likelihood that treating violations simply as alternative means, by permitting a jury to avoid discussion of the specific factual details of each violation, will cover up wide disagreement among the jurors about just what the defendant did, and did not, do. The second consideration significantly aggravates the risk (present at least to a small degree whenever multiple means are at issue) that jurors, unless required to focus upon specific factual detail, will fail to do so, simply concluding from testimony, say, of bad reputation, that where there is smoke there must be fire. (Id.at p. 819.) These reasons are doubly applicable whenthe issue is life or death. Where a statute permits a wide range ofpossible aggravators, as in California, and the prosecutor offers up multiple theories or instances of alleged aggravation,as here, unless the jury is required to agree unanimously as to the existence of each aggravator to be weighed on death’sside ofthe scale, there is a grave risk (a) that the ultimate verdict will cover up wide disagreement amongthe jurors about just what the defendant did and did not do and (b) that the jurors, not being forced to 281 do so, will fail to focus upon specific factual detail and simply conclude from a wide array of proffered aggravators that where there is smoke there mustbe fire, and on that basis conclude that death is the appropriate sentence. Therisk of such an inherently unreliable decision-making process is unacceptablein a capital context. The ultimate decision ofwhether or not to impose death is indeed a “moral” and “normative” decision. (People v. Hawthorne, supra, 4 Cal.4th at p. 79; People v. Hayes, supra, 52 Cal.3d at p. 643.) However, Ring and Blakely makeclear that the findings of one or more aggravating circumstances andthat the aggravating circumstances outweigh mitigating circumstances are prerequisite to considering whetherdeath is the appropriate sentence in a California capital case. These are precisely the type offactual determinations for which appellant is entitled to unanimousjury findings beyond a reasonable doubt. F. The Penalty Jury Should Have Been Instructed on the Presumption of Life In noncapital cases, where only guilt is at issue, the presumption of innocenceis a basic componentofa fair trial, a core constitutional and adjudicative valuethat is essential to protect the accused. (See Estelle v. Williams (1976) 425 U.S. 501, 503 [96 S.Ct. 1691, 48 L.Ed.2d 126].) In the penalty phase of a capital case, the presumption oflife is the correlate of the presumption of innocence. Paradoxically, however, although the stakes are much higherat the penalty phase,there is no statutory requirementthat the jury be instructedasto the 282 presumptionoflife. (See Note, The Presumption ofLife: A Starting Pointfor Due Process Analysis ofCapital Sentencing, 94 Yale L.J. 351 (1984); cf. Delov. Lashley (1983) 507 U.S. 272 [113 S.Ct. 1222, 122 L.Ed.2d 620].) Appellant acknowledges that without analysis this Court has held that the California and United States Constitutions do not require that the jury must be instructed on the presumptionoflife. (See, i.e., People v. Loy (2011) 52 Cal.4th 46, 78; People v. Gonzales (2011) 51 Cal.4th 894, 958; People v. Rundle (2008) 43 Cal.4th 76, 199; People v. Jones (2003) 29 Cal.4th 1229, 1267.) For the reasonsset forth below, the Court’s conclusions are unsoundand should be reevaluated. Appellant submits that the trial court’s failure to instruct the jury that the law favors life and presumeslife imprisonment without parole to be the appropriate sentence violated appellant’s right to due process oflaw (U.S. Const., 14th Amendment; Cal. Const. art. I, §§ 7 & 15), his right to be free from cruel and unusual punishment and to have his sentence determinedin a reliable manner (U.S. Const.. 8th and 14th Amendments; Cal. Const. art. I, § 17), and his right to the equal protection of the laws. (U.S. Const., 14th Amendment; Cal. Const., art. I, § 7.) In People v. Arias (1996) 13 Cal.4th 92 (1996), this Court held that an instruction on the presumptionoflife is not necessary in California capital cases, in part because the United States Supreme Court has held that “the state may otherwise structure the penalty determination asit sees fit,” so long as state law 283 properly limits death eligibility. (/d. at p. 190; see also People v. Dunkle (2005) 36 Cal.4th 861, 940.) However, as the other subsections of this argument, as well as Arguments VII and [X, demonstrate, California’s death penalty law is remarkably deficient in the protections needed to ensure the consistent and reliable imposition of capital punishment. Therefore, a presumption oflife instruction is constitutionally compelled or required. G. Conclusion Asset forth above, the trial court violated appellant’s federal constitutional rights by failing to set out the appropriate burden ofproof and the unanimity requirement regarding the jury’s determinationsat the penalty phase in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and their California constitutional counterparts. Therefore, appellant’s death sentence mustbe reversed. 284 IX THE USE OF CALJIC NO.8.88, DEFINING THE SCOPE OF THE JURY’S SENTENCING DISCRETION AND THE NATURE OFITS DELIBERATIVE PROCESS, VIOLATED APPELLANT’S FUNDAMENTAL RIGHTSTO A FAIR TRIAL, DUE PROCESS, EQUAL PROTECTION, AND A RELIABLE DETERMINATION OF PENALTY GUARANTEEDBY THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION Asdiscussed in Arguments VII and VIII, supra, the trial court instructed the jury in the language ofCALJIC No.8.88. (See 4 CT 986; 53 RT 6858-6860.) The use ofCALJIC No.8.88 wasconstitutionally flawed. Theinstruction did not adequately convey severalcritical deliberative principles and was misleading and vaguein crucial respects. Whether considered singly or together, the flaws violated appellant’s fundamentalrights to due process,fair trial by jury, and a reliable penalty determination guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution and require reversal of the sentence. (See, e.g., Mills v. Maryland, supra, 486 U.S.at pp. 383-384.) Appellant acknowledgesthat this Court has consistently held that the use of CALJIC No.8.88 defining the jury’s sentencing discretion andits deliberative process doesnotviolate appellant’s rights to a fair trial, due process, equal protection, and a reliable penalty determination under the United States Constitution. (See,i.e., People v. Lee (2011) 51 Cal.4th 620, 652; People v. Russell (2010) 50 Cal.4th 1228, 1272-1273; People v. Moon (2005) 37 Cal.4th 1, 42; People v. Lomax (2010) 49 Cal.4th 530, 595.) For the reasonsset forth below, 285 however, the Court’s analysis and reasoning are unsound and should be reevaluated. A. The Use CALJIC No. 8.88 Caused the Jury’s Penalty Choice to Turn on an Impermissibly Vague and Ambiguous Standard that Failed to Provide Adequate Guidance Under CALJIC No.8.88, the decision to impose a death sentence on appellant hinged on whetherthe jurors were “persuadedthat the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants death instead oflife without parole.” (1 CT 986; 53 RT 6860.) The words “so substantial,” however, provided the jurors with no guidance as to “what they have to find in order to impose the death penalty... .” (Maynard v. | Cartwright, supra, 486 U.S.at pp. 361-362.) The use of this phrase violatesthe Eighth and Fourteenth Amendments becauseit creates a standard thatis vague, directionless, and impossible to quantify. The phrase is so varied in meaning and so broad in usage that it cannot be understood in the context of deciding between life and death and invites the sentencer to impose death through the exercise of “the kind of open-ended discretion which was held invalid in Furman v. Georgia ... .” (dd. at p. 362.) Indeed, CALIIC No.8.88 here permitted the jury in its discretion to create its own capital sentencing rules untethered to a statutory base or constitutional mandate. It is noteworthy that the Supreme Court of Georgia has found that the word “substantial” causes vagueness problems whenusedto describe the type ofprior 286 criminal history jurors may consider as an aggravating circumstancein a capital case. Indeed, the Georgia Supreme Court in Arnold v. State (1976) 236 Ga. 534 [224 S.E.2d 386], held that a statutory aggravating circumstance which asked the sentencer to consider whether the accused had “‘a substantial history of serious assaultive criminal convictions” did “not provide the sufficiently ‘clear and objective standards’ necessary to controlthe jury’s discretion in imposing the death penalty.” (/d. at p. 391; see also Zant v. Stephens (1983) 462 U.S. 862, 867, fn. 5.) As to the word “substantial,” the Arnold court stressed: Black’s Law Dictionary defines “substantial” as “of real worth and importance,” “valuable.” Whether the defendant’s prior history of convictions meets this legislative criterion is highly subjective. While we might be more willing to find such language sufficient in another context, the fact that we are here concerned with the imposition of the death penalty compelsa different result. (Arnold v. State, supra, 224 S.E.2d at p. 392 [footnote omitted].)~° Appellant acknowledgesthat this Court has distinguished Arnold based on the “context of its usage.” (People v. Foster (2010) 50 Cal.4th 1301, 1366; People v. Breaux (1991) 1 Cal.4th 281, 316, fn. 14; see also People v. Coffman and Marlow (2004) 34 Cal.4th 1, 123, 124.) Nevertheless, the Court’s dismissal of Arnold does not specify what those “differences” are, or how they impact the °°/ The United States Supreme Court has specifically recognized the portion ofthe Arnold decision that invalidated the “substantial history” factor on vagueness grounds. (Gregg v. Georgia, supra, 428 U.S. at p. 202.) 287 validity ofArnold’s analysis. Of course, Foster, Breaux, Arnold, andthis case, as all cases, are factually different; their differences are not constitutionally significant, and do not undercut the Georgia Supreme Court’s reasoning. All three cases involve claimsthat the language of an important penalty phasejury instruction is “too vague and nonspecific to be applied evenly by a jury.” (Arnold v. State, supra, 224 S.E.2d at p. 392.) The instruction in Arnold concerned an aggravating circumstancethat used the term “substantialhistory of serious assaultive criminal convictions”(ibid., italics added), while the instruction here, as the one in Foster and Breaux, uses that term to explain how jurors should measure and weigh the “aggravating evidence” in deciding on the correct penalty. Accordingly, while Arnold and the California cases using CALJIC No.8.88 are indeed different, they have at least one commoncharacteristic -- they all involve penalty-phaseinstructionsthat fail to “provide the sufficiently ‘clear and objective standards’ necessary to control the jury’s discretion in imposing the death penalty.” (Ud. at p. 391.) Moreover, the Court in Foster and Breaux, for example, failed to consider that the use ofthe “substantia!” language in CALJIC No. 8.88 arguably givesrise to more severe problems than those the GeorgiaSupreme Court identified in the use ofthat term in Arnold. Even this Court’s continuing explanation and approval of CALJIC No. 8.88 in such cases as People v. Smith (2005) 35 Cal.4th 334 that the instruction does not compel the jury to find that death is the only is the only appropriate sentence if aggravation is so “substantial” in comparison with the 288 mitigating circumstances, the “substantial” language used in CALJIC No.8.88, or wordsofsimilar breadth, do not serve to avoid “reducing the penalty decision to a mere mechanical calculation.” (/d. at p. 370.) Indeed, there is nothing about the language ofCALJIC No.8.88 that “implies any inherentrestraint on the arbitrary and capriciousinfliction of the death sentence.” (Godfrey v. Georgia (1980) 446 U.S. 420, 428.) The words “so substantial” are far too amorphousto guide a jury in deciding whether to impose a death sentence. (See Stringer v. Black (1992) 503 U.S. 222 [112 S.Ct. 1130, 117 L.Ed.2d 367].) Because the instruction rendered the penalty determination unreliable (U.S. Const., 8th & 14th Amendments), the judgment of death must be reversed. B. CALJIC No.8.88 Failed to Inform the Jurors that the Central Determination is Whether the Death Penalty is the Appropriate Punishment, Not Simply an Authorized Penalty The ultimate question in the penalty phase of any capital case is whether death is the appropriate penalty. (Woodson v. North Carolina, supra, 428 U.S.at p. 305; People v. Edelbacher (1989) 47 Cal.3d 983, 1037.) Indeed, this Court consistently has held that the ultimate standard in California death penalty casesis “which penalty is appropriate in the particular case.” (People v. Brown (1985) 40 Cal.3d 512, 541, rev'd on other grounds, California v. Brown (1987) 479 U.S. 538 [107 S.Ct. 837, 93 L.Ed.2d 934] [jurors not required to vote for the death penalty unless, on weighing the factors, they decide it is the appropriate penalty underall the circumstances]; accord, People v. Champion (1995) 9 Cal.4th 879, 948; People 289 v. Milner (1988) 45 Cal.3d 227, 256-257; see also Murtishaw v. Woodford (9th Cir. 2001) 255 F.3d 926, 962, cert. den. 535 U.S. 935.) Nevertheless, CALJIC No.8.88 did not make this standard of appropriateness clear. Bytelling jurors that they could return a judgmentof death if the aggravating evidence “warrants death instead of life without parole” (1 CT 986; 53 RT 6860), the instruction failed to inform the jurors that the central inquiry was not whether death was “warranted,” but whetherit was appropriate. | The Court has upheld the “warranted” language ofCALJIC No.8.88 (see, e.g., People v. Nelson (2011) 51 Cal.4th 198, 217; People v. Bramit (2009) 46 Cal.4th 1221, 1249) andthatthe pattern instruction “adequately explains the circumstances in which the jury may return a verdict ofdeath.” (People v. Lewis (2009) 46 Cal.4th 1255, 1315; People v. Moon (2005) 37 Cal.4th 1, 42-44.) In so doing, the Court hasfailed to consider that whether death is “warranted”is far different in meaning and significance than whether death is the “appropriate” penalty. These two determinations are not the same. A rational juror could findin a particular case that death was warranted, but not appropriate, because the meaning of “warranted”is considerably broader than that of “appropriate.” Merriam-Webster’s Collegiate Dictionary (10th ed. 2001) defines the verb “warrant” to mean “to serve as or give adequate ground for” doing something. (Jd. at p. 1328.) By contrast, “appropriate”is defined as “especially suitable or compatible.” (/d. at p. 57.) Thus, a verdict that death is “warranted” might mean simply that the jurors found, on weighing the relevant factors, that such a sentence 290 was permitted. That is a far different than the finding the jury is actually required to make: that death is an “especially suitable,” fit, and proper punishment, i.e., that it is appropriate. Because the terms “warranted” and “appropriate” have such different meanings, it is clear why the United States Supreme Court’s Eighth Amendment jurisprudence has demandedthat a death sentence must be based on the conclusion that death is the appropriate punishment, not merely thatit is warranted. To satisfy “[t]he requirement of individualized sentencing in capital cases” (Blystone v. Pennsylvania (1990) 494 U.S. 299, 307 [110 S.Ct. 1078, 108 L.Ed.2d 255]), the punishment mustfit the offender and the offense;i.e., it must be appropriate. To say that death must be warranted is essentially to return to the standards of the phase ofthe capital trial in which death eligibility is established. Jurors decide whether death is “warranted” by finding,in the first phase ofthetrial, the existence of a special circumstance that authorizes the death penalty in a particular case. (See People v. Bacigalupo (1993) 6 Cal.4th 457, 462, 464.) Thus, to say that death may be warranted or authorized is not the same as to say thatit is also appropriate. Although this Court has previously ruled otherwise (see People v. Breaux, supra, | Cal.4th at p. 316 [rejecting claim that the term “warrants”is too overbroad and permissive]; People v. Griffin (2004) 33 Cal.4th 536, 593 [rejecting Eighth and Fourteenth Amendment vaguenessattacks based onasserted operation ofthe word “warrants”]), use ofthe term “warrant”at the final, weighing stage of the penalty determination risks confusing the jury by blurring the distinction 291 between the preliminary determination that death is “warranted,” i.e., that the defendant is eligible for execution, and the ultimate determination thatit is appropriate to execute him orher. Theinstructional error involved in using the term “warrants” in CALJIC No. 8.88 here was not cured bythetrial court’s reference to a “justified and appropriate” penalty. (1 CT 986; 53 RT 6859-6860 [“In weighing the various circumstances, you determine under the relevant evidence which penalty is justified and appropriate by considering thetotality ofthe aggravating circumstances with thetotality ofthe mitigating circumstances”].) That instruction did nottell the jurors they could only return a death verdict if they found it appropriate. Moreover, the sentence containing the “justified and appropriate” language wasprefatory in effect and impact; the operative language, which expressly delineated the scope ofthe jury’s penalty determination, cameat the very end of the instruction, and told the jurors they could sentence appellantto death if they found it “warrant[ed].” Indeed, by referring to the “totality” ofthe circumstances, the instruction also conflicted with other instructions which sought — to inform the jury that even in the absence ofmitigating circumstances the death penalty would not necessarily be appropriate. (1 CT 986; 53 RT 6859-6860.) This crucial sentencing instruction violated the Eighth and Fourteenth Amendments by allowing the jury to impose a death judgment withoutfirst determining, as required by state law, that death was the appropriate penalty. The death judgmentis thus constitutionally unreliable (U.S. Const., 8th & 14th 292 Amends.), denies due process (U.S. Const., 5th & 14th Amends.; Hicks v. Oklahoma(1980) 447 US. 343, 346 [100 S.Ct. 2227, 65 L.Ed.2d 175}), and must be reversed. C. CALJIC No. 8.88 Failed to Inform the Jurorsthat if They Determined that Mitigation Outweighed Aggravation, They Were Required to Return a SentenceofLife Without the Possibility of Parole Section 190.3 directs, that after considering aggravating and mitigating factors, the jury “shall impose” a sentence of confinementin state prison for a term oflife without the possibility ofparole if “the mitigating circumstances outweigh the aggravating circumstances.” (§ 190.3.)°' The United States Supreme Court has held that this mandatory language is consistent with the individualized consideration of the defendant’s circumstances required under the Eighth Amendment. (See Boyde v. California (1990) 494 U.S. 370, 376-377 [110 S.Ct. 1190, 108 L.Ed.2d 316]; see also Woodson v. North Carolina (1976) 428 U.S. 280, 304 [96 S.Ct. 2978, 49 L.Ed.2d 944][in capital cases, the fundamental respect for humanity underlying the Eighth Amendmentrequires consideration of the character and record ofthe individual offender and the circumstancesofthe particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death] (plurality opinion of Stewart, Powell, and Stevens, *!/ The statute also states that if aggravating circumstances outweigh mitigating circumstances, the jury “shall impose” a sentence of death. This Court has held, however,that this formulation ofthe instruction improperly misinformed the jury regarding its role, and disallowed it. (See People v. Brown, supra, 40 Cal.3datp. 544, fn. 17.) 293 JJ.); Jurek v. Texas (1976) 428 U.S. 262, 272 [96 S.Ct. 2950, 49 L.Ed.2d 929] [individualized sentencing determination required by Eighth Amendment].) This mandatory statutory language, however, was not includedin the text of CALJIC No. 8.88 as read to the jury in this case. This instruction only addresses directly the imposition ofthe death penalty and informsthejury that the death penalty may be imposed if aggravating circumstances are “so substantial” in comparison to mitigating circumstances that the death penalty is warranted. (1 CT 986; 53 RT 6860.) While the phrase “so substantial” plainly implies some degree of significance, it does not properly convey the “greater than”test mandated by section 190.3. The instruction by its terms would permit the imposition of a death penalty whenever aggravating circumstances were merely “of substance” or “considerable,” even if they were outweighed by mitigating circumstances. By failing to conform to the specific mandate of section 190.3, the instruction given to appellant’s jury violated the Fourteenth Amendmentto the United States Constitution. (See Hicks v. Oklahoma, supra, 447 U.S.at p. 346.) In addition, the instruction improperly reduced the prosecution’s burden of | proofbelow that required by section 190.3. An instructional errorthat misdescribes the burden ofproof, and thus“vitiates ail the jury’s findings,” can neverbe harmless. (Sullivan v. Louisiana (1993) 508 U.S. 275, 281 [113 S.Ct. 2078, 124 L.Ed.2d 182] (italics in original).) This Court has found the formulation in CALJIC No. 8.88 permissible because “[t]he instruction clearly stated that the death penalty could be imposed 294 onlyifthe jury found that the aggravating circumstances outweighed [the] mitigating.” (People v. Duncan (1991) 53 Cal.3d 955, 978.) The Court reasoned that since the instruction stated that a death verdict requires that aggravation outweigh mitigation, it was unnecessary to instruct thejury ofthe converse. The Duncanopinioncites no authority for this proposition, and appellant respectfully offers that the Court’s ruling conflicts with numerousother opinions that have disapprovedinstructions emphasizing the prosecution theory ofa case while minimizing or ignoring that of the defense. (See, e.g., People v. Moore (1954) 43 Cal.2d 517, 526-529; People v. Costello (1943) 21 Cal.2d 760; People v. Kelley (1980) 113 Cal.App.3d 1005, 1013-1014; People v. Mata (1955)133 Cal.App.2d 18, 21; see also People v. Rice (1976) 59 Cal.App.3d 998, 1004 [instructions required on “every aspect” of case, and should avoid emphasizingeither party’s theory]; Reagan v. United States (1895) 157 U.S. 301, 310 [15 S.Ct. 610, 39 | L.Ed.709].)” *2/ There are due process underpinnings to these holdings. In Wardius v. Oregon (1973) 412 U.S. 470, 473, fn. 6 [93 S.Ct. 2208, 37 L.Ed.2d 82], the United States Supreme Court warned that“state trial rules which provide nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant’s ability to secure a fair trial” violate the defendant’s due process rights under the Fourteenth Amendment. (See also Washington v. Texas (1967) 388 U.S. 14, 22 [87 S.Ct. 1920, 18 L.Ed.2d 1019]; Gideon v. Wainwright (1963) 372 U.S. 335, 344 [83 S.Ct. 792, 9 L.Ed.2d 799]; Izazaga v. Superior Court (1991) 54 Cal.3d 356, 372-377;cf. Goldstein, The State and the Accused: Balance ofAdvantage in Criminal Procedure (1960) 69 Yale L.J. 1149, 1180-1192.) Noting that the due process clause “does speak to the balance of forces between the accused and his accuser,” Wardius held that in the absence of a strong showingofstate interests to the contrary, “there “must be a two-waystreet” as between the prosecution and the defense. (Wardius v. Oregon, supra, 412 US. at p. 474.) Though Wardius 295 The Court’s decision in People v. Moore (1954) 43 Cal.2d 517is instructive on this point. There, the Court stated the following about a set of one- sided instructions on self-defense: It is true that the . . . instructions . . . do not incorrectly state the law ... , but they stated the rule negatively and from the viewpoint solely of the prosecution. To the legal mind they would imply {their corollary], but that principle should not have been left to implication. The difference between a negative and a positive statement of a rule of law favorable to one or the other of the parties is a real one, as every practicing lawyer knows. ... There should be absolute impartiality as between the People and the defendant in the matter of instructions, including the phraseology employedin the statement of familiar principles. (id. at pp. 526-527 [internal quotation marks omitted].) In other words, contrary to the apparent assumption in Duncan, the law doesnot rely on jurors to infer one rule from the statement of its opposite. Noris a pro-prosecution instruction saved by the factthat it does notitself misstate the law. Even assuming it was a correct statementoflaw, the instruction at issue here stated only the conditions under which a death verdict could be returned and contained no statement ofthe conditions under whicha verdict oflife was required. Thus, Mooreis squarely on point. It is well-settled that courts in criminaltrials must instruct the jury on any involvedreciprocal discovery rights, the same principle should apply to jury instructions. 296 defense theory supported by substantial evidence. (See People v. Glenn (1991) 229 Cal.App.3d 1461, 1465; United States v. Lesina (9th Cir. 1987) 833 F.2d 156, 158.) The denial of this fundamentalprinciple in appellant’s case deprived him of due process. (See Evitts v. Lucey (1985) 469 U.S. 387, 401 [105 S.Ct. 830, 83 L.Ed.2d 821]; Hicks v. Oklahoma, supra, 447 U.S.at p. 346.) Moreover, CALJIC No.8.88 is not saved by thefact that it is a sentencing instruction as opposed to one guiding the determination of guilt or innocence, since any reliance on such a distinction would violate the equal protection clause ofthe Fourteenth Amendment. Individuals convicted of capital crimes are the only class of defendants sentencedbyjuries in this state, and they are as entitled as noncapital defendants -- if not moreso -- to the protections the law affordsin relation to prosecution-slanted instructions. Indeed, appellant can conceive ofno government interest, much less a compelling one, served by denying capital defendants such protection. (See U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7& 15; Plylerv. Doe (1982) 457 U.S. 202, 216-217 [102 S.Ct. 2382, 72 L.Ed.2d 786] [‘“‘it is appropriate to enforce the mandate of equal protection by requiring the State to demonstrate that its classification has been precisely tailored to serve a compelling governmentalinterest.”].) Moreover, the slighting of a defense theory in instructionsto the jury has been held to deny not only due process,but also the right to a jury trial because it effectively directs a verdict as to certain issues in the defendant’s case. (See Zemina v. Solem (D.S.D. 1977) 438 F.Supp. 455, 469-470, aff'd and adopted, 297 Zemina v. Solem (8th Cir. 1978) 573 F.2d 1027, 1028; cf. Cool v. United States (1972) 409 U.S. 100, 101-104 [93 S.Ct. 354, 34 L.Ed.2d 335] [disapproving instruction placing unauthorized burden on defense].) Accordingly, the defective CALJIC No.8.88 instruction violated appellant’s Sixth Amendmentrights as well. For these further reasons, reversal of his death sentence is required. D. Conclusion Asset forth above, the trial court’s mainsentencing instruction, CALIJIC No. 8.88, was impermissibly vague in crucial respects; denied appellant fundamentalrights to a fair penalty trial by jury; failed to comply with the requirements of the due process and equal protection; and failed to assure a reliable determination ofpenalty in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. Therefore, appellant’s sentence of death must be reversed. 298 X APPELLANT’S DEATH SENTENCE VIOLATES INTERNATIONAL -LAW, WHICHIS BINDING ON THIS COURT, AS WELL AS THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION To the extent that international legal normsare incorporated into the Eighth Amendment determination of evolving standards of decency, and because internationaltreaties ratified by the United States are binding onstate courts, the death penalty as administered in California, and specifically in appellant’s case, is invalid. Appellant acknowledges that the Court has repeatedly rejected arguments that the use ofthe death penalty violates international law, evolving international norms, and the Eighth Amendmentto the United States Constitution. (See,i.e., People v. Nelson (2011) 51 Cal.4th 198, 227; People v. Lee (2011) 51 Cal.4th 620, 654; People v. Thomas (2011) 51 Cal.4th 449, 507; People v. Moore (2011) 51 Cal.4th 386, 417; People v. Perry (2006) 38 Cal.4th 302, 322.) For the reasonsset forth below, the Court’s analysis and reasoning are unsound and should be | reevaluated. The Eighth Amendment, applicable to the states through the Fourteenth Amendment, providesthat “[e]xcessive bail shall not be required, nor excessive fines imposed,norcruel and unusual punishments inflicted.” The Amendment proscribes “all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive.” (Atkins v. Virginia (2002) 536 U.S. 304, 311, 299 fn. 7 [122 S.Ct. 2242, 153 L.Ed.2d 335].) The High Court explained in Atkins (id. at p. 311) that the Eighth Amendment’s protection against excessive or cruel and unusual punishments flows from the basic “precept ofjustice that punishmentfor [a] crime should be graduated and proportionedto [the] offense.” (Weemsv. United States (1910) 217 US. 349, 367 [30 S.Ct. 544, 54 L.Ed. 793].) Whether this requirement has been fulfilled is determined not by the standardsthat prevailed when the Eighth Amendment wasadopted but by the normsthat “currently prevail.” (Atkins v. Virginia, supra, 536 U.S.at p. 311; see also Sosa v. Alvarez-Machain (2004) 541 U.S. 692, 729 [124 S.Ct. 2739, 159 L.Ed.2d 718] [“For two centuries we have affirmed that the domestic law ofthe United States recognizes the law of nations.”].) The Eighth Amendment“draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.” (Trop v. Dulles (1958) 356 U.S. 86, 100-101 [78 S.Ct. 590, 2 L.Ed.2d 630] (plurality opinion).) This is because “[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standarditselfremains the same, butits applicability must changeas the basic moresofsociety change.” (Furman v. Georgia (1972) 408 U.S. 238, 382 [92 S.Ct. 2726, 33 L.Ed.2d 346] (Burger,C.J., dissenting).) Currently, in American jurisprudence, there is an ongoing debate on the propriety and desirability ofUnited States courts learning from what foreign courts are doing in general and especially in constitutional matters. (See generally David J. Seipp, Our Law, Their Law, History, and the Citation ofForeign Law, 86 300 B.U.L.Rev. 1417 (2006) [describing this debate]; Justices Antonin Scalia & Stephen Breyer, Discussion at the American University Washington College of Law: Constitutional Relevance ofForeign Court Decisions (Jan. 13, 2005) [engagingin this debate]; Steven G. Calabresi, Importing Constitutional Norms Jrom a “Wider Civilization”: Lawrence and the Rehnquist Court’s Use ofForeign and International Law in Domestic Constitutional Interpretation, 65 OhioSt. L.J. 1283, 1288-97 (2004) [comparing expository, empirical, and substantive uses of foreign law and approving ofthe first two while disapproving ofthe third].) In addition, recent developments in Eighth Amendmentjurisprudence and evolving standards of decency, however, undermine the Court’s conclusions and support appellant’s claims. Appellant notes the following, significant developmentsin the evolution of international normsin respect to the death penalty: 1. The United States Supreme Court affirmedthat it has looked and will continued to look to the laws of other countries andto international authorities as instructive for its interpretations of the Eighth Amendment’sprohibition ofcruel and unusual punishments and in determining whether a punishmentis cruel and unusual. (Roper v. Simmons (2005) 543 U.S. 551, 567, 575-577 [125 S.Ct. 1183, 161 L.Ed.2d 1].) 2. Every nation on the European continent has now abolished the death penalty in law except for the Russian Federation, whichis “abolitionist in practice.” (Amnesty International, Abolitionist and Retentionist Countries [as 301 updated], at http://web//amnesty.org. 3. The United States Constitution and Supreme Court jurisprudence recognize that international law is part of the law ofthis land, and that international treaties have supremacyin this country. (u.S. Const., art. VI, § 2.) Customary international law,or the “law of nations,” is equated with federal common law. (Restatement Third of the Foreign Relations Law of the United States (1987), pp. 145, 1058; U.S. Const., art. I, § 8 [Congress has authority to define offenses against the law of nations].) This Court has the authority and obligation to consider possible violations of international law, even where the conduct complainedofis not currently a violation of domestic law. Most particularly, this Court should enforce | international law where that law provides moreprotections for individuals than does domestic law. Evolving standards of decency embrace and express respect for the dignity of the person, and the punishmentofcriminals must conform tothatrule. Punishmentis justified under one or more ofthree principal rationales: rehabilitation, deterrence, and retribution. (See Harmelin v. Michigan (1991) 501 U.S. 957, 999 [111 S.Ct. 2680, 115 L.Ed.2d 836] (Kennedy,J., concurring in part and concurring in judgment).) The natural response to heinouscrimesis a “thirst for vengeance.” (Baze v. Rees (2008) 553 U.S. 35 [128 S.Ct. 1520, 1548, 170 L.Ed.2d 420] (Stevens, J., concurring opn.).) When the law punishes by death, the law descendsinto brutality, transgressing the Eighth Amendmentproscription 302 against cruel and unusual punishment, applicable to the states through the Due Process Clause ofthe Fourteenth Amendment (see Robinsonv. California (1962) 370 US. 660, 666 [82 S.Ct. 1417, 8 L-Ed.2d 758]); constitutes “gratuitous infliction of suffering” (Gregg v. Georgia (1976) 428 US. 153, 183 [96 S.Ct. 2909, 49 L.Ed.2d 859]); and violates the commitment to decency andrestraint embodiedin the California and United States Constitutions. Appellant, therefore, asks the Court to reconsider its position on this issue and, accordingly, to reverse the judgment ofdeath imposed on appellantin this case as incompatible with current and evolving standards ofinternational law as applied to or as binding on the laws of the United States and those of the several states, including California, and as contrary to the Eighth Amendmentto the United States Constitution. 303 XI THE CUMULATIVE EFFECT OF ERRORS UNDERMINED THE FUNDAMENTAL FAIRNESS OF TRIAL AND THE RELIABILITY OF THE DEATH JUDGMENTIN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION Evenifno single error in isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors may be so harmful that reversalis required. (See Cooperv. Fitzharris (9th Cir. 1978) 586 F.2d 1325, 1333 (en banc) [prejudice may result from the cumulative impact ofmultiple deficiencies”); Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643 [94 S.Ct. 1868, 40 L.Ed.2d 431]; [cumulative errors may so infect “the trial with unfairness as to makethe resulting conviction a denial of due process”]; Greer v. Miller (1987) 483 U.S. 756, 764 [107 S.Ct. 3102, 97 L.Ed.2d 618].) Reversal is required unless it can be said that the combinedeffect of all of the errors, constitutional and otherwise, was harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 U.S.at p. 24; People v. Williams (1971) 22 Cal.App.3d 34, 58-59. Wherethe Court finds more than oneerror, it must carefully review not only the impact of each individual error, but the combined impact ofall errors found.(See,e.g., People v. Catlin (2001) 26 Cal.4th 81, 180; People v. Jones (2003) 29 Cal.4th 1229, 1268; see also United States v. Frederick (9th Cir. 1996) 78 F.3d 1370, 1381 [cautioning against a “balkanized” harmless error analytical approach].) 304 The guilt phase errors includedthetrial court’s error in denying appellant’s motion for a change ofvenue (Argument J); the trial court’s conflict of interest involving his close and professional relationship with the prosecutor, and the consequent appearanceofbias and actualbias, requiredthetrial judge to disqualify himself (ArgumentII); insufficiency ofthe evidence to support appellant’s conviction of carjacking and to support first-degree felony murder predicated on the commission or attempted commission of a carjacking (Argument TH); and insufficiency of the evidence to support the special circumstance of carjacking-murder (Argument IV). The cumulative effect of these guilt-phase errors infected appellant’s trial so as to render the proceedings fundamentally unfair and a denial ofdue process (U.S. Const., 14th Amend.; Cal. Const., art.I, §§ 7 & 15; Donnelly v. DeChristoforo, supra, 416 U.S.at p. 643), and appellant’s conviction, therefore, must be reversed. (See Killian v. Poole (9th Cir. 2002) 282 F.3d 1204, 1211 [“even if no single error were prejudicial, where there are several substantial errors, ‘their cumulative effect may nevertheless be so prejudicial as to require reversal’”]; Harris v. Wood (9th Cir. 1995) 64 F.3d 1432, 1438-1439 [holding cumulative effect of the deficiencies in trial counsel’s representation requires habeasrelief as to the conviction]; United States v. Wallace (9th Cir. 1988) 848 F.2d 1464, 1475-1476 [reversing heroin convictions for cumulative error]; People v. Hill 1(1998) 17 Cal.4th 800, 844-845 [reversing guilt and penalty phasesofcapital case for cumulative prosecutorial misconduct]; People v. Holt (1984) 37 Cal.3d 436, 459 [reversing capital murder conviction for cumulative 305 error].) The death judgment mustalso be evaluated in light of the cumulative error occurring at both the guilt and penalty phases of appellant’s trial. (See People v. Hayes (1990) 52 Cal.3d 577, 644 [court considers prejudice of guilt phase instructional error in assessing that in penalty phase]; People v. Brown, supra, 46 Cal.3d at p. 466 [error occurring at the guilt phase requires reversal of the penalty determination if there is a reasonable possibility that the jury would have rendered a different verdict absentthe error]; In re Marquez (1992) 1 Cal.4th 584, 605, 609 [an error may be harmlessat the guilt phase but prejudicial at the penalty phase]; see also Taylor v. Kentucky (1978) 436 U.S. 478, 487-488 [98 S.Ct. 1930, 56 L.Ed.2d 468] [reviewing court is obliged to consider cumulative effect ofmultiple errors on sentencing outcome].) The errors committed at the penalty phase trial of appellant’s case included the trial court’s error in failing to instruct the jury on the appropriate use ofvictim- impact evidence (Argument V);the trial court’s error in permitting the state to retry appellant’s prior manslaughter conviction and elevate the previously adjudicated crime to murderin violation of the principles of collateral estoppel and res judicata, the constitutional proscription against double jeopardy, and appellant’s rights to due process, fair trial, and a reliable penalty determination (ArgumentVJ); the trial court’s erroneous instructions on the mitigating and aggravating factors in section 190.3 and the unconstitutional application ofthese sentencing factors at appellant’s penalty trial (Argument VII); the 306 unconstitutionality of section 190.3 and implementing jury instructions owing to the failure to set out the appropriate burden ofproof, as well as other constitutional infirmities (Argument VII); the use of CALJIC No.8.88 defining the scopeofthe jJury’s sentencing discretion andthe natureofits deliberative process additionally contain other constitutional defects (Argument [X); andthe fact that appellant’s death sentence violates international law (Argument X). The combined impact ofthe variouserrors in this case requires reversal of appellant’s convictions and death sentence. The cumulative effect ofthese errors infected appellant’s trial and resulted in a conviction fundamentally and inherently unfair, a denial of due process, and a constitutionally unreliable judgmentofdeath. (U.S. Const., Sth, 6th, 8th & 14th Amendments; Cal. Const. art. I, §§ 7 & 15.) While appellant did not expect a perfecttrial, he did expect, and was entitled to, a fair one. (Schneble v. Florida (1972) 405 U.S. 427, 432 [92 S.Ct. 1056, 31 L.Ed.2d 340]; Lutwak v. United States (1953) 344 U.S. 604, 619 [73 S.Ct. 481, 97 L.Ed.2d 593].) Accordingly, the combined and cumulative impact ofthe variouserrors in this case requires reversal of appellant’s conviction on all counts, and reversal of the special circumstances. (People v. Hill, supra, 17 Cal.4th at p. 847.) Reversal ofappellant’s deathjudgmentis also mandated precisely becauseit cannot be shown thatthe penalty errors, individually, collectively, or in combination with the errors that occurred at the guilt phase, had no effect on the penalty verdict. (See Hitchcock v. Dugger (1987) 481 U.S. 393, 307 399 [107 S.Ct. 1821, 95 L.Ed.2d 347]; Skipper v. South Carolina (1986) 476 U.S. 1, 8 [106 S.Ct. 1669, 90 L.Ed.2d 1]; Caldwell v. Mississippi (1985) 472 U.S.320, 341 [105 S.Ct. 2633, 86 L.Ed.2d 231].) 308 CONCLUSION Byreason ofthe foregoing, appellant Jerrold Johnson respectfully requests that the judgmentof conviction on all counts, the special circumstances, and the sentence of death in this case be reversed. DATED:May 25, 2012. Respectfully submitted, WILLIAM D. F Attorney at Law Attorneyfor Appellant Johnson CERTIFICATE OF COMPLIANCE I certify that the attached Appellant’s Opening Briefuses a 13-point Times New Roman font andcontains 77,965 words. I declare under penalty ofperjury under the laws ofthe State of California that the foregoingis true and correct. DATED: May25, 2012. 309 PROOF OF SERVICE RE: PEOPLE v. JOHNSON Supreme Court No. S093235 I, WILLIAM D. FARBER,declare under penalty of perjury under the laws of the State of California that I am counsel of record for defendant and appellant Jerrold E. Johnson in this case, and further that my business address is William D.Farber, Attorney at Law, 369-B Third Street # 164, San Rafael, CA 94901. On May 25, 2012, I served APPELLANT’S OPENINGBRIEF,by depositing each copy in a sealed envelope with postage thereon fully prepaid, in the United States Postal Service, at Henderson, NV, addressed respectively as follows: HON. KAMALAD. HARRIS Attorney General State of California 455 Golden Gate Ave. Suite 11000 San Francisco, CA 94102-3664 JERROLD E. JOHNSON P-99021 San Quentin State Prison San Quentin, CA 94974 HON. DON A. ANDERSON District Attorney Lake County 255 North ForbesStreet Lakeport, CA95453 CLERK, SUPERIOR COURT Lake County | Criminal Appeals 255 North Forbes Street, Lakeport, CA 95453 CALIFORNIA APPELLATE PROJECT 101 Second Street, Suite 600 San Francisco, CA 94105 ERIC GREEN Attorney at Law 2100 Tulare Street Suite 512 Fresno, CA 93721 I declare under penalty ofperjury underthe lawsofthe State of California that the foregoingis true and correct. DATED:May 25, 2012. WILLIAM . FARBER Declarant
