PEOPLE v. SEUMANU (ROPATI) (Perluss, P.J., assigned justice pro tempore; Corrigan, J., not participating)

Appellant’s Opening Brief

Cal.July 31, 2007

SUPREME COURT COPY IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA,) ) CAPITAL CASE Plaintiff and Respondent, ) $093803 ) vs. ) ) ROPATI SEUMANU, ) SUPREME COURT re Defendant and Appellant. ) FILET JUL 3 4 20907 Frederic. w, Unrich Clerk Depuly Alameda County Superior Court No. H24057A The Hon. Larry J. Goodman, Judge APPELLANT’S OPENING BRIEF Mark D. Greenberg Attorney at Law SBN: 99726 484 Lake Park Ave., No. 429 Oakland, CA 94610 510 452 3126 Attorney for Appellant BATH PENTY TABLE OF CONTENTS APPELLANT’S OPENING BRIEF 1 STATEMENT OF APPELLATE JURISDICTION 1 STATEMENT OF THE CASE 1 STATEMENTOF FACTS 4 GUILT PHASE 4 Prosecution Case 1. The Murder of Nolan Pamintuan 4 2. The Search of the Folsom Street House and the Arrests of Jay Palega, Tony Tuli, and Tautai and Paki Seumanu 8 3. The Testimony of Brad Archibald 14 4. The Testimony of Tony Luli and Jay Palega 16 Defense Case 24 PENALTY PHASE 30 Prosecution Case 30 1. Factor (b) Evidence 30 2. Victim Impact Evidence 37 Defense Case 39 ARGUMENT ON APPEAL 43 GUILT PHASEISSUES 43 I. APPELLANT WASDENIED HIS RIGHT TO A FUNDAMENTALLYFAIR TRIAL BY THE ADMISSION OF IRRELEVANT AND IMMATERIAL EVIDENCE OF THE PROSECUTOR’S SUBJECTIVE MOTIVATION IN ENTERING INTO A PLEA AGREEMENT WITH TONY IULI AND JAY PALEGA, AND BY THE USE OF THAT EVIDENCE BY THE PROSECUTOR FOR PURPOSES OF VOUCHING FOR THE CREDIBILITY OF IULI AND PALEGA, AND FOR THE GUILT OF APPELLANT 43 Introduction 43 A. Opening Statement and the “Berger” Stipulations 47 B. The Examination of Tony [uli 53 C. The “Muraoka”stipulation 64 D Ms. Backers’ Closing Argument 68 li E. Federal Constitutional Error 77 F. IAC Digression 80 G. Prejudice 82 I. THE PROSECUTOR’S ARGUMENT IMPUGNING APPELLANT’S POST-ARREST SILENCE AS IMPEACHMENTOFHIS ALIBI, AND IMPLYING THATHIS PRE-TRIAL TIME- WAIVER WASFOR PUROSESOF CONTRIVING THAT ALIBI, CONSTITUTED A VIOLATION OF DUE PROCESS 89 HI. THE PROSECUTOR COMMITTED MISCONDUCTIN IMPUGNING THE INTEGRITY OF DEFENSE COUNSEL AND ARGUING THAT COUNSEL DID NOT BELIEVEIN HIS CLIENT’S INNOCENCE 97 IV. THE PROSECUTOR’S APPEALS TO THE JURY’S PASSIONS AND PREJUDICES CONSTITUTED MISCONDUCT AGAINST WHICH OBJECTION AND ADMONITION WOULD HAVEBEEN FUTILE, AND WHOSE EFFECT WAS TO RENDER THE GUILT PHASE OF TRIAL FUNDAMENTALLY UNFAIR UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS 104 ill V. TONY IULI’S TESTIMONY,“I TOLD HER HER FUCKING BROTHER BLEW SOME DUDE AWAY” WAS HEARSAY, IMPROPERLY ADMITTED ON DIRECT EXAMINATION, CONFERRINGON IT THEREBY A DRAMATIC FORCEFARIN EXCESSOF ITS NUGATORY PROBATIVE VALUEAS PRIOR CONSISTENT STATEMENT 114 VI. THE TRIAL COURT ERRED IN ALLOWING EVIDENCE OF TONYIULI’S OPINION OR IMPRESSION THAT TAUTAI SEUMANU AGREEDTO HIS BROTHER’S REQUEST TO TAKE THE BLAMEFOR THE CRIME 125 Vil. THE EVIDENCE THAT APPELLANT ALLEGEDLY TOOK OUT A “CONTRACT” ON THE LIFE OF TONY IULI WAS PRESENTED ENTIRELY THROUGH INCOMPETENT HEARSAY AND OPINION, AND EVEN THEN WAS ARGUMETATIVELY DISTORTED BEYONDITS ACTUAL MEANING 129 Vill. THE COMBINED EFFECT OF THE ERRORS DISCUSSED IN ARGUMENTSV,VI, AND VII FORM A SNGLE UNIT OF PREJUDICE IN UNFAIRLY BUTTRESSING TONY IULP’S CREDIBILITY; THEY ALSO CONTRIBUTED TO THE PREJUDICE FROM THE VOUCHING ERRORS ANALYZEDIN ARGUMENTI OF THIS BRIEF 139 iv IX. THE TRIAL COURT’S REMARKS CASTING ASPERSION AND RIDICULE ON TAUTAI SEUMANU’S CREDIBILITY CONSTITUTED IMPROPER CONDUCT AND PREJUDICIAL ERROR 141 X. ALLOWNGEVIDENCE OF A PURPORTED GANG-STATUS LIST WITHOUT PROPER FOUNDATION WAS TRIAL ERRORIN ITSELF ANDIN ITS CONSEQUENCE OF ALLOWING THE PROSECUTOR TO CONVEYTO THE JURY INFORMATION SHE NEITHER INTENDED TO PROVE NOR COULD PROVE BY PROPER EVIDENCE 148 XI. IN CROSS-EXAMINING TAUTAI ON AN ALLEGED OFFER BY HIM TO TESTIFY AGAINST HIS BROTHER, THE PROSECUTOR COMMITTED MISCONDUCTBYASKING QUESTIONS SHE KNEW CALLED FOR INADMISSIBLE EVIDENCE; BY MAKING REPRESENTATIONSIN THESE QUESTIONS THAT SHE DID NOT INTENDTO, AND, INDEED, COULD NOT, PROVE; AND BY KNOWINGLY USING REPRESENTATIONS OF FACT THAT WERE FALSE AND MISLEADING 162 XII. THE ERRORSSET FORTHIN CLAIMSIX, X, AND XI WERE PREJUDICIAL IN COMBINATION 173 XUII. THE CUMULATIVE EFFECT OF THE ERRORS, WHETHER PROSECUTORIAL OR JUDICIAL, OR DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL, WAS TO DENY APPELLANT A FUNDAMENTALLYFAIR TRIAL AT THE GUILT PHASE OF THIS CASE 174 XIV. INSTRUCTION IN ACCORD WITH CALJIC No. 2.15 UNCONSTITUTIONALLY LIGHTED THE PROSECUTION’S BURDEN OF PROOF TO ESTABLISH THE COMMISSION OF ROBBERY, BOTHIN ITSELF AND AS AN ELEMENT OF FELONY-MURDER 178 PENALTY PHASE ISSUES 182 XV. THE VOUCHING ERRORSAT THE GUILT PHASE ALSO CONSTITUTED PENALTY PHASE ERRORS 182 XVI. THE TRIAL COURT’S REPEATED ADMONITION TO THE JURORS DURING JURY SELECTION THAT THE STANDARD FOR WEIGHING AGGRAVATION AND MITIGATION WAS “AMBIGUOUS” CONSTITUTED AN INACCURATE MISLEADING, AND CONFUSING GLOSS ON THE LAW, REASONABLYLIKELY TO INTERFERE WITH THE JURY’S DUTYTO| FORMULATE A REASONED MORAL RESPONSETO MITIGATING EVIDENCE 197 vi XVII. THE PROSECUTOR’S GUILT PHASE MISCONDUCTIN IMPUGNING THE INTEGRITY OF DEFENSE COUNSEL HAD REFERRED FORWARD TO THE PENALTY PHASE AND THEREBY ALSO CONSTITUTED PENALTY PHASE MISCONDUCT 207 XVIII. THE EVIDENTIARY ERRORSIN ALLOWING INCOMPETENT EVIDENCEAT THE GUILT PHASE OF AN ALLEGED CONTRACT ISSUED ON BY APPELLANT ON TONYIULIPS LIFE WAS EXPLOITED AT THE PENALTY PHASE IN THE PROSECUTOR’S CLOSING ARGUMENT 209 XIX. THE GUILT-PHASE EVIDENTIARY ERRORS AND PROSECUTORIAL MISCONDUCT SURROUNDING EXHIBIT 46, THE LIST OF “AMERICA’S MOST WANTED SAMOANS,” WERE NOT ONLY PENALTY PHASE ERRORS IN THEMSELVES, BUT WERE PREJUDICIALLY AUGMENTEDBYTHE PROSECUTOR’S FURTHER MISCONDUCTIN MISSTATING THE EVIDENCE THAT SHOULD NOT HAVE BEEN ADMITTED IN ANY EVENT 210 XX. THE PROECUTOR COMMITTED MISCONDUCTIN ARGUING, CONTRARY TO THE TRIAL COURT’S ADMONITION, THAT APPELLANT’S WEARING OF JAIL CLOTHES WAS AN INSULT TO THE JURY; IN COMPARINGTHIS “INSULT” WITH THAT ISSUED BY RICHARD ALLEN DAVIS TO HIS CAPITAL JURY, THE PROSECUTOR COMPOUNDED HER MISCONDUCT 214 Vil XXI. THROUGH EVIDENTIARY ERROR AND PROSECUTORIAL MISCONDUCT, DARRYLL CHURISH WAS ALLOWED TO GIVE A SPECULATIVE OPINION ON APPELLANT’S INTENT TO COMMIT A ROBBERY 217 XXII. GUILT PHASE ERRORS RESULTING IN PENALTY PHASE PREJUDICE AS FACTOR(a) EVIDENCE OF THE SUPPOSED CORRUPTION OF THE TRIAL PROCESS BY APPELLANT, OR AS AN UNWARRANTED IMPUTATION AGAINST THE INTEGRITY OF THE DEFENSE 219 XXIII. THE CUMULATIVE ERRORS OF THE PENALTY PHASE AND OF THE GUILT PHASE THAT AFFECTED PENALTY CONSIDERATIONSVITIATED APPELLANT’S RIGHTTO A FAIR PENALTY TRIAL UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS 222 XXIV. VICTIM IMPACT EVIDENCE WAS NOT MADE ADMISSIBLE AS FACTOR(a) EVIDENCE UNDERTHE1978 DEATH PENALTY STATUTE, WHOSE RULE OF PRECLUSION IN THIS REGARD WASDERIVED FROM THE 1958 STATUTE, WHICH PROHIBITED SUCH EVIDENCE 225 Vill XXV. CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT ANDAPPLIED AT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION 229 A. Appellant’s Death Penalty Is Invalid Because Section 190.2 Is Impermissibly Broad 231 B. Appellant’s Death Penalty Is Invalid Because Section 190.3(A) As Applied Allows Arbitrary And Capricious Imposition Of Death In Violation Of The Fifth, Sixth, Eighth, And Fourteenth Amendments To The United States Constitution 233 OF The Lack Of Procedural Safeguards To Avoid Arbitrary And Capricious Sentencing Deprived Appellant Of The Right To A Jury Determination Of Each Factual Prerequisite To A Sentence Of Death In Violation Of The Sixth, Eighth, And Fourteenth Amendment To The United States Constitution 235 1. Appellant’s Death Verdict Was Not Premised on Findings Beyond a Reasonable Doubt by a Unanimous Jury that One or More Aggravating Factors existed and That These Factors Outweighed Mitigating Factors; His Constitutional Right to a Jury Determination Beyond a reasonable doubt of All Facts Essential to the Imposition of a Death Penalty Was Thereby Violated. 236 ix 2. The Due Process and Cruel and Unusual Punishment Clauses of the State and Federal Constitution Require that the Jury in a Capital Case be Instructed that They May Imposea Sentence of Death Only if they are Persuaded Beyond a Reasonable Doubt that the Aggravating Factors Exist and Outweigh the mitigating Factors and that Death is the Appropriate Penalty 245 3. California Law Violates the Sixth, Eighth and Fourteenth Amendments to the United States Constitution by Failingto require that the Jury Base Any Death Setnence on Written Findings Regarding Aggravating Factors 248 4. California’s Death Penalty Statute as Interpreted bh this Court Forbids Inter-case Proportionality Review, Thereby Resulting in Arbitrary, Discriminatory, or Disproportionate Impositions of the Death Penalty. 250 5. The Prosecution May not Rely in the Penalty Phase on Unadjudicated CriminalActivity; Further, Even if it Were Constitutionaily Permissible for the Prosecutor to do so, Such Alleged Criminal Activity Could not Constitutionally Serve as a Factor in Aggravation Unless Found to be True Beyond a Reasonable Doubt by a Unanimous Jury. 251 6. The Use of Restrictive Adjectives in the List of Potential Mitigating Factors Impermissibly Acted as Barriers to Consideration of Mitigation by Appellant’s jury. 252 7. The Failure to Instruct that Statutory Mitigating Factors were Relevant Solely as Potential Mitigators Precluded a Fair, Reliable, and evenhanded Administration of the Capital Sanction. 253 D. California’s Use Of The Death Penalty As A Regular Form Of PunishmentFalls Short Of International Norms Of Humanity And Decency And Violates The Eighth And Fourteenth Amendments. 255 CONCLUSION 258 CERTIFCATION OF WORD-COUNT 258 XI TABLE OF AUTHORITIES Cases Addington v. Texas (1979) 441 U.S. 418 246 American Federation ofLabor v. Unemployment Appeals Bd. (1996) 13 Cal.4" 1017 Apprendi v. New Jersey (2000) 530 U.S. 466 Beck v. Alabama (1980) 447 U.S. 625 Berger v. United States (1935) 295 U.S. 78 Blakely v. Washington (2004) 542 U.S. 296 Brewer v. Quarterman (2007) 127 S.Ct. 1706 Brownv. Sanders (2006) 126 S.Ct. 884 Brunov. Rushen (9" Cir.1983) 721 F.2™ 1193 Bruton v. United States (1968) 391 U.S. 123 California v. Brown (1987) 479 U.S. 538 Campbell v. Blodgett (9th Cir. 1993) 997 F.2"" 512 Chapmanv. California (1967) 386 U.S. 18 Conservatorship ofRoulet (1979) 23 Cal.3! 219 County ofNevada v. Kincki (1980) 106 Cal.App.3" 357 Coy v. Iowa (1988) 487 U.S. 1012 Crane v. Kentucky (1986) 476 U.S. 683 Cunningham v. California (2007) 127 S.Ct. 856 Darden v. Wainwright (1986) 477 U.S. 168 Xil 226 236,237 79 et passim 78 236, 237 201,204 192,215 104 79,104 et passim 191,197,204,248 254 89 et passim 246 95 79 103,178 236,238 78, 104,113,171 Deck v. Missouri (2005) 544 U.S. 622 215 Donnelly v. DeChristoforo (1974) 416 U.S. 637 78,104,113,171 Douglas v. Alabama 380 U.S. 415 79 Doyle v. Ohio (1976) 426 U.S. 610 91,220 Eddings v. Oklahoma(1982) 455 U.S. 104 255 Eramdjian v. Interstate Bakery Corp. (1957) 153 Cal.App.2590 157 Estate ofGriswold (2001) 25 Cal.4™ 904 226,228 Estelle v. McGuire (1991) 502 U.S. 62 199 Ewing v. California (2003) 538 U.S. 11 215 Fetterly v. Paskett (9th Cir. 1993) 997 F.2™ 1295 254 Ford v. Wainwright (1986) 477 U.S. 399 257 Furman v. Georgia (1972) 408 U.S. 238 233 Gardner v. Florida (1977) 430 U.S.349 245 Giglio v. United States (1972) 405 U.S. 150 168 Gin v. City ofSanta Barbara (1933) 217 Cal. 673 199 Ginns v. Savage (1964) 61 Cal.2"° 520 226 Godfrey v. Georgia (1980) 446 U.S. 420 234 Gregg v. Georgia (1976) 428 U.S. 153 248 Hale v. Morgan (1978) 22 Cal.3™ 388 95,172 Harmelin v. Michigan (1991) 501 U.S. 957 249 Hicks v. Oklahoma (1980) 447 U.S. 343 254 xiii Hilton v. Guyot (1895) 159 U.S. 113 256 In re Antonio C. (2000) 83 Cal.App.4" 1029 53 In re Carpenter (1995) 9 Cal.4" 664 79 Inve Jeanice D. (1980) 28 Cal.3™ 210 228 In re Murchison (1955) 349 U.S. 133 146 In re Sturm (1974) 11 Cal.3™ 258 248 In re Tartar (1959) 52 Cal.2™* 250 226 In re Wilson (1992) 3 Cal.4" 945 80 In re Winship (1970) 397 U.S. 358 245 Jecker, Torre & Co. v. Montgomery (1855) 59 U.S. [18 How.] 110 257 Johnson v. Mississippi (1988) 486 U.S. 578 252 Johnson v. State (Nev., 2002) 59 P.3d 450 239,244 Kansas v. Marsh (2006) 126 S.Ct. 2516 230 Kindler v. Horn (E.D.Pa.2003) 291 F.Supp.2™* 323 188 Lockett v. Ohio (1978) 438 U.S. 586 252 Marshall v. Hendricks (3Cir.2002) 307 F.3™ 36 92 Marshall v. Pasadena Unified School District (2004) 119 Cal.App.4" 1241 226 Martin v. Waddell’s Lessee (1842) 41 U.S.[16 Pet.] 367 256 Maynard v. Cartwright (1988) 486 U.S. 356 234 McCartney v. Commission on Judicial Performance (1974) 12 Cal.3" 512 145 McNeil v. Wisconsin (1991) 501 U.S. 171 92 X1V Michigan v. Jackson (1986) 475 U.S. 625 Miller v. United States (1871) 78 U.S. [11 Wall.] 268 Mills v. Maryland (1988) 486 U.S. 367 Mitchell v. Gonzales (1991) 54 Cal.3" 1041 Mongev. California (1998) 524 U.S. 721 Myers v. Yist (9th Cir. 1990) 897 F.2"° 417 Morganv.Illinois (1992) 504 U.S. 719 Napuev. Illinois (1959) 360 U.S. 264 Olden v. Kentucky (1988) 488 U.S. 227 Offut v. United States (1954) 348 U.S. 11 Old Chiefv. United States (1997) 519 U.S. 172 Payne v. Tennessee (1991) 501 U.S. 808 Penry v. Lynaugh (1989) 492 U.S. 302 People v. Abbaszadeh (2003) 106 Cal.App.4" 642 People v. Adcox (1988) 47 Cal.3" 207 People v. Allen (1986) 42 Cal.3™ 1222 People v Allen (1978) 77 Cal.App.3"924 People v. Anderson (2001) 25 Cal.4" 543 People v. Arends (1958) 155 Cal.App.2" 496 People v. Arias (1996) 13 Cal.4" 92 People v. Ashmus (1991) 54 Cal.3™ 932 XV 92 256 249 200 244 249 79 168 178 146 120 225,226 204 53,95,169 233 239 55,71 153,211,241 45,46,51,70,78 200 197 et passim People v Bacigalupo (1993) 6 Cal.4™ 857 People v. People v. People v. People v. People v. People v. People v. People v. Bain (1971) 5 Cal.3™ 839 Bandhauer (1967) 66 Cal.2"* 524 Bell (1989) 49 Cal.3" 502 Belmontes (1988) 45 Cal.3" 744 Benmore (2000) 22 Cal.4™ 809 Black (2005) 35 Cal.4" 1238 Bittaker (1989) 48 Cal.3"? 1046 Bonin (1988) 46 Cal.3"? 659 People v. Boyd (1985) 38 Cal.3™ 765 People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. Bradford (1997) 15 Cal.4" 1228. Breaux (1991) 1 Cal.4™ 281 Brooks (1979) 88 Cal.App.3™ 180 Brown (1996) 42 Cal.App.4" 641 Brown (1994)8 Cal.4" 746 Brown (1988) 46 Cal.3™ 432 Brown (1985) 40 Cal.3"512 Brown (1970) 13 Cal.App.3" 876 Burgener (2003) 29 Cal.4™ 833 Burnick (1975) 14 Cal.3"306 Cain (1995) 10 Cal.4™ 1 Carpenter (1997) 15 Cal.4" 312 XVI 231 45,46,48,51,63,69, 100 102,112,184,195 45,48,53,160 192 100 240 234 162,167,170,215 254 216 200 136 96,172 115 197 et passim 197,198,201,205 55,71 136 246 44.67 254 People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. Peoplev. Peoplev. People v. Carter (1957) 48 Cal.2"4 737 Cash (2002) 28 Cal.4" 703 Champion (1995) 9 Cal.4" 879 Chatman (2006) 38 Cal.4" 344 Chojnacky (1973) 8 Cal.3" 759 Clair (1992) 2 Cal.4™ 629 Cook (2006) 39 Cal.4" 566 Corella (2004) 122 Cal.App.4" 461 Corrigan (1957) 48 Cal.2"" 551 Crew (2003) 31 Cal.4" 822 Crow (1994) 28 Cal.App.4” 440 Cudjo (1993) 6 Cal.4" 585 Cunningham (2001) 25 Cal.4" 926 Davis (2005) 36 Cai.4™ 510 Demetrulias (2006) 39 Cal.4"1 Dickey (2005) 35 Cal.4" 884 Dillon (1983) 34 Cal.3"441 Donaldson (2001) 93 Cal.App.4™ 916 Dyer (1988) 45 Cal.3™ 26 Earp (1999) 20 Cal.4" 826 Edelbacher (1989) 47 Cal.3™ 983 XVii 121 100,138,145,172 183 102 et passim 151,160 199 96,112,227 166 144 204,215 167 79 212,213 213 203,239,249 69,239 226,232 45,70,78,80 233 111 231,253 People v. People v. Peoplev. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. Peoplev. People v. People v. People v. People v. People v. Peoplev. People v. Edwards (1991) 54 Cal.3"¢ 787 Espinoza (1992) 3 Cal.4™ 806 Fairbank (1997) 16 Cal.4™ 1223 Farnam (2002) 28 Cal.4™ 107 Fauber (1992) 2 Cal.4™ 792 Feagley (1975) 14 Cal.3™ 338 Fierro (1991) 1 Cal.4" 173 Floyd (1970) 1 Cal.3™ 694 Frye (1998) 18 Cal.4" 894 Gaines (1997) 54 Cal.App.4" 821 Gambos (1970) 5 Cal.App.3™ 187 Gardeley (1996) 14 Cal.4" 605 Ghent(1987) 43 Cal.3™ 739 Gilbert (1969) 1 Cal.3™ 475 Gionis (1995) 9 Cal.4" 1196 Hamilton (1989) 48 Cal.3"¢ 1142 Hannon (1977) 19 Cal.3" 588 Hardy (1992) 2 Cal.4" 86 Harris (1989) 47 Cal3" 1047 Hawthorne (1992) 4 Cal.4" 43 Hayes (1990) 52 Cal.3™ 577 Herring (1993) 20 Cal.App.4" 1066 XVili 226 168,213 236,238,248 239 248 246 25] 228 69 79,161,169 46,51 160 184 226 48 253 136 234 105 238,249 185 100,103 People v. Hill (1998) 17Cal.4" 800 People v. Hillhouse (2002) 27 Cal.4" 469 People v. Howard (1988) 44 Cal.3™ 375 People v. Huggins (2006) 38 Cal.4™ 175 People v. Hurlic (1971) 14 Cal.App.3™ 122 People v. Jablonski (2006) 37 Cal.4"" 774 People v. James (2000) 81 Cal.App.4" 1343 People v. Johnson (1980) 26 Cal.3™ 557 People v. Kirkes (1952) 39 Cal.2™ 719 People v. Kronemeyer (1987) 189 Cal.App.3™ 314 People v. Leach (1975) 15 Cal.3™ 419 People v. Leonard (2007) 40 Cal.4" 1370 People v. Lew (1968) 68 Cal.2™ 774 People v. Lewis (2006) 39 Cal.4" 970 People v. Lewis (1990) 50 Cal.3™ 262 People v. Lindsey (1988) 205 Cal.App.3 112 People v. Love (1960) 53 Cal.2"* 843 People v. Marshall (1990) 50 Cal.3™ 907 People v. Mayfield (1997) 14 Cal.4" 668 People v. McDermott (2002) 28 Cal.4" 946 People v. Milwee (1998) 18 Cal.4" 96 XIX 46,53,102, et passim 232 227 45,70,73,77 126,127 216 181 200 48,63 177 116 106,205 131,134 225,226 105 91 224,227 251 105 203 105,196 People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. Montiel (1994) 5 Cal.4™ 877 Moreno (1987) 188 Cal.App.3™ 1179 Morrison (2004) 34 Cal.4™ 698 Nicolaus (1991) 544 Cal.3™ 551 Osband (1996) 13 Cal.4" 622 Padilla (1995) 11 Cal.4" 891 Partida (2005) 37 Cal.4™ 428 Poggi(1988) 45 Cal.3™ 306 Pope (1979) 23 Cal.3" 412 Price (1991) 1 Cal.4" 324 Prieto (2003) 30 Cal.4" 226 Prince (2007) 40 Cal.4" 1270 Ramirez (2006) 39 Cal.4™ 398 Ramirez (2006) 143 Cal.App.4" 1512 Ramirez (1987) 189 Cal.App.3" 603 Ratliff(1987) 189 Cal.App.3" 696 Ray (1996) 13 Cal.4™ 313 Rigney (1961) 55 Cal.2™ 236 Robinson (2005) 37 Cal.4" 592 Rogers (2006) 39 Cal.4" 826 Rowland (1992)4 Cal.4™ 238 XX 254 132,134,136 254 | 234 201 105 77 117 225 — 48,55,151,160 240 227 183 117 96,172 96 227 145 234 248 184 People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. | People Vv. People v. People v. People v. Samayoa (1997) 15 Cal.4" 795 Sanders (1995) 11 Cal.4" 475 Sapp (2003) 31 Cal.4™ 240 Scheid (1997) 16 Cal.4"1 Scott (1997) 15 Cal.4™ 1188 Seaton (2001) 26 Cal.4™ 598 Sergill (1982) 138 Cal.App.3"? 34 Shrum (2006) 37 Cal.4" 1218 Smith (2007) 40 Cal.4" 483 Smith (2005) 35 Cal.4" 334 Snow (2003) 30 Cal.4” 43 Snyder (2003) 112 Cal.App.4" 1200 Stansbury (1993) 4 Cal.4™ 1017 Stein (1979) 94 Cal.App.3"235 Stewart (2004) 33 Cal.4™ 425 Stoll (1904) 143 Cal. 689 Sully (1991) 53 Cal.3™ 1195 Superior Court (Engert) (1982) 31 Cal.3"! 797 Superior Court (Mitchell) (1993) 5 Cal.4™ 1229 Talle (1952) 111 Cal.App.2"™ 650 Tatge (1963) 219 Cal.App.2"° 430 Terry (1964) 61 Cal.2"° 137 XX] 213 145 185 100 184 162,168 126 145 185 200 166,240 180 105,106 157 45 118,120 200 232 183 78 157 227 People v. People v. Terry (1962) 57 Cal.2™ 538 Tewksbury (1976) 15 Cal.3™ 953 People v. Thomas (1977) 19 Cal.3™ 630 People v. Thompson (1988) 45 Cal.3™ 86 People v. Thornton (2007) Cal.4"_, S046816 People v. Toro (1989) 47 Cal.3" 966 Townsendv. Sain (1963) 372 U.S. 293 People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. Valentine (1986) 42 Cal.3™ 170 Visciotti (1992) 2 Cal.4™ 1 Von Villas (1992) 10 Cal.App.4"" 201 Walker (1988) 47 Cal.3"? 605 Walker (1968) 266 Cal.App.2™ 562 Ward (2005) 36 Cal.4" 186 Warren (1988) 45 Cal.3™ 471 Wash (1993) 6 Cal.4™ 215 Watson (1956) 46 Cal.2"? 818 Welch (1993) 5 Cal.4"" 228 Williams (1998) 17 Cal.4™ 148 Wilson (1967) 256 Cal.App.2”° 411 Peters v. Kiff(1972) 407 U.S. 493 Pointerv. Texas (1965) 380 U.S. 400, 404 XXii 136 97,121 246 97,100 211 225 248 79,104 et passim 225 48 234 169 69 151,160,162 217 88 ef passim 169 95 118 146 79 Presnell v. Georgia (1978) 439 US. 14 Pulley v. Harris (1984) 465 U.S. 37 Reese v. Smith (1937) 9 Cal.2324 Ring v. Arizona (2002) 536 U.S. 584 Roberts v. City ofPalmdale (1993) 5 Cal.4" 363 Roper v. Simmons (2005) 543 U.S. 551 Santosky v. Kramer (1982) 455 U.S. 743 Smith v. McCormick (9Cir.1990) 914 F.2" 1153 Smith v. Phillips (1982) 455 U.S. 209 Smith v. State (Ga.App.2006) 638 S.E.2"° 791 Solin v. O’Melveney & Meyers (2001) 89 Cal.App.4"451 Speiser v. Randall (1958) 357 U.S. 513 Stanford v. Kentucky (1989) 492 U.S. 361 State v. Bobo (Tenn. 1987) 727 S.W.2™ 945 State v. Finley (W.Va.2006) 639 S.E.2" 839 State v. Ring (Az.2003) 65 P.3™ 915 State v. Whitfield (Mo.2003) 107 S.W.3253 State v. Zink (Me.1983) 457 A.2™ 422 Strickland v. Washington (1984) 466 U.S. 668 Stringer v. Black (1992) 503 U.S. 222 Thompson v. Oklahoma (1988) 487 U.S. 815 XXiil 245 230,250 157 236,242 226 191,204 246 201,206 178 119 95 245 255 252 215 244 244 120 80,88,138 255 255 Toyota Motor Mfg., Kentucky, Inc. v. Williams (2002) 534 U.S. 184 199 Tuilaepav. California (1994) 512 U.S. 967 234 United States v. Booker (2005) 543 U.S. 220 237 United States v. Burgos (4" Cir.1996)(en banc) 94 F.3™ 849 179 United States v. Dunn (9" Cir.1977) 564 F.2™ 348 179 United States v. Durrive (7Cir.1990) 902 F.2"? 1221 179 United States v. Gray (5" Cir.1980) 626 F.2™ 494 179,182 United States v. Hall (5" Cir.1976) 525 F.2™ 1254 179,181 United States v. Lopez (8" Cir.2006) 443 F.3™ 1026 179 United States v. Malatesta (5" Cir.1979) 590 F.2"4 1379 179 United States v. Marsh (1* Cir.1984) 747 F.2™7 179 United States v. McKoy (9"" Cir. 1985) 771 F.2™ 1207 45,53,67,70,78 United States v. Navarro-Varelas gm Cir.1976) 541 F.2" 1331 121 United States v. Prantil (9" Cir.1985) 764 F.2™° 548 45,78 United States v. Toler (11" Cir.1998) 144 F.3™ 1423 179 United States v. Weatherspoon og" Cir.2005) 410 F.3" 1142 70 United States v. Young (1984) 470 U.S.1 45 Walton v. Arizona (1990) 497 U.S. 639 237 Weaverv. Browersox (8" Cir.2006) 438 F.3832 184 Witherow v. Larkin (1975) 421 U.S. 35 146 Woldt v. People (Colo.2003) 64 P.3d 256 244 Woodson v. North Carolina (1976) 428 U.S. 305 247,253 XXIV Zant v. Stephens (1983) 462 U.S. 862 Statutes Evid Evid. Evid. Evid. Evid. Evid. Evid. Evid. Evid. Evid. Evid. Evid. Evid. Evid. Evid. Evid Pen. . Code, § 210 Code, § 353 Code, § 403(a) Code, § 452(g) Code, § 459(a) Code, § 702 Code, § 791 Code, § 1230 Code, § 1235 Code, § 1153 Code, § 1101 Code, § 1108(a) Code, § 1236 Code, § 1240 Code, § 1250 . Code, § 1401 Code, § 190(a) Cal. Pen. Code, § 190.1 (former) Pen. Code, § 190.2(b)(17) XXV 192,215,253 211 65 158 216 216 150,153,166 117 116 166 167 181 18] 117 116 134 150 242 227 68 Pen. Code, § 190.2(c) Pen. Code, § 190.2(d) Pen. Code, § 190.3(a) Pen. Code, § 1903.3(b) Pen. Code, § 1111 Pen. Code, § 1170(c) Pen. Code, § 1192.7(a) Constitutional Provisions U.S. Const., Amend. 5 U.S. Const. Amend. 6 U.S. Const., Amend. 8 U.S. Const. Amend. 14 Rules Cal. Rules of Court, Rule 8.224 Other Authorities 68 68 183 et passim 193 et passim 75 249 45 233 et passim 79 et passim 79 et passim 79 et passim 148 Amnesty International, “The Death Penalty: List of Abolitionist and Retentionist Countries” (Nov. 24, 2006), on Amnesty International website [www.amnesty.org].) CALCRIM No.1191 CALJIC No. 2.15 CALJIC No.2.50.01 CALJIC No. 8.84.1 XXVi 256 181 178 181 183 CALJIC No. 8.85 183 CALJIC No.8.88 195, 198,233,239 Kozinski and Gallagher, Death: The Ultimate Run-On Sentence, 46 Case W. Res. L.Rev.1, 30 (1995) 257 Soering v. United Kingdom: Whether the Continued Use ofthe Death Penalty in the United States Contradicts International Thinking (1990) 16 Crim.and Civ. Confinement 339 255 Stevenson, The Ultimate Authority on the Ultimate Punishment: The Requisite 1127Role ofthe Jury in Capital Sentencing (2003) 54 Ala L. Rev. 1091, 1126-1: 4 J. Wigmore, Evidence, § 1124 (Chadbourn rev. ed. 1972) 121 XXVii Mark D. Greenberg Attorney at Law SBN No. 99726 PMB No.429 484 Lake Park Avenue Oakland, CA 94610 510-452-3126 Attorney for Appellant IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THESTATE OF CALIFORNIA,) ) Plaintiff and Respondent, ) $093803 ) vs. ) ) ROPATI SEUMANU, ) Alameda No. ) No. H24057A Defendant and Appellant. ) ) ) APPELLANT’S OPENING BRIEF STATEMENT OF APPELLATE JURISDICTION This case is properly before this Court on automatic appeal following a judgmentof death. (§§ 1237, 1239(b).)! ' Unless otherwise indicated, all code references are to the Penal Code. STATEMENTOF THE CASE In an information filed on June 19, 1997, and amended on June 19, 2000, the District Attorney of Alameda County accused appellant Ropati Seumanu, Jay Palega, Tony Iuli, and Tautai Seumanu of the murder ofNolan Pamintuan.” Special circumstances for murder in the course of kidnapping for robbery (§ 190.2(a)(17)(B)) and robbery (§ 190.2(a)(17)(A)) were alleged against all defendants; personal use ofa firearm (§12022.5) was alleged against Ropati, while arming allegations (§ 12022(d)) were alleged against the other three defendants. (6CT 1441-1445.) Kidnapping for robbery (§ 209(a)) was charged in a second count, with enhancementallegations against Ropati for infliction of great bodily injury (§ 12022.7(a)), and arming allegations (§ 12022(d)) against the three other defendants. (6CT 1445-1447.) Finally, in count 3, the four defendants were charged with robbery with the identical GBI and armingallegations against Ropati and the other three respectively. (6CT 1447-1449; 8CT 2000-2001.) On July 25, 1997, the defendants were arraigned on the information. At this time, the District Attorney filed a notification that the People were seeking the death penalty against Ropati Seumanu. (6CT 1465-1471, 1474.) On April 26, 2000, Tony Iuli withdrew his not-guilty plea to the murder charge, entered a pleaofguilty to the crime ofvoluntary manslaughter, and admitted the armingallegation. [uli also pled guilty to simple kidnapping for count 2, and to second-degree robbery for count 3. The armingallegations on these counts were dismissed. His term wasstipulated to be 16 years and 8 months, to be imposed, however, only after he testified for the prosecution in the guilt and penalty phases of Ropati’s trial. (7CT 1895-1897, 1901-1910.) On May 15, 2000, Jay Palega entered into an identical plea disposition on identical terms. (7CT 1934-1951.) * Because Ropati and Tautai share the samelast name,they will be referred to by their first names for purposesofclarity. On June 5, 2000, a motion to severthetrials of the remaining two defendants was denied. (7CT 1967.) Tautai Seumanu’s motionto strike the special circumstances, on the groundsthat they did not apply to him insofar as he was under 16 years old at the time of the commission of the crime, was granted. (7CT 1967; IRT 19-20.) At this point, Tautai indicated that he would be willing to plead guilty as charged, whereuponthe court informed him that he faced a maximum sentence of 28 yearstolife, and that the court believed that this case warranted that punishment. (1RT 20-23.) On June 19, 2000, Tautai entered pleas of guilty to all counts as charged and admitted the armingallegations. (8CT 2002- 2004, 2008-2023.) On July 11, 2000, the information was formally amended to excise Tony luli, Jay Palega, and Tautai Seumanu. In addition, personal use clauses (§ 12022.5) alleged against Ropati were added to counts 2 and 3, while the great bodily injury allegations (§ 12022.7) werestricken. (8CT 2118-2119, 2120, 2123-2126.) Trial began that day with the commencementofjury selection. (8CT 2119.) On July 17, 2000, Tautai Seumanu wassentenced to an aggregate term of twenty-eight years to life. (8CT 2134.) On September 14, 2000, jury selection was completed. (OCT 2481.) On September 18, opening statements were given and the prosecution began its case- in-chief (10CT 2487-2488), resting on October 5, whereupon the defense beganits case-in-chief. (OCT 2581-2582.) The defense rested on October 10. (1OCT 2586.) The prosecution’s first closing argument took place on October 16 and 17 (10CT 2608-2610); October 18 saw the defense closing argument, the prosecution’s final closing, court instructions, and the submissionofthe case to the jury. (10 CT 2612.) On October 19,the jury returned verdicts of guilt for first-degree murder, kidnap to commit robbery,andfirst-degree robbery. Both felony-based special circumstances were foundtrue; and the personal use allegations attached to each count were found true. (11CT 2707-2711.) The penalty trial began on October 23, 2000. (11CT 2720.) The prosecution rested on October 25, 2000 (11CT 2725), while the defense rested on October 26. (20RT 4118.) Final arguments were presented on October 30 (11CT 2742); instructions were given and the case submitted to the jury on October 31 (11CT 2744); on November1, the jury returned a death verdict. (11CT 2796.) On November7, Tony Iuli was sentenced to a determinate term of 16 years and 8 months in prison. (11CT 2803, 2813-2816.) On November 9, 2000, Jay Palega was sentenced to a determinate term of 16 years and 8 monthsin prison. (11CT 2829, 2834-2837.) On December 12, 2000, Ropati Seumanu was sentenced to death. (11CT 2880-2881.) STATEMENT OF FACTS GUILT PHASE Prosecution Case 1. The MurderofNolan Pamintuan Lorena Hurtado andher brother Luis were in their house on East 13"Street, between Hancock and Monticello in Hayward shortly before midnight on May 17, 1996 whenthey heard a gunshot blast coming from the direction of Hancock tothe north. Lorena ran to the window while Luis ran out onto the street. They both saw a dark-colored van withits lights off accelerating south on East 13" toward Monticello before turning right. (6RT 1647-1651, 1655, 1665-1667; 7RT 1688.) Luis ran back up the street and found a man lying on the ground on his back where 13" deadended into Hancock. The man wasbleeding and making noises as though trying to breathe. Louis yelled back to his sister to call 911 because someone had been shot. (6RT 1653, 1667-1668; 7RT 1678, 1679-1680, 1685, 712; 1SRT 3264.) By the time the policeand paramedics arrived within minutes of the 911 call, theman was dead. The first officer on the scene noted that the man’s hands, with fingers curled in, were. raised abovehis head. He was wearing a sweater- vest, t-shirt, .and blue jeans, but hé was shoeless, wearing only socks. There was nothing at the scene or on his body to identify him. (7RT 1677-1678, 1679-1683, 1693-1694, 1724-1730.) An autopsy the next day showedthat the man died from a shotgun blast to the chest, which virtually destroyed the heart muscle and tore up the lung. (7RT 1698-1699, 1701-1704, 1707; 8RT 2012.) Nolan Pamintuan and Rowena Panelo wereto be married on the afternoon ofMay 18, 1996at St. Catherine’s Church in Burlingame. The night before, there was a rehearsal at the church and a rehearsal dinner at Jake’s Dragon,a restaurant in Daly City. Nolan went back to Rowena’s in-law apartment, andleft her at about 10:30 or 11 p.m.to stay at his father’s apartment on Huntwood and Folsom in Hayward. (7RT 1735-1738, 1747; 8RT 2180-2182.) Nolan never appeared there, but his father, Lope Pamintuan, found Nolan’s Acura the next moming at 9:30 a.m. parked on Folsom near the apartment. The steering wheel had been secured by “the club,” but, oddly, the driver’s door, though closed, was unlocked. Lopethen called the police. (8RT 2187-2190.) Officer Keith Bryan took the missing person’s report and obtaineda photograph ofNolan from Lope. While Bryan canvassed the neighborhood, he wascalled to meet Detectives Cardes and Cooper on Folsom near Nolan’s Acura. The photograph Bryan had ofNolan matched the post-mortem photo the detectives had ofthe body found the night before on East 13and Hancock. Bryan wentto up to the apartmentto inform the family. Nolan’s brother Paul identified the photograph ofNolan’s body. (QRT 2332-2333, 2335-2337.) Photographsfrom the rehearsal on May 17 showed Nolan wearinga sports jacket and shoes. In addition, he had been wearing a Gucci watch on his right wrist and an engagementring on his right ring finger, neither of which was with his body. (7RT 1681-1682, 1736-1739.) Also not found was the Movado watch, encased in a black box, which Rowenahad given to Nolan that evening as a wedding present, and on the back of which she had the date oftheir wedding, May 18, 1996, engraved. (7RT 1734-1735, 1739.) Before they discovered Nolan’s identity, the police recovered the van seen by the Hurtados. At about 12:30 a.m. on May18, a resident of a house on Minerva near Etta, which was not far from East 13" and Monticello, went outside to grab a smoke andnoticed a green van parked on Etta with its motor running. He went to bed assuming that someonehadleft the vehicle for only a few minutes, but when the witness went out the next morning at 6 a.m., the van wasstill there with its motor running. The police were called. There were punch and pry marks underthe driver door handle, while the ignition had been removed completely. The doors were unlocked. (7RT 1774-1776, 1782-1787, 1793: 15RT 3264.) The engine wentoff as the police were processing the car. (8RT 2103.) It was soon discoveredthat this 1995 green Plymouth Voyager had been stolen the night before, sometimeafter 9:30 p.m., from the carport of an apartment at 2037 Aldengate Way. The van had three rowsof seats. The front row consisted of individual seats for the driver and passenger, while the middle and back row were bench seats. There was also a normal front driver and passenger door, and then a sliding panel door behindthe latter. The babyseat, which the ownersofthe van had in place on the middle bench seat, was now turned over on the floor when the police found the van on Etta. The Hurtadoes were broughtto Etta at 8:30 a.m., and identified the van as the one they had seen the night before. (ORT 1658, 1660, 1670-1671; 7ZRT 1755-1762, 1767-1769, 1792-1794; 8RT 2117; ORT 2331; 1ORT 2521-2523, 2525; 1SRT 3265.) The police found blood stains on the Plymouth van, mostly nearthe front passengerdoor and the middle bench seat. Samples from these stains were, several years later, tested for a DNA profile, which matchedthe profile ofNolan’s blood. (8RT 2103, 2105-2111; 1SRT 3247-3250.) The easier forensics were developed by May 23, 1996. The van was dusted for prints. Outofa list of fourteen knownprints, twolatents lifted from the sliding door of the van were matched to the knownprints of Tautai Seumanu. (7RT 1788; 8RT 2114, 2120- 2123, 2211-2217, 2228.) Even beforethis, the lead detectives, Cooper and Cardes, had contacted Bank of America for the ATM records and security video for the branch at Sorenson and Mission, which wasnot far from East 13" and Hancock, where Nolan’s body was found. Therecords disclosed that Nolan had in fact withdrawn $300 from the ATM machineatthis location on May 17 at 11:45 p.m., only minutes before the homicide. Further, the transaction was captured on the security video, showing Nolan at the ATM machine flanked by two other, very much larger, men. (7RT 1848-1859.) Throughthe bank,the officers were also able to obtain the namesofthose persons whoused the ATM immediately before and immediately after Nolan. (7RT 1861.) They both saw a van parked at the curb facing southbound on Mission. (7RT 1802-1803, 1815.) The customer who used the machine afterwards, Malcolm Scott, had in fact seen the three people at the machine before he got outofhis car and walked past them as they were returning to their van, whose motor had been running throughout. (7RT 1817-1820, 1847-1848.) Detectives Cardes and Cooper showedScott a lineup containing the photo of Tautai Seumanu, and Scott identified him. (7RT 1847; 14RT 3136.)? Based on the evidence ofthe prints and on Scott’s identification, Detective Cardes obtained a search warrant for Tautai’s residence at 1157 Folsom in Hayward. They executed the warrant the next morning at 7:30 a.m., May 25, 1996. (8RT 2131; 14RT 3136; 15RT 3201.) 3 Scott identified Tautai again at the preliminary hearing. (7RT 1821.) 2. The Search of the Folsom Street House and the Arrests of Jay Palega, Tony Iuli, and Tautai and Paki Seumanu The main house on the property wasa single-story, three-bedroom dwelling of about 1800 to 2000 square feet. Behind the main house, there was an outbuilding of about 500 square feet, containing two beds, a coffee table, anda stereo cabinet. (7RT 1871, 1873, 1879, 1900, 1903, 1923; 8RT 1999; 1ORT 2457; 15RT 3281.) About 24 persons, all Samoan,lived in the complex. Most of them were membersofthe Seumanu family, which included 16-year-old Tautai andhis older brother, 22-year-old Ropati, which was the Samoan equivalentof “Robert,” and which wasshortened informally to “Paki,” -- the rough equivalent of “Bob.” Sixteen-year-old Tony Tuli, who was married to Seu Seumanu,also livedthere, as well as 18-year-old Galuvae, or Jay, Palega, who was a godsonofTautai’s father, Vui Seumanu, and who was married to Faasamoa Seumanu. Paki’s wife, Lefea, or Lucy, Masefau, and her young daughter, Peggy, also lived there. (LORT 2448- 2452, 2466; 11RT 2706-2708, 2718-2719; 12RT 2736; 13RT 2909; 14RT 3035, 3183.) In addition to the Seumanus, their sons-in-law, and Paki’s wife, Jay Palega’s family stayed at the Folsom house, and Tony Juli’s parents and seven siblings visited on the weekends, staying in one of the rooms. The house, as might be expected, was messyin the extreme, with piles of clothing strewn about and dirty dishes and food all around. (8RT 1948, 1993, 2001, 2176; 1ORT 2457-2458; 11RT 2676; 12RT 2708.) For the younger men,there were nofixed sleeping arrangements. The outbuilding with the two bedsin it was called “the hangout room” by Tony Iuli (1ORT 2453-2454), and “the boys’ room”by Jay Palega (12RT 2728), and it could be used at any time by any of the menortheir wives,or by Tautai. (LORT 2454, 2460; 1IRT 2687; 12RT 2728-2730.) * The police recovered habitation indicia in the form ofbills, receipts, and photographs from around the room. These came mostly from the drawersin a stereo cabinet and were mostly connected to Paki or Lucy. However, there was The search on the morning ofMay 25 beganafter a fully-equipped SWAT team secured the property. Jay Palega and Tonyluli were in the main house and were detainedin this first sweep. In the kitchen, on top of the microwave, the police found the Gucci watch Nolan had been wearing on May 17. (7RT 1739, 1741, 1870, 1876-1878, 1885; 8RT 1990-1991, 2132, 2133; 12RT 2730; 13RT 3002-3003; 14RT 3136, 3138.) Ona pile ofmattresses outside the “hangout room”or “boys’ room,”the police recovered a Navy peacoat, size medium, which waslater identified as belonging to Nolan. (7RT 1745; 8RT 1949-1952, 2162.) In the “hangout room”or “boys’ room”itself the police found Nolan’ssize 8 boots in a makeshift “Dutch oven.” Under them they found a name tag from Food Source Grocery Store. The tag had the visible letters A-K-I, but the first letter was faded or missing. This was later identified by the manager of the Food Source as a “Food Source Team Badge”belonging to Paki Seumanu, who workedatthe store until April 27, 1996. The store was located on Mission near Sorenson,just behind the ATM where Nolan madethe withdrawal on May 17. (7RT 1736, 1738-1739, 1746-1747, 1801, 1871, 1884, 1920; ORT 2326-2329.) Inside the hangout room,there was a white five gallon trash bag, crumpled shut, but not secured. On top there was a paper lunch bag containing Nolan’s driver’s license, credit cards, the Great Western ATM card with which he made the withdrawal on May 17, and the ATMreceipt showing this $300 withdrawal from the Sorenson and Mission ATMat 11:45 p.m. on May 17. (7RT 1735, 1750, 1891-1896.) Under the lunch bag there was another Food Source badge with the name “Paki” written on it. (7RT 1898; 9RT 2328.) In a drawerin the stereo cabinet in the hangout room,the police found Nolan’s pager. (7RT 1742, 1908- 1909.) Nolan’s sports coat, size medium, waslying on the floor of the hangout room. In the pocket were empty breath mint wrappers Nolan used becauseofhis also a drawerfull of papers for Jay Palega, and miscellaneous papers with a half dozen different names on it. (7RT 1898, 1904, 1906, 1908-1910, 1915, 1916- 1917, 1921; 8RT 1957, 1988-1989, 1990, 2008-2009.) smoking. Eight packsofthe same brand of mint had been recovered from Nolan’s Acura, and another empty pack of the same brand had been foundin the middle bench seat of the stolen Plymouth van. (7RT 1736, 1738, 1741-1742, 1887; 8RT 2125, 2129-2130, 2134, 2160-2162.) Under oneofthe beds, a canvas duffel bag was found. Inside, the police recovered left-hand gardening glove with what appeared to be bloodstainsonits cuff and thumb. Based on the match probability, the examiner stated her opinion that the blood on the glove was Nolan’s. (7RT 1928-1929; 8RT 1944, 1999-2000; ORT 2244-2245; 1SRT 3241-3247.) Undera pile of clothing at the foot of one of the beds in the hangout room, the police recovered a black, Byrnes & Baker, leather jacket, large. Inside the pocket ofthe leather jacket the police found three keys belonging to Nolan, one ofwhich wasto the Acura and one of which wasto the “club,” which locked the steering wheel. (7RT 1746, 1925-1926; 8RT 2156- 2157, 2170.) Later testing discerned bloodspatter on the front of the jacket, and some blood smearontheleft sleeve. (QRT 2303-2310.) A swab taken from under a pocketflap on the jacket produced the same DNAprofile as that ofNolan’s known blood sample. (15RT 3250-3251.) Finally, on the coffee table in the hangout room,the police found the black box to the Movado watch Rowenahad given Nolan at the wedding rehearsal. The watchitselfwas not there. Of the property the police knew belonged to Nolan, this watch, along with Nolan’s engagementring, were the salient itemsstill outstanding at this point. (8RT 1946-1947; 14RT 3143.) Tony Iuli and Jay Palega, who had been detained sincethe start of the search, were formally arrested at 10:18 a.m. Throughout, they had been sitting togetherin the samepatrol car, which had been wired for recording. They discussed a story about the Gucci watch found on top of the microwave, agreeing that Jay wouldtell the police that the watch was gift from Jay’s mother. Tony also said in the car that he hopedthatthe police did not find the gun. (LORT 2485, 2487-2488; 12RT 2730-2731; 14RT 3137, 3138, 3177-3178.) 10 Asthe search continued, Cardes, who returnedto the station with the suspects, began Tony’s interrogation at about 12:40 p.m. Tony admittedhis participation in the crime, and identified himself as the other man in the ATM video with Nolan. Tony also related that Tautai and Ropati were involved, as well as Jay, who wasthedriver of the van. (LORT 2488, 2570-2571; 14 RT 3137, 3138-3140.) At 2 p.m., Cardes began with Jay. Jay told Cardes how his mother had given him the Gucci watch, but soon admitted his involvement when Cardes revealed that the police had overheard Jay and Tony concoctthis story about the watch, and when Cardesfalsely claimed that the ATM video showed Jay to have been in the driver’s seat of the van. Jay identified Tony, Tautai, and Paki as the other participants, but also named a fifth person, Roger Prasad, as the shooter. (12RT 2734; 14RT 3140-3 142.) However, Cardes went back to Tony, who insisted that Roger Prasad wasnot there, and that there were just the four of them. (14RT 3143.) Cardes issued a bulletin for Paki and Tautai, whom he expected to be returning with the family from a church function in San Francisco. The entire Seumanu family, along with the Iuli family, had gone there in two vans, one, a gold-colored GMC,belonging to Vui Seumanu, Paki’s and Tautai’s father, and the other, a blue-colored Chevy, belonging to Tony Iuli’s father. The GMC was driven by Vui’s wife, Seu Seumanu, with Vui in the front passenger seat. Paki and his wife, Lucy, were behind them,and the rest of the van was filled with 9 other womenofthe Seumanu family. Tautai was in the Chevy van with the Iuli family. (13RT 3003-3004, 3008, 3011-3013, 3016, 3017, 3021, 3023-3024; 14RT 3042- 3044, 3115, 3143, 3145, 3150; ISRT 3201-3202, 3308.) Thepolice, in force, were waiting near the Folsom street house, and were prepared for a “high risk” stop, with pistols drawn and pointed, in the expectation > In the drawerofthe stereo cabinet in the hangout room, where the police found papers related to Jay, they also found a paperrelated to Roger Prasad. (7RT 1915.) 1] that the suspects might be armed and dangerous. When the two vans appearedat about 6:00 p.m. on Folsom Street, they were stopped. The GMCbelonging to Vui wasin the lead, with the Chevy van about a block behind. Theofficers ordered the occupants of Vui’s van to stay put until the Chevy van had been processed, which took about 10 or 15 minutes. Tautai, in the Chevy van, was arrested. Paki, in the gold van, was also arrested. About 40 minutesafter his arrest, he waspatted downbefore beingplacedin a patrol car for transport. In the front pocketofhis Pendleton shirt, the police recovered Nolan’s engagement ring and the Movado watch with the date May 18, 1996 inscribed on the back. (7RT 1734-1735, 1736- 1737, 1740-1741; 13RT 3005, 3007-3008, 3011, 3018, 3025, 3029; 14RT 3048, 3107, 3111-3115, 3127, 3130; 1SRT 3201, 3308.) During the search of the hangout room,the police recovered a good deal of ammunition, including shotgun ammunition. The non-shotgun ammunition consisted of a box of 26 Winchester .380silver tip bullets found in a drawer in the stereo cabinet. There was also a magazine for a semi-automatic with 7 of these Winchester roundsstill in it. (7RT 1905; 8RT 2158.) On the floor ofthe hangout room,the police found an expended .22 caliber Remington casing, a single live round of this same ammunition on top of the stereo cabinet, and three live rounds of .22 Remington long rifle ammunition. (7RT 1900, 1902, 1916; 8RT 2156.) In a black vinyl bag recovered from the same duffel bag that containedthe single garden glove with bloodonit, the police found miscellaneous .22 longrifle bullets and an entire box of Remington .22 longrifle bullets. (8RT 1935-1936, 1941- 1942, 2163-2165.) Later, a useable print developed on the box of .22 ammunition was matched to Paki’s left thumb print. (8RT 2217-2219; ORT 2260-2266.) There was also in the black vinyl bag containing the box of Remington .22 ammunition, an array of different types of .12 gauge shotgun ammunition. There were two boxes of .12 gauge shotgun ammunition manufactured by Fiocchi, containing a total of 14 rounds. Since the boxes held ten rounds each, six were missing. One, perhaps, was the Fiocchi .12 gauge round foundin the top drawer 12 ofthe stereo cabinet. (7RT 1907-1908; 8RT 1936-1938.) In addition,in the black vinyl bag, there were 19 loose rounds of Winchester .12 gauge ammunition;five loose rounds oftwo different types of Federal .12 gauge ammunition; and 23 loose rounds of four different types of Remington .12 gauge ammunition. (8RT 1938- 1941, 2163-2165.) Five ofthe Remington shells were of the 7.5 X 8 duplex heavy duty type of ammunition. This was the type as an expended Remington shell recovered by thepolice on top of a garbage pile outside the window ofthe back of the hangout room. (8RT 1939, 1954-1957, 1959, 1961.) A few dayslater, the police found a .12 gauge shotgun and a .22 rifle in the trunk of a 1983 DodgeAries that was parked in the driveway next to the Folsom Street house. The police had it towed on May 25, and the car was searched pursuant to a warrant on May 30. A few monthsearlier, Paki Seumanu had boughtthe car for $100 from Afzal Ramzan, who knew Pakias a customerofthe gas station where Afzal worked. Therifle was a .22 caliber Glenfield, sawed off at the stock; the shotgun was a .12 gauge Winchester, sawed off both at the stock and at the barrel. The Winchester was encasedin a plastic pool cue cover. (8RT 1964-1966, 1970, 2033-2037, 2194, 2194-2195, 2196-2200, 2202, 2244; 14RT 3152, 3154, 3161-3165.) According to the prosecution’s ballistic expert, guns were sawedoff for purposes of concealment. (8RT 2034.) The Winchester shotgun contained five rounds, one in the chamber and four in the magazine. They were all Fiocchi rounds, the same brandas those recovered from the stereo cabinet drawer and the black vinyl bag in the hangout room. (7RT 1907-1908; 8RT 1936-1938; ORT 2256-2257.) By examination ofthe firing-pin impression the Winchester made on test roundsin the lab, it was determined that the expended Remington shotgun round found on the garbage pile behind the hangout room had beenfired by this Winchester. (8RT 1954-1957, 1959, 1966, 2026-2028, 2031, 2045-2048; 9RT 2269-2271.) At the autopsy, the pathologist removed several shotgun pellets from Nolan’s chest. He also removed from his chest the plastic wadding, or shotcollar, 13 that holds the pellets together as they are propelled through the barrel of the shotgun, and then opensupto release the pellets as they exit the muzzle. Because shotguns are smooth-bored andfire shot instead ofbullets, the pellets and wadding could notbe traced to a specific gun. However, the wadding recovered from Nolan’s chest was the same type ofwadding used in the Remington 7 X 8.5 duplex heavy duty .12 gauge ammunition, ofwhich five live rounds were recovered from the black vinyl bag, and one expended round wasrecovered from the garbagepile behind the hangout room. (7RT 1702-1704, 1715; 8RT 1939, 1954-1957, 1959, 2025, 2028-2030, 2050-2052, 2059-2060; ORT 2268-2269.) In addition, one ofthe ballistics experts counted 386 pellets on the x-ray ofNolan’s chest taken at the autopsy. The number wasconsistent with the numberofpellets expected in a shot load of same weight prescribed for this particular ammunition. (8RT 2053-2058.)° In the search ofMay 25,in the stereo cabinet’s bottom drawer, which contained a hospital receipt in Paki’s name and a Wells Fargo documentin Jay’s name, there was also an envelope on the back ofwhich was written the name “Brad” and a telephone number. The reference was to Brad Archibald, whoat the time wasliving in Hayward. (7RT 1908-1909; ORT 2344-2345, 23 83; 1ORT 2404.) 3. The Testimony of Brad Archibald Brad Archibald testified that he knew Paki from Tennyson High School sometime around 1992. They did not socialize much because Archibald soon © Asfor the range of the shot to Nolan’s chest, there was some minor disagreement. The experts agreed that because of the wadding embeddedin the chest, and the relative lack of dispersion of the pellets, the shot was a close one. However, one expert did not believe he could hazard any moreprecise a determination than that the gun wasfired from five feet or less from Nolan’s chest. Another expert believed he could place the distance as between 18 and 36 inches. (8RT 2058, 2060-2064; ORT 2289-2301.) 14 movedto Union City. In 1996, Archibald moved back to Hayward and wasliving with his motherin a trailer park on Alcazar and Folsom. He was workingthenat a machine shop and would pass Paki’s house everyday on his way home. He sometimes saw Paki outside the house and wouldstop to chat on occasion, and in this way they reestablished their acquaintance. (ORT 2342-2348.) Archibald was also introduced to Tautai, though he did not know Tautai’s name. (1ORT 2348.) In addition, he knew Paki only as “Robert.” (ORT 2342, 2348-2349.) Sometime around the end ofFebruary or beginning of March, 1996, Paki went with Archibald to Archibald’s trailer to look at some gunsthe latter had just acquired. One was a Polytech AKSandthe other was a Winchester 1300 Defender Shotgun. Archibald felt compelled by Paki’s intent interest in the guns to admonish him that they were not for sale. Paki then asked if Archibald could find him one, and Archibald agreed to doso, though Paki did not specify what kind of gun or how many. (10RT 2349-2352, 2354, 2356-2357, 2414-2416.) Archibald managedto find a Winchester 1300 like his, but it was sawed-off and illegal. He boughtit for somewhere between $50 and $80 and received with it a black vinyl bag with a variety of .12 gauge ammunition in it. (JORT 2357-2363, 2365-2366.) Archibald brought the shotgun to Paki’s house in a duffel bag and delivered it to him in the outbuilding behind the main house. In front of Tautai, Tony Tuli, and twoor three women,he took it out and showed Paki how to use it, whereupon Paki, with money handed him by Tony luli, reimbursed Archibald, whothenleft, taking the duffel bag with him. (1ORT 2363, 2367-2372, 2378-2379.) Three days later, Archibald returned to Paki’s late at night with the same duffel bag, this time containing a .22 rifle Archibald was willing to give to him for free because it was not a legal gun. When Archibald had delivered the shotgun, he had mentionedthis gun to Paki, who wanted it. He handed Paki the duffel bag now containing the .22 rifle, but did not give Paki any ammunition to go with the gun, except for a few loose .22 rounds. (1ORT 2385-2386, 2387-2392, 2427-2431.) 15 Archibald identified the gun andthe rifle recovered from the trunk ofthe Dodge asthe ones he had given to Paki. The duffel bag and the black vinyl bag with the shotgun ammunition were the ones recovered from the hangout room, though the box of Remington .22 longrifle ammunition was not with it, and the gardening glove wasnotin the duffel bag when Archibald had givenit to Paki. (1ORT 2357, 2371-2372, 2376, 2378, 2387.) 4, The Testimony of Tony luli and Jay Palega Finally, the prosecution presented the testimony of Tony Iuli and Jay Palega. Both men had beenallowed to plead guilty to voluntary manslaughter, simple kidnapping, and second-degree robbery. They were promised a determinate term of 16 years and 8 months, with the sentencing delayed until after they had delivered their testimony in both the guilt and penalty phases ofthistrial. (1ORT 2447-2448; 11RT 2646-2647; 12RT 2703-2706.) Tonytestified that two or three days before the murder, he was aboutto go to sleep in his father’s van when he saw a white guy walking up the driveway to the back of the house. It was unusual to see a white man coming over, so he went back to investigate. The white guy was leaving, but Tony saw the sawed-off shotgun and the .22 rifle on the bed that Paki would use. Paki was the only person in the room. Paki, according to Tony, test-fired the .22. (ORT 2468-2474, 2493- 2496, 2499.) Hedid not see anyoneelsetest-fire the shotgun. (ORT 2475.) According to Tony, he never gave Paki any moneyto pay for the guns. (ORT 2499.) The evening ofMay 17 began in the hangout room with Paki announcing to Tony, Jay, and Tautai that he wantedto steal a car and do “somejacking,”i.e., robbing, that evening. The others were willing, and theyall left in Vui Seumanu’s GMCvanto look for a van to take. They spotted a Dodge Caravan, which Tautai tried to break into unsuccessfully. On the way back, they spotted another van. Paki observed that it was a good one because it was dark colored and hadtinted 16 windows. Tautai, this time with Paki’s help, broke into the van. Paki and Tautai returned to Folsom Street in the stolen van, while Jay and Tony drove there in the GMCvan. The four returned to the back room to retrieve the guns and place them in the stolen van. According to Tony, they had to be especially quiet to avoid alerting Tony’s wife, who would not have let him go with them. (1ORT 2500- 2504, 2505-2514, 2520; 11RT 2577.) Thetrip inside the stolen van began with Tonysitting in the middle bench seat; Tautai in the far back seat; Paki in the front passenger seat; and Jay Palega driving. (10RT 2521.) Tony rememberedonly the shotgun lying between the two front seats; he did not see the .22 rifle and no one mentionedit. (JORT 2525- 2526.) They then drove around looking for someone alone to “Jack,”ie., rob. There was no discussion, and no one gave directions to Jay, who drove around randomly. The search wasfruitless and they headed back home. (1ORT 2526- 2529.) Asthey were proceeding down Huntwoodto turn onto Folsom, Tony spotted a mangetting out of his car. No one said anything; Jay turnedright onto Folsom and they passed the man, when Paki announced, “Let’s go back and get that guy whojust got out ofthe car.” (1ORT 2530-2532.) Jay made a u-turn on Folsom and pulled up next to the man — Nolan Pamintuanasit turned out — trapping him in the wedgeofhis open driver’s door, which he wasaboutto close. Tony and Paki jumpedout ofthe van. Tonystationed himself next to Nolan while Paki pointed a shotgunat the latter’s chest and ordered him to put his hands up and get inside the van. Nolan complied, getting into the middle bench seat with Paki while Tony replaced Paki in the front passenger seat. (LORT 2521-2522, 2532- 2540; LIRT 2579.) From the front passenger seat, Tony, who apparently did not turn around to look, “heard” Paki and Tautai stripping Nolan ofall he had. He thought he heard Paki order Nolan to take off his boots, and in fact Tony had later seen some boots in the oven of the hang out room. He had asked Paki about them,and the latter 17 answered they were from the guy they had “lit up,”i-e., killed. (1ORT 2542- 2544.) Tony believed that Tautai went through Nolan’s pockets. He remembered Paki remarking on how little money Nolan had on him, expressing anger that there was only $3.00. According to Tony, Paki then pulled backthe slide of the shotgun twice and admonished Nolan notto think that the gun was not loaded. Atthis point, according to Tony, Nolan beganbegging forhis life and offered to take them to an ATM to get more money. (1ORT 2542-2547.) As they passed an ATM bythe bank on Mission, Nolan said that that one would do, and Jay made a u-turn and pulled upin front of the ATM machines. Paki ordered Nolan to get some money, and warned him that he would beshotif he tried to run away. Paki ordered Tony and Tautai to go with him in orderto “block” Nolan. Tony expressed somereluctance because of the camera that guarded the ATM,but Paki told him to get out and do it anyway. (1ORT 2548- 2553.) Nolan, flanked by Tony and Tautai, went to the ATM machine while Paki and Jay stayed in the van,thelatterstill in the driver’s seat and the formerstill in the middle bench seat. (1ORT 2565-2566.) Nolan withdrew $300and thetrio returned to the van, with Nolan handing Paki the money. (ORT 2567-2569; 11RT 2581.) Tony, at this point, was unhappy with the way things were going. He knew he and Tautai had been caught on camera; also he knew that there was someonethere waiting to use the ATM whohad seen them. (1ORT 2580-2581.) Paki then ordered Jay to pull away from the curb and head southbound on Mission. According to Tony, he heard from the back more plundering ofNolan. In any event, Paki directed Jay further to a dark side street to the end of the block wherehe told Jay to stop and turn the van around. Paki then openedthe sliding side door of the van and ordered Nolan to get out. As Nolan movedto exit the van, Jay, according to Tony, told Paki in Samoan not to shoot the guy. Paki did not answer and grabbed Nolanto precipitate the exit. Jay told Paki again not to 18 shoot the guy,this time in English. Nolan was begging for his life. (1IRT 2581- 2586, 2592-2593.) Tony, accordingto his testimony, wanted to prevent Paki from shooting Nolan. This, in Tony’s view, wasa transgression too far, since Nolan had already surrendered his money. Tony, whoseback was to the sceneafter Jay had turned the van around, openedthe passenger door with the intention of dragging Paki back into the van before Nolan was shot. Before Tony could exit the van, however, there was a shotgun blast. Paki, the only other person beside Nolan who was outside the van at this time, jumped back in; Jay took off before the sliding door was even closed. (11RT 2581-2590, 2592-2593.) Jay drove off with Paki admonishing him to slow down. They drove somewhere and ditched the van. Paki picked up the two live rounds that popped out of the shotgun when he had pumpedit twice to scare Nolan. They all walked back to the Folsom house, taking turns carrying the shotgun, which was encased in a pool cue cover. Tony believed that Tautai was wearing Nolan’s Navy peacoat. Hedid not know who had Nolan’s sports coat or other items, though Paki had Nolan’s $300. In fact, Tony never saw any ofthe loot or cards belonging to Nolan, except for the boots in the oven, and the Movado watch, which he had seen in a black box on the coffee table in the hangout room the day after the murder. There was no conversation about who would get the watch, and he did not know what happenedto it. He denied ever seeing the Gucci watch found in the kitchen on top of the microwave. He knew aboutit only because Jay had mentionedit in the patrol car after he and Jay were arrested. Tony himself received only $40 from © the robbery. (11RT 2590-2599, 2602-2603, 2605-2606, 2620-2621, 2624-2626.) That evening after they returned to the Folsom Street house, Tony saw Paki place the pool cue case with the shotgun in it into the trunk of the car Paki had bought from the attendant at Rotten Robbie’s gasstation. (11RT 2621-2622.) According to Tony, in the discussions preceding that night’s excursion, Paki had said he needed moneyto pay for the shotgun. Tony hadalso told the police that 19 the whole purposeofthe robbery was to pay the $90 Paki still owed for the shotgun. According to Tony, about twenty minutes after they returned to the Folsom Street house from the robbery and murder, the white guy who had brought the shotgun showedup, presumably to collect his payment. (JORT 2516-2519.) Tonytestified that during pretrial proceedings in this case, the four defendants were together on manyoccasionsin the same holding cell. On one of these occasions, Paki asked that one of the juveniles, i.e., either Tony or Tautai, take the “beef.” Paki said that he would be out and take care ofthem by putting money on their books. Tony did not like the idea, and answered, “Fuck no. You take your own beef.” (11RT 2636.) Paki said nothing to this, but their relations were chilly after that. (11RT 2638.) Jay Palegatestified that a month or two before the murder and robbery of Nolan, he and Paki workedat the grocery store, the Food Source. Jay remembered one time while he and Paki were taking a break, Brad Archibald, whom Jay had never met before, showed up. He and Pakitalked about a shotgun and some handguns, which Paki said he wanted to see. There was notalk about a purchase. (12RT 2710-2716.) About a week or a week and a half before the robbery and murder, Paki, in the hangout room, showed Jay the sawed-off shotgun and the .22 rifle. Paki said he obtained these from Brad, and that he had paid for them. (12RT 2738-2740, 2746.) About two daysafter this, Paki showed the guns to Tony and Tautai. (12RT 2747-2748.) The shotgun was handed around andtheyall examined it, working the pumpandtrying the trigger, discussing how the gun worked. (12RT 2749-2754.) In the course of this conversation, the subject of “jacking” someone cameup. It was a passing idea they all talked about. (12RT 2756-2757.) On the evening of the murder, Paki drove his father’s van with Jay, Tautai, and Tony looking for another van to steal. After an unsuccessful attempt on one van, they came on the Plymouth Voyager. With Tony and Paki waiting in Vui’s van, Tautai broke into the Plymouth, after which Jay popped outthe ignition 20 switch and started the van with a screwdriver. (12RT 2764-2767.) Jay and Tautai drove the stolen van back to the house where they met up with Paki and Tony. There, both Jay and Paki, who were wearing the Samoanfloral wrap, called the ielavalava and worn by Samoan men, changed into pants. They all then went back to the stolen van and gotinto it with Jay driving on Paki’s direction, while Paki wasin the front passenger seat, Tony in the middle bench seat, and Tautaiin the back. There were no discussions about what was going to happen, and Jay started driving randomly looking for someoneto jack. (12RT 2868-2772, 2775-2776, 2790-2791.) Tautai wanted to be the one actually to do the robbery when they found an appropriate victim, and at somepoint, Jay stopped the van to allow Pakito switch seats with Tony because Paki wantedto be in a position to help Tautai. Soon they came uponan isolated black man. Jay stopped the van. Tautai then got out and attempted to rob the man. Hehadthe .22 rifle with him holding it down athis side and demanded money. The man kept backing up and eluded Paki, who had gotten out to cut off the man’s retreat. The two brothers returned to the van and Tautai cursed noting that they had “messed up.” Paki criticized Tautai for not “baiting” the man before trying to rob him, and not taking Paki’s earlier suggestion that he first approach and ask the man whattime it was. Theyall talked aboutthe need to trap their victim next to the sliding side door ofthe van and prevent him from escaping. (12RT 2778-2792, 2794-2798.) Jay then described how they spotted Nolan getting out of his car, how Jay pulled up and how Nolan wastrapped by the van and by Tony and Pakiin the wedgeofthe door to his own car. According to Jay, Paki, holding the shotgun at his side, demanded that Nolan give him his “stuff.” Nolan, looking shocked and scared, handed Paki a black box saying that that was all he had. Paki took the box. At that point a car drove by, and Paki ordered Nolan into the van. Nolan was unwilling and Paki pulled him, threatening, “Man, if you don’t fuckinggetin, I will shoot yourass right here.” (12RT 2797-2808.) 21 Nolan got into the van followed by Paki holding the shotgun. Jay told Tony, who gotbackinto the front passenger seat, to close the door to Nolan’s Acura, before Jay drove off. Where Tony,as he testified, only heard what was transpiring in the back andreported only a general impression, Jay heard with greater particularity what was said and saw what was happeningin the rearview mirror as he drove off. According to Jay, Paki asked Nolan if he had anything on him. Nolan said no, while Paki and Tautai were going through his wallet and the pockets of his jacket. They were angry and harshly incredulous that Nolan did not have more. (12RT 2809-2812.) Tautai demanded, “You got to have fucking more than this,” and slapped Nolan twicein the back of the head. (12RT 2812.) Paki, for his part, cocked the shotgun and warned Nolan, “Don’t play with me.” (12RT 2812-2815.) When Paki discovered Nolan’s ATM card, he demanded the PIN number. When Nolan demurred, Paki threatened, “Don’t play with me, I ain’t playing bullshit.” Nolan gave up his PIN number. With this, they sought out a bank. Jay made a u-turn on Mission and pulled in front of the Bank of America. Bythis time, Nolan had beenstripped of his boots, his jacket, his wallet, and the watch on his wrist. It was Tautai who took this watch. (12RT 2815-2818.) At the bank, they all decided that Tautai and Tony would guard Nolan at the ATM. Paki warned Nolan notto run and threatened to shoot him if he did. (12RT 2818.) Tautai openedthe sliding side door and exited the van first. Paki movedaside to let Nolan pass, and Tony got out the passenger door. Jay and Paki stayed behind. (12RT 2818-2819.) Jay remembered no discussion about the surveillance cameras. (12RT 2820.) Before the three returned to the van, someonepulled up behind Jay, which made him nervous. After the three at the machine returned, everyone resumed the same places and Nolan handed the $300 to Paki, who then closed the sliding door to the van. They all began to badger Nolan saying that he could get more, andthat he was lying about not being able to. (12RT 2822-2824.) There wasa brief 22 discussion about robbing the guy who had stepped up to the ATM after Nolan withdrew the money, but they decided not to, and Jay pulled away from the bank on his own impulse and drove two blocks before turning right. He was choosing his own route. (12RT 2825, 2829-2830.) Still under his own direction, Jay pulled downa side street and found a dark spot about a block in. (12RT 2829-2830.) In a statement Jay gave a few monthsbeforetrial, Jay stated that Paki had told him to look for such a spot to drop Nolan off. (12RT 2831.) In any event, at this place, Paki told Jay to make u-turn and backup into the dark part of the street. Jay did so, turned offthe headlights, but kept the engine running. (12RT 2830-2834.) Paki, Tautai and Nolan exited the van. Paki was holding the shotgunin his hands. Nolan repeated, “Don’t shoot me.” Jay, for his part, told Paki in Samoan, ‘Don’t shoot him, just knock him out and we’ll just leave.” Either before Jay said this, or in answerto this, Paki said, in Samoan, somethingto the effect that the man had seentheir faces. Jay then heard Paki and Tautai arguing over who would shoot Nolan. Jay, impatient, declared in English, “Hurry up, let’s go,” while Nolan cried out, “Don’t shoot me.” Jay then heard the blast of the shotgun. When Tautai and Paki got back into the van, Jay hit the accelerator and tookoff. (12RT 2834-2841.) Jay founda spotto ditch the stolen van, which they left with the motor running. They used a ielavalava one of them had brought to wipe any fingerprints off the van. The guns were backin their covering and as they set off for home on Folsom Street they took turns carrying them. On the walk back, Tautai, who was wearing Nolan’s peacoat, offered everyone some piece of spearmint candy. (12RT 2842-2844, 2845-2849.) Back at the Folsom Street house they divided the money. According to Jay, he took a couple oftwenty dollar bills, which wasall that he wanted. The rest was split between Paki, Tautai, and Tony. (12RT 2849- 2850.) Asfor the other loot, Paki, according to Jay, claimed the watchin the black box, while Tautai claimed the Gucci watch from Nolan’s wrist. Paki wastrying 23 on Nolan’s boots, but they did not fit. He also saw Paki wearing Nolan’s ring off and on over the next week on his own pinkie finger. At one point in the following week, Jay’s wife, who had seen Tautai wearing the Gucci, asked Jay if she could have the watch. Jay asked Tautai, who refused at first, and then agreed. (12RT 2851-2853.) Sometime before the arrest, Jay believed he saw Paki take the guns out of a duffel bag, place the shotgun in a pool cue case, andthen place both gunsin the trunk of the Dodge, with Jay acting as a lookout. There was sometalk about giving the guns back to Brad Archibald to hold. (12RT 1259-1261.) It will be recalled that the police recovered a black leather jacket from the hangout room, and thatlater testing showed that Nolan’s blood wasonthisjacket. According to Tony and Jay, Paki was wearing this jacket the night Nolan was robbed and murdered. (1ORT 2557, 2562-2563; 12RT 2770-2771, 2820, 2870; 13RT 2881.) According to Jay, as the quartet was walking homeafter ditching the stolen van, Paki exclaimed, “Damn,the blood got on me.’ ” (12RT 2847.) According to Tony, on December 18, 1995, Paki had taken Tonyto St. Rose Hospital for stitches to Tony’s hand. While Tony was with the doctorin the emergency room, Paki left and came back with the leather jacket he would wear monthslater at the robbery. According to Tony, Paki admitted stealing the jacket. (11RT 2607-2608.)’ Defense Case Lefea Masefau, or Lucy, two years older than Paki, was born in American Samoa in 1972 and hadsettled in the United States in 1994. She had by then a five-year-old child named Peggy from a priorrelationship. Lucy movedin with an aunt in Hayward and met the Seumanufamily through social activities at the Full Gospel Church in Hayward, where Vui Seumanu, Paki’s father, was the pastor. ’ The records of St. Rose showeda report of a leather jacket missing from the ICUDepartment on December 18, 1995. (13RT 3001 .) 24 She visited with the Seumanusisters on Folsom Street as well. She married Paki on May 7, 1996, about two weeks before he wasarrested. (14RT 303 1-3036.) During the day, the room behind the main house was open to anyone. At night it was pretty muchthe same, and Paki, before he and Lucy were married, would sleep there, as did his brother Tautai, his cousin Jay Palega, and sometimes Tony Iuli. After they were married, Lucy sometimesslept there with Paki, and sometimes Jay and Tony with their respective wives slept there. (14RT 3038- 3042.) She remembered reading the newspapershortly after Paki’s arrest on May 25. Thearticle stated that the robbery/murder occurred on Friday night May 17. When shesaw this, she knew that Paki could not have doneit since he was with her that evening. (14RT 3049-3050.) Lucytestified that when she movedinto the house as Paki’s wife, she had certain responsibilities as the second eldest woman in the household. Both she and Paki were expected to help prepare meals andto care for the younger children. So that evening, Paki was helping her prepare the family dinner. (14RT 3054-3055, 3063.) At one point, Paki’s father told him to go to the grocery store to get some more food. Paki, Jay, Tony, and Tautai all went on the errand, and they returned with groceries. (14RT 3055-3056.) Paki handed her the key to give to Vui, which she did, and then she and Paki continued making dinner for the ten people who werethere at the time. (14RT 3056-3057.) Dinner was over about 9 p.m.and the dishesall cleaned up and put away by 10. Everyone prepared to go to bed. Lucy and Paki were going tosleep in the main house by the back door near the kitchen. She had laid out blankets there to sleep on the floor, which she preferred to the back room because, which wet from exposure and generally a “dump.” She and Paki went to bed about 10 or 11. They made love. She rose about 12:45 a.m. to go to the bathroom and he waslying there snoring. Shefell back asleep, but Paki could not have gotten up without her 25 knowing, and he was there when she wokeup the next morning. (14RT 3057- 3061.) After she read the newspaperarticle about the date of the crime, she was too frightened to go to the police. She had been in one ofthe vansreturning to the Folsom Street house on May 25 whenthe police stopped them. They had ordered them out of the vans at gun point and patted down everyone. (14RT 3045-3046, 3061.) She had had no contact with the Seumanu family since November, 1996, when she movedoutoftheir house. She lived a year with her aunt in Daly City, and then moved to Los Angeles. (14RT 3036-3037, 3051.) Sometime this year (2000), she was contacted by a memberofthe Seumanu family and askedto telephonethe defense investigator, Clarick Brown. This wasthefirst time anyone contacted her about the case. She had nevertalked to Paki about the crime, except to tell him once that she knew he could not have done it. (14RT 305 1-3053.)° Paki’s brother, Tautai Seumanu,alsotestified for the defense. He pled guilty on June 19, 2000 to murder, kidnapping, and robbery. He decidedto change his plea after Jay Palega took his deal, but unlike Tony [uli and Jay Palega, he had not been offered a deal or any other promises. He was sentenced onthis 8 While living in Los Angeles, Lucy obtained convictions for three counts of grand theft auto, and one count of simple grand theft. She was placed on probation. (14RT 3037, 3078.) The prosecutoralso elicited from Lucy the impeaching admission that she failed to inform AFDC abouther marriage to Paki, continued to receive money for her daughter Peggy, and on a few occasions put the AFDC money into Paki’s jail account. (14RT 3071-3076.) In addition, in the prosecution’s case, Detective Cardestestified that when he and his partner Cooperreturnedto the Folsom Street house on May 30to search the Dodge in the driveway, he encountered Lucy at the front door ofthe house and asked herif she had the keyto the trunk. She did not; Cardes then took the occasion to ask her if she would talk to them, and she declined, saying that there was a court date pending for her husband and she would like to go before talking to them. Cardes suggested that after court she comeacrossthestreet to the police station to talk to him, and he gaveher his card. Lucy never cameby, and never informed him of Paki’s alibi. (J4RT 3159-3161.) 26 case on July 17, 2000 to 28 yearsto life. (ISRT 326-3270, 3312-3313, 3315, 3318-3319.) According to Tautai, the events ofMay 17, 1996 occurred without Paki. Present were Tautai, Jay, Tony, and Roger, whose last name Tautaidid not know. Tautai was the one who had shot Nolan with the sawed off .12 gauge shotgun. (15RT 3270-3272.) Whenthe four ofthem went out that night, the original purpose wasto “pay a visit” to a gang called “Don’t Give a Fuck” (DGF) that generally “ran”the area in which the Folsom Street house was located. The gang had been doing “stupid stuff,” throwing rocks at the window ofhis dad’s van, trying to run overhislittle brothers as they rode onthestreet; or slashing their tires; they even shot up the Folsom Street house a few times. It was Tuatai’s intention to drive by and shoot them up and he hadtalked to Jay aboutit. Jay, Tony, and Roger were all pumped up for it. So they stole the van, returned to the house, where Tautai retrieved the guns Paki had obtained from Brad Archibald, and then left again. (1SRT 3276- 3277, 3278-3285.)° They began looking for a dopedealerto rob, but did not find one. By random chance, they came upon Nolan getting out of his Acura, and he and Tony forced Nolan into the van. Tautai was holding the .12 gauge. Inside the van, Tautai was in the far back; Roger was in the middle seat with Nolan; Jay was driving; and Tony wasin the front passenger seat. Roger and Tautai stripped Nolan of his belongings. (1SRT 3286-3292.) Tautai found the ATM cardin Nolan’s wallet, and they proceeded to a machine. When Nolan refused to get out of the van, Tautai handed the shotgun to Roger, who pumpedit as a warning to Nolan, who then promptly got out of the van. (1SRT 3292-3293.) With Tony and Tautai flanking him, Nolan withdrew funds from the machine andthe three of ? Brad Archibald testified on cross-examination that one time whilevisiting Paki’s house, Brad had seen bullet holes in Paki’s father’s van. He asked Paki what happened, and Pakitold him, relating howhis sisters and mother wereinside the vehicle when it happened. Paki then asked Bradif the latter could get him a gun for protection. (1ORT 2416-2417, 2426.) 27 them returned to the van. (15RT 3293-3295.) They decided not“to jack” the guy whohadpulled up behind them because it was too much outin the open. (ISRT 3295.) After they returned to the van, Tautai, now cold, put on the leather coat he had brought with him from the housecarrying it in the same gym bagin which he had placed the .12 gauge. (15RT 3282, 3296-3298.) In Samoan,he,Jay, and Tony discussed what to do, and Jay picked out a secluded spot. While they deliberated about whether or not they should beat Nolan up, Tautai decided on his ownto kill him, which he did. His purpose wasto “earn”his “stripes,” or “make a name”for himself in his gang, the Sons of Samoa, a Crip affiliated gang ofwhich Paki was the leader. (15RT 2399-3301, 3325, 3329, 3334, 3335.) Backat the house, in the hangout room,they divided the cash, which Jay had carried on the walk back to Folsom Street. Tautai already had the watch and ring, and the others simply took the items they wanted. The guns were placed inside the dresser. Tautai threw leather jacket he was wearing downonthe bedat random. The next morning, Tautai saw Paki and told him what happenedthe night before, including the murder. Tautai asked Pakito get rid of the guns; he also gave Paki the watch andthe ring and asked him tosell it for him. (1ISRT 3305- 3307, 3318.) Detective Cardestestified that when he interrogated Tautai on May 25, 1996 after his arrest, he did say he was the person who had shot Nolan. When the police expressed disbelief and began pressuring him to stop protecting his brother, Paki, and ruining his ownlife thereby. Tautai in tears, succumbed to this and told the police that Paki was there andhad killed Nolan. (15RT 3203-3206, 3227- 3228, 3312.) Tautai, at trial, explained, that he lied about this and had doneso for “personal reasons, family reasons.” In Samoa, his family was royalty. Vui, their father, was a chief. Paki, his eldest, was his heir and had gone through the ceremonials required for this status. If Paki were to go to prison, then Tautai 28 would be heir. Tautai rationalized this act of envy with the consolation that Paki, older and tougher than the then 15-year-old Tautai, wouldbe better able to survive the system. (15RT 3309-3312, 3319.) Finally, there was a longerstory to be told regarding the voluntary manslaughter deal offered to Tony Iuli and Jay Palega. Shortly after his arrest, Tony Iuli madehis first appearance in juvenile court and soon learned he would be prosecuted as an adult and would be facinglife without possibility of parole. Tony, who had committed about 10 armed robberies before he was 16, knew from past experience that he could get a “break”bytalking to the authorities, and that he would neverget out of jail unless he cut a deal to get Paki convicted. (11RT 2648-2652, 2654-2655, 2657, 2660.) As for Jay Palega, who was18 at the time of his arrest, he had been under the impression that he was facing a death penalty, until the preliminary hearing occurred, after which he found out he was facing only life without possibility of parole because the prosecution was seeking the death penalty only for the shooter. (13RT 2956-2958.) Twoyears after the information was filed in this case on June 19, 1997, Tony’s attorney, Michael Berger, began approaching the prosecutorto inquire about a possible plea agreementthat would allow Tonyto plead to a lesser offense in return for his testimony. (10RT 2445-2446.) No deal was forthcoming, however, until March 3, 2000, shortly after Paki had pulled his time waiver and trial was imminent. At that time, both Tony and Jay were offered the following: if they testified against Pakiat the guilt trial, they would be allowedto plead guilty to first-degree murder and receive a sentence of 25 yearsto life; if they further testified at the penalty phase they would be allowedto plead to second-degree murderfor a term of 15 yearsto life. (LORT 2445; 11RT 2644, 2661-2664; 13RT 2896.) Both men rejected the offer because they believed that no one wasbeing paroled andthat any indeterminate term waseffectively a full life term in any event. (1IRT 2644-2645; 13RT 2896-2897.) In April, 2000, prosecutor then “sweetened”the deal for Tonyat least, offering him the current disposition, which 29 allowed him to plead guilty to voluntary manslaughter and then receive 16 years and 8 monthsafter he testified against Paki at both Paki’s guilt and penalty trial. (IORT 2446; 1I1RT 2645-2646.) In May, 2000,after a deposition with the prosecutor, Tony asked the prosecutorto offer Jay the same deal. The prosecutor agreed and allowed Tony to write the letter as a precursorto the offer. The letter began with the salutation, “Uso,” which was the Samoan word meaning “brother.” (1 1RT 2630-2631.) The letter continued: “Well it’s me, Tony. Just writing you a quickletter. I guess you already knowthat I’m taking the deal. I’m sorry, and I hope you understand. But the D.A.said they will give you the same deal, 16 years, 8 months. It’s a great deal. Remember what wetalked about, our sons. Uso, if you ain’t goingto do it for yourself, do it for your son. It’s a deal you wanted, now takeit. It’s not 15 to life. It’s 16 and 8 months. She said that she is going to change it. Uso, pleasetake it. Please take it. Please. 4 years is already done, another 10 and you’re done. Don’t go out. Think aboutit, uso. Love always, Tony luli.” (11RT 2631-2632.) Domestic sentiments and determinate terms appealed to Jay and he accepted the prosecution’s offer. (13RT 2954-2955.) PENALTY PHASE Prosecution Case 1. Factor (b) Evidence!” The prosecution’s penalty presentation consisted in part of factor (b) evidence starting with Paki’s prominence street brawler. His punch was styled '0 Section 190.3(b) defines as a factor in aggravation “[t]he presence .. . of criminalactivity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.” 30 the “onehitter quitter” for its capacity to end a fight in a single blow. (18RT 3758-3759, 3770; 19RT 3830, 3849, 3875, 3897.) Jay Palega had seen this when Paki, only 13 or 14 at the time, knocked out a black guy in a schoolyard fight, although it was Paki who ended up going to the hospital when the boy’s friends retaliated. (19RT 3871-3875.) Saiyad “Ed” Hussain a friend of Paki’s from Tennyson High Schoolhad seen the one hitter quitter when Paki fought four guys at once at Tennyson. (19RT 3896-3899.) Mannix Molia, another high school friend, had seenit at a fight at Fremont High, on a couple of occasionsat the Aloha Club in Oakland, and once at a Mexican bar on International Boulevard in Oakland. (19RT 3830-3831, 3849.) There were gang overtones to someofthese incidents. Paki, whose street moniker was Smurf or Alf, had been a memberof the Sons of Samoa, a Crip affiliated gang, since he was 11. Crips claimed the color blue; the guy Paki punched at Fremont High School, claimedred, the color associated with the rival Bloods. Tennyson, Paki’s own school where he fought the four guys at once, was primarily a “red” school. (12RT 2719-2721; 13RT 2983-2984; 15RT 3331; I8RT 3776; 19RT 3820-3821, 3831, 3834, 3855, 3897- 3898, 3959-3961.)") Gang motivation played a role in an incident at Arroyo High School on January 15, 1992, when Paki was 17 or 18. On that day, Mannix Molia and Paki, both cutting classes, met at Fremont High School. Paki suggested they go over to Arroyo High Schoolto visit Paki’s cousin, Liu Sua, who went to Arroyo. They met Liu at a 7-11 near Arroyoandfell in with a group ofyoung men. Theyall started talking and began to makeplansto go to the school and beat up anyone wearing red. Four carloads drove over to the school. According to Iosefa Mataese, who wasoneoftheassailants that day, Paki was the first one out of the '! However, these divisions were not hard and fast, nor did they involve an inexorable enmity: Bloodsoften socialized with Crips; several of Paki’s friends “claimed red”; and Paki’s ownbrother-in-law, Tony Juli, was a Blood. (11RT 2666-2667; 12RT 2721; 13RT 2983-2984; 18RT 3702-3704, 3711, 3776-3777; LORT 3812-3813, 3818, 3896-3897, 3902-3903, 3945.) 31 car to confront an Arroyo student and throw thefirst punch. This signaled a general mélée in which one Arroyo student’s jaw was broken. Mataesesaid he had seen Paki kicking someone who was down; Mannix Molia described Paki as “just wild.” According to Jay Palega, Paki later told Jay that he had knocked a guy out in this fight and that the reason for it was a sort of gang flexing of muscles. (19RT 3833-3840, 3854-3858, 3885-3886.) Moliatestified that the group wentback to the Fremont High swimming poolafter the Arroyo fight. Paki, according to Molia, talked about how goodhe felt and how he wantedto goout again. The others refused because the police would now be onthe lookout for them. (19RT 3842-3843.) In another incident that occurred three years later in December, 1995, some sort of family or friendship solidarity played a role. Paki and a group that included Tony luli, Tautai, and Roger Prasad drove over to Mt. Eden High Schoolin two cars. They spotted a green Hondathat they were looking for, and sandwichedit in at the curb in front of the school. They beat-up the driver, Avi Singh. Tony [uli busted the windowsof Singh’s Honda with a crowbar; Paki, at least according to Tuli, beat Singh and bustedhis nose. In the course ofthe incident, Singhlost his pager and wallet. According toDarrell Churish, whose T-Bird was one of the cars transporting the assailants, they were looking for a green Hondabecause that was thoughtto belong to a Bobby Nair, a Mt. Eden student with whom RogerPrasad had some dispute. They went in a group to back up Roger because Nairhad lot of gangster friends. As it turned out, Singh was in fact a friend of Nair and had often driven Nair around in his green Honda. According to Tony Iuli, however, the assault at Mt. Eden was because several Mt. Eden students had been harassing Tautai Seumanu. (18RT 3746-3749, 3752-3755, 3788-3794; 1ORT 3925-3929.) In any event, Paki was interviewed bythe police a few daysafter this incident and denied being present, although he admitted that he told some ofhis relatives and associates to go to Mt. Eden to “take care of another student” there named Bobby Nair. (19RT 3958-3959, 3961-3963.) 32 Paki’s family was involvedin an incident of “road-rage” on September13, 1991 when 17-year-old Paki was a passengerin a van driven by his father, Vui Seumanu. Jacqueline Romero hadto stop to allow another car to back out into the street, causing Vui to stop behind her. He began honking at her, and she raised her handsto signal that there was nothing she could do about it. When she moved forward again, Vui pulled into the lane next to her, and as they proceeded down the road in tandem, a metal rod was launched from Vui’s van, missing Jaqueline’s car, but hitting a parked car. The police were flagged down and both Paki and Vui were arrested. (J8RT 3713-3714, 3716-3717; 19RT 3866-3870.) Someofthe incidents were the result oflittle more than a kind of puerile truculence. Thus, in the fall of 1994, Paki was hanging out at Tennyson Park with Darrell Churich and Myron Cruz. They spotted a drunk walking through the park and started chasinghim for the fun of it. Darrell and Myrontestified that they gaveup the chase, laughing at the drunk’s discomfiture, but Paki proceeded on, caught up with the man and knocked him out. As the three ran away, they could see a patrol car stop by the prostrate man. Theofficer revived him with smelling salts, placed him in the car, and drove him off, presumably to the drunk tank. (18RT 3757-3760, 3773, 3780-3781.) Sometimeafter this, Paki, Jay Palega, and Ed Hussain beat up a Mexican who was waking by Darrell Churish’s T-Bird and peered into the window. According to Palega, Paki hit the guy over the head with a bottle. (18RT 3794-3795; 19RT 3880-3882.) Similarly, in January, 1996, Paki, Tony Juli, Ed Hussain, Myron Cruz, and Darrell Churish went to the San Leandro Marina, which at night was a “make-out” spot for teenagers and young adults. Forthe fun ofit, the group walked through the lot bouncing or banging on cars where they presumed someassignation was occurring. Onevictim of this prank took exception, got out of his car, and started fighting with Ed; Paki intervened and started punching Ed’s opponent. The group then ran back to Myron Cruz’s van to escape. Twoofthe disgruntled victims chased them in his car; Either Ed or Tony, picking up a pipe, threw it at the 33 windshield of one of the cars, busting it. The other car rammed Cruz’s van. The group nonetheless escaped. They dumped the van at Ruuspark and claimedit was stolen, so that Myron did not haveto tell his parents what had really happened. (18RT 3761-3767, 3786-3788; 19RT 3878-3880, 3900-3902, 3931-3934.) There was testimony that the one-hitter-quitter was sometimes used for robbery. Sometime in 1992, Paki, Darrell Churish, and Oscar Felix, were on lunch break from their vocational class at the Regional Occupation Center associated with Tennyson High School. They were driving around in Oscar Felix’s car looking for girls. They saw a large man at a bus stop wearing a blue Georgetown jacket. Paki had Felix stop. He confronted the man, demandedthejacket, knocked the man down with a single punch whenthe latter refused, and took the jacket. This was Oscar Felix’s account. According to Darrell Churish, however, the man surrendered the jacket from Paki’s menace alone and no blow wasstruck. (18RT 3774-3775, 3781-3783; 19RT 3812-3817.) Jay Palega, who was not present, testified that Paki owned a blue Georgetown jacket. (19RT 3876.) In this vein, Mannix Moliatestified that shortly after the Raider jackets first came out, Paki admitted to Molia that he, Paki, beat up a couple of guys to take their jackets. (19RT 3845.) Darrell Churish, attested that he and Paki were in a mall together on one occasion when Darrell was looking longingly at a Raider’s jacket someone was wearing. Paki asked him if he wanted the jacket — an offer Darrell declined, assuming that Paki intended to take that particular jacket by force. (18RT 3783-3784.) Darrell and others were present at another inchoate robbery. Just before the San Leandro Marinaincident, the group had been driving around San Jose in Myron Cruz’s van, looking for something to do. Paki, Ed, and Tony Tuli began talking about going to Reno to gamble. No one had money, however, and they floated the idea ofjumping someonein the parkinglot of a casino and taking his money. It was somehow decided that this would not be a goodidea, andthey all 34 settled for the prospect of adventure at the San Leandro Marina. (18RT 3767- 3768, 3784-3785.) The prosecution took pains to show that Paki inveterately carried firearms. Darrell Churish testified that in 1992, when he attended the vocational class with Paki, Paki brought a .380 semiautomatic handgunto class to showto his fellow- students, including Oscar Felix, who, for his part, had no memory of this. (18RT 3777-3779; 19RT 3814.) He presumably had this same gun on March 14, 1996 when Officer Pola went to Ruus Park asking to search the cars parked near a group of apparent gangbangers. Although it seemedto be primarily a “red” gathering, Paki was there with Jay Palega and Tautai. Pola asked to search the variouscars parked nearby, and Paki consented to the search of a Ford Taurus he wasdriving, volunteering to Pola that there was a firearm under the front passenger seat. Pola recoverd a .380 Larson, semi-automatic, fully loaded, and arrested Paki for the misdemeanorofcarrying a loaded firearm in a vehicle. (18RT 3701-3709., 3711; 19RT 3884.) About a month earlier, on February 10, 1996, the gun seized by Officer Pola was used to shoot at a house in PompanoStreet in Hayward, where a gang called D.G.F., which claimed red, held sway. Tony Iuli provided the details. A few hours before the shooting, Tony was with Tautai, a boy named Matthew,and Matthew’s girlfriend, driving home from a Tennyson High School basketball game in the girlfriend’s car. A gathering of D.G.F. members on Pompanoyelled insults at Tony, making derogatory remarks about Samoansandthreatening tokill him. Tony was armed with Paki’s .380 and was aboutto use it, when Matthew’s girlfriend stopped him andinsisted he not do anything like that from her car. Later in the day, Tony stole a van to take him Paki and Tautai to Oakland to meet with Paki’s and Tautai’s sister at a club called Sweet Jimmy’s. On the way, Tony told Paki about the incident and Paki said that they would take care of things when '2 According to Ed Hussein, there was no mention of robbery;it was simply decidedthat it was not a good idea to go to Reno. (19RT 3900.) 35 they returned to Hayward. On the way back, sometime after midnight, they went to PompanoStreet, made sure there were nopolice around,andthen drove by the house where Tony had been insulted. There was no oneoutthere, but Paki told Tony to fire anyways, which he did twoor three times. The bullets hit the front of the house; one penetrated to the wall ofthe living room. (19RT 3822-3826, 3862- 3864, 3934-3942, 3945.) This then was the prosecution’s caseof factor (b) incidents occurring before the charged crime. The prosecution also presented factor (b) evidence occurring after the commission ofthe crime, while Paki was in custody. Donald Mattsontestified that he was housing deputy at Santa Rita Jail on May 22, 1998. From his vantage point above C-pod, Mattson saw Pakipull off his shirt in anger, throw some chairs, and then shakehisfist at Mattson, yelling at him, “You ain’t right man. Come on downhereandtalk to melike a man.” Mattson, on the intercom, asked what the problem was. Paki just responded, “Come on downhere so I can take care ofyou.” (18RT 3739-3742.) John Smithtestified that he was the unit deputy at Santa Rita on July 9, 1998, when he helped broke up a brawl between four or five inmates throwing punchesat each other. Paki and Jay Palega were involved and, according to Smith, Paki threw three or four punches himself. (19RT 3807-3809, 3810.) On March 14, 2000, at lockdown time, Paki complained to Deputy Rice aboutnotgetting his shower, and he refused to go to his cell. When Rice ordered Paki into an isolation cell, the latter became aggressive and hostile. Specifically, Paki began cracking his knuckles and announcingthat he was notafraid of Rice, who was6 foot 4 inches, 250 pounds. After Rice threatened Paki with pepper spray, Paki wentto theisolation cell. (18RT 3731-3733.) '3 In evaluating the gang elementofthis incident, it should berecalled that Tony luli, like the D.G.F. members, whosehostility was at least also ethnic or territorial, or both, also claimed red. (19RT 3945.) 36 While there, Paki’s regular cell was searched. In his personal belongings, the deputies discovered a tattoo gun consisting of a bic pen with a sharpened paper clip attached, and powered by batteries to inject the tattooing ink. The item belonged to Paki. Deputy Gattey, who found the item, testified that he had seen inmates use such instruments for purposes of stabbing. However, Gattey, who had the discretion to cite Paki for possession of a weapon choseinsteadto cite him for possession oftattoo paraphernalia. Gattey’s choice was confirmed by Deputy Miller, who had interrogated Paki about the item and recommendeda twenty-day loss of privilege. (18RT 3725-3727, 3728-3730.) 2. Victim Impact Evidence Nolan’s brother, Paul, his fiancée, Rowena, and his mother, Clementia Manio,testified for the prosecution. Theyall attested that Nolan wasa kind, unselfish, always helpful and ever giving of himself to others. (19RT 3912, 3917- 3918, 3967.) Paul, in fact, who wasnotas giving, wasa bit jealous of these good qualities in Nolan. Healso looked up to Nolan as an older brother, even though Nolan,his half-brother through their father Lope, was only six months older. For Nolan was much more mature than Paul. (19RT 3905-3907, 3911-3912.) Rowena remembered how Nolan alwaystreated her like she were his mainpriority in life. He wasboth her fiancé and her best friend. (19RT 3918-3919.) Mrs. Manio, Nolan’s mother, recalled how he was alwaysattentive to her on Mother’s Day,at Christmas, or on her birthday, and how they talked about his plansin life, to have children and to work in the computer field. (19ORT 3968-3969.) Each of these witnesses recounted their memories of the last day ofNolan’s life and the stark contrast of a wedding transformed into a funeral. Paul, who was to be the best man at the wedding on May 18 last saw Nolan at the rehearsal on the Friday night before. Their last conversation was about the wedding, which they talked about when they left the restaurant that night to share a cigarette in the parking lot. The next morning, things becamefrantic when Nolan wasnotthere. Aboutan hour after the missing persons report wasfiled, the police returned with 37 a counselor and said they had to have an identification. Paul became apprehensive as he led them into his room. They showed him a photograph ofNolan’s dead body, and he madetheidentification. At the funeral, Paul gave Nolan’s eulogy. He broke downin front of everyone. (19RT 3907-3911.) Mrs. Manio remembered the wedding rehearsal as a gloomy andrainy night. The wind was blowing hard. There was also tension between her and her ex-husband, Nolan’s father. This caused Nolan somestress that night, but when the dinner at the restaurant ended, Nolan, on his way out, hugged her, said that he loved her, and that he would see her the next day. (19RT 3969-3971.) The next day, she got a call from Rowenaat 7:30 a..m.to ask her if Nolan had spentthe night at her house. She told Rowenathat he had not, and the latter informed her that Nolan had also not spentthe nightat his father’s house. Mrs. Manio was worried. At 9 she suggested that the police be called. When she was informed that Nolan had been killed, she broke down,yelling and crying. (19RT 3971- 3973.) Before the funeral, she wanted to be with him for a few moments before his body was preparedfor the viewing. She saw his chest wound and the wound on his hands from “when he wastrying to save his body.” This washerlast image ofNolan, and while she daily rememberedhersonalive, she also alwayshad in mind the pain andterror he must have suffered in death. (19RT 3973-3974.) Rowenatestified that about-7 a.m., Nolan’s stepmother telephonedtotell her that Nolan had not come homefrom the rehearsal the night before. She telephoned Mrs. Manioto find out that Nolan had not gone there either. She was no moresuccessful in finding him when she telephoned someofhis friends. She worry was agonizing, but Mrs. Manio andher ownparents urged her to go ahead and haveher hair donein preparation for the wedding. While at the beauty parlor with her mother, Rowenareceived call asking her to return home. When she arrived, the parish priest and a nun, both ofwhom werefriends of Rowena and Nolan were there. Rowena’s father broke the newsto her. She could not describe howshefelt. “I mean, it is just heartbreaking. You are looking forward to 38 something, a really happy part ofyourlife, and to realize that wasn’t going to happen,that you will never see this person you love so much everagain,it is just very hard.” (19RT 3913-3916.) The funeral took place in the church in which they were to be married;the priest officiating was the one who wasto have married them; Nolan’s body lay in the casket dressed in his wedding tux. (19RT 3916-3917.) Rowena missed her graduation in June; she quit her job because her friends at work had met Nolan and knew him;she cried herself to sleep every night hoping that the next day would be the May 18 they had planned for. (19RT 3918.) Defense Case Paki was born in American Samoain 1975 andlived with his mother until she died two years later, in 1977. His father Vui, left for America, and the boy lived for a couple ofyears with his uncle, until Vui brought him hereto live with him and his new wife, Sao Seumanu. Vui was a matai or chief and Paki washis heir, which was not merely a passive status, but a commitment to undertake and accept the responsibilities of a chief and leader. This commitment, called pa, need only to exist in the heir, but could be shownbythe optional undergoing ofa ritual tattooing of the lower body from the kneesto the waist, including the scrotum. This tattooing, done with a shark’s tooth and taking up to a week, was very painful. Paki submitted himselfto this on a family trip back to Samoa when Vui’s mother had died. For Paki, the tattooing took four days. (19RT 3980, 3991-3994, 4013-4015, 4030-4031, 4033-4034; 20RT 4062.) Within the family, Paki was a respectful child. He always helped out taking care of the six daughters and one son — Tauatai — that Sao and Vui had. He changeddiapers, prepared bottles, and cooked food, and when he wasolder, he would beleft in charge when Vui or Sao went away for an extended period of time. In these instances, he was alwaysa responsible custodian. When he began to work he always gave his paycheck to Sao to contribute to the family sustenance. 39 Whenhe married Lucy, hetreated her daughter Peggy, as though she were his own child and becamevery closeto her. (19RT 4014-4020, 4032-4033, 4043-4045.) Paki wasalso close with his maternal grandparents. Whenhis grandfather got sick, sometime in 1995, Paki moved out the Folsom Street house andlived with his grandfather in San Franciscoas his caretaker, cooking and cleaning not only for the old man, but for his maternal uncle and cousins as well. Paki moved back to Folsom Street when his grandfather returned to Samoa. (19RT 4016- 4017; 20RT 4058-4060, 4063-4064.) Paki’s sense ofpa extendedto violent confrontations as well, such as when, in 1990, he confronted a group ofstreet thugs who were harassing Lua Sua, the minister’s daughter. Paki was beaten up and spent the nightin the hospital. (19RT 4000, 4052-4055.) Paki was also active with his family in the First Samoan Gospel Church, where Vui was the pastor. Vui, a roofer, had hurt his knee ina | roofing accident and becamea pastor in 1995. Paki was a deaconin the church, sang in the choir, worked with the youngpeople, and helped with such fundraisers as the car wash and the barbeque. (19RT 4020, 4030-4033.) Hanna Seumanu,one of Paki’s sisters, testified that Paki was like a second father to her. She remembered how sad she wasat the goodbye breakfast they had at Denny’s when Paki had movedoutofthe Folsom Street houseto take care of his grandfather. She also remembered how he rememberedtocall her on her birthday after he had moved out. (19RT 4045-4046.) Siniva Seumanu, another sister, thought of Paki as her best friend and adviser. Once her father and mother forced her to cut off her engagement becausethe fellow was not worthy ofthe Seumanu’s who were consciousoftheir status as royalty. Siniva went to Paki, whowasin jail on this charge, and Paki, who generally enforced his parents’ will, nonetheless gave his blessing and approval. Vui, who was notin the courtroom while Siniva related this story, would be angry ifhe knew. (19RT 4048-4050.) Manua Malauulu, Paki’s maternal uncle, attested how, when Paki movedin to take care of the grandfather, Paki was “the joy of my father.” Manua continued, “Heis 40 real close. Every time he have a conversation with my father, I feel happy because my father most of time go along with him. And when he with him, hebring up in Samoa. [Sic].” (20RT 4063-4064.) Clarence Scanion, a former Honolulu police detective, who was a Samoan and the son of a matai and now a matai himself, testified about Samoan culture. His cultural expertise was augmented by experience as a policeman in Hawaii with Samoan youth gangs, including the Sons of Samoa. (19RT 3976-3980, 3982- 3983.)'* Scanlon reviewedthepolice reports in this case and interviewed Paki and Paki’s family. According to Scanlon, Paki’s home culture wastraditionally Samoan, including the involvementin the church, and family oriented. Paki’s involvement in the Sons of Samoa, however, wastypical ofyoung Samoanstrying to assimilate to American culture. Nonetheless, Scanlon believed that the Samoan element predominated over the gang element, as evidenced by the fact that Paki tolerated the marriage of his sister to Tony Iuli, who was a Blood. (19RT 3996- 3999.) Based on his experience in Hawaii, Scanlon attested that the Sons of Samoa wasa very violent gang. Nonetheless, Paki’s record was not commensurate with what Scanlon would expect from hardcore gangsters. Paki’s crimes, though violent, were more in the nature ofrallying to the defense offriends or family, of establishing a reputation for purposes ofprotective deterrence, and establishing a territory. There wasin this an undercurrentofthe tribal values found in Samoan culture itself. Significantly absent from Paki’s gang activity wasthe sale of drugs —a primary activity of many criminal street gangs for purposesofprofit. (19RT 3986-3991, 3995-3997.) The only other expert to testify for the defense was Marlin Griffith, a clinical psychologist, who conducted psychological testing and had interviewed ‘4 It was Scanlon whoattested to the significance of the tattooing on Paki’s lower body. (19RT 3992-3994.) 41 Paki. Griffith described the “general psychological picture” as showing Paki to be “a very personable, emotionally expansive person, quite unsophisticated, psychologically unsophisticated, and somewhat emotionally immature.” The testing showed also personality trends such as low self-esteem, and depressive tendencies, although not a depression disorder. Although no IQtest was given, Griffith estimated that Paki was of averageto low intelligence. Paki suffered no psychosis or severe personality disorder; he could not be diagnosed as having antisocial personality disorder; the one mental health problem Griffith could firmly diagnose was chronic alcohol abuse. (20RT 4066-4069, 4073.) 42 ARGUMENT ON APPEAL GUILT PHASE ISSUES I. APPELLANT WASDENIED HIS RIGHT TOA FUNDAMENTALLYFAIR TRIAL BY THE ADMISSION OF IRRELEVANT AND IMMATERIAL EVIDENCE OF THE PROSECUTOR’S SUBJECTIVE MOTIVATION IN ENTERING INTO A PLEA AGREEMENT WITH TONYIULI AND JAY PALEGA, AND BY THE USE OF THAT EVIDENCEBY THE PROSECUTOR FOR PURPOSES OF VOUCHING FOR THE CREDIBILITY OF IULI AND PALEGA, AND FOR THE GUILT OF APPELLANT Introduction Theplea arrangements with Tony luli and Jay Palega have been summarized in detail in the statement of facts. It was related how after Iuli’s suppression motion failed, his attorney begansoliciting a deal in return for [uli’s testimony against his co-defendants; how a deal was forthcoming shortly before trial in March, 2000 after appellant had pulled his time waiver; how thefirst offer, twenty-five yearsto life for guilt phase testimony, and fifteen-to-life for both guilt and penalty phase testimony, was rejected by Tuli; how a second offer of a determinate term of 16 years and 8 months was made and accepted in April, 2000; and finally how luli solicited the same offer for Jay Palega, who, in May, accepted it in exchange for his testimony in both phasesoftrial. (See above at pp. 29 to 30.) What was not recounted,at least not in full, was the evidence presented at trial regarding the prosecutor’s personal and subjective motives in offering these benefits to [uli and Palega. First, the prosecutor, Ms. Backers, was allowed toelicit from Tony Tuli, on direct examination, affirmative answers to questions designedto reflect 43 circumstantially on her state ofmind, such as “And youtold methat you felt bad for Jay because ifyou guys had just robbed Nolan and let him go you would have been out by now,right? . . If Paki didn’t shoot him” (11RT 2632); or, “And then after you andI talked about Jay’s involvementthen I told you I would offer the ‘same dealI gave you, right?” (11RT 2632.) Secondly, she obtained a stipulation regarding the testimony of Jay Palega’s attorney containing her statements reflecting even moredirectly on her subjective state of mind: “If called to testify, Mr. William Muraoka, an assistant public defender in Alameda County, wouldtestify that on or about May 15, of the year 2000,he had a conversation with Ms. Backers[the prosecutor] regarding the plea agreemententeredinto byhis client. Ms. Backers indicated to Mr. Muraokathat based on her evaluation of the evidenceas the deputy district attorney assigned to this case, that, while she believed all four defendants were legally guilty of the murder, her review and evaluation of the evidence led herto believe it was appropriate for her to exercise her discretion as the prosecutor of the case, to enter into the plea agreements which have been stated on the record.” (13RT 3000-3001.) Finally, all this culminated in aclosing argument in which Ms. Backers proclaimed to the jurors that she had exercised her discretion “with a proper amountof integrity” (17RT 3477), andthat “the only reason” she allowed Tony Iuli and Jay Palegato plead to such a favorable deal wasthe “moral difference” between them on the one hand, and Paki and Tautai on the other. (17RT 3475, 3477, 3512-3513.) There is much more detail to add to this than one can summarizein a single paragraph, and only the flavor of the impropriety can be conveyed by way of introduction. But the law is easier to encompassin a brief introductory span. Indeed, one can reduceit to a single sentence by this Court: “The prosecutor’s opinion aboutthe various coparticipants’ relative culpability is not relevant to any issue attrial.” (People v. Cain (1995) 10 Cal.4" 1, 64, emphasis in original.) But 44 even an expansive summary can be concise. Forit is a familiar and well- established rule that counselin a criminaltrial must refrain from injecting into the case their personal beliefs as to guilt or innocence orthe credibility of witnesses. (United States v. Young (1984) 470 U.S.1, 8-9; People v. Bain (1971) 5 Cal.3” 839, 848; People v. Stewart (2004) 33 Cal.4" 425, 499.) Considered as evidence, these opinionsare irrelevant to any material issue presented to the trier of fact to decide (People v. Bell (1989) 49 Cal.3™ 502, 537-538; People v. Arends (1958) 155 Cal.App.2™ 496, 509-510); and when counsel expresses such opinions more openly or expressly to the jury he or she commits the form of misconduct commonly known as vouching. (People v. Huggins (2006) 38 Cal.4" 175, 206- 207.) But whether the error appears through the admission ofirrelevant evidence or through misconduct in argument, or both, (see United States v. McKoy (9" Cir. 1985) 771 F.2™ 1207, 1211), the substance of vouchingerrorrests on the “fundamental tenet of the adversarial system that juries are to groundtheir decisions on the facts of a case and not on the integrity or credibility of the _ advocates.” (People v. Donaldson (2001) 93 Cal.App.4" 916, 928, quoting United States v. Prantil (9™ Cir.1985) 764 F.2"* 548, 553.)° Each of these three errors — the direct examination of Iuli, the Muraoka stipulation, and Ms. Backers’ closing argument — will be described and analyzed in greater detail. Part of this description will include the lengthy andintricate '> If the integrity or credibility of the advocates were a material issue in this case, then Ms. Backers here was faced with the serious question as to why she gave an illegal plea disposition to Juli and Palega. Section 1192.7(a) provides in relevant part: “Plea bargaining in any case in which the indictment or information charges any seriousfelony . . . is prohibited, unless thereis insufficient evidence to prove the people’s case, or testimony of a material witness cannot be obtained, or a reduction or dismissal would not result in a substantial change in sentence.” Here, Juli and Palega confessed, or virtually confessed, to first-degree felony-murder before they were offered deals; the circumstantial evidence incriminated them as muchasit incriminated appellant; there were no material witnesses unavailable; and the reduction of a sentence from death or from life without parole to 16 years and 8 monthsis of course a substantial reduction. 45 procedural history of these issues to show that they have not been forfeited on appeal. One maybriefly summarize this, too, for introductory purposes. Once before the Iuli examination, and once more before the Muraokastipulation, the trial court ruled expressly and unequivocally that the defense had transmuted the issue of Ms. Backers’ subjective state of mindin relation to the plea arrangements into a material question relevant to the determination of the case by the jurors. (10RT 2399-2402; 13RT 2965-2967.) Defense counsel workedthis effect, according to thetrial court, in opening statement by impugning Ms. Backers’ subjective motives in offering a dealto Iuli and Palega. Aswill be seen, the premiseofthe trial court’s ruling, that defense counsel had openedthe doorto rebuttal in kind is fallacious, since no such “open-the- door” doctrineexists in California (People v. Gambos (1970) 5 Cal.App.3™ 187, 192; People v. Arends, supra, 155 Cal.App.2"* 496, 508-509), and because the remedy for any defense misconduct in opening statement was for Ms. Backers to have objected and requested an admonition. (People v. Bain, supra, 5 Cal.3"839, 849.) On the question of forfeiture, the record will show that the trial court’s clear pronouncements on the matter rendered timely objection futile and therefore | excused any procedural default. (People v. Hill (1998) 17 Cal.4™ 800, 822.) This applies to the examination of Iuli and to closing argument. The same applies also to the Muraokastipulation, but for that, trial counsel had in any event lodged a timely objection against Ms. Backers’ offer of proof, and acquiesced through stipulation after the trial court had overruled the objection. (13RT 2965-2966, 2998-3000.) | Finally, appellant will demonstrate that the three vouchingerrors, in their force and effect, were egregious, injecting the prosecutor’s personalbeliefs into a case that was already highly emotional on the proper evidence alone; that these errors undermined the fundamentalfairness of the guilt trial by a violation of distinct federal constitutional provisions; and finally, that under any standard of review for prejudice, reversal of the guilt verdict is required. 46 Opening Statement andthe “Berger” Stipulations Asjust noted, the trial court cited defense counsel’s opening statement as the basis for finding Ms. Backers’ subjective state of mind to be a material issue in the case. The court declared this to be the case during discussions that occurred just before Tony luli testified, when Ms. Backers claimed that because of counsel’s opening statement impugning her motives in conferring plea benefits on luli and Palega, she was now warranted in presenting rebuttal evidence on her motives and state of mind. Although the substance of this discussion concerned evidenceofthe actions of Michael Berger, Tony Iuli’s attorney, and resulted in stipulations, here denominated the “Berger”stipulations, that were notin themselves, at least, objectionable from appellant’s point of view, that discussion illustrates the provenance of the vouchingerrors in this case as well as the futility of objection for the improprieties in the Juli examination and closing argument. Thus, a detailed summary and legal examination of the procedural course of this issue from opening statement through the “Berger”stipulations is necessary to the exposition oferror in this case. In his opening statement, defense counsel announcedthat the defense would present alibi evidence showing that appellant was not presentat the murder/robbery and did not commit it, and that the incriminating evidence of where the victim’s property was found was undercut by the communaldensity of the twenty-five people living in the “tribal compound”on Folsom Street. (6RT 1642.) Counselalso spoke about Juli and Palega and outlined the evidence of motive, bias, and prejudice that circumstantially impeached these witnesses, who were to receive substantial legal benefits in exchange for their testimony. (6RT 1643.) However, defense counsel’s introduction to the subject of Iuli and Palega’s credibility sounded the wrong note in the following three sentences: 47 “And one thing I want you to rememberis a particular day, and that is March 3"ofthis year [i.e., 2000]. Because what occurred on that day is my client withdrew his time waiver, which meant he had to commencethis trial within 60 days. And after that date, the prosecution realized that they cannot make the case against my client, that they had to get him by testimony.” (6RT 1643.) This was indeed a reasonable inference, but, as set out in the introduction, an immaterial and irrelevant one. (People v. Bell (1989) 49 Cal.3"! 502, 537-538.) Thelegal use ofthis inference to impugn the prosecution case was no more proper from the defense than the use ofa favorable inference ofthis type to bolster the prosecution’s case would be from the prosecutor. (See People v. Von Villas (1992) 10 Cal.App.4™ 201, 249-250.) However, the misconduct was mild and curable. (See People v. Gionis (1995) 9 Cal.4” 1196, 1216-1217 [prompt admonition corrected any misconception that arose from prosecutor’s argument that a defense attorney has a duty “to lie, conceal and distort everything and slander everybody.”].) Here, any prejudice could have been dispelled by an admonition to the effect that the prosecutor’s personal opinion about her case was irrelevant, and that the case had to be decided on the basis of the evidence presented. (See People v. Price (1991) 1 Cal.4™ 324, 462 [“[A]n admonitionthat the prosecutor’s opinion wasirrelevant would have avoided any possible prejudice.”].) Further, a timely objection and admonition would have allowed defense counsel to reform his statementto a relevant proffer of evidence: Juli and Palega were pressed by the imminenceoftrial, which they also manipulated as leverage to obtain what they believed wasan offer sufficient to induce them to testify for the prosecution. A timely objection and an admonition, then, was Ms. Backers’ remedy; retaliation was not. (People v. Bain (1971) 5 Cal.3" at p. 849; People v. Kirkes (1952) 39 Cal.2™ 719, 725-726.) But she keptsilent for several daysoftrial. Brad Archibald wasstill testifying on cross-examination (1ORT 2395, 2403), and 48 Tony Iuli had not yet appeared. (10RT 2446.) This was when Ms. Backersfirst madeherdissatisfaction with counsel’s opening statement known. In her belated objection, Ms. Backers quoted the three sentences from the opening statementthat formed the prologue to counsel’s discussion of the evidence surrounding the plea arrangements. (1ORT 2395.) She also addedthat she was offended by trial counsel’s narrative characterization of the events leading up to this arrangement, whenhestated, “The prosecution approached them through their counsel and offered them, what wesay in criminal vernacular, a deal.” (1ORT 2396; see 6RT 1643.) In fact, according to Ms. Backers, Michael Berger, Iuli’s attorney, began approaching her for a deal as early as 1999 after his motion to suppress had been denied. He approachedher on three occasions, soliciting a deal and offering to haveluli testify against the remaining co- defendants. Ms. Backers, however, was in the middle oftrial and told Mr. Berger he would have to wait until she had time to attend to this. (LORT 2396.) “So,” continued Ms. Backers, “the impression left with the jury that I got desperate becauseI thought I couldn’t prove my case against this defendant, and approached them for deals, is absolutely not true.” (LORT 2396.) She wantedto correct the falsehoods she believed to be purveyed by the defense in its opening statement, and she demandeda seriesof stipulations to the effect that she had been working on the case for two years, and by March 3, 2000, she had, in that very week, provided defense counsel with 1174 pages of penalty phase discovery. This was relevant to show that she was already working up the penalty phaseofthe case, and therefore not concerned with the soundnessofher guilt phase case. (1ORT 2396-2397.) She also anticipated calling Mr. Berger and Mr. Muraoka, Jay Palega’s attorney. Berger would be asked who approached whom for a deal. (1ORT 2397.) She also proposed to “ask” Tony Iuli: “You and your lawyer had an agreement that you would take a deal from the prosecution that included youtestifying 49 against the others, and you had that agreement that you would take that deal for over a year before you actually pled guilty.” (JORT 2397.)'° Defense counsel defended his opening statementas a fair commenton the evidence. Morevover, he argued, Ms. Backers’ offer ofproof would entail problemsin that it might penetrate the attorney-client privilege between Mr. Berger and Mr. luli if Mr. Berger were to be cross-examined. In addition, Ms. Backers would be trying to convey the unilateral impression that she was too busy to deal with this case and that somehow providing discovery to defense counsel wassignificant, especially since current counsel, Mr. Ciraolo and Ms. Levy, had entered the case in December, 1998 and discovery had to be reissued because the previous attorney, Lincoln Mintz, never handedoverhis file or materials. In any event, according to defense counsel, whether or not she was busy with another - case was simply irrelevant. (LORT 2397-2399.) Counsel went on: “[MR. CIRAOLO]: .... What is critical here is that an offer was not made until after he [appellant] withdrew the time waiver. And the offer that was made by Ms. Backers wasrejected. They had — there hadto be a further offer. The subsequent offer was accepted. “Whether Ms. Backers had a case or not, what her rationale was or was not for making an offer, I believe is fair commentin the opening statement and outline and final argument. “If she wants to put her credibility on the line, the evaluation of the case, she is doing so here. And I don’t think that’s appropriate. '© One mustnote carefully Ms. Backers’ precise formulation in this quote: her proposed questionto Juli is about an agreement between him and Mr. Berger, not Iuli’s agreement with Ms. Backers. The latter deal was only a monthold. 50 “THE COURT: So whatyou are saying Mike, it is okay for youto raise an inferencethat she did this for a certain reason, butit is not okay for her to try to refuteit. “MR. CIRAOLO: I am notsayingthat. “THE COURT:Butthat is what you are saying that what you said wasa fair inference on the evidence. And I don’t disagree with that. “MR. CIRAOLO: Okay. “THE COURT:Butshecertainly is entitled to put before the jury her perspective so they can draw her inferences from the same evidence.” (1ORT 2399-2400.) Thus, Mr. Ciraolo recognized that Ms. Backers’ placing “her credibility on the line” was in some way not “appropriate;”the trial court, however, precisely identified Mr. Ciraolo’s logical dilemmaifhe maintained that his opening statement represented fair inference from the evidence. The Court agreedthatit wasa fair inference, but carried this premise to the logical conclusion that Ms. Backers’ state of mind in relation to the plea deal was now relevant and could be rebutted by counter-evidence from her. Ofcourse, her state of mind wasnot relevant, defense counsel’s opening statement notwithstanding. “The so-called ‘open the gates’ argument is a popular fallacy.” (People v. Arends, supra, 155 Cal.App.2" 496, 508-509.) It does not exist under California law, and there is no alchemy that can transmute the nature ofirrelevant evidence into relevant evidence by redressing one error with another, counter-error. (People v. Gambos (1970) 5 Cal.App.3 183, 192.) Again, “[t]he proper way for the prosecutor to correct misconductby the defense counselis to object and havethetrial judge reprimand the misbehavior and admonish the jury to disregard such remarks.” (People v. Bain, supra, 5 Cal.3™ 839, 849.) Strictly speaking,the trial judge here did notfall prey to the “popular fallacy” of the 51 “open-the-gate” argument, but, like defense counsel, mistook a reasonable inference for a relevant and material one. Moreover, the ruling was clear and unequivocal: Ms. Backers’ state of mind was now a material issue in the case. The immediate upshotofthis discussion was the “Berger”stipulations, drafted by the trial court. They informedthe jurors that the information in this case wasfiled on June 19, 1997, which, underthe law, triggered a 60-day time limit to go to trial. However, appellant entered a general time waiver. Ms. Backers was first assigned to this case on or about December28, 1997, while Michael Ciraolo and Debra Levy entered the case on or about December 11, 1998 for the defense. From at least December, 1998, defense counsel had been provided discovery related both to guilt and penalty phasesoftrial on an ongoing basis. During the year of 1999, Mr. Berger, who had been representing Tony [uli since May 27, 1996, approached Ms. Backersonat least three occasions regarding a possible plea agreementthat would involve Mr. luli being allowedto plead to a lesser offense in consideration forhis testimonyat trial. On March 3, 2000, appellant withdrew his time waiver, which meantthat trial had to commence no later than May 2, 2000. On April 26, 2000, Tony [uli entered into an agreement with the prosecution to give testimony in exchange for a plea to a lesser offense. (1ORT 2445-2446.) There was nothing in these stipulations, taken in themselves, that prejudiced appellant. Indeed, they were useful to the defense in that they showed that Iuli, through his attorney, was angling for a deal about a year before one was forthcoming. Further, it is doubtful that these stipulationsin themselves established anything unequivocally favorable to Ms. Backers’ subjective state of mind. If Iuli initiated requests for a deal, the prosecution had the absolute power to respondornot with an offer. If a substantial amount ofpenalty discovery was available before the deals were offered, that hardly meant that the prosecutor had fully prepared or wasfully confidentin the guilt case. It would be even more doubtful that inexperienced, lay jurors could penetrate the practical or legal 52 implicationsofthe rules of discovery. Ms. Backers would, of course, eventually explain all this in closing argument, in which she did engage in vouching. But the discussions surrounding the “Berger”stipulations establish that any relevance or materiality objection lodged in a timely manner against evidence or argument related to Ms. Backers’ subjective state ofmind would have been futile. Thus, where no objection was lodged,as it was not in the direct examination of Tonyluli or in Ms. Backer’s closing argument, there is nonetheless no forfeiture of the issue on appeal. (People v. Hill (1998) 17 Cal.4" 800, 822; People v. Abbaszadeh (2003) 106 Cal.App.4" 642, 648; In re Antonio C. (2000) 83 Cal.App.4™ 1029, 1033.) One may now turn to the direct examination of Tony luli. B. The Examination of Tonyluli The direct examination of Tony Iuli was previewed in the introduction. The fuller context was as follows: “Q. In the month of May, specifically on May 5" when I was talking to you, you told methat Jay had said several times to Paki: Don’t shoot the guy, right? “A. Yes. “Q. And then you talked to me about Jay getting a deal, the same deal you got, right? “A. Yes. “Q. Tell the jury how that conversation went. “A. I asked you if you gave Jay the samedealthat I got. “Q. And I asked you whyI should, right? “A. Yes.” (11RT 2630, emphasis added.) 53 Atthis point Ms. Backerselicited testimony about the letter Tony wrote to Jay, and had him readit in court including the sentence that “the D.A. said they will give the same deal, 16 years, 8 months.” (11RT 2631; see above,p. 30, for the entire letter.) After Iuli read the letter, the direct examination continued: “Q. And you wrote that while you and your lawyer and I and my inspectorwere sitting in this courtroom,right? “A. Yes. “Q. And you told methat youfelt bad for Jay because if you guys had just robbed Nolan and let him go you would have been out by now,right? “A. Yes. “Q. If Paki didn’t shoot him. “A. Yes. “Q. And then after you andI talked about Jay’s involvement, then I told you I would offer the same deal I gave youright? “A. Yes. “Q. But you would havetotestify truthfully? “A. Yes. “Q. At the penalty phase too? “A. Yes.” (1IRT 2632.) 54 Whena witness is, or might be, beholden to the prosecution, the only relevant question is whether or how that witness’s motives, biases, prejudices, and generally, his state of mind, has been influenced by interaction with the authorities. The subjective intentions of the authorities are not at issue. (People v. Brown (1970) 13 Cal.App.3™ 876, 883; People v Allen (1978) 77 Cal.App.3924, 931-932.) What Tony Iuli said to Ms. Backers to form her state ofmind wasthus irrelevant. Here, through Iuli, Ms. Backers wasclearly trying to establish why she offered a deal to Jay Palega. Further, although she had already given a deal to Tony Juli, she clearly, here, wished to establish this extrajudicial conversation as a reflection ofwhy she offered a deal to Iuli. In short, this was the erroneous admission ofirrelevant and immaterial evidence (People v. Cain (1995) 10 Cal.4™ 1, 64; People v. Price (1991) 1] Cal.4" 324, 462; People v. Bell (1989) 49 Cal.3™ 502, 537-538), which also constituted a vouching error. (United States v. McKoy (9" Cir.1985) 771 F.2™ 1207, 1211.)"” Defense counsel, despite his opening statement, did not even attempt to respond in kind during the cross-examination either of Tonyluli or Jay Palega. His cross-examinations touched only on the conventional points that impeach accomplice-witnesses in almost every case such a witness appears. But it is worth examining the cross-examination in more detail because duringthe later discussion about Mr. Muraoka’s evidence,the trial court referred to the Iuli cross- examination as containing “insinuations” about Ms. Backers’ state ofmind (13RT 2965-2966), while Ms. Backers more vehemently accused counsel of expressly “reiterat[ing] throughout the cross of Tony and Jay” that she had panicked because she could not prove her case and therefore had to lower her offer to them. (13RT 2967.) Thetrial court’s temperate, but mistaken, observation was merely the influence of the court’s legal error in seeing reasonable inferences as relevant and '” The questions Ms. Backers asked were also leading and argumentative, but these were problemsonly of form. The substantial problem waslack of materiality and relevance, and vouching. 55 material ones, and it can be shown to be wrong. Asfor Ms. Backers’ hyperbole,if it was meant to be an accusation that defense counselactually stated that she had panicked, then it was false. Defense counsel began his cross-examination of Iuli on the topic of the plea arrangementbyeliciting from Iuli the admissionthat Iuli would do anything to stay alive and that he did not wantto die in prison. (11RT 2643-2644.) Counsel then went over with Juli the course ofthe multiple offers without even referring to the prosecutor, by office or name, as the active agentin this. (11RT 2644-2645.). The subject then turned to Iuli’s expectations regarding the deal: “Q. The deal has not gone downyet, has it? “A. No. “Q. Because you haven’t been sentenced yet? “A. Right. “Q. And yourdealis conditioned on your performance, isn’t it? “A. Right. “Q. And yourdeal is dependent on what do you believe,is it dependent on myclient getting convicted? “A. Ina way, yeah. “Q. Pardon me? “A. Yes. “Q. Do you believe your deal is dependent on myclient getting executed? “A. I don’t know. 56 “Q. So you believe,is it not correct, that for you to get the deal you haveto do yourbest job to see that my client is convicted? “A. Yes.” (1IRT 2645-2646, emphasis added.) Counsel then turned to “[w]ho was supposed to decide”if Iuli wastelling the truth. This was where Ms. Backers wasfirst mentioned, whentrial counsel askedIuli, “Not Ms. Backers?” to which luli answered, “No.” (11RT 2646.) Again, despite the possibility of misinterpreting this question as placing Ms. Backers’ state of mindin issue, the focus clearly was on I[uli’s. The cross-examination, then, was conventional and proper. No mention whatsoever was made of Ms. Backers’ subjective expectations; the focus held steady on Juli’s expectations, on his state of mind, and on his credibility. Even whensuch questionsas, “And during those conversations, Ms. Backers told you what she waslooking for; did she not?”, which, by the way,elicited from luli, a “Yes” (11RT 2653) were not improper since they went to the issue, not of Ms. Backers’ intentions, but those ofluli. Even whendefense counsel raised the topic of appellant’s withdrawal ofhis time waiver, which in opening statement was proffered as a central fact in the inference about the prosecution’s motivesin offering the deal, the focus remained on Iuli’sstate ofmind: “Q. Andin the course of his [Mr. Berger’s] representations to you, you became aware of the charges that were against you? “A. Right. “Q. And you became aware of the consequencesofthose charges? “A. Right. 57 “Q. And you formed your own opinion, in your own mind, as to what would be in yourbestinterest or not in yourbest interest? “A. I already made my mind up that I was already through at Juvenile Hall. «Q, “A. “Q. ! This Court has acknowledgedthatfact-finding is part of a sentencing jury’s responsibility, even if not the greatest part; the jury’s role “is not merely to find facts, but also — and most important — to render an individualized, normative 238 Farnam (2002) 28 Cal.4th 107, 177), which was read to appellant’s jury (18RT 3678-3679; 20RT 4239-4240), “an aggravating factor is anyfact, condition or event attending the commission ofa crime which increasesits guilt or enormity, or adds to its injurious consequences which is above and beyond the elements ofthe crimeitself.” (CALJIC No. 8.88; emphasis added.) Thus, before the process ofweighing aggravating factors against mitigating factors can begin, the presence of one or more aggravating factors must be found by the jury. And before the decision whether or not to impose death can be made, the jury must.find that aggravating factors substantially outweigh mitigating factors.°” These factual determinations are essential prerequisites to death- eligibility, but do not mean that death is the inevitable verdict; the jury can still reject death as the appropriate punishment notwithstanding these factual findings.” This Court has repeatedly sought to reject the applicability ofApprendi and Ring by comparing the capital sentencing process in California to “a sentencing court’s traditionally discretionary decision to impose one prison sentence rather than another.” (People v. Demetroulias (2006) 39 Cal.4™ 1, 41; People v. Dickey determination about the penalty appropriate for the particular defendant. .. .” (People v. Brown (1988) 46 Cal.3d 432, 448.) °2 In Johnsonv. State (Nev., 2002) 59 P.3d 450, the Nevada Supreme Court found that undera statute similar to California’s, the requirement that aggravating factors outweigh mitigating factors was a factual determination, and therefore “even though Ring expressly abstained from ruling on any ‘Sixth Amendmentclaim with respect to mitigating circumstances,’ (fn. omitted) we conclude that Ring requires a jury to makethis finding as well: ‘Ifa State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact - no matter how the State labels it - must be found by a jury beyond a reasonable doubt.’” (Id., 59 P.3d at p. 460) °3 This Court hasheld that despite the “shall impose”languageof section 190.3, even if the jurors determine that aggravating factors outweigh mitigating factors, they maystill impose a sentenceoflife in prison. (People v. Allen (1986) 42 Cal.3" 1222, 1276-1277; People v. Brown (1985) 40 Cal.3™ 512, 541.) 239 (2005) 35 Cal.4™ 884, 930; People v. Snow (2003) 30 Cal.4" 43, 126, fn. 32; People v. Prieto (2003) 30 Cal.4" 226, 275.) It has applied precisely the same analysis to fend offApprendi and Blakely in non-capital cases. In People v. Black (2005) 35 Cal.4™ 1238, 1254, this Court held that notwithstanding Apprendi, Blakely, and Booker, a defendant has no constitutional right to a jury finding asto the facts relied on bythe trial court to impose an aggravated, or upper-term sentence; the DSL “simply authorizes a sentencing court to engagein the type of factfinding that traditionally has been incidentto the judge’s selection of an appropriate sentence within a statutorily prescribed sentencing range.” (35 Cal.4th at 1254.) The U.S. Supreme Court explicitly rejected this reasoning in Cunningham.°‘ In Cunningham theprinciple that any fact which exposed a defendantto a greater potential sentence must be found by jury to be true beyond a reasonable doubt was applied to California’s Determinate Sentencing Law. The high court examined whetheror not the circumstances in aggravation were factual in nature, and concluded they were, after a review of the relevant rules of court. (/d., pp. 862-863.) That was the end of the matter: Black’s interpretation of the DSL “violates Apprendi’s bright-line rule: Except for a prior conviction, ‘any fact that increases the penalty for a crime beyondthe prescribed statutory maximum must be submitted to a jury, and found beyond a reasonable doubt.’ [citation omitted].” (Cunningham, supra, at p. 868.) Cunningham then examinedthis Court’s extensive development ofwhy an interpretation of the DSL that allowed continued judge-based finding of fact and sentencing was reasonable, and concludedthat “it is comforting, but beside the * Cunningham cited with approval Justice Kennard’s language in concurrence and dissent in Black (“Nothing in the high court’s majority opinions in Apprendi, Blakely, and Booker suggests that the constitutionality of a state’s sentencing scheme turns on whether, in the words of the majority here, it involves the type of factfinding ‘that traditionally has been performed by a judge.’” (Black, 35 Cal.4th at 1253; Cunningham, supra, 127 S.Ct.at p. 868.) 240 point, that California’s system requires judge-determined DSL sentences to be reasonable.” (/d., p. 870): “The Black court's examination of the DSL,in short, satisfied it that California's sentencing system does not implicate significantly the concerns underlying the Sixth Amendment's jury-trial guarantee. Our decisions, however, leave no room for such an examination. Asking whether a defendant's basic jury-trial right is preserved, though somefacts essential to punishmentare reserved for determination by the judge, we have said, is the very inquiry. Apprendi's ‘bright-line rule’ was designed to exclude. See Blakely, 542 U.S., at 307-308, 124 S.Ct. 2531. But see Black, 35 Cal.4", at 1260, 29 Cal.Rptr.3d 740, 113 P.3d, at 547 (stating, remarkably, that “[t]he high court precedents do not draw a bright line”). (Cunningham, supra, at p. 869.) In the wake of Cunningham,it is crystal-clear that in determining whether or not Ring and Apprendiapply to the penalty phase of a capital case, the sole relevant question is whether or not there is a requirementthat anyfactualfindings be made before a death penalty can be imposed. In its effort to resist the directions ofApprendi, this Court held that since the maximum penalty for one convicted offirst degree murder with a special circumstanceis death (see section 190.2(a)), Apprendi does not apply. (People v. Anderson (2001) 25 Cal.4" 543, 589.) After Ring, this Court repeated the same analysis: “Because any finding of aggravating factors during the penalty phase doesnot ‘increase the penalty for a crime beyond the prescribedstatutory maximum’(citation omitted), Ring imposes no new constitutional requirements on California’s penalty phase proceedings.” (People v. Prieto, supra, 30 Cal.4th atp. 263.) 241 This holding is simply wrong. As section 190, subd. (a)°indicates, the maximum penalty for any first degree murderconviction is death. The top of three rungs is obviously the maximum sentence that can be imposed pursuantto the DSL, but Cunningham recognized that the middle rung was the most severe penalty that could be imposed by the sentencing judge without further factual findings: “In sum, California's DSL, andthe rules governingits application, direct the sentencing court to start with the middle term, and to move from that term only whenthe court itself finds and places on the record facts — whether related to the offense or the offender — beyond the elements of the charged offense.” (Cunningham, supra, at p. 862.) Arizona advancedprecisely the same argument in Ring. It pointed outthat a finding offirst degree murder in Arizona, like a finding of one or more special circumstances in California, leads to only two sentencing options: death orlife imprisonment, and Ring was therefore sentenced within the range ofpunishment authorized by the jury’s verdict. The Supreme Court squarely rejectedit: “ _... This argument overlooks Apprendi’s instruction that the relevant inquiry is one not of form, but ofeffect.” 530 U.S., at 494, 120 S.Ct. 2348. In effect, ‘the required finding [of an ageravated circumstance] expose[d] [Ring] to a greater punishment than that authorized by the jury’s guilty verdict.’ [bid.; see 200 Ariz., at 279, 25 P.3d, at 1151.” (Ring v. Arizona, supra, 536 U.S. 584, 604.) Just as when a defendantis convicted of first degree murder in Arizona, a California conviction of first degree murder, even with a finding of one or more special circumstances, “authorizes a maximum penalty of death only in a formal °° Section 190, subd.(a) provides as follows: “Every person guilty of murder in the first degree shall be punished by death, imprisonmentin the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 yearsto life.” 242 sense.” (Ring, supra, 530 U.S. at 604.) Section 190, subd. (a) provides that the punishmentfor first degree murderis 25 yearsto life, life without possibility of parole (“LWOP”), or death; the penalty to be applied “shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4 and 190.5.” Neither LWOPnor death can be imposed unless the jury finds a special circumstance (section 190.2). Death is not an available option unless the jury makes further findings that one or more aggravating circumstances exist, and that the aggravating circumstances substantially outweigh the mitigating circumstances. (Section 190.3; CALJIC 8.88 (7* ed., 2003).) “Ifa State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact — no matter howthe State labels it —- must be found by a jury beyond a reasonable doubt.” (Ring, 530 U.S. at 604.) In Blakely, the high court madeit clear that, as Justice Breyer complainedin dissent, “a jury mustfind, not only the facts that make up the crime ofwhich the offender is charged, but also all (punishment-increasing) facts about the way in which the offender carried out that crime.” (/d., 124 S.Ct. at 2551; emphasis in original.) The issue of the Sixth Amendment’s applicability hinges on whetheras a practical matter, the sentencer must make additional findings during the penalty phase before determining whetheror not the death penalty can be imposed. In California, as in Arizona, the answeris “Yes.” That, according to Apprendi and Cunningham,is the end ofthe inquiry as far as the Sixth Amendment’s applicability is concerned. California’s failure to require the requisite factfinding in the penalty phase to be found unanimously and beyonda reasonable doubtviolates the United States Constitution. In addition, the reasonable doubt standard must be applied to the relation between aggravation and mitigation so that the former must be found beyond a reasonable doubt to outweigh the latter. For a determinationthat the aggravating factors substantially outweigh the mitigating factors — a prerequisite to imposition of the death sentence — is the functional equivalent of an element of capital 243 murder, and is therefore subjectto the protections of the Sixth Amendment. (See State v. Ring (Az.2003) 65 P.3™ 915, 943; accord, State v. Whitfield (Mo.2003) 107 S.W.3" 253; Woldt v. People (Colo.2003) 64 P.3d 256; Johnsonv. State, supra, 59 P.3d 450.°°) Nogreater interest is ever at stake than in the penalty phase of a capital case. (Monge v. California (1998) 524 U.S. 721, 732 [the death penalty is unique in its severity and its finality”].)°’ There can be no doubtthat “[{cJapital defendants, no less than non-capital defendants, . . . are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.” (Ring v. Arizona, supra, 536 U.S. at p. 589.) Further “(t}he rightto trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the fact-finding necessary to increase a defendant’s sentence by two years, but not the fact-finding necessary to put him to death.” (/d., at p. 609.) Thelast step of California’s capital sentencing procedure, the decision whether to impose death orlife, is a moral and a normative one. This Court errs °° See also Stevenson, The Ultimate Authority on the Ultimate Punishment: The Requisite Role ofthe Jury in Capital Sentencing (2003) 54 Ala L. Rev. 1091, 1126-1127 (noting that all features that the Supreme Court regarded in Ring as significant apply not only to the finding that an aggravating circumstanceis present but also to whether aggravating circumstances substantially outweigh mitigating circumstances,since both findings are essential predicates for a sentence of death). °7 In its Monge opinion, the U.S. Supreme Court foreshadowed Ring, and expressly stated that the Santosky v. Kramer ((1982) 455 U.S. 745, 755) rationale for the beyond-a-reasonable-doubt burden ofproof requirement appliedto capital sentencing proceedings: “/IJn a capital sentencingproceeding, as in a criminal trial, ‘the interests of the defendant [are] of such magnitude that .. . they have been protected by standardsofproof designed to exclude as nearly as possible the likelihood of an erroneous judgment.’ ([Bullington v. Missouri,] 451 U.S. atp. 441 (quoting Addington v. Texas, 441 U.S. 418, 423-424, 60 L.Ed.2d 323, 99 S.Ct. 1804 (1979).)” (Mongev. California, supra, 524 U.S. at p. 732 (emphasis added).) 244 greatly, however, in using this fact to allow the findings that make oneeligible for death to be uncertain, undefined, and subject to dispute not only asto their significance, but as to their accuracy. This Court’s refusal to accept the applicability ofRing to the eligibility components of California’s penalty phase violates the Sixth, Eighth, and Fourteenth Amendmentsto the U.S. Constitution. 2. The Due Process and Cruel and Unusual Punishment Clauses of the State and Federal Constitution Require that the Jury in a Capital Case be Instructed that They May Impose a Sentence of Death Only if they are Persuaded Beyond a Reasonable Doubt that the Aggravating Factors Exist and Outweigh the mitigating Factors and that Death is the Appropriate Penalty The outcomeofajudicial proceeding necessarily depends on an appraisal of the facts. “[T]he procedures by which the facts of the case are determined assumean importancefully as great as the validity of the substantive rule of law to be applied. And the more importantthe rights at stake the more important must be the procedural safeguards surrounding those rights.” (Speiser v. Randall (1958) 357 US. 513, 520-521.) The primary procedural safeguard implanted in the criminal justice system relative to fact assessmentis the allocation and degree of the burden ofproof. The burden ofproof represents the obligation of a party to establish a particular degree of belief as to the contention sought to be proved. In criminal cases the burdenis rooted in the Due Process Clause ofthe Fifth and Fourteenth Amendment. (Jn re Winship (1970) 397 U.S. 358, 364.) In capital cases “the sentencing process, as well asthetrial itself, must satisfy the requirements of the Due Process Clause.” (Gardnerv. Florida (1977) 430 U.S. 349, 358; see also Presnell v. Georgia (1978) 439 U.S. 14.) Aside from the question of the applicability of the Sixth Amendmentto California’s penalty phase proceedings, the burden of prooffor factual determinations during the penalty phase of a capital trial, whenlife is at stake, must be beyond a reasonable doubt. This is required by both the Due Process Clause ofthe Fourteenth Amendmentand the Eighth Amendment. 245 The requirements of due processrelative to the burden ofpersuasion generally depend uponthesignificance ofwhat is at stake and the social goal of reducingthe likelihood of erroneousresults. (Winship, supra, 397 U.S.at pp. 363- 364; see also Addington v. Texas (1979) 441 U.S. 418, 423; Santosky v. Kramer (1982) 455 U.S. 743, 755.) It is impossible to conceive of an interest more significant than humanlife. Far less valued interests are protected by the requirement ofproof beyond a reasonable doubt before they may be extinguished. (See Winship, supra (adjudication ofjuvenile delinquency); People v. Feagley (1975) 14 Cal.3"! 338 (commitment as mentally disordered sex offender); People v. Burnick (1975) 14 Cal.3" 306 (same); People v. Thomas (1977) 19 Cal.3™ 630 (commitmentas narcotic addict); Conservatorship ofRoulet (1979) 23 Cal.3™ 219 (appointment of conservator).) The decision to take a person’s life must be made under noless demanding a standard. In Santosky, supra, the U.S. Supreme Court reasoned: “ _... [IJn any given proceeding, the minimum standard of prooftolerated by the due process requirementreflects not only the weight ofthe private and public interests affected, but also a societal judgment about howtherisk of error shouldbe distributed between the litigants. ... When the State brings a criminal action to deny a defendantliberty orlife, . . . ‘the interests of the defendant are of such magnitudethat historically and without any explicit constitutional requirement they have been protected by standards of proof designed to excludeas nearly as possible the likelihood of an erroneous judgment.’ [Citation omitted.] The stringency of the ‘beyond a reasonable doubt’ standard bespeaks the “weight and gravity’ of the private interest affected [citation omitted], society’s interest in avoiding erroneous convictions, and a judgmentthat those interests together require that ‘society impos[e] almost the entire risk of error uponitself.’” (Ud, at p. 455.) 246 The penalty proceedings, like the child neglect proceedings dealt with in Santosky, involve “imprecise substantive standards that leave determinations unusually open to the subjective values of the [jury].” (Santosky, supra, 455 U.S. at p. 763.) Imposition of a burden ofproof beyond a reasonable doubt can be effective in reducingthis risk of error, since that standard has long proven its worth as “a prime instrument for reducing the risk of convictions resting on factual error.” (Winship, supra, 397 U.S.at p. 363.) Adoption of a reasonable doubt standard would not deprive the State of the powerto imposecapital punishment; it would merely serve to maximize “reliability in the determination that death is the appropriate punishment in a specific case.” (Woodson v. North Carolina (1976) 428 U.S. 280, 305.) The only risk of error suffered by the State under the stricter burden ofpersuasion would be the possibility that a defendant, otherwise deserving of being put to death, would instead be confinedin prison for the rest of his life without possibility of parole. In Monge, the U.S. Supreme Court expressly applied the Santosky rationale for the beyond-a-reasonable-doubt burden ofproof requirementto capital sentencing proceedings: “/I/n a capital sentencingproceeding, as in a criminal trial, ‘the interests of the defendant [are] of such magnitudethat .. . they have been protected by standards ofproof designed to exclude as nearly as possible the likelihood of an erroneous judgment.’ ([Bullington v. Missouri,] 451 U.S.at p. 441 (quoting Addington v. Texas, 441 U.S. 418, 423-424, 60 L.Ed.2d 323, 99 S.Ct. 1804 (1979).)” (Monge v. California, supra, 524 U.S. at p. 732 (emphasis added).) The sentencer of a person facing the death penalty is required by the due process and Eighth Amendmentconstitutional guarantees to be convinced beyond a reasonable doubt not only are the factual bases for its decision true, but that death is the appropriate sentence. 247 3. California Law Violates the Sixth, Eighth and Fourteenth Amendments to the United States Constitution by Failing to require that the Jury Base Any Death Setnence on Written Findings Regarding Aggravating Factors The failure to require written or other specific findings by the jury regarding aggravating factors deprived appellant of his federal due process and Eighth Amendmentrights to meaningful appellate review. (California v. Brown (1987) 479 U.S. 538, 543; Gregg v. Georgia (1976) 428 U.S. 153, 195.) Especially given that California juries have total discretion without any guidance on how to weigh potentially aggravating and mitigating circumstances (People v. Fairbank, supra), there can be no meaningful appellate review without written findings becauseit will otherwise be impossible to “reconstruct the findings of the state trier of fact.” (See Townsend v. Sain (1963) 372 U.S. 293, 313-316.) This Court has held that the absence of written findings by the sentencer does not render the 1978 death penalty schemeunconstitutional. (People v. Fauber (1992) 2 Cal.4™ 792, 859; People v. Rogers (2006) 39 Cal.4" 826, 893.) Ironically, such findings are otherwise considered by this Court to be an element of due process so fundamental that they are even required at parole suitability hearings. A convicted prisoner whobelieves that he or she was improperly denied parole must proceedviaa petition for writ of habeas corpus and is required to allege with particularity the circumstances constituting the State’s wrongful conduct and show prejudice flowing from that conduct. (Jn re Sturm (1974) 11 Cal.3" 258.) The parole board is therefore required to state its reasons for denying parole: “It is unlikely that an inmate seeking to establish that his application for parole was arbitrarily denied can makenecessary allegations with the requisite specificity unless he has some knowledgeofthe reasons therefor.” (/d., 11 Cal.3" 248 at p. 267.)°° The sameanalysis applies to the far graver decision to put someone to death. In a non-capital case, the sentencer is required by California law to state on the record the reasons for the sentence choice. (§ 1170, subd. (c).) Capital defendants are entitled to more rigorous protections than those afforded non- capital defendants. (Harmelin v. Michigan (1991) 501 U.S. 957, 994.) Since providing moreprotection to a non-capital defendant than a capital defendant would violate the equal protection clause of the Fourteenth Amendment(see generally Myers v. Yist (9th Cir. 1990) 897 F.2" 417, 421; Ring v. Arizona, Supra; Section D, post), the sentencerin a capital case is constitutionally required to identify for the record the aggravating circumstances found and the reasons for the penalty chosen. Written findings are essential for a meaningful review of the sentence imposed. (See Mills v. Maryland (1988) 486 U.S. 367, 383, fn. 15.) Even where the decision to impose death is “normative” (People v. Demetrulias, supra, 39 Cal.4" at pp. 41-42) and “moral” (People v. Hawthorne, supra, 4 Cal.4"at p. 79), its basis can be, and should be,articulated. The importance of written findings is recognized throughout this country; post-F'urmanstate capital sentencing systems commonly require them. Further, written findings are essential to ensure that a defendant subjected to a capital penalty trial under section 190.3 is afforded the protections guaranteed by the Sixth Amendmentrightto trial by jury. (See Section C.1, ante.) There are no other procedural protections in California’s death penalty system that would somehow compensatefor the unreliability inevitably produced °8 A determination of parole suitability shares many characteristics with the decision ofwhether or not to impose the death penalty. In both cases, the subject has already been convicted of a crime, and the decision-maker must consider questions of future dangerousness, the presence of remorse, the nature of the crime, etc., in making its decision. (See Title 15, California Code of Regulations, section 2280 et seq.) 249 by the failure to require an articulation of the reasons for imposing death. (See Kansas v. Marsh, supra [statute treating a jury’s finding that aggravation and mitigation are in equipoiseas a vote for death held constitutional in light of a system filled with other procedural protections, including requirements that the jury find unanimously and beyond a reasonable doubt the existence of aggravating factors and that such factors are not outweighed by mitigating factors].) The failure to require written findings thus violated not only federal due process and the Eighth Amendmentbutalsotheright to trial by jury guaranteed by the Sixth Amendment. | 4. California’s Death Penalty Statute as Interpreted by this Court Forbids Inter-case Proportionality Review, Thereby Resultingin Arbitrary, Discriminatory, or Disproportionate Impositions of the Death Penalty. The Eighth Amendmentto the United States Constitution forbids punishmentsthat are cruel and unusual. The jurisprudence that has emerged applying this ban to the imposition of the death penalty has required that death judgmentsbe proportionate and reliable. One commonly utilized mechanism for helping to ensurereliability and proportionality in capital sentencingis comparative proportionality review — a procedural safeguard this Court has eschewed. In Pulley v. Harris (1984) 465 U.S. 37, 51 (emphasis added), the high court, while declining to hold that comparative proportionality review is an essential componentof every constitutional capital sentencing scheme, noted the possibility that “there could be a capital sentencing schemeso lacking in other checks on arbitrariness that it would notpass constitutional muster without comparative proportionality review.” California’s 1978 death penalty statute, as drafted and as construed by this Court and applied in fact, has becomejust such a sentencing scheme. The high court in Harris, in contrasting the 1978 statute with the 1977 law which the court upheld against a lack-of-comparative-proportionality-review challenge, itself noted that the 1978 law had “greatly expanded”the list of special circumstances. 250 (Harris, 465 U.S. at p. 52, fn. 14.) That numberhas continued to grow, and expansive judicial interpretations of section 190.2’s lying-in-wait special circumstance have madefirst degree murders that can not be charged with a “special circumstance”a rarity. Aswehaveseen,that greatly expandedlist fails to meaningfully narrow the pool of death-eligible defendants and hence permits the samesort of arbitrary sentencing as the death penalty schemes struck down in Furman v. Georgia, supra. (See Section A of this Argument, ante.) The statute lacks numerous other procedural safeguards commonly utilized in other capital sentencing jurisdictions, and the statute’s principal penalty phase sentencing factor has itself proved to be an invitation to arbitrary and capricious sentencing. Viewing the lack of comparative proportionality review in the context of the entire California sentencing scheme (see Kansas v. Marsh, supra), this absence renders that scheme unconstitutional. Section 190.3 does not require that either the trial court or this Court undertake a comparison between this and other similar cases regarding the relative proportionality of the sentence imposed,i.e., inter-case proportionality review. (See People v. Fierro (1991) 1 Cal.4" 173. 253.) The statute also does not forbid it. The prohibition on the consideration of any evidence showing that death sentences are not being charged or imposed onsimilarly situated defendantsis strictly the creation of this Court. (See, e.g., People v. Marshall (1990) 50 Cal.3™ 907, 946-947.) This Court’s categorical refusal to engage in inter-case proportionality review now violates the Eighth Amendment. 5. The Prosecution May not Rely in the Penalty Phase on Unadjudicated Criminal Activity; Further, Even if it Were Constitutionally Permissible for the Prosecutor to do so, Such Alleged Criminal Activity Could not Constitutionally Serve as a Factor in Aggravation Unless Found to be True Beyond a Reasonable Doubt by a Unanimous Jury. Anyuse of unadjudicated criminal activity by the jury as an aggravating circumstance undersection 190.3, factor (b), violates due process and the Fifth, 251 Sixth, Eighth, and Fourteenth Amendments, rendering a death sentence unreliable. (See, e.g., Johnson v. Mississippi (1988) 486 U.S. 578; State v. Bobo (Tenn. 1987) 727 §.W.2"™ 945.) Here, noneof the factor (b) crimes adduced as evidence in aggravation had been adjudicated and reducedto a conviction. The U.S. Supreme Court’s recent decisions in U. S. v. Booker, supra, Blakely v. Washington, supra, Ring v. Arizona, supra, and Apprendi v. New Jersey, supra, confirm that under the Due Process Clause ofthe Fourteenth Amendment and the jury trial guarantee of the Sixth Amendment, the findings prerequisite to a sentence of death must be made beyond a reasonable doubt by a jury acting as a collective entity. Thus, evenif it were constitutionally permissible to rely upon alleged unadjudicated criminal activity as a factor in aggravation, such alleged criminal activity would have to have been found beyond a reasonable doubt by a unanimousjury. Appellant’s jury wasnot instructed on the need for such a unanimousfinding; noris such an instruction generally provided for under California’s sentencing scheme. 6. The Use of Restrictive Adjectives in the List of Potential Mitigating Factors Impermissibly Acted _as Barriers to Consideration of Mitigation by Appellant’s jury. Theinclusionin the list of potential mitigating factors of such adjectivesas “extreme”(see factors (d) and (g)) and “substantial” (see factor (g)) acted as barriers to the consideration of mitigation in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Mills v. Maryland (1988) 486 U.S. 367; Lockett v. Ohio (1978) 438 U.S. 586.) In the instant case, Ms. Backers went through the entire list of possible factors in mitigation to show how they did not apply,and in this she relied on the qualifications in the language in which these factors were set forth. (2QORT 4149-4154.) 252 7. The Failure to Instruct that Statutory Mitigating Factors were Relevant Solely as Potential Mitigators Precluded a Fair, Reliable, and evenhanded Administration of the Capital Sanction. As a matter of state law, each of the factors introduced by a prefatory “whether or not” — factors (d), (e), (f), (g), (h), and G) — were relevant solely as possible mitigators (People v. Hamilton (1989) 48 Cal.3™ 1142, 1184; People v. Edelbacher (1989) 47 Cal.3"4 983, 1034). The jury, however, wasleft free to conclude that a “not” answeras to any ofthese “whether or not” sentencing factors could establish an aggravating circumstance, and wasthus invited to aggravate the sentence uponthe basis of non-existent and/orirrational aggravating factors, thereby precluding the reliable, individualized capital sentencing determination required by the Eighth and Fourteenth Amendments. (Woodson v. North Carolina (1976) 428 U.S. 280, 304; Zant v. Stephens (1983) 462 U.S. 862, 879.) Further, the jury wasalso left free to aggravate a sentence uponthebasis of an affirmative answerto one of these questions, and thus, to convert mitigating evidence (for example, evidence establishing a defendant’s mentalillness or defect) into a reason to aggravate a sentence, in violation of both state law and the Eighth and Fourteenth Amendments. This Court has repeatedly rejected the argumentthat a jury would apply factors meantto be only mitigating as aggravating factors weighing towards a sentence of death: “Thetrial court was not constitutionally required to inform the jury that certain sentencing factors were relevant only in mitigation, and the statutory instruction to the jury to consider “whether or not” certain mitigating factors were present did not impermissibly invite the jury to aggravate the sentence upon the basis of nonexistent or irrational aggravating factors. (People v. Kraft, supra, 23 Cal.4™ at pp. 1078-1079, 99 Cal.Rptr.2d 1, 5 P.3d 68: see People v. Memro (1995) 11 Cal.4" 786, 886-887, 47 253 Cal.Rptr.2d 219, 905 P.2d 1305.) Indeed, ‘no reasonablejuror could be misled by the language ofsection 190.3 concerning the relative aggravating or mitigating nature ofthe variousfactors.’ (Peoplev. Arias, supra, 13 Cal.4th at p. 188, 51 Cal-Rptr.2d 770, 913 P.2d 980.)” (People v. Morrison (2004) 34 Cal.4" 698, 730; emphasis added.) This assertion is demonstrably false.. Within the Morrison case itself there lies evidence to the contrary. Thetrial judge mistakenly believed that section 190.3, factors (e) and (j) constituted aggravation instead of mitigation. (Ud., 32 Cal.4th at pp. 727-729.) This Court recognized thatthe trial court so erred, but foundthe error to be harmless. (Jbid.) If a seasoned judge could be misled by the language at issue, how can jurors be expected to avoid making this same mistake? Othertrial judges and prosecutors have been misled in the same way. (See, e.g., People v. Montiel (1994) 5 Cal.4™ 877, 944-945; People v. Carpenter (1997) 15 Cal.4" 312, 423-424.) The very real possibility that appellant’s jury aggravated his sentence upon the basis of nonstatutory aggravation deprived appellant of an important state-law generated procedural safeguard andliberty interest — the right not to be sentenced to death exceptuponthebasis ofstatutory aggravating factors (People v. Boyd (1985) 38 Cal.3" 765, 772-775) — and thereby violated appellant’s Fourteenth Amendmentright to due process. (See Hicks v. Oklahoma (1980) 447 U.S. 343; Fetterly v. Paskett (9th Cir. 1993) 997 F.2™ 1295, 1300 [holding that Idaho law specifying manner in which aggravating and mitigating circumstancesare to be weighedcreated liberty interest protected under the Due Process Clause of the Fourteenth Amendment]; and Campbell v. Blodgett (9th Cir. 1993) 997 F.2" 512, 522 [sameanalysis applied to state of Washington].) 254 It is thus likely that appellant’s jury aggravated his sentence upon the basis ofwhat were, as a matter of state law, non-existent factors and did so believing that the State — as represented by the trial court — had identified them as potential aggravating factors supporting a sentence of death. This violated not only state law, but the Eighth Amendment, for it madeit likely that the jury treated appellant “as more deserving of the death penalty than he might otherwise be by relying upon . . . illusory circumstance[s].” (Stringer v. Black (1992) 503 U.S. 222, 235.) From case to case, even with no difference in the evidence, sentencing juries will discern dramatically different numbers of aggravating circumstances because ofdiffering constructions of the CALJIC pattern instruction. Different defendants, appearing before different juries, will be sentenced on the basis of different legal standards. “Capital punishment [must] be imposedfairly, and with reasonable consistency, or notat all.” (Eddings v. Oklahoma (1982) 455 U.S. 104, 112.) Whethera capital sentence is to be imposed cannot be permitted to vary from case to case according to different juries’ understandings ofhow many factors on a statutory list the law permits them to weigh on death’s side ofthescale. D. California’s Use Of The Death Penalty As A Regular Form Of PunishmentFalls Short Of International Norms Of Humanity And Decency And Violates The Eighth And Fourteenth Amendments. The United States stands as one of a small numberofnations that regularly uses the death penalty as a form ofpunishment. (Soering v. United Kingdom: Whether the Continued Use ofthe Death Penalty in the United States Contradicts International Thinking (1990) 16 Crim. and Civ. Confinement 339, 366.) The nonuse ofthe death penalty, or its limitation to “exceptional crimes such as treason” — as opposed toits use as regular punishment — is particularly uniform in the nations of Western Europe. (See, e.g., Stanford v. Kentucky (1989) 492 U.S. 255 361, 389 [dis. opn. ofBrennan, J.]; Thompson v. Oklahoma (1988) 487 U.S. 815, 830 [plur. opn. of Stevens,J.J.) Indeed, ail nations of Western Europe have now abolished the death penalty. (Amnesty International, “The Death Penalty: List of Abolitionist and Retentionist Countries” (Nov. 24, 2006), on Amnesty International website [www.amnesty.org].) Although this country is not bound bythe laws of any other sovereignty in its administration of our criminal justice system,it has relied from its beginning on the customsand practicesof other parts of the world to inform our understanding. “When the United States became an independent nation, they became,to use the language of Chancellor Kent, ‘subject to that system of rules which reason, morality, and custom hadestablished amongthe civilized nations of Europe as their public law.’” (1 Kent’s Commentaries 1, quoted in Miller v. United States (1871) 78 U.S. [11 Wall.] 268, 315 [20 L.Ed. 135] [dis. opn. of Field, J.]; Hiltonv. Guyot (1895) 159 U.S. 113, 227; Martin v. Waddell’s Lessee (1842) 41 USS. [16 Pet.] 367, 409 [10 L.Ed. 997].) Dueprocessis not a static concept, and neither is the Eighth Amendment. In the course of determining that the Eighth Amendment now bansthe execution of mentally retarded persons, the U.S. Supreme Court relied in part on the fact that “within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.” (Atkins v. Virginia (2002) 536 U.S. 304, 316, fn. 21, citing the Brief for The European Union as Amicus Curiae in McCarver v. North Carolina, O.T. 2001, No. 00-8727, p. 4.) Thus, assuming arguendocapital punishmentitself is not contrary to international norms ofhuman decency,its use as regular punishment for substantial numbers of crimes — as opposed to extraordinary punishmentfor extraordinary crimes — is. Nations in the Western world no longer accept it. The Eighth Amendmentdoes notpermit jurisdictions in this nation to lag so far behind. (See Atkins v. Virginia, supra, 536 U.S.at p. 316.) Furthermore, inasmuch as the 256 law of nations now recognizes the impropriety of capital punishment as regular punishment,it is unconstitutional in this country inasmuch asinternational lawis a part of our law. (Hilton v. Guyot, supra, 159 U.S. 113, 227; see also Jecker, Torre & Co. v. Montgomery (1855) 59 U.S. [18 How.] 110, 112 [15 L.Ed. 311].) Categories of crimes that particularly warrant a close comparison with actual practices in other cases include the imposition of the death penalty for felony-murders or other non-intentional killings, and single-victim homicides. See Article VI, Section 2 of the International Covenant on Civil and Political Rights, which limits the death penalty to only “the most serious crimes.””” Categories of criminals that warrant such a comparison include persons suffering from mental illness or developmental disabilities. (Cf. Ford v. Wainwright (1986) 477 U.S. 399; Atkins v. Virginia, supra.) Thus, the very broad death schemein California and death’s use as regular punishmentviolate both international law and the Eighth and Fourteenth Amendments. Appellant’s death sentence should beset aside. °° See Kozinski and Gallagher, Death: The Ultimate Run-On Sentence, 46 Case W.Res. L.Rev. 1, 30 (1995). 257 CONCLUSION In a case so dominated by the prosecutor’s misconduct, abetted at crucial points bytrial error, the standards of a fundamentally fair trial under the Fourteenth Amendment, and for a fundamentally fair capital trial under the Eighth Amendment, wereseriously and prejudicially violated. Judgmentin this case should be reversed in its entirety, and, at the very least, the sentence of death must be reversed. Dated: July 30, 2007 Respectfully submitted, Mark D. Greenberg Attorney for Appellant, Ropati Seumanu CERTIFICATION OF WORD-COUNT I am attorney for appellantin the above-titled action. This document has been produced by computer, andin reliance on the word-count function of the computer program used to produce this document, I hereby certify that, exclusive of the table of contents, the proof of service, and this certificate, this document contains 81,388 words. Dated: July 30, 2007 i a ™ a in ‘ ——7| Ki OASYS. yy Mark D. Greenberg Attorney for Appellant, Ropati Seumanu 258 [CCP Sec. 1013A(2)] The undersignedcertifies that he is an active memberofthe State Bar of California, not a party to the within action, and his business address is 484 Lake Park Avenue, No. 429, Oakland, California; that he served a copy of the following documents: APPELLANT’S OPENING BRIEF by placing samein a sealed envelope, fully prepaying the postage thereon, and depositing said envelope in the United States mail at Oakland, California on July 30, 2007 addressed as follows: Attorney General 455 Golden Gate Ave., Ste. 11000 San Francisco, CA 94102-7004 Alameda County Superior Court Rene Davidson Courthouse 1225 Fallon Street Oakland, CA 94612-4293 FOR DELIVERY TO THE HON. LARRY J. GOODMAN Angela Backers Deputy District Attorney 1225 Fallon Street, Rm. 900 Oakland, CA 94612-4203 Linda Robertson California Appellate Project 101 Second Street, Ste. 600 San Francisco, CA 94105 Ropati Afatia Seumanu, T-02150 San Quentin State Prison San Quentin, CA 94974 Michael Ciraolo, Esq. 3306 Harrison St. Oakland, CA 94611 Deoborah Levy, Esq. 360 Grand Ave., PMB No. 197 Oakland, CA 94610 I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on July 30, 2007 at Oakland, California. Mark D. Greenberg Attorney at Law