PEOPLE v. WILLIAMS (COREY)

Appellant's Reply Brief

Cal.April 27, 2011

28 IN THE SUPREME CGURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE ) DEATH PENALTY CASE OF CALIFORNIA, ) ) No. 8093756 Plaintiff/Respondent, ) ) V. ) (Contra Costa ) Superior Court COREY LEIGH WILLIAMS, ) No. 961903-02 SUPREME COURT Defendant/Appellant. ) FILED APR 37 20! Frederisk K. Ohirieh Gler APPELLANT’S REPLY BRIEF i S es —Henuty On Automatic Appeal From A Sentence Of Death From The Superior Court Of California, Contra Costa County The Honorable RICHARD ARNASON,Judge Presiding JEANNE KEEVAN-LYNCH Attorney at Law SBN 101710 P.O. Box 2433 Mendocino CA 95460 Tel: 707-895-2090 Attorney for Appellant COREY LEIGH WILLIAMS DEATH PENALTY TABLE OF CONTENTS [ntroduction 00... 0... cece ccecccnccccceceucecuuccaustcusecusccuvccauccausecauecauseuseeauseneseceesueceeuseaucusscuacenteteeseaacs I Argument I. The Trial Court’s Decision to Admit Evidence That Appellant Confessed to Correctional Officers after Being Threatened by Their Clerk Violated Appellant’s Rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and State Constitutional Corollaries A. Respondent’s forfeiture argumentis inapposite 0.0...eee B. Respondent’s arguments on the merits fail — 2. Mr. Corrieo’s attack on appellant was “state action” ........... 3. The correctional officers’ questioning of appellant coerced his confession by implying that the officers could not or would not protect appellant from inmate violence unless he answered their questions ............::::0008 4. Respondent’s “no custodial interrogation” arguments require new and unreasonable determinations at odds with our facts (a) Miranda Custody ..........cecedeebeeeseeeeeeesnseeesseenenas (b) Unterrogation oo.eeccceccssecessscessesestsceceesseeeesseeeees 5. Prosecutorial use of the confession violated the Right to Counsel and Massigh occcccccccccccscccsscessecessseensseesees 6. Use of the confession evidenceattrial Was not harmless ........ceccccccccecccccccecsccececsececceeuucccsceaueecesss Appellant was subjected to a “credible threat” of violence ... . 4 10 14 21 23 33 SiatorMNESSEISNacaoniet HEHE SEE CENA) tote rt yng ihe Bene IL. Ui. IV. Vi. VU. entptieStat tindtepeunrheetiammtlnnnchitesei petit oe we The Trial Court’s Decision to Allow the Prosecutor to Ask David Ross a Series of Leading and Argumentative Questions Falsely Suggesting That the State Had Guaranteed Ross’ Truthfulness Made it Appear Futile for the Defense to Object to Such Improper Prosecutorial Vouching and Violated Appellant’s Right to Due Process under the Sixth and Fourteenth Amendments and State Constitutional Corollaries A. Respondent’s forfeiture claim fails oo... ce eceeeeseereesseceeesseeeeseneteees 45 B. Respondent’s arguments on the merits fail oo... ic eceseesceseteeeeeeseeeee 48 The Penalty Judgment Must Be Reversed under Witherspoon/Witt and Gray v. Mississippi ....cccccccccccccseeecteettneeceeeetteceaeescaeeecueeecstseeeettseetseeess 54 The Trial Court Erred in Allowing Appellant to Proceed in Pro Per at the Penalty Phase Without Makingthe Inquiries and Exercising the Judicial Discretion Appropriate for an Untimely, Penalty-phase- only Faretta Motion ..ceeeceecsesccsccsssssccesecsseseceeneesaeeeseaeeateeseeeteeseeseeeeeeeeeesneeaes 61] The Trial Court Erred in Admitting, and in Refusing to Strike, Victim Impact Testimony Rendered by Sergio Corrieo Without Notice and Without the Requested Offer of Proof oo...ce eceescceeeteesteeenees 65 The Trial Court Should Have Giventhe Jury a Limiting Instruction on Victim Impact Evidence in Light of Appellant’s Request and the Duty to Instruct on the Principles ofLaw Raised by the Evidence.................... 71 The Trial Court Denied Appellant Due Process of Law Whenit Instructed the Jury That the Impact of an Execution on the Defendant’s Family Members Should Be Disregarded Unless it [Iluminates Some Positive Quality of the Defendant's Background or Character ..........ccccceceescececcesceeessenceesceeenseneessessesaeeeseneeeerensentens 78 ll VIII. The Trial Court’s Instruction to Weigh in Favor of Death Facts That IX, Not All Jurors Agreed Were Proved Beyond a Reasonable Doubt Violated Appellant’s Rights under the 6th, 8th, and 14th Amendments to the US Constitution, and under State Constitutional Corollaries, and Requires Reversal of the Penalty Judgment under the United States Supreme Court’s Decisions in Apprendi, Ring, Cunningham and Blakely _..... 85 The Prosecutor's Misleading Arguments Respecting Statutory Mitigation Factors and the Trial Court's Failure to Correct Those Arguments with Appropriately Specific Jury Instructions Precluded the Penalty Jury from Giving Meaningful Consideration and Mitigating Effect to Mitigating Facts, Denied Appellant’s Rights under the 6th, 8th, and 14th Amendments to the U.S. Constitution and under State Constitutional Corollaries, and Require Reversal of the Penalty Judgment A. Respondent’s forfeiture arguments are inappOSite 00.2... eeeeseeereeeeeeees 87 B. Respondent’s arguments fail on the merits ..........eeceesceeeeseeeeeeeeeeeeeees 92 C. The error was not harmless oo... eceeeeceeeeceseeeeeneeseceeceeenneeeeeeeseeeeeneeenaees 103 The Cumulative Effect of All the Errors Was an Unfair Trial and a Death Judgment That must Be Reversed underthe 6th, 8th, and 14th Amendmentsto the U.S. Constitution, and under State Constitutional Corollaries ......ccccceccccesssecesesccesseecssssccsnsesessecesssaeeessees 112 CONCLUSIONoceiceccececcecececceecesccseeeneceeserseneseesseseeesaeesseeeaesenessaeeitenseeagessaeseseenee 117 Word Count Certificate ..........cccccccccccccsecccccccuccececcccucsececcuussceesuuseeccecsusseseceuusceccuaaeeeees 118 Proof of Service lil ileeanORENEtAyRE Tye Rn ag TenantfeRRRTate Sone Rite nse towns TABLE OF AUTHORITIES CASES Abdul-Kabir v. Quarterman (2007) 550 U.S. 233 eeceeeeeseeeneeeteeseeeeeeeeetenes 82, passim Adamsv. Texas (1980) 448 U.S. 38 oceccccccesccessssseeceseeecseeeceesssesecsesseeeeeensssaaeeceeee 59 Apprendi v. New Jersey (2000) 530 US 466 ooococccccccccceeccssececseessesenseseseesseenseeneee 86 Arave v. Creech (1993) S07 U.S. 463 iccecccccccssccccessesenssecessseecessaeeeecenenaccesecsssseees 74 Arizona v. Fulminante (1991) 499 US 279 occcccccccscscesssecessseeecessseeeesssssaeees 6, passim Bey v. Morton (3% Cir. 1997) 124 F.3d 524 occcccccccccscscsesescseseesesesetessessecscsesesseeees 34 Booth v. Maryland (1987) 482 U.S. 49... ccccccsceeseseeeeceesaceseecessaeeesseeesssseseeseeeeestaeeeees 81 Brewer v. Quarterman (2007) 550 U.S. 286 ieecceceseeseeneeeeeseeceaeeeeeeneeeeeeteeeenees 81,91 Brownv. Payton (2005) 544 U.S. 133 ..ccccccccecccscccesseceetecsceceeeesseeecesaeessuseeeeesneeeees 89, 91 Cervantes v. Walker (9" Cir 1978) 589 F.2d 424 oooccccceccccessesscescscssesstsceserseseseeetcsesees 22 Chapman vy. California (1967) 386 U.S. 18 ecceeeeeceseceeneeeeeseeesieesseeeeeennevens 43, passim Colorado v. Connelly (1988) 479 US 157. ciecccceccescetesecsssecesseeereeeseeanecsseeesstaeevsnneees 19 Conner v. Donnelly (4'° Cir 1994) 42 F.3d 220 iceecccccccccsesesesssscscseetscscsssesscsesetecsesees 10 Denham v. Superior Court (1970) 2 Cal. 3d 557 cecceeceesescceseceseeeeeeeeeeceneeeenneeenecenneeees 58 Eddings v. Oklahoma (1982) 455 U.S. 104 voces ccsseecesecseeneessetseeeseeseneeeensens 79, passim Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15 oo. ceceeeeceeseeesseesteeees 67 Estelle v. McGuire (1991) 502 U.S. 62... .ccceccceecceeecceetseeeeeeeseeseeeesnenseeceaeesaeesnaeeeeeesreonaes 44 Estelle v. Smith (1981) 451 U.S. 454 ooeccececeeee cesses eeeesnteeseeeeresseeseeeseeeeeaeee 35, passim Fletcher v. Superior Court (2002) 100 Cal. App. 4th 386 oo.eeeeceesreeeteteeeeeees 64 IV e o Florer v. Congregation Pidyon Shevuyim, N.A. (9th Cir. Wash. 2010) 603 F.3d 1118 .. 10 Graham v. Florida (2010) = US __, 130 S.Ct. 2011 eeeeeeeeeeneeeeeeens 110 Gray v. Mississippi (1987) 481 U.S. 648 occcceecceeeeeenseeeteeteeestseesntenseeeas 55-57 Hitchcock v. Dugger (1987) 481 U.S. 393 iececcccccceeeece cette eecseeteeeesenseeeeeeeenieeeeens 83 Illinois v. Perkins (1990) 496 U.S. 292 veccsccccseccsssssssescssessssesssesssuesssesasesestesesuecanecesseeenses 24 Jackson v. Denno (1964) 378 U.S. 368 wo..cccccecccccesecessceecetseeecsseceeseeseeeeeeeesteeeeeetseseesaeeeeaas 8 Johnson v. Mississippi (1988) 486 U.S. 578 wceecececccesessecceeeeeeesseeseeseecesecesecesessessatenaees 128 Johnson v. Texas (1993) 509 U.S. 350 iceccccccccccscccetececessceseseeeseeessseeeesseeres 89, passim Lockett v. Ohio (1978) 438 U.S. S86 oo.cccccccccececccceccecscsceeeeeeeeeeesesneeeeeeeeseentsteaneeees 80, passim Maine v. Moulton (1985) 474 U.S. 159 ie cceccecceeceeseeeeeseeeeereeeeceseseneeaeceeeseetaseeees 34-36 Maryland v. Shatzer (2010) 599 U.S. [175 L.Ed 2d 1045,| 3130 S.Ct 1213... 23 Massiah v. United States (1964) 377 US. 200 ooececccceecccecesteeseeeseeeeneenneesaeeees 33-37 Maynard v. Cartwright (1988) 486 U.S. 356 occecccecceeeeeceneeeecneeeseeeeseseceeeeeenneeeees 74 McCleskey v. Kemp (1987) 481 U.S.279 icecceccecseeeseeeeeceeeeeseeeseeeeeeseaeeseseseeseeeees 79 McDade v. West (9th Cir. Cal. 2000) 223 F.3d 1135 ceceeceeceeteeeseeeeeeeeeeteetees 11 Miller v. Fenton (1985) 474 U.S. 104 occ ccccccceeceseceeseecseceeceesereeeeessesseseesecsesseesenees 6 Miller v. State (Ark. 2010) 2010 Ark Lo occccecceeceecsecceeesecneeeeeeeseeneeeaeeseeeseeseeseaeeaeenaes 68 Miranda v. Arizona (1966) 384 U.S. 436 oooeeeccceeeceeeeeeeeeeneeeeeeeeseettsenaes 5, passim Montanov. Hedgepeth (8th Cir. lowa 1997) 120 F.3d 844 ic ecececceesseeseeeeteeteeens 10 Morgan v. Illinois (1992) 504 U.S. 719 icceccecccccccceceeeseeeessecsseseseesseessecessaeereesseees 59-60 Nelson v. Quarterman (Sth Cir. 2006) (en banc) 472 F.3d 287 oo..ccccccccccesceseeeeeeees 83-84 v «+ entdnnaetmnt inante:lagneNtcnaNenemcaa ee, lh ingenaeRadaelepetieaeSinte the SHE ona New York v. Quarles (1987) 467 U.S. 649 oooccccccececccssesessseesseeeessecessseeeesseeeens 17, 24-26 Payne vy. Tennessee (1991) S01 U.S. 808 oooccccccccccsecetecessseceessesensseeseesseeeen 68, passim Penry v. Johnson (2001) 532 U.S. 782 ieceecccscesceeseeseceseeseeeaeceeeeseeeteeeseeseeesssessseetensees 82 Penry v. Lynaugh (1989) 492 U.S. 302 eieecccecceseeceseeeceeeeeeeseeteseceeeeesaeeeseneeens 82, passim People v. Beeler (1995) 9 Cal.4th 953 ooo. ccessseceeceseesceccneceeeseesaeceeeeseeneetseneeteeenseeas 58 People v. Bemore (2000) 22 Cal.4th 809 ooieicceccccccceesscsseseesecesseesssseesseeseaees47, 69-70 People v. Birks (1998) 19 Cal.4th 108 occ ccceescsesscsesseeecseeecsseseeseaceeesseeeessssesssnees 86 People v. Bonilla (2007) 41 Cal.4th 313 ioc ccccececcsccesseecsseceeeseecesseeeessesesesseeeseeeeees 54 People v. Box (2000) 23 Cal.4th 1153 occceeecesecssseceeestesseesesenseeseeseeesseeeeaeeeees 100 People v. Brownlee (1977) 74 Cal.App.3d 921 ic ceiceccececceceseseeesesteesteseteeeseeeneraes 62 People v. Cahill (1994) 5 Cal. 4th 478 oon eceeccceceeseceseeeesneeeeeeeseeeeentecseesaeeeeeenereaee 62 People v. Carrington (2009) 47 Cal. 4th 145eeecaeeeeseeeereneenerenes 66, 77, 99, 100 People v. Chatman (2006) 38 Cal. 4th 344 oieeeeeeseeeseceneeeneeeeesenaeetseeseneennas 46 People v. Clark (1992) 3 Cal.4th 41 occeee cee eeseceneeceasesseeceeeesseeeeseecesenegs 62 People v. Claxton (1982) 129 Cal.App.3d 638 0.0...eeeeee eee reeteeecneenetenee 30-31 People v. Cruz (1964) 61 Cal.2d 861) icecececceccecsceseeecceessectaesenseessecesseeseevseseneeneenenees 44 People v. Daniels (1991) 52 Cal.3d 815 iicecesesecesecceseeneeseceseeneeseecenetesescneteseeeneees 5 People v. Davenport (1995) 11 Cal.4th L171eeeeseeseeeeseceseseseeensseneeeesserses 47 People v. Davis (2009) 46 Cal. 4th 539 ieeeeee eeteeensetseeeneteeeeeeeeeneenreeeaens 18, 26 People v. Dennis (1998) 17 Cal.4th 468 ooeeeeeeceecee terre ceeeneeceeeenseeeneeteaee 102 People v. Downey (2000) 82 Cal.App.4th 899 ooeeceeee cnecee cree eeeeneneenenieey 64 Vi e e e e e e 2 People v. Falsetta (1999) 21 Cal. 4th 903 oieceeescceesseeesenseeesssureeseeeeeeeeestateas 71 People v. Fierro (1991) 1 Cal.4th 1730 iccceecccccsecesescescsseecaeeeneesaeesneeseaecnestsessssstesaees 76 People v. Fudge (1994) 7 Cal. 4th L075 oicceeeecesceeeececeeneeeseeeseeceueeecneeeseaeeseneeseeesneeeres 71 People v. Green (1980) 27 Cal.3d Lecce cecccecccseeeereceeeneecesetesecesesneeceeeeesinessersesstnteeeeens 91 People v. Guerra (2006) 37 Cal. 4th 1067 ice eccccececsceeeecteeneesaeeeaeseneeseeseneeeennees 7 People v. Haley (2004) 34 Cal.4th 283 ccccccccsssssescssssesesssssseescssevsssssvecssensessneassenesesseneeen 24 People v. Harris (1981) 28 Cal.3d 935 oiceeeeccceceeceeseceecececseecneececeeceneeseeesseeeeeneeeneeess 51 People v. Haydel (1974) 12 Cal.3d 190 ooiceeceeccsceccesceccseeeecenneeeesaeeeeeueeseaneeeesnesnineeees 52 People v. Heard (2004) 31 Cal.4™ 946 oicccccccccccccscsscscscsescseseeceseecseseseseseeesesnssseeeseaeeees 93 People v. Hill (1992) 3 Cal.4th 959 oie ceecceeseceseceseeeeeceeecseeveresaeeseneseeseetessessssenage 117 People v. Hillhouse (2002) 27 Cal.4th 469 oeeeciceessesssesseceeceeeenreeneeesseteeneaeteas 86 People v. Jacobs (1987) 195 Cal.App.3d 1636 oo... ieceesessteetsesteceeeeseeeeseeteeteeenees 4 People v. Jennings (2010) 50 Cal.4th 616 oocececcceseseeseneeeeeecsnresseeeseaeessaeesacecnaaes 73 People v. Johnson (2004) 119 Cal. App. 4th 976 oie eeceeeceececeteeceteeeseeereaeeeneeeneeees 48 People v. Jones (1998) 17 Cal.4th 279 ccccccccccccssccsscesceesecsecesseessecseccseesseeesenseesses 7 People v. Kelly (1992) 1 Cal.4th 495. vcccccccsssscsssseesssecssssssssuecssuessstvecssuesessecsssueesravecessvess 4 People v. Livadatis (1992) 2 Cal.4th 759 occcccccccccsseeseesseceseceeeseeeneecsecessessseeseeeeeeneens 91 People v. Lucero (1988) 44 Cal. 3d 1006 oo. eccieeceesecceseceeceeceeceeceesesteseeeeneteneenees 83, 88 People v. Lucero (1987) 190 Cal.App.3d 1065 .o...ccccccccceesecseesecseeeseesessesseenseeseeeeees 33 People v. Maury (2003) 30 Cal.4th 342 ooicieecccccccccccseceteeeesessesateseeseseseeetseseeaeens 5 People v. Mayfield (1997) 14 Cal.4th 668 oo.cccccccccccsccseceeceeeesessecseceseesseenseeeeesseenaes 58 vil People v. Melony (2003) 30 Cal.4th 1145 oiecccccccccescseseetecesseeeesssseeeesssesesseeeaes 64 People v. Memory (2010) 182 Cal. App.4th 835 oiececeeeecesceeesesseesteessseees 6 People v. Mendoza (2000) 24 Cal.4th 130 oo... icccccccsccecsssceesseeccesteessenseeeseseesteseeens 100 People v. Mickle (1991) 54 Cal.3d 140 ooo ccccecccsesessessceesseceseeeesssecsseeseeeceseeesees 84 People v. Milner (1988) 45 Cal. 3d 227 oceeccecccccccccssecsseceseceeneeeseceeseeessesenssesssseensetens 88 People v. Molina (1994) 25 CabApp.4th 1038 occcecccesscsseeseessesseeesseeeteenseesteeeeees 58 People v. Morgan (2007) 42 Cal.4th 593 icieiccceseeseeseeceeceeseeereeeeeeeeeeeneceerstenaeeats 87 People v. Morris (1987) 192 CalApp.3d 380 .....cccccccccscessesecestececetenseseseesaeeaeeaees 28-29 People v. Penoli (1996) 46 CalApp.4th 298 o..cccccccccsccseessescesesetseessetessessitenseeess 64 People v. Pollock (2004) 32 Cal.4th L153 ooo eecceeseeeeseeeceeeneeeeeceseneeeeneeeneeeeaes 72,77 People v. Powell (1967) 67 Cal.2d 32 o....eccccccceceesccceteceneeecesseecseeeceeeecuseeesessseencesaerseans 44 People v. Richardson (2008) 43 Cal4th 959 ooccicecccccccccesseeeeseeeeseeeeeseeeeeeseeeeesaeeeees 86 People v. Riddle (1978) 83 Cal.App.3d 563 ....cccccccceccecseseeseeeseesneceeeceseeeeseeeneeeneesses 26 People v. Robertson (1982) 33 Cal. 3d 21 ieeeee eeeeeeeceeneeeeeeeneneeeeeeneeseeeeenenenes 88 Peoplev. Rowland (1992) 4 Cal.4th 238 oieeeececcessceeeseseeeeecesateeesseesaeeeseeeneeeeete 4 People v. Rundle (2008) 43 Cal. 4th 760 oiieieccceeccccecceesseseeeneecssneeecseseesnetensnteeenseeeenes 7 People v. Schmeck (2005) 37 Cal.3d 240 oicceicsceeceseerecsecereceeenesnsceneesstenecseeeasensees 87 People v. Slaughter (2002) 27 Cal. 4th L187 oooceceteeceeeneeseeaecnsereeeeenseneeens 100 People v. Smith (2005) 35 Cal 4th 334, 368 ooecccccececeeceeseesecneeerecteceeeeseeeseeseesaeeees 84 People v. Stanley (1995) 10 Cal.4th 764 ic iieeeeecccceesecstceneeeseeeeensecsessssneeesesneseasens 73 People v. Stewart (1976) 16 Cab.3d 133 ieeeeeeeccesseeeneeeneesenteeneseeeesneeseeeeneeeenes 71 vill i e e 2 2 2 People v. Stewart (2004) 33 Cal.4th 425 cieieecceccccecsecesseceseceeeneeeceseeenseeeneeeneeeesees 59 People v. Stitely (2005) 35 Cal. 4th 514 eeeeecceeceeeeeeesterseesseceaeesereesneseeeens 46 People v. Taylor (2010) 48 Cal.4th 574 iiececcecceecccseceeseeseeeeseeeeneesseecneeseeeensetersaes 70 People v. Windham (1977) 19 Cal.3d 121 cece ceccessecssessceceseesseesseceeceseceeeeneeeeseesnas61-62 People v. Williams (1997) 16 Cal.4th 635 oceecceecccsccessseeeeceecesecesseeeeeeeeeeeenreees 47-49, 91 People v. Williams (1998) 17 Cal.4th 148 oo... cece ccecccesseceeceesneceseeeseneeseeeeceeesenteeeseaees 63 People v. Williams (1999) 20 Cal.4th 119 iiciieccecsscessccsseeeeseeeeseeeesrecsreeseseceneesenaes 5 People v. Zambrano (2004) 124 Cal. App. 4th 228 occceeeseceseeeeceeeseeeeeeeeeeens 46 Phelps v. Dunn (6" Cir. 1992) 965 F.2d 93 ceececccescsssscseseeseseesessnscsesesesesaeseeassesacseeseseens 11 Pierce v. Thaler (5" Cir 2010) 604 F.3d 197 .occccccecccsccecssessescessssescsesecsscseesssssseeasens 90 Reid v. Moskovitz (1989) 208 Cal.App.3d 29 o...ccceeccessccesseeesseeeeeeeeeseeeseeesseeeeteetens 58 Rhode Island v. Innis (1980) 446 US 291 ooo. ecccecccccessececceeessscceceeceessseeesssseeeeceseeseaees 17-28 Ring v. Arizona (2002) 536 US 584... ceccccccceessssececcesseceeecessssucesecssseceeseessetetenseeeaas 86 Roper v. Simmons (2005) 543 U.S. S51 ceeceecceeecceesccssceessecessteceseeceseccsseeesseeseceeesnseeeaees 110 Simpson v. Jackson (6" Cir. 2010) 615 F.3d 421 voccccccccccccscescsescseescsescesessssseseeeessseeees 23 Skipper v. South Carolina (1986) 476 U.S. 1 cceeceeseeeseeeseeceeeeceeeeeneeeseeeseeenates 79-80, 104 Smith v. Texas (2004) 543 U.S. 37 ..ececeeccceccseesecessetesecessecesssceesseesssecsseeesescsseesesesessserenaes 80 Smith v. Texas (2007) 550 U.S. 297 cieeecceeceecccescceseeesseesseeeessecesecesecenseesseeseeseeseees 83,103 State v. Kemp (1996) 185 Ariz. 53; 912 P.2d 1281 occcccsececceseeseesseeeseesseeeeees 33 Stein v. New York (1953) 346 U.S. 156 eceeeceecceescessseessecseseeesssessesesseecseeeesseseneseesseees 8 Street v. Corrections Corporation ofAmerica (6th Cir. 1996) 102 F.3d 810 w..... 10 1X Sullivan v. Lowisiana (1993) 508 U.S. 275 iceccccccccccecccccessecevsnssseeeesssssseestcecesstseesstenens 44 Tennard v. Dretke (2004) 542 U.S. 274 icccccccccccseeeesseceessesesseeeesseseceesseeeeea 80, passim Thompson v. Oklahoma (1988) 487 U.S. 815 ciccceccessecssccenescsetsseesesseseeeecssesenseens 109 United States v. Arroyo-Angulo (2Cir. 1978) 580 F.2d 1137) iceccececcseseeeeeeees 54 United States v. Cheever (D. Kan. 2006) 2006 U.S. Dist. LEXIS 14107 ou. 67 United States v. Christian (7" Cir. 2003) 342 F.3d 744 licccccccsccesesessssessessestseeeees 11 United States v. Furrow (C.D. Cal. 2000) 2000 U.S. Dist. LEXIS 21771 ...0..0... 35-38 United States v. Roberts (9" Cir. 1980) 618 F.2d 530 viccecccscessssescecsseeseessssestsesveees 54 United States v. Wallace (9" Cir. 1988) 848 F.2d 14640 ooccccccceeeceececeseeereteeseee 87 United States v. Weatherspoon (9" Cir. 2005) 410 F.3d 1142 ooccccccccccccesssesceeeeeee 51 United States v. Young (1985) 470 U.S. 1 cece ceeccesseseneceneeeseecsneeeeeeecseeeeteesensenseeesns 51 Uttecht v. Brown (2007) 551 U.S. 1 cccccccccccesscccssesseececeseceesssaececsessseeceeesessecesestsaaees 57 Wainwright v. Witt (1985) 469 U.S. 412 icceeecesceescceseeseeesetseeseeeseesseeeeeeeseeeeenees 55-56 Walker v. Taylorville Correctional Center (7" Cir. 1997) 129 F.3d 410 ....cceeeee 11 West v. Atkins (1988) 487 U.S. 42 ieecceesccsceeseeeteeeseeecceeeensecseerseeeneeenneceaeeesenaeees 9 Witherspoon v.Illinois (1968) 391 U.S. S10 eee eeceecceeeeceecsecssereeeeeneseseneneneeas 55-56 Woodson v. North Carolina, 428 U.S. 280 ciccececcecsssessssccccccccessceecceeeccuseeeeeeussaeeeeeeneness 84 Yates v. Evatt (1991) 500 U.S. 391 veeeceereeeeeeecseeeaeceeeeneeeecseeesecereseeseeeanaeeaeeeaeeneees 44 CONSTITUTIONAL PROVISIONS ULS. Const. Amend. Vii oie eecceceesecescesseeceseesceteecseeesssecceeseeeeaeesseeenseesaneenteeesas4, passim US. Const., Amend. VI. wii ccccccccccccccccccceccseseessnesssseasneeeeeeeeeeeecccceseeeseeceseeeecess4, passim ULS. Const., Amend. VITD occeceeceeseeereeeeeeeeeesnseeecesesaeseseeneeeneeneesneeentensees 4, passim ULS. Const., Amend. XIV... ccccecccceesccsceeseeeeeearecseeneeeaeeeesseeesecseeeeseaeenseeneeense4, passim xX i 2 e s e e STATUTES Cal Evidence Code section 402 .......ceccccccccccceeeecssessececeeeseseesssseeeeeeeeeeeeeeeeeseeseessseeeeeeenas 5 Cal Penal Code section 1259 .....cccccccccccccceceesseceecsssceceesssseeeecsscsecseseessseseecessesetseetensnaes 78, 91 OTHER AUTHORITIES 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 168 oe 50 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Reversible Error, §36 ........... 63 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 349 occeeeeeseesesseeessteessaeeees 57 In re Std. Jury Instructions in Crim. Cases--Report No. 2005-2, 22 So. 30.17, 21 (Fla. 2009) occ cceccccccecccssececsseseceseeeeensusesesaeesssseeseeessesessseeeees 75 Jefferson, Cal. Evidence Benchbook(2d ed. 1982) Examination of Witnesses §27.9 .. 50 CALIIC No. 8.85 cocccccccccccccsccccsseesesccceececeseesssssecessseceesseeeessececseeceeseecseseaeessasesenseeeees 101 Xi IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE ) DEATH PENALTY CASE OF CALIFORNIA, ) ) No. S093756 Plaintiff/Respondent, ) ) Vv. ) (Contra Costa ) Superior Court COREY LEIGH WILLIAMS, ) No. 961903-02) ) Defendant/Appellant. ) ) APPELLANT’S REPLY BRIEF INTRODUCTION Preliminarily, appellant offers a few caveats on respondent’s presentation of those facts that are not part of any argument, but may be important nonetheless. Respondent’s Statement of Facts does not distinguish the assertions of former co-defendant David Ross from those made by witnesses who did not have an obvious motiveto lie or a knownhistory of lying about the e e e e e e e e i 2 e e 2 1 crimes underlying this case. This presentation does not enable the reader to see how muchofthe case rested on Mr. Ross, nor help the reader discern howthe errors appellant cites most likely affected the verdict. Appellant’s Statement of Facts identifies the witnesses who provided the cited testimony, and notes any impeachment. (See AOB 3-29.) Further on, respondent’s statement of the “relevant background”to appellant’s motion to suppress the confession testimony is misleading in two potentially significant respects. First, respondentstates that the prison records appendedto the motion to suppress appellant’s statements to correctional officers were “reviewed”by the trial court. (RB 19.) Actually, those records were accepted into evidenceat the hearing before the trial court pursuant to stipulation of the parties. 3RT 622-623, 701-702, 712.) Second, respondent’s attempt to explain the conflict in those records ~ a conflict that was apparently overlooked by appellant’s counsel in the court below — is misleading. The Order and Hearing for Placementin Segregated Housing (hereafter, the “order”) completed and signed by Lieutenant Reed on December19, 1996, the date appellant was said to have confessed, is not reconcilable with the confession evidence as respondent claims. (RB 24,fn. 4.) AnninARANTRUEemtmenmatage en pety oem Seen Contrary to respondent’s argument (RB 24,fn. 4) the problem is not simply that the order says nothing about appellant confessing to having killed anyone. The problem, which respondent does not acknowledge or address, is that the order contains statements that are obviously inconsistent with appellant having spokento the officers as the officers later claimed. The order states that Reed placed appellant in Administrative Segregation and deemedappellant “a threat to the safety and security of the institution” not because of any asserted enemyactivity but because “review ofthefiles that arrived with you reflect that you arrived from an Ad-Seg Unit due to the seriousness ofyour crime.” (13CT 4962.) Appellant signed a portion of the order to indicate that he wished to have a hearing to review his placementin segregated housing as soon as practical, and was waiving his right to advance notice and opportunity to prepare for that hearing. (13CT 4963.) He was released from the Ad-Seg unit a few days later with a finding that he had no enemiesin theinstitution. (13CT 4963.) For reasonsnot disclosed in the record or explained by respondent, neither Reed nor White wasforced to testify about the inconsistency between this report of the intake interview andtheir testimony aboutit. As stated in appellant’s openingbrief, the significance ofthis report is among the questions awaiting appointment of habeas counsel. (AOB 169.) 2 2 2 2 | I. THE TRIAL COURT’S DECISION TO ADMIT EVIDENCE THAT APPELLANT CONFESSED TO CORRECTIONAL OFFICERS AFTER BEING THREATENED BY THEIR CLERK REQUIRES REVERSAL A. Respondent’s forfeiture argumentis inapposite Respondentfirst contends that appellant forfeited the coercion claim “by failing to secure a ruling below on the voluntariness issue.” (RB 27.) Respondentrelies on forfeiture cases in which the defendant either failed to object to the admission of a confession on the basis urged on appeal' or never obtained a ruling on the admission of evidence or the propriety of a suggestedjury instruction.’ Appellant’s coercion claim wasclearly presented below. His written motion to exclude the testimony claimed the confession was coerced and involuntary in that the correctional officer’s questioning “followed right on the heels of the threat [expressed by Mr. Corrieo] ...”” and, from the defendant’s perspective, “the benefit of safety was being withheld, contingent upon the defendant answering the questions.” (13CT 4936-37.) Counsel briefly reminded the court of the coercion issue at oral argument on the motion (3RT 640-641.) 'Peoplev. Kelly (1992) 1 Cal.4th 495, 519. > People v. Rowland (1992) 4 Cal.4th 238, 259 and People v. Jacobs (1987) 195 Cal.App.3d 1636, 1650. -4- The prosecutor responded to the claim in his opposition papers and again in oral argument. (13CT 4986; 3RT 634.) Defense counsel was then “free to focus his oral argument on one aspect of his motion and not another” without fear of this Court holding that he was conceding claimsif he failed to state them orally. (People v. Williams (1999) 20 Cal.4th 119, 137-138 [per Chin, J., for a unanimous court, on the adequacy of a written 1538.5 motion to suppress as a meansto preserve appellate issues].) Thetrial court issued a final ruling. (13 CT 5029-5033.) Under state law, that ruling implied a finding that the confession was notlegally involuntary. (Evid. Code, § 402, subd. (c) ["[a] ruling on the admissibility of evidence implies whateverfinding offact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute"]; People v. Maury (2003) 30 Cal.4th 342, 406 [citing People v. Daniels (1969) | Cal. App. 3d 367, 374, and invoking quoted language from Evidence Code section 402 (c) where capital appellant complainedoftrial court failure to rule on voluntariness of confession].) “An express finding on the record on [voluntariness and Miranda issues] need not be made; such findings will be implied from the court's order admitting the confession into evidence.” (People v. Daniels, supra, | Cal. App. 3d 367, 374.) Having secured a ruling that implied the necessary finding under i omnes =e state law, appellant was not obliged to take further action in the trial court to preserve his claims for appellate review. “[W]e are aware of no authority—and the Attorney General cites none—that requires a party to continue to object to the court’s ruling after a contested hearing to preserve the issue for appeal.” (People v. Memory (2010) 182 Cal. App.4th 835, 857 (Cantil-Sakauye, J., for a unanimouspanel of the Court of Appeal.) Accordingly, respondenterrs in alleging that the new trial motion — which focused onthetrial court’s misstatements of fact and law in the written opinion -- forfeited the coercion claim insofarit failed to note the trial court’s failure to address it expressly. (1SCT 5912-5915.) The new trial motion noted that all other issues respecting the admissibility of the confession had been addressed in previousfilings. That motion argued that the trial court’s confusion of the facts, inter alia, “goes to the heart of the Defendant's Miranda, Massiah and voluntariness claims.” (15CT 5915.) Respondentoffers no authority for the proposition that filing a new trial motion, let alone one whichreferencesprior briefing of implicitly rejected claims, can waiveor forfeit appellate review of those claims. It is settled that "the ultimate issue of ‘voluntariness’is a legal question... ."" (Arizona v. Fulminante (1991) 499 U.S. 279, 287, quoting Miller v. Fenton (1985) 474 U.S. 104, 110.) This court must “review | Ah btnARRONDAnetiternoneens tiene pene eeSo spr pot jienibhastensiemensofijecenahtttegrcieat independentlya trial court's determinations as to whether coercive police activity was present and whetherthe statement was voluntary.” (People v. Jones (1998) 17 Cal.4th 279, 296.) Whena motion to suppress a confessionalleges that police questioning or other government “conduct wasa factor that rendered his statements involuntary underthe totality of the circumstances ... he may rely on all of the circumstances... as they relate to the voluntariness issue” in presenting the coercion claim on appeal. (People v. Guerra (2006) 37 Cal. 4th 1067, 1094, disapproved on other grounds in People v. Rundle (2008) 43 Cal. 4th 76, 151.) Accordingly, appellant relies on all the circumstances surrounding the confession to correctional officer, including the death threat, appellant’s inability to discern the identity of the person who deliveredit, his expressed terror of prisoners unknownto him as a result of that threat, the superior governmental status that an inmate clerk appeared to wield when he delivered the death threat, the handcuffs, appellant’s isolation, the facts knownto the correctional officers when they questioned appellant, the nature of the questionsthe officers asked, their explanation for persisting as they did, and the way they described the confession in their report. 2 2 i e B. Respondent’s arguments on the merits fail 1. Appellant was subjected to a “credible threat” of violence ‘Physical violence or threat of it by the custodian of a prisoner during detention ... is universally condemnedby the law. ... The tendency of the innocent, as well as the guilty, to risk remote results of a false confession rather than suffer immediate pain is so strong that judges long ago found it necessary to guard against miscarriages ofjustice by treating any confession madeconcurrently with torture or threat of brutality as too untrustworthy to be received as evidence of guilt.” (Stein v. New York (1953) 346 U.S. 156, 182; overruled on other grounds in Jackson v. Denno (1964) 378 U.S. 368, 391, emphasis added.) Upon arrival at New FolsomPrison, appellant was threatened with death by a man who knew whohim by name, knew the victims ofthe charged capital crime by name, and wasallowed to move around while appellant remained handcuffed and caged. The man delivering the threat was Mr. Sergio Corrieo, the son and brother of the victims — and an inmate assigned to work as a clerk in the receiving area of the prison. Because of his assignment, he received a list of the prisoners who hadjust arrived, saw appellant arrive, and recognized him as the man recently indicted for EAEEIOIPAN FSUSEMESIAPEES AE te wn Am oe “fFetDREIBFENIERINSWiSlearses wT ya gee murdering his mother and sister. (3RT 592-603.) Moments after Corrieo delivered his prison-gang-styled death warrant from the other side of a locked door, appellant was brought by Correctional Officer White to the room where he and Lieutenant Reed conducted intake interviews with newly arrived prisoners. Appellant was alone with the officers, and remained handcuffed while they questioned him. As soon as appellant said “the needed to lock up”? and somethingto the effect of “they’re going to stab me,” the officers asked appellant ““who’s going to stab you?” Appellant said he could not or would not say who wasgoing to do so. (3RT 612-614.) White could not recall “exactly what other questions were asked” before White asked, “Well, why are they going to stab you?” According to White, appellant looked at White and said, “Because I killed two Hispanics.” (3RT 614-615.) 2. Mr. Corrieo’s attack on appellant was “state action” Respondent submits that the coercion claim should be rejected because Mr. Corrieo because was “not a state actor” whenhe assailed appellant. The prosecutor made the same argumentin the court below, > White understoodthis statement to mean that appellant neededto be placed in “a secure housing area, not in general population.” (3RT 610.) 9. F e F S F F I & t e e e & s F a e a e S hU rn eh lU mr el c th le ? averring that the only compulsion to confess wasnot state action, but rather “an angry man facing the individual whokilled his mother andhissister, . . . operating on his owninterests.” (3RT 633.) He claimed that there was “no state action anywherehere for voluntariness purposes.” (3RT 634.) Thetrial court’s decision is consistent with the court having accepted that prosecutorial argument. This is one of a couple of arguments with which the State led the trial court to makecritical errors of fact and law. Prison administration is a state function. Individuals who carry out any part of that function, whether as employeesofthe state or as volunteers or independentcontractors, are “state actors.” (West v. Atkins (1988) 487 U.S. 42 [private physician providing medical care to prisoners is state actor]; Florer v. Congregation Pidyon Shevuyim, N.A. (9th Cir. Wash. 2010) 603 F.3d 1118, 1122-1127 [surveying case law onstate action by prison religious and administrative service providers]; Montano v. Hedgepeth (8th Cir. lowa 1997) 120 F.3d 844, 851 [administrative and managerial tasks performed by minister in state prison fairly attributable to state]; Street v. Corrections Corporation ofAmerica (6th Cir. 1996) 102 F.3d 810, 814 [warden, corrections officer and detention facility run by publicly-held corporation were acting undercolor of state law because operating prisonis "traditional state function"};Conner v. Donnelly (4" Cir 1994) 42 F.3d 220, 225 [private -10- a physician treating prisoner underreferral from prison physician 1s state actor|; Phelps v. Dunn (6" Cir. 1992) 965 F.2d 93, 102 [volunteer minister serving as prison chaplain|.) This is so even where the employee or other functionary is, as the prosecutor said of Mr. Corrieo, “operating on his own interests” rather than pursuing his proper assignment. Ifthe government gave him the access he utilized in committing his misconduct, his action was “state action”as a matter of law. (McDade v. West (9th Cir. Cal. 2000) 223 F.3d 1135, 1138-1141 [clerk used access to data]; United States v. Christian (7" Cir. 2003) 342 F.3d 744, 750-752 [officer insulted by racist remarks of prisoner had access to receiving area ofjail]; Walker v. Taylorville Correctional Center (7" Cir. 1997) 129 F.3d 410, 413 [prison counselor sexual harassmentof prisoner “possible only because [counselor] had access to [prisoner] in his cell and in the showerarea as a result ofher official position.”|.) Like the individual defendants in those cases, Mr. Corrieo was employed to carry out a state function. If not for that employment, he could not have done what he did and put appellant in deadly fear uponarrival at the prison. Asin the court below, respondent offers no citations to any body of law defining state action or actors or saying that Corrico’s personal -{1- i 2 2 2 2 | ed es — motivation or circumstances makeshis action unattributable to the state. Respondent cites cases in which a co-defendant or a jailhouse informant who was not employed or asked to carry out any state function elicited a confession (RB 31) but offers no authority discussing elicitation of a confession by the coercive action of a prison functionary. Finally, respondent argues: Although Mr. Corrieo wasinitially working as a clerk in the receiving area under the supervision of Officer White when appellant arrived at the prison, Mr. Corrieo discontinued acting in his clerk capacity as soon as he saw appellant. Immediately, Mr. Corrieo informed officer White as to why he could no longer continue his duties. (3 RT 594-595, 602- 603.) Officer White had no arrangement with Mr. Corrieo to have him speak with appellant and did nothing to encourage appellant to speak with him.... To the contrary, Officer White immediately removed Mr. Corrieofrom the receiving area andplaced him in the property room so that he would not have contact with appellant. (3 RT 595; 11 RT 3048- 3057-3058.) Officer White then left to speak with Lieutenant Reed. (13 CT 2231.) Mr. Corrieo sought out appellant’s location from a co-worker, not Officer White (11 RT 3038.) Mr. Corrieo then reacted to having some limited access to the suspect in his relatives’ murders and took that opportunity to threaten him. (3 RT 595, 602-604.) Atthat point, Mr. Corrieo was acting on his own behalf, not as an agent for the correctional officers who did all they could to properly deal with the chance encounter between Mr. Corrieo and appellant. (13 CT 2231; 3RT 595, 602-605; 11 RT 3048, 3057-3058.) The italicized claims are clearly at odds with the facts. Officer White did not “remove” Mr. Corrieo from the receiving area or “place” Mr. -]2- yeeke ARCEHGPREIMeNetnce RngHESRNAEMREYONIMe Rents oceanME ge eee one Corrieo in an area where he could not have contact with appellant. He simply told Corrieo to go to an adjacentarea in the same building -- described by White as “outside the door” of the receiving area and by Corrieo as “the property room” — and “stay right there” while White left to speak with the lieutenant. (RT 595, 603.) White’s response to Corrieo’s disclosure was obviously that of a supervisor dealing with a trusted employee rather than that of a prison guard responding to a prisoner. If Corrieo had been “removed . . . so as not to have contact with appellant ” none of what followed could have happened. Furthermore, respondent’s argument is inapposite for two reasons. First, the state’s responsibility for an employee’s conduct does not turn on whetherotherstate actors were negligent in hiring or supervising him. None of the cases deeming an individual actor to be a state actor (discussed in the preceding section) involves any allegation that the offensive actor’s conduct was “attributable to” his supervisors or to the people who gave him state function. The issue is whether the misconductis attributable to the state, not whetherit is attributable to any particular individual. Second, the court must consider the “totality of the circumstances” surrounding a confession in determining whether the subject’s will was P U a r e r e y r e w e wr e e e e e e e e e overborne. Those circumstances include factors that may have made the defendantparticularly susceptible, including those not knownto the interrogators. (See Arizona v. Fulminante, supra, 499 U.S. 279, 286 fn.2 [listing relevant susceptibility factors not relied on by the state court, including psychiatric hospitalization and request for protective custody during prior term ofincarceration |.) Corrieo stood outside appellant’s walled holding cell and displayed his knowledge of appellant’s name and those of the victims in his pending charges before declaring appellant to be “a dead man.” He did not identify himself. Appellant was madeto feel that he wasthe target of a group of prisoners poised to attack with their manytentacles in New Folsomprison. This is a “circumstance’’surrounding the confession that cannot be ignored. 3. The correctionalofficers’ questioning of appellant coerced his confession by implying that the officers could not or would notprotect appellant from inmate violence unless he answered their questions Corrieo’s status notwithstanding, appellant’s confession was the product of coercive state action. The correctional officers were “state actors.” Their persistent questioning of appellant abouthis fear of inmate violence implied that they could not protect appellant from becoming -|4- victimized unless he answered their questions. Their behavioris thus analogousto that of the FBI informant who washeld to have coerced the confession in Arizona v. Fulminante (1991) 499 U.S. 279, 288. Respondentarguesthat this case is distinguishable from Fu/minante in that “the officers made no promisesor threats to appellant to prompt his confession. For example, the officers did not tell appellant they would put him in segregated housing only if he told them about the charges pending against him.” (RB 38.) The fact that the officers did not say what they would or would not do if appellant did not make additional disclosures does not distinguish this case from Fulminante, where the informant simply said; "You havetotell me aboutit, you know. I mean, in other words, 'For me to give you any help." (Id., at p. 283.) Like the correctional officers here, the Fudminante informant simply said whatthe officers implies here,i.e., that he truly needed to know what the defendant had donein order to help him avoid the attacks he feared. Respondentalso suggests that our caseis distinguishable from Fulminante in that the correctional officers “were completely unaware of Corrieo’s threat’ when they questioned appellant. (RB 33.) That is not entirely true. Mr. Corrieo made the officers aware that appellant was the i 2 2 o o 2 2 | sooth suspect in the murder of Corrieo’s mother andsister, and that Corrieo believed appellant to be guilty of those crimes. (3RT 594-595, 602-603.) The officers knew Corrieo was angry and believed he could not keep from acting on that anger in appellant’s presence. (3RT 654-655.) Lieutenant Reed directed that Corrieo be locked up accordingly. Clearly, the officers knewthat there was a “credible threat” of inmate violence against appellant whenthey interviewed him, even if they did not know that Corrieo had already verbalized a death threat to appellant while White was consulting Reed aboutthe situation. Indeed, the prosecutor conceded in oral argumentto the jury that White and Reed knew from appellant’s statements that appellant had been threatened, and “White knew that Corrieo was the one whoprobably threatened him.” (13RT 3480.) Respondentalso tries to distinguish this case from Fudminante on the theory that we have no evidence of a “direct intent by governmentofficials to obtain the incriminating statements ...”. (RB 38.) Thetrial court espoused a similar viewpointin its written opinion, which emphasizedthe court’s belief that defendantfailed to “carry his burden” of proving that the officers wanted something more than prison safety and security. Both respondentandthetrial court overlook White’s written report -|6- 2nSRRARYANRRREfePimm geen ieee ee ee in MeaEE of the episode, which suggests that getting an incriminating statement was indeed the goal, or at least one of the goals of the interview. White wrote Just one thing about what appellant said in the interview,1.e., that he ‘admitted that he had in fact killed two Hispanic people.” (13CT 4946) Moreover, the argumentis off base as a matter of law. Contrary to the prosecutor’s misleading arguments in the court below, the Supreme Court of the United States has made clear that the questioner’s intent to obtain incriminating statements cannot be determinative of a Fifth Amendmentclaim, particularly where, as here, the official actor’s putative intent was to rescue or protect a person in danger. (New York v. Quarles (1987) 467 U.S. 649, 655 fn. 5 [questioning of prisoner for public safety purposesrather than incrimination may not require Miranda warnings, but the responseis inadmissible if "coerced undertraditional due process standards”; /d., at p. 656 [officer’s subjective intent to question only for public safety purposes not determinative of public safety exception to Miranda because “different police officers in similar situations may act out of “a host of different ... and largely unverifiable motives”(ibid.), and the legality of their conduct “should not be made to depend on post hoc findings at a suppression hearing concerning the subjective motivation of the arresting officer” |; Rhode Island v. Innis [(1980) 446 US. 291] at 301 -|7- r e o e | [officer's subjective intent to incriminate not determinative of whether “interrogation” occurred]; People v. Davis (2009) 46 Cal. 4th 539, 593 [basing rescue exception to Miranda onevidencethat rescue was “the primary purpose and motive ofthe interrogators” disapproved as inconsistent with Quarles and other Supreme Court decisions] .) Respondentalso overlooks the persistence with whichthe officers questioned appellant. After asking appellant “who” was going to stab him, and hearing appellant declare that he could not or would not say, White kept pushing, believing that his pertinacious behavior wasjustified. As he explained at the hearing,“that's not an uncommonresponse from inmates if they tell you that they're in danger and you makean inquiry as to whoitis, they often say .. . something like that . . . ‘cause they're afraid of what-- if it gets back to the person whothreatened them originally, that they told the officers, then it would just be worse for them, at least from there -- that's their idea of it.” (3RT 614.) White could notrecall “exactly what other questions were asked”priorto the fateful “Whyare they going to stab you.” Hesimply recalled that he and Reed were “trying to get him to divulge who wasgoing to stab him.” (3RT 614) In White’s view, overcoming appellant’s will was appropriate. Coercive governmental action served -18- ore te aanaOHApeaMateRtemASAE ee cn Se ewe + ann Emam + FategeldethtbeenstonsSigne isito eta co some greater good. Respondentalso argues that this case is distinguishable from Fulminante in that there is no causal “connection between Mr Corrieo’s threat and appellant’s confession to the correctional officers.” (RB 38.) The causal connection between the threat and the confession is evident not only in the close temporal relationship between the two, but also in appellant’s statements to the officers about his need for locked housing and his belief that he was a target for inmate violence. His fearful statements prompted the officers to ask questions, the last of which (“Why would anyone wantto stab you?”) was squarely answered with the confession: “I killed two Hispanic people”. Respondent does not and cannot claim that appellant’s confession was volunteered or spontaneous,like that of the mentally ill defendant in Colorado v. Connelly (1988) 479 US 157. * * Respondentcites Connelly for the proposition that “coercive police activity” is a “necessary predicate for a finding that a confessionis involuntary within the meaning of the Due Process Clause of the Fourteenth Amendment.” (RB 30) Two sentences later, respondent seemsto acknowledgethat police activity means governmentactivity rather than that of police officers per se. (RB 31.) The issue in Connelly was the admissibility of a confession that a defendant aggressively volunteered to police officers and then sought to suppress on the theory that the constitution prohibited prosecutorial use of a confession produced by mental illness. The Supreme Court held that the flaw in the state court decision under review wasa failure to "recognize the essential link between coercive activity of the State, on the one hand, and a resulting confession by a defendant, on the other.". The Court also noted that its "involuntary confession’ jurisprudence [was] entirely consistent with the settled law requiring somesort of 'state action’ to support a claim ofviolation -19- e e e s F e e e F e F e r e e e e r e e a l a k e k e t Finally, respondent claims that appellant was “a sophisticated criminal whohad been properly arrested, indicted, arraigned, appointed counsel, and spent 16 monthsin prison on another conviction by the time he reached C.S.P Sacramento.” (RB 39.) There is no evidence that appellant, imprisoned at age 19 for a gang-related assault, was a “sophisticated criminal” let alone a man of suchsteeliness as to escape an ordinary inmate’s despair at being declared dead on arrival by someone who had the superior access that Mr. Corrieo enjoyed at New Folsom Prison. The officers gave appellant no Miranda warnings, and no sympathy when he appeared afraid to say whohadthreatened him. The record is clear that appellant was notinclined to confess, boast, or speak causally about the Corrieo murders. Numerous previous interviews of appellant by Contra Costa County authorities had produced no confession. No one adduced evidence that appellant boasted that he killed anyone, nor that he spoke casually of such things. No one suggested that anything other than terror caused appellant to admit killing two Hispanic people after he was declared dead on arrival by an Hispanic inmate clerk. On the contrary, the prosecutor touted the seriousness of Corrieo’s threat and appellant’s terror in arguing that appellant indeed “admitted”to killing of the Due Process Clause of the Fourteenth Amendment." -20- two Hispanic people just as Officer White’s report said. (13RT 3480.) Contrary to respondent’s claim, appellant was not prepared to withstand or understand whatever came his way whenhearrived at the prison. There is no evidence that he was informed that Mr. Corrieo was the intake clerk at Folsom Prison or that he would face any inmate threats on arrival. The prosecution had the burden of proof on the voluntariness issue, and presented no evidence as to when appellant was allowed to sleep or given food or access to his appointed counsel while being moved from prison to prison for institutional security reasons. Respondent’s present assertion that there is “nothing to indicate that appellant ... had been denied any basic needs” (RB 39) is not persuasive. Evenif it were lawful to assumethat appellant’s basic needs were metprior to the interview, respondent’s claim that the “correctional officers did nothing to hinder his free will” (RB 39) would remain untenable. The officers made no such claim, and White said muchto the contrary. 4, Respondent’s “no custodial interrogation” arguments require new and unreasonable determinations at odds with our facts (a) Miranda Custody Respondent concedesthat the trial court was off base whentt -2]- @ e @ t @ s F a f F © F t F s e e e e O S U r l e l l r e l e l l e t “suggested that a custodial interrogation refers only to a pending criminal charge or a pending criminal investigation. (13CT 5032.)” (RB fn. 7, p. 42.) Ergo, respondentasksthis court to “review the correctnessofthe trial court's ruling, not the reasons underlying it" and "uphold the ruling if it is correct on any basis, regardless of whether such basis wasactually invoked." (RB fn. 7, p. 42.) Respondent suggests that the correct basis for that ruling may be found in the test for Miranda custody announcedbythe Ninth Circuit in Cervantes v. Walker (9" Cir 1978) 589 F.2d 424, 428 which asks whether a reasonable personin the prisoner’s position “would believe there had been a restriction ofhisfreedom over and above that in his normalprisoner setting.” (RB 45, emphasis respondent’s.) The Cervantes test does not aid respondent here, for two reasons. First, the record reveals “restriction of freedom over and above” the “normal prisoner setting” (/bid.). Officer White testified that appellant was handcuffed. He was removed from a holding cell shared with other prisoners by Officer White. He was escorted, alone, to a room used by correctional officers for intake interviews. He remained handcuffed and alone with the officers while undergoing questioning. (3RT 610.) Second, the United States Supreme Court has defined Miranda 1 osoManeAGAROSERASpence 4, ape ee ge “Pyetnnafnred custody for incarcerated prisoners, beginning to end: "Whena prisoneris removed from the general prison population and taken to a separate location for questioning, the duration of that separation is assuredly dependent upon his interrogators" such that the period of "interrogative custody" constitutes Miranda custody. (Maryland v. Shatzer (2010) 599 U.S. [175 L.Ed 2d 1045, 5130 S.Ct 1213, 1225 fn. 8, emphasisin original; Simpson v. Jackson (6" Cir. 2010) 615 F.3d 421, 441, fn. 8.) Appellant was plainly removed from the general prison population and taken to a separate location for questioning. The duration of that separation was dependent uponhis interrogators. It was a period of “interrogative custody” and thus was Miranda custody under Shatzer. ([bid.) (b) Interrogation Respondentdenies that appellant was “interrogated” within the meaning of Miranda, claimingthat the correctional officers “could not have reasonably known”that their questions about the source of appellant’s fear (“Who is going to stab you?” and “Whyare they going to stab you?”) would haveelicited an incriminating response from appellant because they were “further responses to appellant’s safety concerns and his request to be placed in administrative segregation. (3RT 613-614, 619.)” (RB 49.) i 2 e e a a Respondent’s argument is a non-sequitor. Questions may be “responses to safety concerns” and nonetheless constitute “interrogation.” An interrogation includes any questions “that the police should know are reasonably likely to elicit an incriminating response from the suspect." (Rhode Island v. Innis, supra, 446 U.S. at p. 301.) The interrogation analysis focuses "primarily upon the perceptions of the suspect, rather than the intent of the police." (Ibid; see also J/linois v. Perkins (1990) 496 U.S. 292, 296 [stating "[c]Joercion is determined from the perspective of the suspect"].) The focus ona suspect's perceptions "reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure ofprotection against coercive police practices, without regard to objective proof of the underlying intent of the police." (People v. Haley (2004) 34 Cal.4th 283, 300.) There is no exception to the /mnis definition of interrogation for questions that are responsive to a prisoner’s safety concerns. The cases on police questioning of putative crime victims andincarcerated prisoners on which respondentrelies (RB 50-51) are not to the contrary. In each, the defendants were not in custody for Miranda purposes. Those courts had no occasion to determine whether the questioning was reasonablylikely to producean incriminating responseper /nnis. Moreover, respondent’s argumentignores the United States Supreme Court’s decision on “safety concerns” and Miranda. In New Yorkv. -24- ee annemdstaieRRate farenirninintine ayrt reese aie montanaseenha Quarles, supra, 467 U.S. 649, police "were confronted with the immediate necessity of ascertaining the whereabouts of a gun” which they had every reason to believe that a rape suspect had just removed from his empty holster and discarded in a supermarket. (/d., at p. 657.) Police asked the defendant, then in custody, where the gun was located. The Court agreed that the question wasjustified by objectively reasonable concerns for public safety, and, nevertheless, it was custodial interrogation under Miranda. (Id., at p. 655.) Rather than redefine “interrogation” to exclude questioning responsive to immediate public safety needs, the Court authorized police questioning responsive to reasonable public safety concerns, sans Miranda warnings,if there exists an immediate public safety necessity to question the prisoner. Respondentdoes not acknowledge Quarles, nor claim that the officers had any immediate necessity for the information they sought, much less aneed related to public safety. Likewise, respondent never acknowledgesthe rescue doctrine,i.e., the exception to the Miranda warming requirement developed by California courts and applied where officers have an immediate need for answers to locate and rescue a crime victim. (See People v. Davis, supra, 46 Cal. 4th 539, 593 [discussing and refining rescue doctrine case law in California].) The cases construing the rescue doctrine may beparticularly instructive, and helpful in understanding 25. y e F t € & 8 r e z F s F e e e U e h a r a ler h u a t h l e s a l e a l m a l c a a l m a a t e 8 ome ae howthetrial court erred. In People v. Riddle (1978) 83 Cal.App.3d 563 and its progeny, lower appellate courts articulated a three-part test to determine whether questioning of prisoners, sans Miranda warnings, was justified by the need to rescue an innocent person: “|. Urgency of need in that no other course of action promisesrelief; [{]] 2. The possibility of saving humanlife by rescuing a person whoselife is in danger; [and] [|] 3. Rescue as the primary purpose and motive ofthe interrogators.” (Riddle, supra, 83 Cal.App.3dat p. 576.) In Davis, this Court disapproved of that line of decisions insofar as it called for focus on the officers’ subjective good intentions. (Peoplev. Davis, supra, 46 Cal.4th 539, 594, fn. 4.) This Court explained: Reliance on Sergeant Meese's motivation was consistent with the test set forth in the Court of Appeal's decision in Riddle, the third prong of which, as previously mentioned, considers whetherrescue is “the primary purpose and motive ofthe interrogators.” (Riddle, supra, 83 Cal.App.3d at p. 576.) But this court has never adopted the Riddle test in determining applicability of the rescue doctrine. Andthattest's consideration of the motivation of the interrogating officer has been underminedby the high court's statement in Quarles (decided after Riddle), that the applicability of the public safety exception, which is analogous to the rescue doctrine, “does not depend uponthe motivation of the individual officers involved.” (Quarles, supra, 467 U.S. at p. 656.) A subjective test, the high court noted in Quarles, would be problematic because different police officers in similar situations mayact out of “a host of different ... and largely -26- unverifiable motives” (ibid.), and the legality of their conduct “should not be made to depend onpost hoc findings at a suppression hearing concerning the subjective motivation of the arresting officer” (ibid.). In determining the applicability of the Mirandarule, the high court has generally frowned on the use of subjective tests. [Citations.] (Davis, supra, 46 Cal.4th 539, 593-594.) Thus, while thetrial court’s focus on an officer’s subjective intentions was understandable when appellant’s case wastried, affirming the ruling would require identification of evidence of an objective need for immediate answers to protect humanlife. No evidence of any immediate need to get any information from appellant was adducedin appellant’s trial court. On the contrary, Lieutenant Reedtestified that his protocol for housing prisoners who express fear of being attacked by other inmates is the same whether the inmate identifies his enemies by name, by motive,or not atall: he must assign Ad-Seg housing,andlet the prison’s Classification Committee determine the necessity for that housing, and address any other inmate safety concerns, at somelater time. (3RT 693, 696.) Officer White testified that they had a block set aside for prisoners with known enemies, but did not claim that they needed to know whether appellant knew his enemies in order to decide whetherto put him there. (3RT 611-612.) He also testified that “it was not in my job to basically interview the inmates for -27- e s F e s F t e & 8 i a 2 e e housing. That wasthe lieutenant's job. The only questions I asked them was as I was processing and identifying inmates off the bus I would ask their gang affiliation because I needed to keep the different gangs separate in the different holding areas in R. and R., and that was aboutthe limit of my interviewing techniques and responsibilities.” (3RT 616-617.) This testimony also belies respondent’s claim that “the officers needed to ask some questions for the purpose of determining whetherthere wasany specific or immediate harm to appellant that needed to be addressed beyond placing him in administrative segregation, as well as the extent of the segregation, including yard exercise privileges.” (RB 50.) The officers denied having any need, or any authority, to determine anything beyond appellant’s immediate placement. Respondent attempts to distinguish People v. Morris (1987) 192 Cal.App.3d 380, where a jailer inquired about a defendant’s pending charges and quickly obtained a confession that the Court of Appeal deemed inadmissible under Miranda and Innis: “Unlike the defendant in Morris, it was appellant who sparked the correctional officers’ questions about who and why someone was going to stab him...”. (RB 53.) But just one page earlier, respondentnotes that the defendant in Morris had appeared “upset, nervousand crying” during the booking process (RB 52), phenomenathat 2 + SoneORLA ANERATIONAAVRtspartititpiaHenan pte ane ote no doubt “sparked”the concerns aboutsafety that lay behind his jailer’s questions. Moreover, nothing in Morris, or in the United States Supreme Court decisions that Morris applies, suggests that questions “sparked” by concern for a defendant’s safety fall outside Miranda. On the contrary, the Morris court specifically noted that “police may ask whateverthe needsofjail security dictate. However, when police know or should know that such an inquiry is reasonably likely to elicit an incriminating response from the suspect, the subject’s responses are not admissible against him in a subsequent criminal proceeding unless the initial inquiry has been preceded by Miranda warnings.” (People v. Morris, supra, 192 Cal.App.3d at p. 390.) Respondentalso contends that Morris is distinguishable in that the defendant in Morris was seen crying shortly prior to the confession and “there is no evidence that appellant was visibly shaken duringhis brief meeting with the correctional officers.” (RB 54.) There was no testimony about how appellant looked, but his words clearly indicated that he was fearful. Officer White inferred that he had been threatened. Indeed, White believed that appellant was afraid to disclose the identity of the person who threatened him. Ergo, respondenterrs in claiming that “appellant undoubtedly i D e perceived the correctional officers’ questions as being responsive to his idea to be put in administrative segregation, and he clearly knew thattheir questions were not aimed at uncovering any information about his pending crimes under such circumstances.” (RB 54.) There is no evidence that appellant had any such certainty about the officers’ goals, nor that any such certainty would be reasonable. Appellant had just heard himself declared dead by a man who knewhis name and the victims’ names, and was able to circulate freely while appellant remained caged. The officers questioning of appellant was pertinacious, and likely added to his fears. Appellant may have correctly perceived that the officers knew more than they weretelling him about the identity of his likely assailant. Obviously, appellant was not far off base if he sensed that Officer White would besatisfied if appellant said what White noted in his report, 1.e., that he “admitted that he had in fact killed two Hispanic people.” (13CT 4946.) Finally, respondent contendsthat “appellant’s case is more analogous to People v. Claxton (1982) 129 Cal.App.3d 638 (overruled on other grounds in People v. Fuentes (1998) 61 Cal.App.4th 956, 969) where the court found no interrogation.” (RB 54.) Respondent concedesthat the trial court misread Claxton to involve questioning by a probation officer, whenin fact the person who did the questioning in that case was not any + ar aerHinedeeEaRn oemee type of “officer.” (RB 54, fn. 8.) The employee whoelicited a confession from Mr. Claxton was a “group supervisor . . . responsible for making sure the juveniles were where they were supposed to be”in their custodial unit. (id., at p. 647.) Mr. Claxton knew this employee from a prior commitment, sought the employee out, and initiated the conversation. Respondent contendsthat the question asked of young Mr. Claxton (“what did you get yourself into?”) is like that of Lieutenant Reed in asking appellant “what his crime was”in that the latter “did not require an incriminatory response.” (RB 55.) Respondent cites no authority for the proposition that a question that does not require an incriminating response cannot constitute interrogation, and appellant knows of none. Respondent also ignores the distinction between the correctional officers and the old acquaintance who obtained the confession in Claxton, and offers no theory as to how Officer White’s question (“why would they [or anyone] want to stab you?”’) resembles anything asked in Claxton. Furthermore, the situation in which appellant’s statements were obtained bears no resemblanceto that in Claxton. Appellant was threatened with death by an unseen inmate clerk who knew his name, knew the namesofthe victims, and declared appellant to be “a dead man.” Appellant was bound in handcuffs, and questioned by officers with whom F e F S F s e t h l U r e a e hl Uu rl u m e st hl a e l u e l m s h l U m r S l u r l h l U m r e 8 h l C U r e t l e lt he had no prior relationship. These officers were not reluctant witnesses. Indeed, White congratulated himself in the highlighted, antepenultimate sentence of his report with these words: “During the newarrival interview, Williams admitted that he had infact killed two Hispanic people.” (13 CT 4946, emphasis added.) On the day immediately following the date of this report, Corrieo’s sister, Malena Rubino, contacted Contra Costa Sheriffs Department Sargent Ingersoll and reported her brother’s observation of appellant at Folsom Prison. Five days later, Ms. Rubino contacted Ingersoll again, adding that her brother “had some important information regarding this case” and appellant, which information her brother did not wish to discuss on the telephone. (13CT 4941.) When Ingersoll came to interview Mr. Corrieo, he found that Corrieo had heard from Officer White that appellant had asked for administrative segregation “becausehislife wasthreatened” by an unidentified person “because he killed two Hispanic women.” (13CT 4942.) Corrieo also told Ingersoll that White had written a report on the statement and that Lieutenant Reed was present when the statement was made. (/bid.) Ingersoll obtained the officers’ full cooperation. Corrieo, the officers, and the county prosecutor were, in the end if not by original design, a tag team. Together, they obtained evidence of a confession from a man whohadresisted all county-prosecution attempts to secure his confession. Their evidence should have been suppressed under Miranda if not on the grounds of coercion perse. 5. Prosecutorial use of the confession violated the Right to Counsel and Massiah The parties agree that the Sixth Amendmentprohibits the State from deliberately eliciting incriminating statements from a formally-charged defendant in the absence of counsel, but disagree on the meaning ofthe term deliberate elicitation. Respondent contendsthat it cannot be found here because “the correctional officers were merely asking questions that were responsive to appellant’s request to be placed in administrative segregation and his fear of being stabbed by an unidentified assailant or assailants.” (RB 57.) Respondentrelies on State v. Kemp (1996) 185 Ariz. 53; 912 P.2d 1281 and People v. Lucero (1987) 190 Cal.App.3d 1065. Neither case is on point. In State v. Kemp, the defendant made admissions to two different correctional officers on two different occasions. On the first occasion, the officer asked the defendant why he wasin protective custody. (185 Ariz. at pp. 57-58.) The appellate court opinion does not indicate that any questions preceded the latter admission to a different correctional officer. There is also no indication that either of the F e r e r e e e e e e e e e o e e l l e l l e l e k Respondent’s reliance on People v. Lucero, supra, 190 Cal.App.3d 1065, is similarly misplaced. The putative state actor whoelicited the admissions in Lucero, a suspected crime partner, “did not ask questions of Lucero or otherwise seek particular, incriminating statements from him.” (/d., at p. 1068.) In our case, the officers admitted that they were purposefully questioning appellant, and trying to make appellant “divulge”(in Officer White’s words) any knowledge he had ofthe identity of the person or persons who threatened him. They deliberately elicited appellant’s statements. And becauseof their prior talk with Corrieo, they had to have knownthat any statements appellant made about why he would be stabbed werelikely to be incriminating. "[P]roof that the State 'must have known' that its agent waslikely to obtain incriminating statements from the accused in the absence of counsel suffices to establish a Sixth Amendment violation." (Maine v. Moulton (1985) 474 U.S. 159, 176 fn.12.) Respondentcites Bey v. Morton (3% Cir 1997) 124 F.3d 524, 531, in arguing that appellant “initiated” a conversation with government agents whenhetold them that someone wasgoing to stab him. (RB 61.) In Bey, the defendant admitted his responsibility for the crime for which he had been sent to prison in several casual conversations with a prison guard. 1 oe RcBAEEREOitheses ne a eneumien a ge eames fg ane 2here The “prison guard in Bey neitherinitiated contact with the defendant nor asked him questions designed to induce incriminating utterances. Nor did he take notes or compile any reports of his conversations with the defendant. Lastly, he only disclosed the confession five years later, when questioned by the prosecution. Bey, 124 F.3d at 531...” . (United States v. Furrow (C.D. Cal 2000) 2000 U.S.Dist. LEXIS 21771.) Here, unlike in Bey, governmentagents initiated the contact with the defendant, brought him in handcuffs to an interview room, and asked the questions that elicited the confession. Oneof those agents promptly reported their receipt of a confession to Sergio Corrieo, who hadhissister call in the prosecuting authorities on the following day. (13CT 4941-4942.) Respondentattempts to distinguish United States v. Furrow (C.D. Cal 2000) 2000 U.S.Dist. LEXIS 21771 and Estelle v. Smith (1981) 451 U.S. 454, by noting that the defendants in those cases “had been charged with a capital offense at the time” of the examinations and “it was clear that future dangerousness would be a specific issue at their sentencing. Here, the correctional officers’ intake interview of appellant was aimedat finding appropriate housing...”. (RB 61.) This argumentfails to acknowledgethat appellant was facing capital charges, and that Officer White’s question (“Why would they stab you?”) is i 2 De 2 hardly distinguishable from the ultimate question at every capital defendant’s sentencing: why does the defendant deserve a sentence of death? Moreover, the interviewers in Furrow and Estelle v. Smith were not aiming to discover future dangerousnessfor capital sentencing purposes. In Furrow,the trial court accepted the government claim thatinstitutional safety and security were the sole purpose ofa prison psychologist’s custodial questioning ofa pretrial detainee about his problems withstaff. In Estelle v. Smith, the examiner’s aim was to develop information for a court-ordered mental competency evaluation. Notably, respondent’s argument on the Massiah issue suffers from the same problem discussed in the Miranda context. Respondentinsists that constitutional protections ought not apply where the interviewer sought to develop information for a purpose other than criminal prosecution, and the United States Supreme Court has repeatedly rejected that view. "[T]o allow the admission of evidence obtained from the accused in violation of his Sixth Amendmentrights wheneverthe police assert an alternative, legitimate reason for their surveillance invites abuse by law enforcement personnelin the form of fabricated investigations and risks the evisceration of the Sixth Amendmentright recognized in Massiah." (Maine v. Moulton (1985) 474 U.S. 159, 180.) Moreover, respondent’s arguments on the Massiah claim are at odds with Furrow and Estelle v.Smith intheir concern with whetherthe individual prosecuting attorney, or interviewer, knew or should have known that the latter would develop evidence for the former. The propriety of prosecutorial use of incriminating statements secured by other state actors during questioning of a represented defendant in the absence of counsel does not turn on the individual prosecutor’s involvementin securing the statements, letalone what any individual state actor knew or should have known. When multiple governmentactors each play a small part in creating a Situationlikely to produce a confession from a defendant in the absence of counsel, resulting statements are excluded under Massiah even if no individual government actor appears blameworthy. As the Furrow court explained: Although Dr. Burris did not"deliberately set outto secure information for use in a pending prosecution," [fn] "the determinative issue is not the informant's subjective intentions, but rather whether the federal law enforcement officials created a situation which would likely cause the defendant to make incriminating statements.” [fn] Dr. Burris mayhaveinitiated contact with Defendantfor the sole purpose of assessing the threat he posed to MDCsecurity; however, the government's subsequent attempt to use the contents of their discussions as evidence of Defendant's future dangerousness renders those sessions the functional equivalent of a custodial interrogation conducted outside the -37- 2 presence of counsel.” (United States v. Furrow (C.D.Cal. 2000) 2000 U.S. Dist. LEXIS 21771, 19-22.) 6. Theuse of the confession evidence at trial was not harmless In claiming any error was harmless, respondent overlooks the centrality of confession evidence, andits particular importanceat appellant’s trial. Confessions are the highest order of proof. (Arizona v. Fulminante, supra, 499 U.S. at p. 296.) “A confession is like no other evidence. Indeed, ‘the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him. . . . The admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct. Certainly, confessions have profound impact on the jury, so much so that we may justifiably doubtits ability to put them out of mind even if told to do so.’ [Citation.|.” (/bid.) This Court has noted in a similar vein, “the confession operates as a kind of evidentiary bombshell which shatters the defense.’ [Citation.]” (People v. Cahill (1993) 5 Cal.4th 478, 497.) Respondentalso ignores the template that the United States Supreme Court established in Fu/minante for evaluating the impact of an erroneously admitted confession. In holding that the admission of Mr. Fulminante’s confession evidence was not harmless, the Court emphasized two factors: -38- enMOEASILEOlOONAREAceaetme ts 1) the prosecutor had manifested his belief that the confession was important for conviction; and 2) the evidence was such that the jury could have relied in part on the confession to convict. (Arizona v. Fulminante, supra, 499 U.S.at pp. 297-300.) Respondent does not deny that those two factors are prominentin our case as well as in Fudminante. Instead, respondentrecites the circumstantial evidence connecting appellant to the crime, and suggests that the known perpetrator, David Ross, was made credible by the evidence that he promptly told his sister (Bernadette) and his fence (West) that appellant had killed the women. Not so. Ross denied any recollection of telling his sister about the crimepriorto his arrest. Hetestified that he made pre- arrest statements about the crime only to his fence (Mr. West), his girlfriend (Kari Meran) and his friend, Josh Adcock. (2RT 273.) None of those individuals testified. A transcript of a police interview of Josh Adcock included in our record reveals that what he heard from Ross was not consistent with Ross’ testimony against appellant. As the prosecutor well knew, Ross told Adcock that he committed the robbery with two other men that Ross and Adcock knew,not Lolohea or appellant, and that both of Ross’ accomplices were together inside the house when Rosswasin the car and heard the shotsfired at the victims. (3CT 969-972.) Ross told a e e 2 2 e e different story every time he spoke. Accordingly, the prosecutor emphasized the confession evidence before venturing to discuss Mr. Ross, and downplayed the importance of Rossin light of the confession. (13 RT 4292.) Respondent does not acknowledge the prosecutor’s heavy reliance on the confession evidence, thoughit is hard to overlook. The prosecutor’s initial argumentto the jury respecting the confession evidence spans three pages. (13RT 3479-81.) After characterizing the circumstancesofits production as “karma”and “fate stepping in,” he began emphasizing the words written by Officer White: “** Williams admitted that he had in fact killed two Hispanic people.’ Not wasalleged for [sic] doing, not was threatened for doing, not maybe had done. “He admitted that he had in fact killed two Hispanic people.’ The question, ladies and gentlemen: which two Hispanic people? And I know,becausethis is a rhetorical question, there’s no doubt in your minds which two Hispanic people it was[sic]. It was a Hispanic mother ..., and her daughter...”. (13RT 3481.) Whenheventuredto discuss his chief witness, he again emphasized the overarching importance ofthe confession, to wit: Now,| wouldn’t expect you to accept David Ross’s wordall by itself that it was Corey Williams who did the -AQ)- killing. I’ve not for many years been so naive. I would not expect you to come to such a belief. But bear in mind that David Ross was not brought here to persuade youofthat fact. The defendant has admitted doing the killings. What David Rossis here to tell you is how those killings came about. (13 RT 3492.) The prosecutor again emphasizedthe central importance of the confession evidence,just two pageslater in his argument, after saying what he could in defense of Ross’ credibility: “[T]he purpose for his being here was so you would know how and why it was Corey Williams actually in fact murdered two Hispanic people. And now you know. He didn’t want to be identified.” (13RT 3494.) Before concluding the opening part of his summation, the prosecutor cited the confession evidence again in asking the jury to reject defense currency expert’s testimony indicating that all the currency found in appellant’s formergirlfriend’s possession wasold, and devoid ofbills of the printing in circulation at the time of the robbery. “Put it in simple analysis, ladies and gentlemen. Put it to simple analysis, the defendantin fact killed. He admitted he in fact killed two Hispanic people.” (13RT 3500.) Defense counsel was then reduced to arguing that “the statement that Mr. Williams allegedly made... up at Folsom” wasnot, as the prosecutor had claimed, a confession. (13 RT 3506.) He argued that the testimony -4]- r e e e 2 2 2 | r s FF (« omen of White and Reed should be viewed with caution, pursuant to the standard Jury instruction, and because White’s statement that appellant “‘admitted” he had in fact killed two Hispanics and White’s testimony showed White to have an “incriminatory or accusatory bias toward prisoners.” (13RT 3515, 3548-51.) He noted that White and Reed disagreed as to which one of them asked the question that produced the confession, and neither one of them could say precisely what the answer was. (13RT 3553-3554.) In his rebuttal argument, the prosecutor posited that all the issues argued by the defense “brings usto — it boils downto the single most important exhibit in this trial, and that’s People’s Exhibit No. 19, documenting the defendantright after he’s been threatened.” (13RT 3561.) The prosecutor then went over the sequences of events recalled by White, andall the factors supporting White’s credibility and thereliability of his written report. (13 RT 1362-1364.) After discussing the other evidence and its weaknesses, the prosecutor returned to the confession, his central theme: “He’s admitted killing two Hispanic people. In context, having been threatened about Maria Elena Corrieo only moments before, those are the Hispanic people we’re talking about. Just if you look at that all by it self.” (13RT 3569.) Finally, the prosecutor used the confession evidence to argue that -42- aaa are David Ross wasnot, as the defense had claimed, fabricating appellant’s involvement. “David Ross would have been the luckiest sole [sic] on the face of the earth... . David Ross just picked a guy who coincidentally monthslater in prison admitted killing two Hispanic people, one of whom in context has to be his mother[sic].” (13RT 3570.) Once appellant became the designated shooter in Ross’s story of the crime, the Corrieo family and the State shared an interest in seeing appellant’s guilt confirmed by other evidence. The family and the State advertised their offer of a $50, 000.00 reward for supporting evidence, and confirmed its continued availability after the arrest of Ross and Lolohea and before appellant arrived at New Folsom Prison. > The jury, having heard nothing about the open reward offer at the time the confession evidence emerged from Folsom, undoubtedly accepted the correctional officers’ testimony as solid confirmation of appellant’s guilt, as the prosecutor argued that they should. > As revealedin records that remained sealed and undisclosed to appellant until after he was sentenced to death, the Deputy District Attorney whoprosecutedthis case controlled a $50,000.00 reward fund to be disbursed for information and assistance in the trial process. (6SCT 2165.) Newspapers reported that the $50,000.00 reward offer remained open after the arrest of Ross and Lolohea andthe identification of appellant as the shooter based upon statements made by West and Ross. (See San Francisco Chronicle, January 12, 1996, “2 Held in Slayings of Orinda Women; Contra Costa Sun, January 17, 1996, “Two Men Charged in Orinda Slayings”.) a 2 ee 2 oe | | 2 & a In all cases governed bythe harmless error standard of Chapmanv. California (1967) 386 U.S. 18, 24, the test "is not whether, in a trial that occurred withoutthe error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." (Sudlivan v. Louisiana (1993) 508 U.S. 275, 279.) "Consistent with the jury-trial guarantee, the question ... the reviewing court [is] to consider... is not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand." (/bid.) The prosecutor observed his witnesses, and the jury. He knewhis evidence better than we can knowit from reviewing the record. He concluded that the confession wascritical to his case. "There is no reason why the reviewing court should treat this evidence as any less crucial than the prosecutor -- and so presumably the jury -- treated it." (People v. Cruz (1964) 61 Cal.2d 861, 868; accord, People v. Holt (1984) 37 Cal.3d 436, 459; People v. Powell (1967) 67 Cal.2d 32, 56-57.) Anerror is harmless only whenit is "unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record." (Yates v. Evatt (1991) 500 U.S. 391, 403, disapproved on another ground in Estelle v. McGuire (1991) 502 U.S. 62, 73, fn. 4.) The -44- toseainsienanieintante HeeitheNONIBIE MCMRGEY RALEIN SAROSEoh eB Yt ae 2 rare cecenteoiiane:ireneChaMeattbonm9mmstteilmnateet nsAiremm te mo ee error in admitting the confession evidence cannot be proved harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Il. THE TRIAL COURT'S DECISION TO ALLOW THE PROSECUTOR TO ASK DAVID ROSSA SERIES OF LEADING AND ARGUMENTATIVE QUESTIONS FALSELY SUGGESTING THAT THE STATE GUARANTEEDROSS’ TRUTHFULNESS MADEIT APPEAR FUTILE FOR THE DEFENSE TO OBJECT TO SUCH IMPROPER PROSECUTORIAL VOUCHING AND VIOLATED APPELLANT?’S RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS A. Respondent’s forfeiture claim fails Respondent contends that some of appellant’s arguments in support of this claim constitute a separate claim of “prosecutorial misconduct” which wasforfeited because no “prosecutorial misconduct”basis for objection wasarticulated at trial. This is a red herring. Asstated in appellant’s argument heading, appellant claims judicial error in permitting the prosecutor to lead accomplice-witness David Ross with an argumentative question that implied personal belief in the ability of a plea bargain to ensure the truthfulness of Ross’s testimony. Defense counsel stated two appropriate grounds for objection — L.e., that the question was leading and argumentative. Thetrial court promptly -45- a F U r e e hUmr eh l U m r e l m a ah lU mr aa l m l m r a F e l h eye overruled the objections, explaining only that the court saw a permissible “purpose” in what the court acknowledged only as a “somewhat leading” question. Where the defendant's stated objection to the question “was promptly overruled, his failure to request a curative admonition was justified. [Citations.]” (People v. Stitely (2005) 35 Cal. 4th 514, 559-560.) Thus, even if appellant’s present claim is indeed one of “prosecutorial misconduct” that claim “has been preserved for appeal.” (Ibid; People v. Zambrano (2004) 124 Cal. App. 4th 228, 236 [upon overruling of objections to the prosecutor's “were they lying” questions on the grounds of speculation and relevance, “defendant is excused from making a timely objection or requesting a curative admonition regarding the prosecutor's alleged misconduct because it appears both would have been futile.”] .) Underthese circumstances, “a request for a jury admonition or the lodging of further objections would have been futile. Additional objections were not necessary to preserve the claim. [Citation.]” (People v. Chatman (2006) 38 Cal. 4th 344, 380 [overruled objections to “were they lying” questions as speculative, argumentative and irrelevant preserved appellate claim of prosecutorial misconduct].) -46- See mammncapeAREreacco Asan cn nRSr REN tae et The same holdstrue as to any objection counsel could have made to the prosecutor’s assertions about the plea bargain’s powerin closing argument. Respondent misplacesreliance on People v. Bemore (2000) 22 Cal.4th 809, 854, People v. Davenport (1995) 11 Cal.4th 1171, 1214, and People v. Williams (1997) 16 Cal.4th 635, 673. (RB 72.) In all three cases, the defense stated no legal ground for objection to the prosecutor’s penalty phase argumentor leading questioningat trial, raised a variety of objections for the first time on appeal, and pointed to no prior ruling of the court or other justification for failing to objectattrial. ° Here,the trial court’s prior ruling providesclearjustification for refraining from objecting to the prosecutor vouching for the truth-ensuring powerof Ross’ plea bargain during closing argument. Thetrial court’s decision overruling defense objections to the prosecutor’s leading and ° Mr. Bemore claimedthat “the prosecutor's remarks violated his privilege against self-incrimination because they alludedto his failure to take the stand at the penalty phase, confess guilt, and express remorse. [Citations.] Defendant also asserts the prosecutor committed Boyd error (People v. Boyd, supra, 38 Cal. 3d 762, 771-776 ) by invoking lack of remorse as a nonstatutory aggravating factor, and Davenport error (People v. Davenport, supra, 41 Cal. 3d 247, 288-290 ) by misrepresenting the absence of mitigating evidence of remorse as aggravating. Related federal and state due process claims are based on the notion that the prosecutor injected an irrelevant and impermissible factor into the penalty determination. [Citations.]”(People v. Bemore, supra, 22 Cal. 4th 809, 854.) -A7- i ee ee e e e e ee e e e e e e i | argumentative question permitted the prosecutorto assert the efficacy ofa plea bargain’s truth-telling provision during the direct examination ofhis witness. That ruling necessarily implies that the same prosecutorial argumentwill be permitted at the portion of the trial when argumentis generally proper. Objection during closing argument would have been futile. (See People v. Johnson (2004) 119 Cal. App. 4th 976, 984 [overruling of defense objection to prosecutorial argument paraphrasing court’s preinstruction showsfutility of any objection to the latter].) B. Respondent’s arguments on the merits fail Respondent arguesthat the trial court did not err in overruling defense objections to the prosecutor’s leading and argumentative direct-examination question asserting, in the presence ofthe jury, that David Ross, the witness to whom he gavea plea bargain, understood that the plea bargain required only that hetell the truth.’ ’ To quote: PROSECUTOR: You understand that there is one thing and one thing only you are required to do in orderto get the benefit of this agreement and spend 20 actual years in prison? DEFENSE COUNSEL: Objection.It's leading and argumentative. _48- 1 einertaseNeEtRepentnayynee nS OT RUN6 FOOL 4 rae3tenn RANOTROEARRRSetonmapas oo (RB 65-67.) Respondentfirst claims that the question was not argumentative because “(t]he question had not already been asked and answered[and| did not call for an answer that would have contradicted anything to which Ross had previously testified. The question merely soughtto elicit facts within Ross’ knowledge...”. (RB 67.) Respondent’s argumentis hard to fathom. Respondentoffers no authority suggesting that the cited facts reveal that the prosecutor’s question was not as argumentative as appellantasserts. Nor does respondentidentify anything wrong with the definition of “argumentative” set forth by Jefferson and Witkin, and by this court in People v. Williams (1997) 16 Cal.4th 635, 672, and repeated in appellant’s opening brief: a question is argumentative and thus improper whenit seeks no new information, but rather seeks only THE COURT:Well, it's somewhat leading but for this purpose,overruled. PROSECUTOR:It's foundational. Thank you. Q. Answerthe question. What one thing are you required to do in order to get the benefit of this agreement and serve 20 actual years in prison? A. Totell the truth. (ORT 2677-79.) -49- i 2 assent to the inference suggested by the questioner. (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 168, p. 232; Jefferson, Cal. Evidence Benchbook (2d ed. 1982) Examination of Witnesses § 27.9, p. 764; AOB 86.) Respondent’s failure to meet the law on argumentative questioning requires no further comment. Respondentalso claims that “the prosecutor’s question was not leading.” (RB 67-68.) Although respondent acknowledges the law defining leading questions to include any “ question that suggests the answerto the witness” (RB 67-68) respondent offers no authority or logical path to the conclusion that the question at issue here escapesthat definition. The fact that the challenged question “merely required Ross to answer ‘yes’ or ‘no,’” (RB 69) does not mean that the question did not suggest the answerthe prosecutor desired. Likewise, respondent’s claim that the question “did not suggest that he must answer one way or another” (RB 69, emphasis added) misses the mark. A questionis leading if it suggests the response that the questioner needs or desires, without regard to whetherthe questioner indicates that the deal is dead if the witness gives the wrong answer. Respondentlater alleges “even if the question was leading the reNARNe Naep |e,rnORAERACREectondeoS Be Pm ehe Cn Rac Amery trial court did not abuseits discretion by allowing the prosecutor to ask it if there was no dangerof false suggestion. (See Peoplev. Harris (2008) 43 Cal.4th 1269, 1285 [finding no abuse of discretion where ‘the possibility of improper suggestion was remote’ ].) Ross had already testified during the grand jury proceedingsthat the prosecutor had promised not to seek the death penalty against him in exchangefor Ross’s promiseto testify truthfully. (ICT 142-144.) Moreover, the written agreement. . . stated that Ross had agreed to tell the truth about the crimes...”. (RB 69.) Notably, Ross’s grand jury testimony on this point wasalso in responseto leading questions. Appellant could not object or even attend the grand jury proceedings. But at his jury trial, he was entitled to have his jury see Ross’s demeanorand hear him say in his own words what he thought the agreement required of him, and to prevent the prosecutor from substituting his own credibility for that of Mr. Ross on this critical issue at trial. (U.S. Const., amends.5, 6, 8, 14.; United States v. Young (1985) 470 US. 1, 18-19; United States v. Weatherspoon (9"Cir. 2005) 410 F.3d 1142, 1147-1148.) Respondentalso argues that the jury would notlikely reach a different verdict if the objection had been sustained, assuming no 2 federal constitutional violation occurred. (RB 70.) That assumption is not a fair one. Respondent cites People v. Hinton (2006) 37 Cal.4th 839, 865, which involvedthe use of leading questions on “foundational matters.” The defendant did “not assign any prejudice to this sequence, and none can be imagined.” (Ibid.) Those are not our facts. Ross’s supposed belief that he need only tell the truth to preserve his bargain was not a “foundation”for the introduction of other evidence, but rather a key point to the credibility of his testimony. Absent credible assertions that Ross believed he wasfree to tell the truth at appellant’s trial (even if the truth was that Ross and Lolohea committed the crimes alone) reasonable jurors would reasonably infer that the plea bargain effectively compelled him to “stick to the story” even if it meant lying. Finally, respondent claims that the challenged question and related closing argument “did not constitute improper vouching. The prosecutor did not give his personal opinion that the agreement ensured the truthfulness of Ross’s testimony, nor did he imply that he could verify Ross’s testimony ...”.. (RB 73.) Respondent does not quote or reference much ofthe prosecutor’s closing argument in so contending. Here is the actual text of the prosecutor’s final remarks on Ross: David [Ross] understands quite well, as he testified here and as part of the agreement under which heistestifying, that if he minimizes his role before the jury, he doesn't get his deal. If he casts false blame on any ofthe other participants he doesn't get his deal. He knowsandhastestified here before you. It's evident also in his agreement, it's a term of it, that he's requiredto tell the truth. And if that means that he was the actual killer, he's entirely free to say so andhestill gets his deal of an actual 20 years in prison... . He would like to know that in 20 years from January of 1996 that he will be considered for parole and he understood,I think, quite clearly. I think his testimony was perfectly clear on this and [ think you saw it. He understands. He wants that deal. He knowsthe only wayto get the dealis to tell the truth. Andhefreely admitted on the stand he's led a life of lies. He's led a life of violence. He's not the kind of guy, as Mr. Egan said, who out on the street you'd wantto buy a car from or even let mow yourlawn,let alone comein and invite to dinner. Yet, under these circumstances wherehe has an enormous incentiveto tell the truth and understands that and knowsthat if he can accept responsibility for anything up to and including personally murdering both of these people to get 20 years,that all he has to do istell the truth. (13RT 3492-93.) In the view of the United States Court of Appeals for our circuit, jurors hear the prosecutor vouching for his plea bargain when prosecutors say whatthe prosecutorsaid here. L i e e ee i 2 e e 2 2 2 2 | “[P]rosecutorial remarks implying that the governmentis motivating the witnessto testify truthfully . . . inevitably give jurors the impression that the prosecutoris carefully monitoring the testimony of the cooperating witness to make sure that the latter is not stretching the facts — something the prosecutor usually is quite unable to do; .. . The prosecution may notportray itself as a guarantor oftruthfulness.” (United States v. Roberts (9" Cir. 1980) 618 F.2d 530, 536, quoting Judge Friendly’s concurrence in United States v. Arroyo-Angulo (2Cir. 1978) 580 F.2d 1137, 1150; see also People v. Bonilla (2007) 41 Cal.4th 313, 336-337.) Accordingly, appellant sees a “reasonable likelihood”that the jury construed or applied the prosecutors remarks — including those stated in the challenged question as well as those in final argument- in “an objectionable fashion.” (People v. Clair (1992) 2 Cal.4th 629, 663.) One cannot say, with the requisite certainty, that those remarks did not contribute to the verdict. Ill. THE PENALTY JUDGMENT MUST BE REVERSED UNDER WITHERSPOON/WITTAND GRAY v. MISSISSIPPI Respondent’s long and boilerplate-heavy presentation buries, and often misstates, the basis of appellant’s claim: Thetrial court granted the prosecutor's challenge to death-reluctant Juror W.M. without finding, -54- expressly or implicitly, that W.M. wasbiased or substantially impaired. Indeed, the trial court expressly found no merit in the prosecutor’ s challenge, but resolved to grant it anyway because defense counsel had brought a challenge against another prospective juror without what thetrial court considered good grounds. Ata bench conference immediately prior to the ruling, the trial court declared: “Well, both of you have kind of — you’re running jurors through a very fine screen now,whichis not really what the scope of voir dire should be. Neither one ofthese challenges, in myjudgment, are meritorious. \’m either going to grant them both or deny them both. Ill let you know whenyouget back there.” (8RT 2166, emphasis added.) Then, in the presenceof the panel of prospective jurors, thetrial court announced that W.M.and the venirememberchallenged by the defense were “subjected to a long amountof questions” and had answered the questions very well, “but I think on balance I am going to excuse both of you.” (8RT 2166.) Citing Gray v. Mississippi (1987) 481 U.S. 648, appellant submits that the grant of the prosecutor’s challenge for cause was improper because the trial court correctly found that W.M. was not impaired. In Gray, the trial court granted the prosecutor’s challenge for cause to remove a death scrupled prospective juror whom the court described as indecisive without -55- e e e e e e e e ee 2 e s 2 finding that she was disqualified under Witherspoon/Witt. The reasoning of the trial court in Gray was as uniqueasthat of the trial court in the present case. Essentially, the trial court believed it had previously erred in denying five of the challenges for cause the prosecutor had made against people opposedto the death penalty, and had thereby “cheated” him out of peremptory challenges. (/d., at p.656, fn. 7.) The state appellate courts held that the removed juror was not properly subject to a challenge for cause, yet declared the error harmless. (/d., at p.657.) The United States Supreme Court reversed. Respondent contendsthat “contrary to appellant’s claim, the trial court did makea finding of substantial impairment with respect to Juror W.M. (8 RT 2166.) (RB 83) Butlike the rest of the record, the cited page does not reveal any finding that Juror W.M.wassubstantially impaired. To the contrary, the cited page is the one wherethetrial court expressly finds that the prosecutor’s challenge of W.M. was not “meritorious” and then committed itself to grant that challenge if it granted a defense challenge to a juror who favored the death penalty. Furthermore, nothing in our record supports respondent’s suggestion that the trial court cameto a different appraisal of W.M.based on “further consideration of the record.” (RB 84.) The court’s finding that the challenge to W.M.was unmeritorious was announcedat the same bench conference at which the court heard the challenge and told counselthat the court would rule as soon as counsel returned to their seats. The decision to excuse W.M.was indeed announced as soon as counsel returned to their seats following the bench conference. (8RT 2166.) Citing Uttecht v. Brown (2007) 551 U.S. 1, 7) respondent claims that a trial court’s “granting of a motion to excuse a juror for cause constitutes an implicit finding of bias.” (RB 83.) The cited page of Uttecht indeed states that the granting of a motion to excuse for cause constitutes an implicit finding of bias. But on the following page, Uttecht distinguishes the rare cases wherethe trial court grants a challenge for cause after expressly finding that the juror was not biased or impaired. “[I]in the typical situation there will be a state-court finding of substantial impairment; in Gray v. Mississippi (1987) 481 U.S. 648], the state courts had found the opposite.” (Uttecht v. Brown, supra, 551 U.S. at p. 8.) Uttecht thus confirms the Court’s continued accord with the general rules of appellate procedure precluding reviewing courts from implying a trial court finding that "contradicts an expressrecital in the record... ." (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 349, p. 395.) ) “[P]resumptions are indulged to support [the trial court judgment] on i a e a e e a 2 2 e e r u F e k s e s h U m e U8 matters as to which the record is silent” (Denham v. Superior Court (1970) 2 Cal. 3d 557, 564) but not as to matters on whichthe record directly speaks. (People v. Molina (1994) 25 Cal.App.4th 1038, 1041 [implied findings are deemed made wherethere are no express findings]; see also Reid v. Moskovitz (1989) 208 Cal.App.3d 29, 32 [appellate court will not infer an implied finding was madebytrial court where the record showsthe trial court expressly declined to makeit].) Respondent also claims that W.M. wasin fact impaired by his views (which favored the death penalty but asserted it was used too randomly — RB 79-80) and his doubts about whether he could impose the penalty himself. (RB 80-81.) But respondentcites no authority allowing a state appellate court to make its own judgmentof the evidenceaftera trial court finds that a death-reluctant juror was not actually impaired. On the contrary, the authorities cited by respondent compelthis court to accept the trial court’s “determination as to the juror’s state of mind”, particularly where,as here, the juror’s statements are “conflicting or ambiguous.” (RB 81, citing People v. Mayfield (1997) 14 Cal.4th 668, 727 and People v. Beeler (1995) 9 Cal.4th 953, 989.) Furthermore,the trial court’s express finding that W.M. was not substantially impaired accords with the evidence and the governing law. The record shows no grounds for removal, other than reluctance to impose death, and reluctance to impose death is not a proper ground for discharge of a death-scrupled juror. (Adams v. Texas, supra, 448 U.S. 38, 45; Witherspoonv. Illinois (1968) 391 U.S. 510; People v. Stewart (2004) 33 Cal.4th 425, 447, further discussion at AOB 95-98.) Finally respondent suggests that removing Juror W.M. was appropriate insofar as the defense challenge that the trial court deemed equally unfounded,i.e., that of automatic-death-juror R.H.-- was appropriately granted. Respondent claims Juror R.H. was “just as equivocal as Juror W.M.[citations] and just as much a deficient juror given his fixed ideas ... for the death penalty and againstlife ..(RB 85.) We disagree. Unlike Juror W.M., Juror R.H. expressed fixed ideas and prejudices againstlife sentencing and capital mitigation evidence which plainly disqualified him under Morganv. Illinois (1992) 504 U.S. 719, 729.8 ’When R.H. wasaskedif he believedlife in prison withoutthe possibility of parole is a legitimate punishmentfor special circumstance murder, R.H. wrote “No”and “It would seem that if the murder was committed in a cold and calculated manner, perhaps the death penalty is more reasonable orjustifiable.’ (RT 2147.) After voir dire by court and counsel, he confirmed that hestill did not believe life without parole was a legitimate punishmentfor special circumstance murder. (8RT 2152.) R.H. wrote that he considered psychiatrists “quacks” (25JQCT 10181) and their opinions unworthy of consideration. “A solid pattern of behavioral deficiency would have to be exhibited beyond a reasonable doubtin order for me to consider the claim valid.” (25JQCT 10173.) Under questioning -59- i e e o e e e 2 ee e e e e e s e s 2 ee , 2 oni aes hg, Thetrial court’s expressed belief that the defense challenge to R.H. was not well-founded is nowhere explained. Thetrial court expressed chagrin at the ineffictency of both prosecution and defense counsel’s questioning of R.H. (“Both of you wasted an awfullot of time on that juror for not getting very much.”— 8RT 2165) While it may be that defense counsel and the prosecutor were equally guilty of inefficient voir dire, our constitutional case law does not permit trial courts to reject a qualified death-scrupled by defense counsel, he agreed that he would not judge evidence produced from psychiatrists and psychologists by the same standards as he would judge evidence from other witnesses. (8RT 2163.) Where R.H. was asked if he would “listen to the background information regarding the defendant (as the law requires)” before deciding on the appropriate punishment, he wrote, “The choice to commit the crimeis the individual’s. Background information would seem to havelittle influence on the sentence.” (25JQCT 10198.) When asked if he believed the State should impose the death penalty upon someone whokills more than one humanbeing during the commission of a robbery or burglary “always, sometimes or never”, he checked “always” and wrote: “One murder may have circumstances, multiple murders would not.” (25JQCT 10199.) He had checked “sometimes” in response to the same question respecting killing one person generally and during the commission of robbery or burglary, and wrote ‘What was the motivation? Self-defense? ... What are the circumstances? Did the gun go off accidentally, or was the murder an “execution.’” (25JQCT 10199.) When pressed to say that he would not automatically impose death upon conviction, he said, “I honestly don’t know. It would depend upon the circumstances and whetherthe individual wasfound guilty or not.” (8RT 2161.) For R.H., there was only one mitigating factor worth listening to: the circumstances of the offense. R.H. wasdestined to “fail in good faith to consider the evidenceof . . . mitigating circumstancesas the instructions require him to do” (Morganv.Illinois, supra, 504 U.S. 719, 729) and had to be removed to protect appellant’s due process rights. (/bid.) -60- juror whenever defense counsel’s voir dire of anotheris disturbingly inefficient. Reversal is required. IV. THE TRIAL COURT ERRED IN ALLOWING APPELLANT TO PROCEEDIN PRO PER AT THE PENALTY PHASE WITHOUT MAKING THE INQUIRIES AND EXERCISING THE JUDICIAL DISCRETION APPROPRIATE FOR AN UNTIMELY, PENALTY-PHASE-ONLY FARETTA MOTION This court has long held that when a defendant makesan untimely request to discharge counsel and represent himself, “the trial court shall inquire sua sponte into the specific factors underlying the request thereby ensuring a meaningful record in the event that appellate review is later required.” (People v. Windham (1977) 19 Cal. 3d 121, 128-129, accord People v. Hardy (1992) 2 Cal.4th 86, 195 [the trial court should inquire into the defendant's reasons for requesting to proceedin pro per if untimely].) The trial court must consider, inter alia, “the reasons for the request” and, “Thjaving established a record based on such relevant considerations, the court should then exercise its discretion and rule on the defendant's request.” [/bid.| Appellant’s opening brief argues thatthe trial court failed to fulfill this obligation. The sole response to the prosecutor’s request for a Statement of appellant’s reasons for moving to discharge counsel — saying -61- 2 e e 2 e e arm, “it was just a belief” and that his decision was made four years ago — provided no account of his reasons, and begged the question of why he wished to proceed without counsel at the penalty phase only. Appellant’s brief also sets forth why he should not be deemed to have invited the error. (AOB 107.) Respondentasserts that appellant’s claim is “not an appealable issue.” (RB 90.) Citing a case in which this Court wrote that a defendant may not “complain of error” in a trial court’s failure to weigh the Windham factors if his Faretta motion was granted (People v. Clark (1992) 3 Cal.4th 41, 109) respondent seeks to avoid recognition ofthe error here. Clark may well be distinguishable here. Clark cites People v. Brownlee (1977) 74 Cal.App.3d 921, 924, a case in which the claim was rejected based on the invited error doctrine. There, the defendant’s lawyer “represented to the court that Brownlee had an absolute constitutional right to act as his own lawyer, and the error, if any, in appointing Brownlee to act as his own lawyer comes within the doctrine of invited error.” (Peoplev. Brownlee, supra, 74 Cal. App. 3d 921, 933.) As respondenttacitly concedes, there is no basis to find the invited error doctrine applicable here. And,even if there were a basis for such a finding, this Court would still be able to grantrelief in its discretion. “‘An appellate court is generally -62- not prohibited from reaching a question that has not been preserved for review by a party... . Whether or not it should doso is entrusted toits discretion.” * (6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Reversible Error, §36, p. 497, quoting People v. Williams (1998) 17 Cal.4th 148, 162, fn. 6.) Respondent next contendsthatthe trial court “properly granted appellant’s Faretta motion” insofar as none of the commongroundsfor denying a Faretta motion were apparent. (RB 91-95.) Respondent erroneously claims that “[a]ppellant had not made any prior requests to represent himself or to substitute counsel.” (RB 94.) In fact, appellant madeat least two attempts to remove appointed counselpriorto trial, one of which was abandoned,andthe other denied after a contentious hearing in camera. (IRT 11-14, 21, 59, 71-72.) Appellant also wrote letters to the court stating he had difficulty with his counsel and wished to be granted “temporary pro per”status, but received no response. (2CT 441- 441-442.) Moreover,the trial court’s duty to inquire into the defendant’s reasons for seeking pro perstatus, as declared in Windham, does not depend on the appearance of obvious grounds to deny the motion. A trial court that fails or refuses to make an inquiry demanded by Windham and goes on to grant the Faretfa motion has not exercised the required discretion. Put e s £ 3 F € 8 F 3 s F e e s e h m e l m a a t l c e a t l e another way, the deferential abuse-of-discretion standard of review does not apply when the record or the findingsofthetrial court suggest a lack of consideration of the essential circumstances to be evaluated in exercising discretion. “To exercise the powerofjudicial discretionall the material facts in evidence must be both known and considered, together also with the legal principles essential to an informed,intelligent and just decision. (/n re Cortez (1971) 6 Cal.3d 78, 85-86.) [A] ruling otherwise within the trial court's power will nonetheless be set aside where it appears from the record that in issuing the ruling the court failed to exercise the discretion vested in it by law.’ (People v. Penoli (1996) 46 CalApp.4th 298, 302, [53 Cal.Rptr.2d 825].) “Failure to exercise a discretion conferred and compelled by law constitutes a denial ofa fair hearing and a deprivation of fundamental procedural rights, and thus requires reversal.’ (/d. at p. 306; People v. Downey (2000) 82 Cal.App.4th 899, 912, [98 Cal. Rptr. 2d 627].)” (Fletcher v. Superior Court (2002) 100 Cal. App. 4th 386, 392, accord People v. Melony (2003) 30 Cal.4th 1145, 1165.) Federal constitutional principles lead to the same result. In addition to violating Fourteenth Amendment Due Process Clause protection against arbitrary deprivation of state procedural rights established by Windham, the -64- trial court’s error led to an unfair and unreliable penalty trial in which only one side was represented by counsel. (U.S. Const., amends. 6, 8, 14.) The trial court’s error was structural, and affected the composition of the record, making harmlesserror analysis impossible. Reversal is required V. THE TRIAL COURT ERRED IN ADMITTING, AND IN REFUSING TO STRIKE, VICTIM IMPACT TESTIMONY RENDERED BY SERGIO CORRIEO WITHOUT NOTICE AND WITHOUT THE REQUESTED OFFER OF PROOF Appellant’s opening brief cites error in (1) the trial court’s rejection of appellant’s timely request to make the prosecutor disclose, in limine, the testimony he wished to offer as victim impact evidence,so that the court could rule out any improper questions or testimony that the prosecutor wished to pursue, and (2)the trial court’s refusal to strike that portion of the victim impact evidence respecting a family member’s wish to see appellant dead. Respondent claims the prosecutor’s disclosure obligations and duty to give reasonable notice were discharged whenhe “informed appellant and the trial court that he intended to call Mr. Corrieo as a witness to provide impact witness testimony”at least insofar as the jury had already “heard Mr. Corrieotell the jury about threatening [appellant] during their brief -65- e e a e e e n e 2 e e encounter ...”. (RB 100.) Respondentapparently assumes the prosecutor disclosed his intent to call Sergio Corrieo before calling him to the stand. That assumption is belied by the record. Atthe in limine hearing, the prosecutor disclosed only that he was considering calling either Sergio Corrieo or one of Sergio’s sisters, Lili Williams, “‘on the matter of victim impact.” (13RT 3687.) Despite appellant’s specific request to discover the identity of the witness, there is no record of appellant being told that Sergio Corrieo would be called, much less that the prosecutor would ask him any questions abouthis feelings toward appellant. The District Attorney declared: “Well, the defendantis not entitled to that information. I’m not required to give discovery or any sort of victim impact testimony. I don’t know exactly what they’re going to say and we’ll see that when theytestify.” (13RT 3688.) The prosecutor’s opening statement provided no description of the victim impact evidence he would-offer. Yet immediately after opening statements, the prosecutor presented testimony from Sergio Corrieo. A criminal defendant may request, and trial court may demand, details of the prosecutor’s contemplated approach to “victim impact” testimony when the prosecutor discloses intent to introduce such evidence. (See, e.g., People v. Carrington (2009) 47 Cal. 4th 145, 196; AOB 125-128 -66- [review of cases from otherjurisdictions mandating detailed disclosure.) “[T]hese cases represent a reasonable accommodation of the defendant's right to prepare his defense and the government's right not to be subjected to broad discovery in a criminal case. (United States v. Cheever (D. Kan. 2006) 2006 U.S. Dist. LEXIS 14107, 23.) Appellant appropriately requested detailed disclosure of the prosecutor’s game plan by motion in limine. “A motion in limine is made to exclude evidence before the evidenceis offered at trial, on grounds that would be sufficient to object to or moveto strike the evidence. The purpose of a motionin limineis ‘to avoid the obviously futile attempt to “unring the bell” in the event a motion tostrike is granted in the proceedings before the jury.’ [Citations.]” (Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 26.) Thetrial court’s refusal of appellant’s request was unreasonable, particularly in light of the facts known to the court at the time. After hearing Mr. Corrieo’s testimony at earlier proceedings, the trial court knew or should have knownthat there was a special need to hearthe details of the prosecutor’s victim-impact gameplan as soon as the prosecutorsaid that Mr. Corrieo was being considered as a victim impact witness. Thetrial court had previously heard Corrieo testify not only about the death threat he -67- 2 | e e a e e sem = og on ea pe delivered to appellant in prison, but also about his expressed inability to keep himself from acting out his feelings if given access to appellant. That evidenceputthe trial court on notice of a strong possibility that the contemplated victim impact testimony included a further expression of Sergio Corrieo’s personal feelings about the crime, appellant, and the appropriate sentence — all matters that the United States Supreme Court still holds beyond the pale. (See Payne v. Tennessee (1991) 501 U.S. 808, 830, fn. 2; Miller v. State (Ark. 2010) 2010 Ark 1, 44.) Respondentalso prejudicially misstates appellant’s position in claiming that appellant now “asserts he would have rebutted the victim impact evidence had he been provided the details of it in advance of Mr. Corrieo’s testimony.” (RB 104.) As stated in appellant’s brief (AOB 130-131) appellant had no access to the prosecution’s compilation of background information on the family, which remained underseal throughoutthe trial, and thus could not have rebutted the victim impact testimony without that additional disclosure. That compilation, which was unsealed during appellate record correction proceedings, showsthat appellant might have been able to reveal a different picture of the family, if given access to that compilation. But the compilation does not show, and appellant does not claim, that all he needed was advancenotice of the -68- details of the victim impact testimony in order to makehis case. Respondentalso errs in assuming that appellant’s failure to introduce any mitigating evidence or cross-examine Mr. Corrieo showsthat appellant had no interest in impeaching Mr. Corrieo. (RB 105.) A defendant may decline to introduce available mitigating evidence because he fears humiliation or pity, and may decline to cross examine a witness simply because he could not prepare to do so effectively under the circumstances. Neither indicates that he did not need or want any of his proceduralrights. Moreover, if the prosecutor had been forced to disclose what he intended to ask Mr. Corrieo, defendant surely could haveraised a persuasive objection to any line of inquiry respecting Sergio Corrieo’s feelings about appellant. Respondent’s contrary arguments do not meet the facts or the governing law. Respondent claims that the prosecutor’s inquiry about Corrieo’s prior threat and current feelings sought evidence that was admissible“for the purpose of reminding the jury that Mr. Corrieo wasa biased witness.” (RB 109.) Respondentrelies on People v. Bemore (2000) 22 Cal.4th 809, 855, to suggest that a prosecutor may besaid to have “anticipated predictable defense argument.” (RB 109.) But Bemore doesnot say that a prosecutor may justify a foray into an area of inquiry precluded by federal -69- e s . F Y F e o l e l m : Um l u m e l U r e U a 8 ‘sang me he sone constitutional law whenever he anticipates the defense might raise similar facts for impeachmentof a victim impact witness. Noris that a sensible position to take. On the contrary, if the law were as respondentsuggests, there would be few if any capital cases in which prosecutors could not justify asking a victim-impact witness if he wants to see the defendant sentenced to death. Respondentalso relies on People v. Taylor (2010) 48 Cal.4th 574, 647, where the only objectionable aspect of the testimony was a family member’s reference to the defendantas “that idiot” when responding to a proper question. Like Bemore, Taylor neverheld that prosecutors may ask a witness to state an opinion about the defendant or the appropriate penalty. Prosecutorial tactics prohibited by the Unites States Supreme Court in Booth and Payne must remain off limits to California prosecutors. Whenevidence waselicited in violation of the federal constitution, the proper focus is on the role that the evidence actually played in the case as it wastried, not the viability of a case lacking that evidence. As argued in appellant’s opening brief, the trial court’s refusal of appellant’s in limine requests for reasonable notice of the planned testimonyeffectively precluded appellant from making what should have been a successful objection to at least one aspect of the plan, and from otherwise preparing to -70- onoseilAiieR RaiMBLCEAERTAMCLNST Rebg Chaat Ba rangeapemiht meet the specific evidence that was offered. On this record, we cannot say that the other evidence would have been the same,or that a death verdict would necessarily follow. Penalty reversal is required. VI. THE TRIAL COURT SHOULD HAVE GIVEN THE JURY A LIMITING INSTRUCTION ON VICTIM IMPACT EVIDENCEIN LIGHT OF APPELLANT’S REQUEST AND THE DUTY TO INSTRUCT ON THE PRINCIPLES OF LAW RAISED BY THE EVIDENCE Respondent’s argument on this point begins by misstating appellant’s claim as oneoferror in failing to “give the proposed limiting instruction.” (RB 113.) No one has arguedthatthe trial court should have used the entirety of the instruction on victim impact evidence that appellant proffered. Asappellant pointed out in his opening brief, and respondent nowheredisputes, a request for a special instruction that is otherwise appropriate is not properly refused on the groundsthatit is faulty in some particulars. (People v. Falsetta (1999) 21 Cal. 4th 903, 924; People v. Fudge (1994) 7 Cal. 4th 1075, 1110; People v. Stewart (1976) 16 Cal.3d 133, 139-141, further discussion at AOB 134-135.) Respondent’s criticism of appellant’s proposed instruction on points not raised in his appeal serves -7|- 2 2 2 2 sant ao sm, only to obscure the actualissues. Asstated in appellant’s opening brief, two closely-related statements in the first paragraph of appellant’s proposed instruction on victim impact evidence were determinably correct and not adequately covered by any other instruction: “Victim impact evidenceis not the same as an aggravating circumstance. Proof of an adverse impact on the victim's family is not proof of an aggravating circumstance.” (1SCT 5714.) Respondentclaims these statements are “not correct.” Respondent cites and quotes People v. Pollock (2004) 32 Cal.4th 1153, 1195 to state that ““[A] a jury at the penalty phase of a capital case may properly consider in aggravation, as a circumstance ofthe crime, the impact ofa capital defendant’s crimes on the victim’sfamily.’ (RB 117, emphasis respondent’s.) Respondent’s quote from Pollock is incomplete and misleading. The sentence written by this Court does not begin or end where respondent indicates. Moreover, the portions of the sentence omitted by respondent, and the entire context of the quoted statement, showsthat this Court was not addressing this appellant’s claim, but rather the propriety of an instruction barring any exercise of sympathy for the victims’ families. As stated in Pollock: The defense requested the following special instruction (Special Instruction No. 16) on victim impact evidence: "Although you have heard testimony from the family and neighbors of Earl and Doris Garcia and you may consider such testimony as a circumstance of the crime, you must not be influenced by passion, prejudice, or sympathy in that regard." Thetrial court declined to use Special Instruction No. 16, commenting that the point was covered by the instructions the court proposedto give. ‘The proposedinstruction misstated the law in asserting that the jury, in making its penalty decision, could not be influenced by sympathy for the victims and their families engendered by the victim impact testimony. Although ajury must never be influenced by passion or prejudice, a jury at the penalty phase of a capital case may properly consider in aggravation, as a circumstance ofthe crime, the impact of a capital defendant's crimes on the victim's family, ~ and in so doing the jury may exercise sympathyfor the defendant's murder victims andfor their bereavedfamily members. (People v. Stanley (1995) 10 Cal.4th 764, 831-832 [42 Cal. Rptr. 2d 543, 897 P.2d 481].)[?] The instruction was properly refused as incorrect. (People v. Pollock, supra, 32 Cal. 4th 1153, 1195, emphasis added.) “Tt is axiomatic that cases are not authority for propositions not considered.’ [Citation.] “The holding of a decision is limited by the facts of the case being decided, notwithstanding the use of overly broad language by the court in stating the issue beforeit or its holding or in its reasoning.’ [Citation.]” (People v. Jennings (2010) 50 Cal.4th 616, 684.) ” Like Pollock, the Stanley case presented only the question of whether the sentencer can exercise sympathy for the victims and their bereaved family members. -73- P a r e r e r e r e r e e e lu re lr l e e l e l l 8 e w e s As respondent ultimately concedes (RB 118-119), Eighth Amendmentdoctrine prohibits states from labeling as "aggravating" any factor commonto all murders or applicable to every defendanteligible for the death penalty. (Arave v. Creech (1993) 507 U.S. 463, 474 [“If the sentencer fairly could concludethat an aggravating circumstance applies to every defendanteligible for the death penalty, the circumstanceis constitutionally infirm." citing, et. al., Maynard v. Cartwright (1988) 486 U.S. 356, 364 [invalidating aggravating circumstance that appeared to describe "every murder"].) When,in Payne v. Tennessee, supra, 501 U.S. 808, 827, the Court held that states may choose “to permit the admission of victim impact evidence and prosecutorial argument on that subject” the Court did not declare that any adverse impact on a capital murder victim’s family constitutes an “aggravating circumstance”or that states were nowfree to label such evidenceso. Every murder presumably has an adverse impact on the victim’s family. As observed in Justice Souter’s concurrence in Payne, “When [murder] happens,it is always to distinct individuals, and, after it happens, other victimsare left behind.... [H]arm to some group of survivorsis a consequence of a successful homicidal act so foreseeable as to be virtually -74- enka AMNIYAERNRgene a antenna Soe pha inevitable.” (Payne v. Tennessee, supra, 501 USat p. 838.) Respondent nowheredeniesthat the Eighth Amendmentprohibits treating the impact of a capital homicide on survivors as a circumstance in aggravation. In the end, respondent simply claims that appellant’s proposedinstruction “fails to provide any guidanceto the jury in this regard” because “the proposed instruction is confusing, duplicative, and repetitive and had the potential for misguiding the jury dueto its inclusion of inaccurate statements of the law.” (RB 119.) Howevervalid those criticisms may beasto other parts of the proposed instruction, they are not valid as to appellant’s requestto tell the jury that victim impact evidenceis not the same as aggravation circumstance, and “proof of an adverse impact on the victim’s family is not proof of an aggravating circumstance.” (15CT 5714.) Indeed, appellant’s suggested language for preventing the jury from mistakenly treating all survivor impact evidenceas capital murder aggravation states the rule as plainly as the language recently adopted by the Florida Supreme Court for instructing capital sentencing juries, acknowledging that victim impact evidence waspresentedto the jury, but the jurors "may not consider this evidence as an aggravating circumstance". Un re Std. Jury Instructions in Crim. Cases--Report No. 2005-2, 22 So. 3d -75- e e F e F s F e e s u r hlUr r l u m e eh lC Ur e l m t t l e 17, 21 (Fla. 2009).) Asnoted in both parties briefs (AOB 136, RB 117), the first paragraph of appellant’s proposedinstruction also requests instruction barring the jury’s use of victim impact evidencethat is not foreseeably related to the personal characteristics known to the defendantat the time of the crime. (15CT 5714.) Appellant contends that adverse impact on a victim’s family that was neither foreseen nor foreseeable to the defendantat the time of the crime has no logical bearing on his blameworthiness, and does not easily fit within the definition of any statutory factor in aggravation. (People v. Fierro (1991) 1 Cal.4th 172, 264, Kennard, J. Conc. and dis.) Although the Payne court appears to have rejected a foreseeability test for determining the admissibility of victim impact evidence, it did not consideror reject the use of that test for determining whether a particular impact could constitute an “aggravating circumstance.” Appellant’s proposedinstruction clearly raised this issue in suggesting that the jury’s consideration of victim impact be restricted to that impact which was foreseeably related to “personal characteristics of the victim that were actually known to the defendant at the time of the crime.” Respondent claims that these statements of law are incorrect because “victim impact evidenceis not limited to matters within the defendant’s -76- an ieORRSReRkegs cosh oe tas as tg aiken = Rana aairetaen tiptoe bce wey 2 Tobe awRIAE mane tetas so knowledge. (People v. Pollock, supra, 32 Cal.App.4th at p. 1183; Peoplev. Carrington, supra, 47 Cal.4th at pp. 196-197.)” (RB 117.) Pollock so holds, and rejects a claim that its holding renders our death penalty law impermissibly vague, but does not address appellant’s argumentrespecting Eighth Amendmentlimits on treating as “aggravating” facts unrelated to the blameworthiness of the defendant, or commonto all murders. (See AOB 136.) Carrington may beread to reject those arguments as grounds for excluding victim impact evidence, but does not speak directly to the propriety of denying defendanta limiting instruction. It is one thing to say that certain evidence is admissible, and another to say that it can be treated as an aggravating circumstance. If Pollock and Carrington are susceptible to the broad reading that respondent suggests, they should be reconsidered. Finally, respondent claims that any error was harmless. Although respondent correctly notes that the prosecutor’s argumentdid not dwell upon the victim impact evidence, neither that argument, northe trial court’s instructions, included any guidance to mitigate or constrain the jury’s use of the survivors’ grief as an aggravating factor. The capital crimes were not otherwise so replete with aggravation as to make the survivors’ grief unimportant in determining whether the imposition of the death penalty was appropriate in this case. For these reasons, in addition to the reasons stated -77- 2 2 | r u e F e s eee at AOB 137-138, appellant respectfully submits that the trial court’s failure to render a limiting instruction was not harmless beyond a reasonable doubt. (Chapmanv. California, supra, 38\ U.S. 18, 24.) VII. THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW WHENIT INSTRUCTED THE JURY THAT THE IMPACT OF AN EXECUTION ON THE DEFENDANT’S FAMILY MEMBERS SHOULD BE DISREGARDED UNLESSIT ILLUMINATES SOME POSITIVE QUALITY OF THE DEFENDANT'S BACKGROUND OR CHARACTER Respondent contends that appellant forfeited his present claim when he failed to object to the subject instruction or request a correct instruction at trial. Respondent ignores Penal Code section 1259, which authorizes this court to review jury instructions affecting the defendant’s substantial rights whether or not the defendant objected or requested a correct instruction below. Respondentrelies solely on cases holding “that an instruction, correct in law, should have been modified is not cognizable on appeal where the defendant requested no such modification below.[citations.]” (RB 121, emphasis added.) Such cases are inapposite where, as here, appellant claims that the challenged instruction is not a correct statement of -78- = HABEETNAMRERATABRENNER Soe ARTI Ue cane arhinnctstl pnentcetstataty penne ee ee law. The fact thatthe editors ofCALJIC placed that assertedly incorrect statementof law in a standardinstruction that states other principles of law that are not in controversy here does notcall for treating the misstatement of law as thoughit were correct. On the merits, respondentasserts that “the trial court did not err by notinstructing the jury that it could consider the impact of appellant’s execution on his daughter.” (RB 122, emphasis added.) This assertion is inapposite. Noquestion ofwhether the trial court was obliged to instruct the jury on consideration of the interests of appellant’s family is presented here. Thetrial court’s instruction affirmatively limited consideration of the interests of appellant’s family. In so doing,it violated the federal constitution, if not state law. “States cannot limit the sentencer's consideration ofanyrelevant circumstance that couldcauseit todecline to impose the [death] penalty.” (McCleskey v. Kemp (1987) 481 U.S. 279, 306.) Asstated in appellant’s opening brief, Eighth Amendment doctrine does not allow states to preclude the sentencerin a capital case from considering, as mitigation, any relevant evidence in support ofa sentence less than death. (Skipper v. South Carolina (1986) 476 U.S. 1; Eddings v. Oklahoma (1982) 455 U.S. 104, 114; Lockett v. Ohio (1978) 438 US. 586, -79- i i Pe e e 2 604.) “Relevant evidence”is not limited to that which bears upon the defendant’s moral guilt or blameworthiness. Evidence is deemed mitigating, accordingly, as long as it is capable of giving rise to an "inference ... that... might serve as a basis for a sentence less than death.” (Skipper v. South Carolina, supra, 476 U.S. at 4-5.) What matters is whetherthe evidence “would be 'mitigating' in the sense that[it] might serve 'as a basis for a sentence less than death.' Lockett, supra, at 604, 57 L. Ed. 2d 973, 98 S. Ct. 2954." Id., at 4-5, 90 L. Ed. 2d 1, 106 S. Ct. 1669 (citation omitted).” (Tennard v. Dretke (2004) 542 U.S. 274, 285.) Moreover,it is not appropriate to “screen[] mitigating evidence for constitutional relevance’ before considering whether the jury instructions comported with the Eighth Amendment. [Citation.] Rather, we held that the jury must be given an effective vehicle with which to weigh mitigating evidence so long as the defendant has met a "low threshold for relevance," whichis satisfied by "evidence which tendslogically to prove or disprove some fact or circumstance whicha fact-finder could reasonably deem to have mitigating value."’ [Citations.]” (Smith v. Texas (2004) 543 U.S. 37, 43-44.) Respondent claims that the high court decisions cited above do not -80- SoeiareleeeeRRRRogPromomemanete imply that courts must permit consideration of the interests of the capital defendant’s family. No federal authority is cited, and appellant knows of no controlling federal authority supporting respondent’s claim. Further, the principle assumed in the state cases on which respondent relies — that the imposition of capital punishmentis to be determinedsolely on the basis of moral guilt -- does not exist in the text of the Constitution, nor in the historic practices of our society, nor even in the opinionsof[the United States Supreme] Court” preceding the now-overruled majority opinion in Booth. (Booth v. Maryland supra, 482 U.S. 496, 520 Scalia, J., dissent.) Notably, although respondent cites many cases in which this Court has accepted respondent’s argument that execution impact evidenceis inadmissable insofar as it is irrelevant to the assessmentof the defendant’s character (RB 122), respondent does not claim that those cases held that a trial court may instruct a jury as thetrial court did here. Again,“cases are not authority for propositions not considered.’ [Citation.] ‘The holding of a decision is limited by the facts of the case being decided, notwithstanding the use of overly broad language by the court in stating the issue beforeit or its holding or in its reasoning.’ [Citation.]” (People v. Jennings, supra, 50 Cal. 4th 616, 684.) Instructing a jury that it must not consider the harm that -81- i 2 i 2 2 ee 2 2 a 2 2 wn am od 9, a death sentence will bring to a defendant’s family is an affirmative act “limit[ing] the sentencer's consideration” (McCleskey v. Kemp, supra, 481 U.S. 279, 306) of a relevant circumstance that could causeit to decline to impose the death penalty. Even if permissible under state law, such action violates the federal constitution. Finally, respondent’s argument on prejudice assumesthat the only error lay in “not giving an execution impactinstruction.” (RB 127.) Respondent does not claim that this court can find harmlesserrorif, as appellant contends, the trial court gave an execution impact instruction that affirmatively misstated the law so as to prevent the jury from assessing the evidence on the point. This tacit concession is appropriate. The United States Supreme Court has never held that jury instructions errors that preclude effective consideration of mitigating evidence can be found harmless by a reviewing court. (See, e.g., Brewerv. Quarterman (2007) 550 U.S. 286, 293-296 [instructional error precluded full jury consideration of mitigating evidence at defendant's penalty phase, death sentence reversed without application of a harmlesserror test]; Abdul- Kabir v. Quarterman (2007) 550 U.S. 233, 247-265 [same]; Tennardv. Dretke, supra, 542 U.S. 274; Penry v. Johnson (2001) 532 U.S. 782, 796- 803 [same]; Penry v. Lynaugh (1989) 492 U.S. 302, 319-328 [same]; -83- Eddings v.Oklahoma, supra, 455 U.S. 104 [sentencer refuses to consider evidence regarding defendant's childhood; held, death sentence reversed without application of a harmlesserror test]; Lockett v. Ohio, supra, 438 U.S. 586 [state statute precluded sentencer from considering mitigating evidence; held, death sentence reversed without application of a harmless error test]; see also Smith v. Texas (2007) 550 U.S. 297, 316 (Souter, J., concurring) ["In somelater case, we may be required to consider whether harmless error review is ever appropriate in a case with error as described in Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989). Wedo not and need not address that question here.”’].) Accordingly, lower federal courts have held that this type of error is not subject to harmless error review. (See, e.g., Ne/son v. Quarterman(Sth Cir. 2006) (en banc) 472 F.3d 287, 314, observing that the “reasoned moral judgment that a jury must make in determining whether death is the appropriate sentence differs from those fact-bound judgments” to which harmlesserror tests are applied.) In People v. Lucero (1988) 44 Cal. 3d 1006, 1031-1032, this court read the Supreme Court’s decision in Hitchcock v. Dugger (1987) 481 U.S. 393, 399, to “suggest” that “a harmless error test might apply”to instructions precluding consideration of mitigating evidence. This court r e r e e e e e , e e e e | ‘aea ane am therefore applied Chapman analysis to error in excluding mitigating evidence in Lucero and in other cases decided since then. (See, e.g., People v. Smith (2005) 35 Cal.4th 334, 368; People v. Mickle (1991) 54 Cal.3d 140, 193.) While Chapman maystill be appropriate for evidentiary exclusion errors, it is not equally appropriate where jury instructions erroneously precluded orlimited the jury’s discretion to choosea life sentence. (Nelson v. Quarterman, supra, 472 F.3d 287, 314.) As stated by the high court: [I]t is only whenthe jury is given a "vehicle for expressingits ‘reasoned moral response’to that evidence in renderingits sentencing decision," Penry I, 492 U.S. at 328, that we can be sure that the jury "has treated the defendant as a ‘uniquely individual humanbeing’ and has madea reliable determination that death is the appropriate sentence,"id. at 319 (quoting Woodson v. North Carolina, 428 U.S. 280, 304, 305, 49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976)). (Penry v. Johnson, supra, 532 U.S. 782, 797.) Furthermore, even if a harmless error test could be applied, it would not be appropriate to focus on the relative weight of the other evidence as respondent suggests. To declare the error harmless, this Court would have to find no reasonable possibility of a different result if the jury had been allowed to consider the interests of appellant’s family. For the reasons stated in appellant’s opening brief (AOB 144-145), and in light of the -84- tes Sp antenMRRCaRMotoeeannmtnetibet ioe gnes Tg ok gor watereenMoenhlARORRETAENicisterna mg oF cami ae unique moral and practical elements involved in weighing the impact of a death sentence on the defendant’s family, no one can say that a life sentence was not reasonably possible here. VII THE TRIAL COURT’S INSTRUCTION TO WEIGHIN FAVOR OF DEATH FACTS THAT NOT ALL JURORS AGREED WERE PROVED BEYOND A REASONABLE DOUBT VIOLATED APPELLANT’S RIGHTS UNDER THE 6TH, 8TH, AND 14TH AMENDMENTSTO THE U.S. CONSTITUTION, AND UNDER STATE CONSTITUTIONAL COROLLARIES, AND REQUIRES REVERSAL OF THE PENALTY JUDGMENT UNDER THE UNITED STATES SUPREME COURT’S DECISIONSIN APPRENDI, RING, CUNNINGHAM AND BLAKELY. Appellant’s penalty jury wasinstructed that “an aggravating factor related to the circumstances of the crime of which the defendant was convicted in the present proceeding does not have to be proved beyond a reasonable doubt.” (I1SCT 5668, 5760; 14RT 3831.) Accordingly, the trial court limited the instruction on the reasonable doubt standard to the evidence of other crimes. (1SCT 5816-5817, 5849-5850; 14RT 3836.) As to those crimes, appellant’s jury was instructed that it was “not necessary for all jurors to agree that those crimes were proved beyond a reasonable doubt. If any juror is convinced that the criminal activity occurred,that juror may considerthat activity as a fact in aggravation.” (14RT 3836.) -85- e u F e e t a l m a ah lU ma er a Umar e l u a l m a l m a a l m a l m a a lm e l m a t h l e t e le ead td Respondent contendsthat appellant’s claim of error was forfeited, citing People v. Richardson (2008) 43 Cal4th 959, 1022-23 and other cases establishing a rule for claims of error involving instructions that are not erroneous statements of law. (RB 130.) As one of the cited cases explicitly notes, the rule is inapplicable where, as here, the defendant’s claim is that the instruction misstates the law so as to affect his substantial rights. (People v. Hillhouse (2002) 27 Cal.4th 469, 503.) . Respondentalso seeks forfeiture of appellant’s claim on the grounds that one of the cases appellant cites, Apprendi v. New Jersey (2000) 530 US 466, was decided prior to appellant’s trial. Although Apprendi was indeed decided in June and appellant’s penalty trial commenced in Septemberof 2000, the Supreme Court of the United States did not extend the Apprendi rule to death penalty cases until two yearslater in Ring v. Arizona (2002) 536 US 584. And, as respondent duly notes, this court has consistently held that the procedural rights recognized in Apprendi simply do not apply to California’s death penalty scheme. Forfeiture cannot be premised on a failure to take action in the court below when such action would have been futile. (People v. Birks (1998) 19 Cal.4th 108, 116, fn. 6 [no waiver where lower court was bound by higher court on issue].) Respondent’s arguments on the merits correctly recite the decisions -86- of this court rejecting appellant’s claims in other cases. (RB 131-132.) The United States Supreme Court has yet to rule that those decisions are incorrect. Accordingly, appellant hereby requests reconsideration of those decisions and submits the matter as suggested by this court in People v. Schmeck (2005) 37 Cal.4th 240, 304. [X. THE PROSECUTOR'S MISLEADING ARGUMENTS RESPECTING STATUTORY MITIGATION FACTORS AND THE TRIAL COURT'S FAILURE TO CORRECT THOSE ARGUMENTS WITH APPROPRIATELY SPECIFIC JURY INSTRUCTIONS PRECLUDED THE PENALTY JURY FROM GIVING MEANINGFUL CONSIDERATION AND MITIGATING EFFECT TO MITIGATING FACTS, DENIED APPELLANT’S RIGHTS UNDER THE 6TH, 8TH, AND 14TH AMENDMENTSTO THEU.S. CONSTITUTION AND UNDER STATE CONSTITUTIONAL COROLLARIES, AND REQUIRE REVERSAL OF THE PENALTY JUDGMENT A. Respondent’s forfeiture arguments are inapposite Respondent’s forfeiture argument assumesthat relief should be granted on appellant’s claim only if this court finds that the prosecutor committed misconduct. That assumptionis incorrect. A prosecutor’s misinterpretation of the law in argumentto the jury may be effectively misleading to the jury, yet not described or appropriately chargeable as “misconduct.” (People v. Morgan (2007) 42 Cal.4th 593, 612 [reversal required due to prosecutor’s misinterpretation of law in closing -87- i ed argument at a time when languagein one of this court’s decisions may have misled the prosecutor to think his argument was proper]; People v. Lucero (1988) 44 Cal. 3d 1006, 1031, fn 15 [prosecutorial argumenteffectively eliminated a statutory mitigating factor yet no misconduct orbasis for faulting the defendant’s failure to object on misconduct grounds wheretrial washeld prior to appellate decisions disapproving prosecutor’s interpretation of death penalty law].) The court’s concern “is not with the ethics of the prosecutor or the performanceof the defense, but with the impact of the erroneousinterpretation of the law on the jury.” (/bid; accord People vy. Milner (1988) 45 Cal. 3d 227, 254-258 [reversing death sentence, without a charge or finding of misconduct, where prosecutor argued that jury did not have final sentencing responsibility and neithertrial court’s instructions nor defense counsel’s argumenteffectively contradicted the prosecutor’s claim]; People v. Robertson (1982) 33 Cal. 3d 21, 57-59 [Reversing on other grounds, while noting that “the prosecutor's line of argument[regarding sympathy] wasseriously misleading, for it erroneously foreclosed the jury from considering potentially mitigating factors which may have persuaded one or morejurors that life imprisonment without possibility of parole, rather than death, was the appropriate punishment.”’].) The United States Supreme Court’s Eighth Amendment jurisprudence, on which appellant's claim is founded, does notcall for a -88- 1 sme Leha ROGDEMONOROILegitimtenainn AMice Mann Comets Se cm an ne determination of whether the prosecutor’s argument constituted misconduct. It calls only for a determination of whether, in light of the entire record, there exists a reasonable likelihood that a juror believed the law required the sentencer to disregard someorall of the mitigating factors or mitigating evidence in the case. (Brown v. Payton (2005) 544 U.S. 133 [Boyde test proper for prosecutorial argument misrepresenting factor (k)].) “Although the reasonable likelihood standard does not require that the defendant prove that it was morelikely than not that the jury was prevented from giving effect to the evidence, the standard requires more than a merepossibility of such a bar.” (Johnson v. Texas (1993) 509 U.S. 350, 367.) Whetherthe cause of the juror’s misunderstanding of the law is the prosecutor’s argument,the trial court’s instructions, or a combination of the two,is of no particular interest to the high court. (Abdul-Kabirv. Quarterman (2007) 550 U.S. 233, 259, fn. 21[reversing sentence without a finding of misconduct while recognizing that prosecutorial argument may, like instructions from the court, deprive jury of a “‘meaningful basis to consider the relevant mitigating qualities’ of the defendant's proffered evidence”|; Penry v. Lynaugh (1989) 492 U.S. 302, 326 [reversing sentence without a finding of misconduct where “[i]n light of the prosecutor's argument, and in the absence of appropriate jury instructions, a reasonable -89- e e S e ee e e ee e e 2 2 juror could well have believed that there was no vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence.”]; Pierce v. Thaler (5" Cir 2010) 604 F.3d 197, 211-212 [reversing sentence without a finding of misconduct where prosecutor“essentially instruct[ed] the venire members that ‘youth isn't relevant’”’].) Furthermore, any request for an appropriate admonition would have been futile under the circumstances of this case. This case wastried in 2000, at which time no controlling authority had held that a prosecutoris guilty of “misconduct” under the circumstances presented here. And as pointed out in appellant’s opening brief, and nowhere acknowledged by respondent, appellant and his counsel weretold, after guilt phase closing argument, that the court would “interject” to admonish the prosecutor without waiting for an objection if and when the court perceived a prosecutor’s argumentto be improper. (13RT 3576.) Thus, when the court remained silent while the prosecutor gave the jury his misinterpretation of the statutory mitigators, the court effectively told appellant that the prosecutor’s argument was not improper. Finally, as indicated in the argument heading, appellant’s claim is fundamentally one of instructional error affecting his substantial rights and -90- therefore protected by Penal Code section 1259. He contendsthat where, as here, the prosecutor’s argument misinterprets state law in argument to the jury, the judge is required to give a corrective instruction, even if (as in all the cases cited above) none was requested. (Brown v. Payton, supra, 544 U.S. 133, 146 [“Thetrial judge, of course, should have advised the jury that it could consider Payton's evidence underfactor (k), and allowed counsel simply to argue the evidence's persuasive force instead of the meaning ofthe instruction itself]; People v. Morgan, supra, 42 Cal.4th 593, 611 [reversing where “[n]othing in the instructions ... disabused the jury of [the] notion”that one of the prosecutor’s theories waslegally correct]; People v. Green (1980) 27 Cal.3d 1, 68 [same]; Cf. Peoplev. Williams (1997) 16 Cal.4th 153, 270 [finding no instructional error after noting the absence of misleading prosecutorial argument]; People v. Livadatis (1992) 2 Cal.4th 759, 784-785 [same].) “The judgeis, after all, the one responsible for instructing the jury on the law, a responsibility that may not be abdicated to counsel.” (Brown v. Payton, supra, 544 U.S. 133, 146 [trial judge should have advised jury that it could consider defendant’s religious conversion underfactor K after prosecutor arguedto the contrary].) If the trial court’s instructional duty may not be delegated to counsel, that duty should not devolve upon a 19- -9]- i e e 2 2 2 year-old layman appearing without counselat a penalty trial. B. Respondent’s arguments fail on the merits Respondent accuses appellant of taking the prosecutor’s remarks out of context. Yet the context each side presentsis indistinguishable. (Compare RB 134 and AOB 152-153.) In penalty phase closing argument, while appellant wasin pro per, the prosecutortold the jury that he did not “believe”that the “potential factors in mitigation” set out in the court’s instructions were applicable in the present case. (14RT 3850.) He promised to “explain whythat is true” as he went “through them.” (14RT 3850.) He began: Thefirst potential factor in mitigation is whether the defendantat the time he committed these murders was operating under an extreme mental or emotional disturbance. What that brings to mind is someone whokillsfor religious purposes, for mistaken moralpurposes as a result of mental disease, those who, because ofbrain defects and the like, aren’t able to understand the consequencesoftheir acts. Yet, what weseeis that the defendant suffers from none of this. He suffers from no extreme mental or emotional disturbance. He suffers from no mentalillness or no organic brain disease. He knew whathe was doing when he committed the murders. He knew what he was doing and why he wantedit; in short, for greed and to kill womento leave no surviving witnesses. So unlike those who believe that they are commanded -92- by God mistakenly to kill or to maim people , the defendant did this for the most venal of reasons, and, as a consequence, this factor in mitigation, although it might apply to some criminal defendants, does not apply to Corey Williams. (14RT 3852.) After acknowledging that the age of the defendant should be considered, the prosecutor declared that courts consider age a “metonym”and: What this meansto meis there could be an individual who,having lived 30 or 40 or 50 or 60 years, a law abiding life, then commits two murders and you might take into account that law abiding pattern over those period of years and considerthat age in that capacity. Whatthis really means to my mind is: Does the defendant knowthe difference between right and wrong? Does he know the harm he causes? Andall the evidence in this case suggests that he does. ... He knows all those things, ladies and gentlemen. And so for those who mightnot be able to — this might be a factor in mitigation, but in Corey Leigh Williams ’s case, it simply does not apply. (14RT 3854.) Respecting factor (d), respondent arguesthat the prosecutor “did_not i e e limit the parameters of the extreme-mental-or-emotional-disturbance factor solely to instances where a defendant believes his crime was commanded by Godor served a moral purpose. . . . [T]he prosecutor merely gave the jury -93- an example of a type of defendant who might suffer from an extreme mental or emotional disturbance at the time ofhis crimes.... Thus, the prosecutor’s argumentabout factor (d), whenreadin its entirety, was certainly not an improper statementof the law... .” (RB 137.) Respondent’s arguments do notfit our facts. Whether or not the prosecutorlimited the parameters of factor (d), he plainly told the jury that factor (d) does not apply in this case because appellant does not have the particular delusionsor deficits of which the prosecutor spoke. (14RT 3850-3851.) He spoke these words by wayof explanation for his previous statementofbelief that none of the statutory mitigators apply to this case. (14RT 3850.) He wasthe attorney for the People, sufficiently experienced to be entrusted with a capital case. Reasonable jurors could hardly doubt his knowledge ofthe law orhis duty to state the law fairly in closing argument. Moreover, no contrary view of the law wasput forth in thetrial court’s instructions, nor in appellant’s argument. None wasimplicit in the structure of the trial or the nature of the evidence presented. Although mental and emotional disturbance was implied by appellant’s history as testified to by his mother in the guilt phase, as well as in the testimony that the prosecutor treated as evidence of cruelty and sadism, that evidence had -94- clear purposes other than mitigation. Its presencein the case carried no suggestion that the prosecutor must be wrongin claimingthat factor (d) does not apply to a defendant who doesnot have particular delusions or deficits the prosecutor said factor (d) “brings to mind.” Respondentalso posits that the prosecutor’s argument on this point “was not that evidence of extreme mental or emotional disturbance cannot be considered... .” (RB 137.) Ofcourse not. The prosecutor asked the jury to considerthe direct evidence of mental disturbance,i.e., what the prosecutor called cruelty and sadism in the accounts of the Corrieo murders and the subsequentattack on a female acquaintance — as evidence in aggravation. (RT 3857-3858.) Meanwhile, his uncontradicted interpretation of factor (d) told the jury that any mental disturbance suggested by the evidencein this case wasnotlegal mitigation. In so doing, he undermined the court’s generic instruction to consider the defendant’s age, and prevented the jury from giving any evidence of mental disorder any mitigating effect. (Abdul-Kabir v. Quarterman, supra, 550 U.S. 233, 246, 259; Brewer v. Quarterman, supra, 550 U.S. 286, 289-290.) Respondentposits that the prosecutor’s argument on the meaning of factor (d) did not prevent the jury from giving some mitigating effect to appellant’s “difficult childhood” or the impact of his mother’s prostitution r e a F e F e t hl eh lU ue sh mU mr ar c lhlUm re ee lm l m i 2 P e and drug addiction insofar as these were “sympathetic” factors covered by factor (k).'° (RB 140.) That may be so, but only insofar asthetrial court specifically instructed the jury that the guilt-phase evidence of appellant’s childhood and family circumstances could be considered mitigating under factor (k) “to the extent that you believe it had an effect upon his development.” (RT 3835.) The prosecutor’s argument on the meaning of factor (k) posited that it applied only to “extenuating circumstances” other than those covered by the factors he previously defined. He claimed that appellant had introduced no such evidence. To quote: That brings us to what's sometimescalled the catchall provision, the factor (k). These are (a), (b), (c), (d) through (k) provision which says: Are there any other extenuating circumstances? And from that you must examinethe evidence. You must determine whether from the sum of the evidence there is any extenuating circumstances. You will note that the defendant has introduced absolutely none. In this phaseofthetrial, the evidence that you must consider along with all the evidencein the guilt '°ppellant’s mother was only 12 when she becamea prostitute. Throughout appellant’s childhood, she worked as a prostitute, used “crank,” cocaine, and methamphetamine,spent time in jail, and “lots of time on the street.” (RT 3125- 28.) Appellant “was on his owna lot of the time.” Appellant’s father was violent with her and with appellant; and was repeatedly arrested for beating appellant as a child. (RT 3132.) She married another man who abused her and appellant. To escape his beatings, she took appellant to the home of her grandmother, who used racial epithets toward appellant, whose father was black. (RT 3135.) -96- phase, there are none. Not a single extenuating circumstance. Andif there is, I leave the defendant to show you where that IS. So as we see, ladies and gentlemen, while there are those murderers from whom one or morefactors in mitigation may apply, for Corey Leigh Williams there are none. A principled analysis of all these factors when you review the evidence will demonstrate to you that although [ carry no burden, even though I do not carry a burden, that beyond a reasonable doubt, beyond reasonable doubt, though I need not meet that burden, there are no factors in mitigation. So now whenpresented with the task of weighing the factors in mitigation against the factors in aggravation, even if the factors in aggravation were only slight they would outweigh substantially because there is nothing on the other side. There are murderers who have some extenuating factors and factors of mitigation to put on this scale, but there are noneattributable to Corey Williams. (RT 3855-56.) Assumingthe jury considered appellant’s background under factor (k) in light of the court’s specific instruction to do so, appellant was nevertheless harmed by the prosecutor’s uncontradicted argument on factor (d). Appellant had a statutory and constitutional right to have the jury consider mental and emotional disturbance as mitigators in their ownright, especially if the jury determinedthatit affected his development as suggested by the court’s instruction applying factor (k). “[T]he jury must be allowed not only to consider such evidence,or to have such evidence -97- e e o e before it, but to respondto it in a reasoned, moral manner and to weigh such evidencein its calculus of deciding whether a defendantis truly deserving of death.” (Brewer v. Quarterman, supra, 550 U.S. 286, 296.) As stated in Penry IT: Penry I did not hold that the mere mention of "mitigating circumstances" to a capital sentencing jury satisfies the Eighth Amendment. Nor doesit stand for the proposition thatit is constitutionally sufficient to inform the jury that it may “consider” mitigating circumstances in deciding the appropriate sentence. Rather, the key under Penry / ts that the jury be able to "consider and give effect to [a defendant's mitigating] evidence in imposing sentence." 492 US. at 319 (emphasis added). See also Johnson v. Texas, 509 U.S. 350, 381, 125 L. Ed. 2d 290, 113 S. Ct. 2658 (1993) (O'CONNOR, J., dissenting) ("[A]| sentencer [must] be allowedto give full consideration andfull effect to mitigating circumstances" (emphasis in original)). For it is only when the jury is given a "vehicle for expressing its 'reasoned moral response’to that evidencein rendering its sentencing decision," Penry I, 492 U.S. at 328, that we can be sure that the jury "has treated the defendantas a ‘uniquely individual humanbeing' and has madea reliable determination that death ts the appropriate sentence," id. at 319 (quoting Woodson v. North Carolina, 428 U.S. 280, 304, 305, 49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976)). (Penry v. Johnson, supra, 532 U.S. 782, 797.) With respect to the prosecutor’s interpretation of age as a legal mitigating factor, respondent claims that “the prosecutor did not limit the parameters of the age factor to a defendant’s ‘inability to know right from _98- wrong.’ Rather, the prosecutor merely stated that courts use the word “metonym’ whenreferring to this factor, and then focused the jury’s attention on one aspect(1.e., whether the defendant’s age rendered him capable of appreciating the wrongfulness of his conduct) of the age factor to argue that it was not a mitigating factor in appellant’s case. This was not an incorrect statement of law or misconduct on the part of the prosecutor.” (RB 145.) Respondent also submits that the prosecutor’s argument was simply that “age was not a mitigating factor in appellant’s case” and, ergo, his argument“did not prevent the jury from considering [age] as oneifit thought it was appropriate to do so.” (RB 146.) Respondent’s claim does not acknowledge what was actually said. The prosecutortold the jury that, under factor (i), a capital defendant’s youth “might be” mitigating, but only if the defendant did not “know the difference between right and wrong”or “the harm he causes.” He told the jury that by way of explanation for his conclusion that the mitigating factor for youth “simply does not apply” to appellant. (L4RT 3854.) Respondentclaims the prosecutor’s conduct is supported by this court’s decisions holding that the defendant’s knowledge ofright and wrong was a “a permissible age-related inference” and therefore an arguable circumstance in aggravation. (See People v. Carrington, supra, 47 -99- # y u e r w e e e s F a P r t e s f F & A e t h t h l e w e F e e F e e e s s le Cal.4th 145, 201-202, People v. Slaughter (2002) 27 Cal. 4th 1187; People v. Mendoza (2000) 24 Cal.4th 130, 190; RB 145-146.) Appellant disagrees. Here, the prosecutor’s argument did not suggest an “age related inference” about appellant. Rather, it posited that factor (i) contemplates only one potentially mitigating inference from youth,i.e., ignorance of the wrongfulness of the capital crime and the harm he has caused. Nothing in any of the cases cited by respondent supports that reading of factor (i). On the contrary, Carrington holds that factor (1) contemplates consideration of “any age-related matter suggested by the evidence or by common experience or morality that might reasonably inform the choice of penalty.” (People v. Carrington, supra, 47 Cal.4th 145, 201-202.) The prosecutor’s argument never acknowledged,and affirmatively denied, that our capital sentencing law recognizesthe broad significance of a defendant’s age,let alonethe ability of the jury to draw mitigating inferences from appellant’s youth based on commonexperience and morality. Respondent also misplaces reliance on People v. Box (2000) 23 Cal.4th 1153, 1215. (RB 145.) In Box, the prosecutor explicitly stated that factor (1) was a mitigating factor that the jury could find applicable to the case, but asked the jury to look at “the sophistication” suggested by the -100- defendant’s college attendance and attention to detail after the crime. “Such argument was appropriate. Contrary to defendant's assertion, chronological age is not ‘all that is relevant to this factor.’ [Citation.]” (d., at p. 1215.) If appellant’s prosecutor had concededthat youth is a mitigating factor, or if he had simply focused on facts that might suggest that appellant had none ofthe mitigating qualities of youth without opining on the meaning offactor (i), Box would be on point. But those are not our facts. Furthermore, nothing in the trial court’s instructions, including the instruction on factor (k), contradicted the prosecutor’s claim or provided an alternative to factor(i) as a basis for the jury to give mitigating effect to appellant’s youth. Per CALJIC No. 8.85, appellant’s jury was instructed that it could consider the age of the defendantat the time of the crime (factor (i)) and “[a]ny other circumstance” and any “sympathetic or other aspect of the defendant’s character or record that the defendantoffers as a basis for a sentence less than death.” (14RT 3828.) Because age was not an “other” circumstance, muchless one that appellant offered as a basis for a life sentence, the prosecutor wasable to keep the jury from giving effect to the mitigation inherent in appellant’s youth by giving the jury a narrow and exclusive definition of factor (1). -101- e Y e r e s e f r e e F 4 i a r e e e e e 2 2 2 e e ae Respondent thus misplaces reliance on People v. Dennis (1998) 17 Cal.4th 468, 547, where the issue was whethera prosecutor’s argument precluded the jury from giving mitigating effect to the death of the defendant’s son, a sympathetic circumstance presented by the defense and plainly comprehendedbythe factor (k) instruction. Where, as here, the jury was told that the law deems youth to be a mitigating factor only under inapposite circumstances, and no onesays otherwise, consideration of youth as a mitigating factor is effectively foreclosed. Accordingly, the prosecutor concludedhis remarks on the statutory mitigating factors by saying that there were no “extenuating circumstances” and therefore no mitigation to be considered per any factor, including factor (k). (RT 3855-56.) As previously noted, “the reasonable likelihood standard does not require that the defendant prove that it was more likely than not that the jury wasprevented from giving effect to the evidence”. (Johnson v. Texas, supra, 509 U.S. 350, 367.) Appellant has clearly met his burden in showing federal constitutional error. Respondent has not shownthat the error was harmless beyond a reasonable doubt. C. The error was not harmless Aspreviously noted, the United States Supreme Court has never found harmlesserror, nor directed lower courts to apply any harmless error -102- 1SRELIENNROARMEIN R” oeAe carn ene ee analysis, to a claim that state action precluded or limited the jury's ability to either consider, or give full effect to, a capital defendant's mitigating evidence. (See Tennard v. Dretke, supra, 542 U.S. 274; Penry v. Johnson (2001) (‘Penry IT”) 532 U.S. 782; Penry v. Lynaugh (“Penry [”), supra, 492 U.S. 302 Eddings v. Oklahoma, supra, 455 U.S. 104; Lockett v. Ohio, supra, 438 U.S. 586; see also Smith v. Texas, supra, 550 U.S. 297, 16 (Souter, J., concurring) ("In some later case, we may be required to consider whether harmless error review is ever appropriate in a case with error as described in Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989). We do not and need not address that question here.”’].) In the en banc decision of the federal circuit most experienced in addressing this issue, the majority concluded that no harmlesserrortest applies whenthe state effectively precluded the jury from giving effect to all the mitigating factors in the case. (Nelson v. Quarterman, supra, 472 F.3d 287, 314-315.) To quote: Implicit in the Court's failure to apply harmless error in cases wherethe jury has been precluded from giving effect to a defendant's mitigating evidenceis the recognition that a Penry error deprives the jury of a "vehicle for expressingits ‘reasoned moral response to the defendant's background, character, and crime,'" which precludesit from making "a reliable determination that death is the appropriate sentence." Penry I, 532 U.S. at 797 (quoting Penry I, 492 U.S. at 328, 319) (internal quotation marks omitted) (emphasis added). -103- * a F t w r F e e F r e e t F a F e r t e e e e r e e s r e r t o e This reasoned moral judgmentthat a jury must make in determining whether death is the appropriate sentencediffers from those fact-bound judgments madein responseto the special issues. It also differs from those at issue in cases involving defective jury instructions in which the Court has found harmless-error review to be appropriate. Cf. Nederv. United States, 527 U.S. 1, 8-15, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1991) (applying harmless-error review where the jury instructions omitted an element of the offense, reasoning that, given the evidence presented, the verdict would have been the same had the jury been properly instructed); Johnson v. United States, 520 U.S. 461, 468-69, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997) (applying harmless-error review where the jury instructions omitted the materiality element of the perjury charge, noting that the error did not warrant correction in light of the "overwhelming" and "uncontroverted" evidence supporting materiality). Given that the entire premise ofthe Penry line of cases rests on the possibility that the jury's reasoned moral response might have been different fromits answers to the special issues had it been able to fully consider and give effect to the defendant's mitigating evidence,it would be wholly inappropriate for an appellate court, in effect, to substitute its own moral judgmentfor the jury's in these cases. See Tennard, 542 U.S.at 286-87 ("[T]o say that only those features and circumstancesthat a panel of federal appellate judges deems.to be 'severe' (let alone ‘uniquely severe’) could have such a tendency[to serve as basis less than death] is incorrect. Rather, the question is simply whether the evidence is of such a character that it 'might serve "as a basis for a sentence less than death" (quoting Skipper, 467 U.S.at 5)); cf. Sullivan v. Louisiana, 508 U.S. 275, 281, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993) (refusing to apply harmless error where the jury was improperly instructed on the burden of proofat the guilt/innocence phase, noting that "the essential connection to a ‘beyond a reasonable doubt' factual finding cannot be made wherethe instructionalerror consists of a misdescription of the burden of proof, which vitiates all the jury's findings. A reviewing court can only engage in pure speculation-its view of what a reasonable jury would have done. And whenit doesthat, 'the wrong entity -104- judge[s] the defendant guilty(quoting Rose v. Clark, 478 U.S. 570, 578, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986)). Nelson v. Quarterman, supra, 472 F.3d 287, 314-315.) Assumingtheerror in the present case is susceptible to harmless error analysis, respondent claims “there was no prejudice to appellant” in that “there was no evidence of extreme mental or emotional disturbance,” appellant’s closing argumentasserted that he was both innocent and wholly responsible for his own “lifestyle” (RB 140-141) and appellant’s youth was “not a mitigating circumstance”in this case. Respondentinsists there was no “demonstration” of appellant’s “lack of maturity” or his “underdeveloped sense of responsibility.” (RB 148.) Instead, respondent sees only “sophistication” and “efforts of concealment”in the capital crime. First, evidence tending to show mental or emotional disturbance need not be overwhelming, nor suggest an “extreme” level of disturbance, to makethat disturbance mitigating and invoke federal constitutional protections. ““To say that only those features and circumstancesthat a panel of federal appellate judges deemsto be ‘severe’ (let alone ‘uniquely severe’) could have such a tendencyis incorrect. Rather, the question is simply whether the evidenceis of such a character that it "might serve ‘as a basis for a sentence less than death’. [Citation.]” (Tennard v. Dretke, supra, -105- i i 2 2 2 2 542 U.S. 274, 286-287.) Asto appellant’s youth, respondent’s allegation that the crime shows sophistication1s, at best, a half-truth. The instigator of the robbery plan, the recruiter of other participants, and the organizer of the concealment attempts was notappellant, but co-defendant Dalton Lolohea. (RT 2663- 2667.) Mr. Lolohea’s jury rejected death and imposedlife without parole. Notably, the capital crime and appellant’s record are similar to, but milder than, that of the 19-year-old defendantin one of the high court’s decisions recognizing the mitigating significance of youth. Johnsonv. Texas (1993) 509 U.S. 350, involved an armed robbery planned in advance with a friend, a killing to ensure that there were “no witnesses,” followed by another attempted robbery murder in which he shot a clerk in the face resulting in permanentdisfigurement and brain damage. A longtime friend of Mr. Johnsontestified that he had hit her, thrown a large rock at her head, and pointed a gun at her on several occasions. His girlfriend reported that he had become angry with her one afternoon and threatened her with an axe. Johnsonalso had a prior conviction for commercial burglary for which he wason probationat the time of the capital crime. The Court divided sharply on the question of whetherthe trial court’s instructions -106- precluded the jury from giving effect to Johnson’s youth as a mitigator'', but not on whether Johnson’s youth was “a relevant mitigating circumstance that must be within the effective reach of a capital sentencing jury...” . (Johnson v. Texas, supra, 509 U.S. 350, 367.) Moreover, respondent’s harmless-error argument ignores the number and variety of mitigating inferences that a sentencer can draw from the fact that a defendant was only 19 years old — if not improperly precluded by judicial instruction or prosecutorial argument to the contrary. As shown by '' The majority held that jury instructions requiring the jury to determine Mr. Johnson’s future dangerousness allowedthe jury to give mitigating effect to Mr. Johnson’s youth. They posited that the “relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.” (Johnson v. Texas, supra, 509 U.S. 350, 368.) Also, the jury was unlikely to believe that the defendant’s youth had nolegal significance in light of the arguments of defense counsel respecting Mr. Johnson’s youth andthe testimony of Mr. Johnson’s father, who said 19 is “a foolish age. They tend to want to be macho, built-up, trying to step into manhood. “/A/] kid eighteen or nineteen years old has an undeveloped mind, undeveloped sense of assembling not - I don't say whatis right or wrong, but the evaluationofit, how much, you know,that might be - well, he just don't - he just don't evaluate what is worth - what's worth and what's isn't like he should like a thirty or thirty-five year old man would. ...” (Johnson v. Texas, supra, 509 U.S. 350, 355-356, emphasis added.) In the caseat bar, the jury received no such guidance on the mitigating qualities of youth nor any instructions to refrain from imposing death if the jury did not find future dangerousness. -107- " © F 9 w e r e w e e k r e r e e e r e r e r e e l t several decisions of the United States Supreme Court, the fact that appellant was only 19 at the time of the capital crimes provided several good grounds to refrain from imposing death. First, the Court declared that “youth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage.” (Eddingsv. Oklahoma, supra, 455 U.S. 104, 115-116. The Court then noted: Adolescents everywhere, from every walk oflife, are often dangerousto themselves andto others." The President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Juvenile Delinquency and Youth Crime 41 (1967). "[Adolescents,| particularly in the early and middle teen years, are more vulnerable, more impulsive, and less self-disciplined than adults. Crimes committed by youths may be just as harmful to victims as those committed by older persons, but they deserve less punishment because adolescents may have less capacity to control their conduct and to think in long-range terms than adults. Moreover, youth crime as such is not exclusively the offender'sfault; offenses by the young also represent afailure offamily, school, and the social system, which share responsibilityfor the development ofAmerica's youth." Twentieth Century Fund Task Force on Sentencing Policy Toward Young Offenders, Confronting Youth Crime 7 (1978). (Eddings v. Oklahoma, supra, 455 U.S. 104, 115-116, fn. 11.) The Court also recognized how the defendant’s youth at the time of the crime greatly increases the relevance of any evidencethat the -108- defendant’s family was violent or dysfunctional, as was appellant’s.'? The Court observed: In somecases, such evidence properly may be givenlittle * 8 e f F weight. But when the defendant was 16 years old at the time of the offense there can be no doubt that evidence of a turbulent family history, of beatings by a harsh father, and of severe emotional disturbanceis particularly relevant. (Eddings v. Oklahoma, supra, 455 U.S. 104, 115.) Six years later, in Thompson v. Oklahoma (1988) 487 U.S. 815, 835, the plurality opinion added these observations on the significance of a capital defendant’s youth: Inexperience, less education, andless intelligence make the teenagerless able to evaluate the consequencesofhis or her conduct while at the same time he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult. The reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conductis not as morally reprehensible as that of an adult. (Thompson v. Oklahoma (1988) 487 U.S. 815, 835. '° Appellant’s mother raised him and his siblings while she was addicted to drugs, working as a prostitute, living in transient housing and “on the streets.” (RT 3125-3128.) Appellant’s father beat him and his mother. To escape his beatings, appellant and his mother often stayed with her grandmother, who disliked appellant’s father’s race. (RT 3132.) This evidence wasoffered in the guilt phase to explain appellant’s control over the cash that he asked Wendy Beachto recoverafter his arrest. (See AOB 29.) -109- r e - € e F f e e 2 r e e F e s s sat cine In Roper v. Simmons (2005) 543 U.S. 551, the Court outlawed capital punishment for crimes committed while a minor. In so doing,it emphasized the heightened likelihood of reforming a youthful offender. The Court repeated the observationsarticulated in Eddings and Johnson, and addedthat “the character of a juvenile is not as well formedas that of an adult. The personality traits ofjuveniles are more transitory, less fixed. [Citation]” Ud., at p. 570.) Most recently, in Graham v. Florida (2010) US __, 1308S. Ct. 2011, 2026, the Court precluded life without parole for juveniles not convicted of homicide, even though Mr. Graham was deemed incorrigible by the sentencing judge. The Court again declared that juveniles have a “lack of maturity and an underdeveloped sense of responsibility'’; they "are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure"; and their characters are "not as well formed." [Citation.] These salient characteristics mean that "[i|t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crimereflects irreparable corruption." [Citation.] The Court added: -110- 16 reappeartheinteieatiahNEDERbieroanmens SL ap on ek Fst RE A SEEM TEERIALBY Pie SE TMG ren SS [Parts of the brain involved in behavior control continue to mature through late adolescence. See Brief for American Medical Association et al. as Amici Curiae 16-24; Brief for American Psychological Association et al. as Amici Curiae 22-27. Juveniles are more capable of change than are adults, and their actionsare less likely to be evidence of "irretrievably depraved character" than are the actions of adults. [Citation.] It remains true that "[f]rom a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed." Ibid. (Graham v. Florida, supra, 130 S. Ct. 2011, 2026-2027.) In the present case, the fact that appellant was only 19 at the time of the capital crime was, as the high court has found,a fact capable of supporting several inferences and moral judgments favoring a life sentence. Like Mr. Johnson’s father (see footnote 11, page 107, ante), reasonable jurors knowthat 19 “is a foolish age” at which boys “want to be macho, built-up, trying to step into manhood” with “an undeveloped mind.” (Johnson v. Texas, supra, 509 U.S. at pp. 355-356.) Reasonable jurors could see that appellant was suffering from that transitory condition, and fromthestill-fresh effects of the abuse, neglect and mental and emotional disturbance of his extremely disadvantaged childhood. (Eddingsv. Oklahoma, supra, 455 U.S. at p. 115.) They could see that he wasless able than an adult to evaluate the consequences of his conduct and, temporarily, “apt to be motivated” by “peer pressure.” (Thompsonv. -l11- 2 2 n e 2 e e Oklahoma, supra, 487 U.S. at p. 835.) They could acknowledgethe difficulty of knowing whether appellant’s crime “reflects unfortunate yet transient immaturity” rather than “irreparable corruption.” (Grahamv. Florida, supra, 130 S.Ct at p. 2026.) If not misled aboutthe law, reasonable jurors could have drawnanyandall of the mitigating inferences noted in the cases discussed by the high court, based on the common experience ofjurors and jurists alike. No one can say, with the requisite certainty, that no reasonable juror would vote for life on the basis of these inferences from the evidencein this case. Reversal is required. X. THE CUMULATIVE EFFECT OF ALL THE ERRORS WAS AN UNFAIR TRIAL RESULTING IN UNRELIABLE GUILT VERDICTS AND A DEATH JUDGMENT THAT MUST BE REVERSED UNDERTHE6TH,8TH, AND 14™ AMENDMENTSTO THEU.S. CONSTITUTION, AND UNDER STATE CONSTITUTIONAL COROLLARIES Appellant submits, and respondent denies, that the guilt phase errors — the admission of a coerced confession and other errors giving David Ross a false aura of veracity — formed the single, shaky pillar on which the guilt phase verdicts rest. (AOB 158-159.) Respondent generally asserts that there were no prejudicial errors and the case is solid as a rock. (RB 149- 151.) -112- Some of respondent’s underlying claims are more meaningfulin their specificity. When respondent claimsthat “there was no evidencethat appellant’s confession was coerced by the correctional officers or otherwise invalid” (RB 150) we might ask whether respondentbelieves that the confession was coerced by Sergio Corrieo alone. When respondentclaims that “the prosecutor did not vouch forthe truthfulness ofRoss’s testimony” we wonderif respondent believes that the prosecutor really stopped substantially short of that point when he vouchedfor the ability of the plea bargain to ensure Ross was motivatedto testify truthfully. Be that as it may, the prosecutor seems to have agreed with appellant that Ross’s testimony was not credible without the confession evidence. As hetold the jury in his summation: Now, I wouldn’t expect you to accept David Ross’s wordall by itself that it was Corey Williams whodid the killing. I’ve not for many years been so naive. I would not expect you to cometo such a belief. But bear in mind that David Ross was not brought here to persuade you of thatfact. The defendant has admitted doing the killings. What David Rossis here to tell you is how those killings came about. (13 RT 3492.) The prosecutor’s apparentbelief that Mr. Ross’s testimony was not sufficiently corroborated by other evidence is understandable. Contrary to -113- i 2 e e r e a © l m U8 ey respondent’s claim, no forensic evidence or anything other than Ross’s statements support his claim that appellant was the shooter. When Ross first told police he participated in the robbery, he said that he could not identify the person or persons who committed the murders. He said was sitting in a car outside the house when he heard shots fired, and that both Lolohea and appellant were inside the houseat that time. (11RT 2829-30.) When Ross’s fence, Clemus West, was broughtinto the interrogation room and wasallowed to confer with Ross alone, under the surveillance of a video camera, Ross complained to Westthat the police “‘are trying to tell me whoshot them. I honestly wasn’t in the house when they were — when they got shot... . [don’t know whoshot them, bro. So I can’t pinpoint who did it... . they was both in the fucking house.” (11RT 2783-85; 2830- 2831.) Ross’s testimony did not explain how he subsequently came to testify that Lolohea wasnotinside the house, but was runningto the car, when Rossheard the shots fired. '? However, when asked to explain his ‘> The video recording andtranscript of Ross’ interrogation provided to the court as exhibits to defense motions show West advising Rossto “Just name(unintelligible) whatever you know...”. (8CT 3173.) Sergeant Ingersoll entered the room shortly afterwards, and asked Westif he told Ross what he had told police about Ross’s statements about the crime. West answered affirmatively, and wasthen told to repeat that accountin the presence of Ingersoll and Ross together. (8CT 3173.) West did so, ending -114- prior statement placing Loloheainside the house during the killings, Ross said he was trying to “protect” Lolohea “from being the shooter.” (11RT 2832.) Respondentclaims that appellant was surely “a major participant whohad, at a minimum,a reckless indifference to human life” and would thus qualify for the death penalty in any event. (RB 151.) Notso. Even if one assumesthat the cash appellant had hiddenat a friend’s home was taken from the Corrieos, it does not follow that appellant must have participated in the robbery, much less with reckless indifference. Lolohea and Ross may well have given appellant funds from the Corrieo robbery for reasons no one wishedto disclose. The evidence that appellant was overheardtelling a friend “they came up with moneyhella quick” (LIRT 3007-3008) indicates that appellant was impressed with the speed with which “they” had accumulated funds, not that appellant himself participated in a robbery murder with them. And evenif there were solid and properly- the story as follows: “Corey [appellant] was inside and he wasgrabbing shit out the car, I guess, he was grabbing shit out the house. And hegets in the car. Dude comesout and gets in the car or whatever. They cut. And then dude goes in there and he just pops the women, poppedthem ladies. That’s the way the shit went.” (8CT 3174.) West was removed from the interrogation room at that point, without clarifying the identity of the shooter referred to only as “dude.” Alone with his interrogators afterwards, Ross recounted the crime again, and put appellant alone inside the house whenall the shots werefired. (9CT 3210.) -115- 2 2 2 2 2 e e F e f F f a e f e fF 8 admitted evidence of appellant’s substantial participation in the robbery, appellant would still be entitled to have a jury determine whetherhe had the mental state required to impose death on a robber whodid not kill. Having beenled to rely exclusively on the theory that appellant wasthe actual killer, appellant’s jury had no needor reasonto find such facts athistrial. Finally, respondent misrepresents appellant’s claim as one that “his actions did not warrant the death sentence.” (RB 151.) Appellant submits that his trial was too fraught with error to provide a reliable basis for opinion or judgmentof his actions. In reminding this court of the lesser sentences given to appellant’s co-defendants, appellant’s point is simply that this case is not so aggravated as to compel everyone to conclude that the participants should receive capital punishment. This court has indeed held that capital juries need not be informedofthe lesser sentences received by co-defendants, but that does not meanthat this court should ignore such data in determining whether a more favorable verdict is reasonably possible. -116- CONCLUSION Basedon the foregoing, and for all of the reasons set forth in appellant’s opening brief,'* reversal is required. JEANNE KEEVANSL.YNCH for Appellant COREY LEIGH WILL oo '* Appellant submits this Reply Brief in connection with those issues where additional briefing appears likely to be helpful to the Court in deciding this case. As to those issues on which appellant does not provide additional briefing here, appellant submits that both sides have thoroughly briefed the issues presented and these otherissues are fully joined by the briefs currently on file with the court. The absence of additional briefing on these other issues should not be taken as a concession of any nature or as a lack of confidence in the merits of the matters not addressed. (See People v. Hill (1992) 3 Cal.4th 959, 995, fn. 3.) -117- i i 2 e e e e D e 2 2 CERTIFICATE OF COUNSEL The foregoing opening brief on appeal was produced in 13 point proportional Times Romantypeface and contains 26,531 words as counted by WordPerfect version 12. -118- PROOF OF SERVICE BY MAIL RE: People v. Corey Leigh Williams, Supreme Court No. S093756, Superior Court No. 5-96 1903-2. I, Jeanne Keevan-Lynch,declare under penalty of perjury as follows: I am over the age of 18 years, and I am not a party to the within action. My business address is PO Box 2433, Mendocino, California, 95460. On the date indicated below,I served a copy of the attached appellant’s reply brief by placing same in a sealed envelope addressed as indicated below, and depositing same in the mail with postage thereon fully prepaid. Ann P. Wathen Deputy State Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco 94102-3664 District Attorney Contra Costa County 725 Court Street Martinez CA 94553 California Appellate Project 101 SecondStreet San Francisco CA 94105 Corey Leigh Williams SQSP No. P-98972 San Quentin CA 94974 Clerk, Superior Court Attn: Judge Richard Arnason PO Box 911 Martinez CA 94553 DATE: H/22 Lf JEANNE KEEVAN-LYNCH e s F e F e hUmeh lU e l m k l u m lh Um re rh lc ak hl Um eh U m r a l m a kh lC Um re l m s Amended PROOF OF SERVICE BY MAIL RE: People v. Corey Leigh Williams, Supreme Court No. $093756, Superior Court No. 5-961903-2. I, Jeanne Keevan-Lynch, declare under penalty of perjury as follows: I am over the age of 18 years, and I am not a party to the within action. My business address is PO Box 2433, Mendocino, California, 95460. On the date indicated below, I served a copy of the appellant’s reply brief in the above matter by placing same in a sealed envelope addressed as indicated below, and depositing same in the mail with postage thereon fully prepaid. Ann P. Wathen Deputy State Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco 94102-3664 District Attorney Contra Costa County 725 Court Street Martinez CA 94553 California Appellate Project 101 Second Street San Francisco CA 94105 Corey Leigh Williams SQSP No.P-98972 San Quentin CA 94974 Clerk, Superior Court Attn: Judge Richard Arnason PO Box 911 Martinez CA 94553 DATEOF SERVICE:4/22/2011 Executed underpenalty of perjury underthe laws of the “Te California and the United States of America on April 25, 2011. of \/ A j JEANNEKEEVAN-LYNCH