PEOPLE v. PENUNURIAppellant’s Opening BriefCal.November 23, 2011em 9 FR ee r= my ‘\ No. 8095076 IN THE SUPREME COURT OF CALIFORNIA THE PEOPLE, Plaintiff and Respondent, Vv. RICHARD PENUNURI, Defendant and Appellant. LOS ANGELES COUNTY SUPERIOR COURT Superior Court CaseNo. BA189633 ME COURTSUPREMECOURT FILED Frederick K. Ohirich Clerk Deputy ON AUTOMATIC APPEAL FROM A JUDGMENT AND SENTENCE OF DEATH Superior Court of California, County ofLos Angeles The Honorable Robert W. Armstrong, Judge Presiding APPELLANT’S OPENING BRIEF Stephen M. Lathrop (S.B. #126813) Certified Appellate Law Specialist State Bar of Cal. Board ofLegal Specialization 904 Silver Spur Road #430 Rolling Hills Estates, California 90274 Tel. (310) 237-1000; Fax (310) 237-1010 Attorney for Defendant and Appellant RICHARD PENUNURI i TOPICAL INDEX STATEMENTOF THE CASE... 0...tee TABLE OF CHARGES AND VERDICTS ..............0..000.0.005. STATEMENT OF APPEALABILITY .. 0.0.0.0... 0.0... eee eee STATEMENTOF FACTS 2...ee GUILT PHASE — THE PROSECUTION’S CASE. ............--. THE RALPHS PARKINGLOT INCIDENT (COUNTS | & 2 — ROBBERIES OF SHAWN KREISHER AND RANDY CORDERO, RESPECTIVELY).......-2 00002 e ee eeee a. PERCIPIENT WITNESS TESTIMONY............ b. POLICE INVESTIGATION... .......00000 eevee THE HORNELL STREET INCIDENT (COUNT3 — ASSAULT WITH A FIREARM ON CARLOSARIAS). .......--.-055 THE GOODHUESTREET INCIDENT (COUNTS4 & 5 — MURDERSOF BRIAN MOLINA AND MICHAEL MURILLO, RESPECTIVELY). 2... 2-02 e ee eee eee eee ene a. PERCIPIENT WITNESS TESTIMONY............ b. RECORDEDJAIL CONVERSATIONS BETWEEN APPELLANT AND MARIA PENUNURI........... Cc. POLICE INVESTIGATION... ..... 2.0... 0.00005 CONSPIRACY TO MURDER AND THE MURDEROF JAIME CASTILLO (COUNTS 6 & 7)... 0... eee ee eee a. PERCIPIENT WITNESS TESTIMONY............ Page Je. ol Lee 5 ee 7 vee 7 wee 7 | ... 8 14 17 19 19 27 30 31 31 b. STIPULATION. 2.0...eeeet 39 c. POLICE INVESTIGATION... 0... ....0-. 2.00 eee 39 d. GANG EXPERT AND RELATED TESTIMONY........ 40 5. THE SEARCH OF DELALOZA’S RESIDENCE AND APPELLANT’S RESIDENCE... 0... 0000 eset eee eens 42 B. GUILT PHASE — THE DEFENSE CASE.........-.. 2.00.0 e et eeaee % C. GUILT PHASE — THE PROSECUTION’S REBUTTAL EVIDENCE...... 52 D. PENALTY PHASE ~THE PROSECUTION’S EVIDENCE............ 53 l. ASSAULT WITH A FIREARM ON R.J. UZEL. «2... ee eee 53 2. VICTIM IMPACT. 2...eees 56 E. PENALTY PHASE — THE DEFENSE EVIDENCE. ...........0.005. 57 1. CLINICAL ASSESSMENT OF MENTAL HEALTH ISSUES ADVERSELY AFFECTING APPELLANT. ............0200. 57 2. CHARACTER WITNESSES... 0... eee ee ee es 61 ARGUMENT. .. 0.0...eeeeee eee 65 JURY SELECTION... 0.0.0...cceens 65 [. THE TRIAL COURT’S DISMISSAL FOR CAUSE OF PROSPECTIVE JUROR STEVEN METCALF — WHERE METCALF STATED HE COULD FAIRLY AND IMPARTIALLY DECIDE THE CASE AND RETURN A VERDICT FOR EITHER LIFE OR DEATH —- REQUIRES REVERSAL OF THE DEATH JUDGMENTFOR A DENIAL OF THE STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS, EQUAL PROTECTION, AN IMPARTIAL JURY, AND A FAIR AND RELIABLE PENALTY -ii- DETERMINATION (CAL. CONST., ART. I, §§ 7, 15, 16 & 17; U.S. CONST., 5™, 67%, 87! & 14 AMENDS.). ..........0 000005 65 A. INTRODUCTION, PROCEDURAL BACKGROUND AND SUMMARY OF ARGUMENT. 2.6 eeens 65 THE TRIAL COURT’S IMPLICIT FINDING OF SUBSTANTIAL IMPAIRMENTIS NOT ENTITLED TO DEFERENCE BECAUSE METCALF WAS NOT MEANINGFULLY EXAMINED ON VOIR DIRE AND THE TRIAL COURT’S RESOLUTION,IF ANY, OF CONFLICTS ON THE QUESTION OF JURORBIAS IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE...0.ee 68 METCALF’S RESPONSES TO THE JURY QUESTIONNAIRE, AND HIS SINGLE UNEXPLORED RESPONSE DURING ORAL VOIR DIRE, REVEAL THAT HE COULD FAIRLY AND IMPARTIALLY DECIDE THE CASE AND RETURN A VERDICT FOR EITHER LIFE OR DEATH... 71 THE TRIAL COURT’S IMPLICIT FINDING OF SUBSTANTIAL IMPAIRMENTIS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, THEREBY REQUIRING REVERSAL OF THE DEATH JUDGMENT..... 76 GUILT PHASE. ...... 0...eeeeee 91 I. THE EVIDENCEIS INSUFFICIENT TO SUSTAIN A FINDING THAT APPELLANT WASA PRINCIPAL IN THE MURDERS OF BRIAN MOLINA AND MICHAEL MURILLO, THEREBY REQUIRING REVERSAL OF THE CONVICTIONS IN COUNTS 4 AND 5 FOR A DENIAL OF THE CONSTITUTIONAL RIGHTS TO DUE PROCESSANDA FAIR AND RELIABLE JURY TRIAL (CAL. CONST., ART. IJ, §§ 7, 15 & 17; USS. CONST., 57, 67%, 8™ & 14™ AMENDS.). .........2000200 022s 91 A. INTRODUCTION... 2.0.0.0 c eeeeeeeee 91 B. STANDARD OF REVIEW. .... 00. e eee eee eens 91 C. THERE IS INSUFFICIENT EVIDENCE, WHICH IS REASONABLE, CREDIBLE, AND OF SOLID VALUE, TO SUSTAIN A FINDING THAT -i1i- II. IV. APPELLANT KILLED MOLINA AND MURILLO (COUNTS4 & 5, RESPECTIVELY). 0.0.00 ceee een e ee eee eens 94 THE EVIDENCEIS INSUFFICIENT TO SUSTAIN FINDINGS IN CONNECTION WITH THE CONVICTION FOR CONSPIRACY TO COMMIT MURDEROF JAIME CASTILLO (COUNT 6) THAT APPELLANT AGREED OR CONSPIRED TO COMMIT MURDER AND THATHE HAD THESPECIFIC INTENT TO KILL CASTILLO, THEREBY REQUIRING REVERSAL OF THE CONVICTION IN COUNT 6 FORA DENIAL OF THE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR AND RELIABLE JURY TRIAL (CAL. CONST., ART.I, §§ 7, 15 & 17; U.S. CONST., 5™, 6™, 877 & 147* AMENDS.)........ 000: e cee eee eee e ene es 107 A. INTRODUCTION. 2...ceee et ee eens 107 B. STANDARD OF REVIEW. 2.0... cee eeee eae 107 C. THEREIS INSUFFICIENT EVIDENCE, WHICH IS REASONABLE, CREDIBLE, AND OF SOLID VALUE, TO SUSTAIN THE FINDINGS THAT APPELLANT AGREED OR CONSPIRED TO COMMIT MURDER AND THAT HE HAD THESPECIFIC INTENT TO KILL CASTILLO.2.eeee ee eee ene 108 THE EVIDENCEIS INSUFFICIENT TO SUSTAIN A FINDING THAT APPELLANT EITHER PERPETRATED THE KILLING OF JAIME CASTILLO, AIDED AND ABETTED THEKILLING, OR ENTEREDINTO A CONSPIRATORIAL AGREEMENT TO KILL, THEREBY REQUIRING REVERSALOF THE CONVICTION FOR MURDERIN COUNT7 FOR A DENIAL OF THE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR AND RELIABLEJURY TRIAL (CAL. CONST., ART. I, §§ 7,15 & 17; U.S. CONST., 5™, 6, 8™ & 14™ AMENDS,)..... 121 A. INTRODUCTION... 2...ee ee eet eee 121 B. STANDARD OF REVIEW. .. 0.0... ce eee te ee eee 121 -iV- C. THERE JIS INSUFFICIENT EVIDENCE, WHICH IS REASONABLE, CREDIBLE, AND OF SOLID VALUE, TO SUSTAIN A FINDING THAT APPELLANT PERPETRATED THE KILLING OF CASTILLO, THAT HE IS VICARIOUSLY LIABLE FOR THEKILLING, OR THAT HE ENTERED INTO A CONSPIRATORIAL AGREEMENT WITH THE SPECIFIC INTENT TO KILL CASTILLO. «0... 0.0.0.0... ee eee THE EVIDENCEIS INSUFFICIENT TO SUSTAIN THE TRUE FINDING ON THE WITNESS-KILLING SPECIAL CIRCUMSTANCE, REQUIRING REVERSAL THEREOF AND REVERSAL OF THE DEATH JUDGMENTAS A DENIAL OF THE CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS, AND A VIOLATION OF THE CONSTITUTIONAL PROHIBITION AGAINST CRUEL AND UNUSUALPUNISHMENT(CAL. CONST., ART. I, §§7, 15 & 17; U.S. CONST., 57™, 67, 8™ & 14™ AMENDS.,).............. A. INTRODUCTION...0.eeeees B. STANDARD OF REVIEW. ..... 0... cece eee eee C. THERE IS INSUFFICIENT EVIDENCE, WHICH IS REASONABLE, CREDIBLE, AND OF SOLID VALUE, TO SUSTAIN A FINDING THAT APPELLANT PERPETRATED THE KILLING OF CASTILLO, THAT HE IS VICARIOUSLY LIABLE FOR THE KILLING, OR THAT HE ENTERED INTO A CONSPIRATORIAL AGREEMENT TO KILL CASTILLO, AND THUS THEREIS NO SUBSTANTIAL EVIDENCE THAT APPELLANT PHYSICALLY AIDED OR COMMITTED THE ACT CAUSING CASTILLO’S DEATH.... 2.2... . 00000 e ee ee eee D. THE DEATH JUDGMENT MUST BE REVERSED BECAUSE THE JURY’S USE OF THE INVALID SENTENCING FACTOR — THE WITNESS-KILLING SPECIAL CIRCUMSTANCE — RENDERED THE SENTENCE UNCONSTITUTIONAL BY REASON OF ITS ADDING AN IMPROPER ELEMENT TO THE AGGRAVATION SCALE IN THE WEIGHING PROCESS AND NO OTHER SENTENCING FACTOR ENABLED THE JURY TO GIVE AGGRAVATING WEIGHT TO THE SAME FACTS AND CIRCUMSTANCESOF THE INVALID SENTENCING FACTOR. 1.0... 00. cece e eee 130 130 131 131 133 VI. VIL. THE EVIDENCEIS INSUFFICIENT AS A MATTER OF LAW TO SUSTAIN THE TRUE FINDING ON THE MULTIPLE- MURDERSPECIAL CIRCUMSTANCE, REQUIRING REVERSAL THEREOF AND REVERSAL OF THE DEATH JUDGMENTAS A DENIAL OF THE CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS, AND A VIOLATION OF THE CONSTITUTIONAL PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT(CAL. CONST., ART.I, §§ 7, 15 & 17; U.S. CONST., 57%, 6, 87 & 14™ AMENDS,)......000 000 cc cece eee ete teenies 137 A. INTRODUCTION... 0...ceene 137 B. STANDARD OF REVIEW. .. 0.0... ceee ees 138 C. THERE IS INSUFFICIENT EVIDENCE, WHICH IS REASONABLE, CREDIBLE, AND OF SOLID VALUE, TO SUSTAIN A FINDING THAT APPELLANT PERPETRATED THE KILLING OF EITHER MOLINA OR MURILLO...1.eeee eee 138 D. THE DEATH JUDGMENT MUST BE REVERSED BECAUSE THE JURY’S USE OF THE INVALID SENTENCING FACTOR — THE MULTIPLE-MURDERSPECIAL CIRCUMSTANCE — RENDERED THE SENTENCE UNCONSTITUTIONAL BY REASON OF ITS ADDING AN IMPROPER ELEMENT TO THE AGGRAVATION SCALE IN THE WEIGHING PROCESS AND NO OTHER SENTENCING FACTOR ENABLED THE JURY TO GIVE AGGRAVATING WEIGHT TO THE SAME FACTS AND CIRCUMSTANCESOF THE INVALID SENTENCING FACTOR. 2.0... 0.0... eee eee ee ee eee 139, THE EVIDENCEIS INSUFFICIENT TO SUSTAIN APPELLANT’S CONVICTION FOR ASSAULT WITH A FIREARM ON CARLOSARIAS (COUNT 3) BECAUSE MERELY POINTING AN UNLOADED GUN AT SOMEONE— WITHOUT ANY EVIDENCE OF A VERBAL OR PHYSICAL THREAT TO DISCHARGE THE GUN AND WITHOUT ANY ATTEMPT TO ACTUALLY FIRE THE GUN ~ CONSTITUTES MISDEMEANOR BRANDISHING, NOT ASSAULT WITH A FIREARM, THEREBY REQUIRING REVERSAL OF THE CONVICTION FOR A DENIAL OF THE CONSTITUTIONAL -Vi- VIII. RIGHTS TO DUE PROCESS AND A FAIR AND RELIABLE JURY TRIAL (CAL. CONST., ART. L, §§ 7,15 & 17; US. CONST., 57, 67, 8™ & 147 AMENDS.,). .........0-000-00205- 142 A. INTRODUCTION AND SUMMARYOF ARGUMENT... ...........- 142 B. STANDARD OF REVIEW. ......0..00 2000000 cece eee eee 143 C. THERE IS INSUFFICIENT EVIDENCE WHICH IS REASONABLE, CREDIBLE, AND OF SOLID VALUE TO SUSTAIN THE FINDING THAT APPELLANT COMMITTED AN ASSAULT WITH A FIREARM IN COUNT 3.0.0.0. ccceeetee eee 144 THE TRIAL COURT PREJUDICIALLY ERRED IN DENYING APPELLANT’S MOTION FOR MISTRIAL AFTER THE PROSECUTOR ELICITED INADMISSIBLE TESTIMONY FROM DETECTIVE CURT LEVSEN THAT APPELLANT WAS ACTING UNDERTHE JURISDICTION OF THE MEXICAN MAFIA, THAT HE SHOWED ALLEGIANCE TO THE MEXICAN MAFIA, AND THAT HE PAID TAXES TO THE MEXICAN MAFIA BECAUSETHE HIGHLY INFLAMMATORY AND POISONOUS NATUREOF SUCH INADMISSIBLE TESTIMONY WAS INCURABLE BY ADMONITION, REQUIRING REVERSAL OF APPELLANT’S CONVICTIONS AND DEATH JUDGMENT FORA VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR AND RELIABLE JURY TRIAL (CAL. CONST., ART. I, §§ 7, 15 & 17; U.S. CONST., 57", 67%, 8™ & 14™ AMENDS,). ........... 152 A. INTRODUCTION AND PROCEDURAL BACKGROUND. .......... 152 B. THE PROSECUTOR COMMITTED MISCONDUCT BY DELIBERATELY ELICITING INADMISSIBLE TESTIMONY DURING DIRECT EXAMINATION OF DETECTIVE LEVSEN LINKING APPELLANT TO THE MEXICAN MAFIA. ........ 2.20000 0000% 157 C. THE TRIAL COURT PREJUDICIALLY ERRED IN DENYING APPELLANT’S MOTION FOR MISTRIAL BECAUSE THE ADMONITION WAS WOEFULLY INSUFFICIENT TO CURE THE -Vii- IX. HARM THAT APPELLANT SUFFERED FROM TESTIMONY LINKING HIM TO THE MEXICAN MAFIA (TESTIMONY THAT IMPROPERLY SUGGESTED HIS DANGEROUSNESSTO THE JURY), THEREBY DEPRIVING APPELLANT OF A FUNDAMENTALLYFAIR TRIAL GUARANTEEDBY THE STATE AND FEDERAL CONSTITUTIONS... 163 THE TRIAL COURT’S ADMISSION OF OUT-OF-COURT STATEMENTS AND PRIOR TESTIMONY OF NONTESTIFYING WITNESS CARLOSARIAS — IDENTIFYING APPELLANT AS THE PERSON WHO ASSAULTED HIM WITH A FIREARM AN HOURPRIOR TO THE HOMICIDES OF MOLINA AND MURILLO — REQUIRES REVERSAL OF APPELLANT’S CONVICTIONSIN COUNTS3, 4 AND 5 FOR A VIOLATION OF STATE EVIDENTIARY RULES AND THESTATE AND FEDERAL CONSTITUTIONAL RIGHTS TO CONFRONTATION,DUE PROCESS, EFFECTIVE ASSISTANCE OF COUNSEL, AND A FAIR AND RELIABLE JURY TRIAL (CAL. CONST., ART. I, §§ 7, 15 & 17; U.S. CONST., 577, 67%, 8™ & 14™ AMENDS.). ...... 000.2 eee 173 A. INTRODUCTION AND PROCEDURAL BACKGROUND. ........-. 173 B. THEISSUES RAISED HEREIN HAVE BEEN PRESERVED FOR APPEAL;IF THIS COURT FINDS THAT ANY OF THE ISSUES HAVE BEEN FORFEITED BY FAILURE TO ADEQUATELY OBJECTIN THE TRIAL COURT, THEN APPELLANT WAS DEPRIVED OF THE STATE AND FEDERAL CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL (CAL. CONST., ART.I, §§ 15 & 17; U.S. CONST., 6™, 8™ & 14™AMENDS.). 0.0.00. 00 ce eee eee 176 C. THE ADMISSION OF ARIAS’S TESTIMONIAL OUT-OF-COURT STATEMENTS MADE DURINGA POLICE INTERVIEW ANDHIS PRIOR TESTIMONY AT THE DELALOZA TRIAL DEPRIVED APPELLANT OF THE CONSTITUTIONALRIGHT TO CONFRONTATION(CAL. CONST., ART. I, §§ 7, 15 & 17; U.S. CONST., 57, 6™, 8™ & 14™AMENDS.)...... 00000 eee eee eee 180 D. THE ADMISSION OF ARIAS’S OUT-OF-COURT STATEMENTS AND PRIOR TESTIMONY DEPRIVED APPELLANT OF THE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR AND -Vili- RELIABLE JURY TRIAL (CAL. CONST., ART.I, §§ 7, 15 & 17; U.S. CONST., 5™, 6™, 8™ & 14AMENDS.). ......-00000 000% 185 E, ARIAS’S PRIOR TESTIMONYIN THE DELALOZATRIAL ANDHIS OUT-OF-COURT STATEMENTSTO THE POLICE WERE NOT PROPERLY OFFERED FOR ANY NONHEARSAY PURPOSE. ....... 189 F. ARIAS’S OUT-OF-COURT STATEMENTSTO LUKE BISSONNETTE WERE NOT PROPERLY OFFERED FOR ANY NONHEARSAY PURPOSE... 1... -ceeeeee nee 192 G. THE JURY’S CONSIDERATIONOF ARIAS’S OUT-OF-COURT STATEMENTSAND PRIOR TESTIMONY REQUIRES REVERSAL OF APPELLANT’S CONVICTIONSIN COUNTS3, 4 AND 5 BECAUSE THE PROSECUTION WILL BE UNABLE TO PROVE BEYOND A REASONABLE DOUBT THAT THE EVIDENCE DID NOT CONTRIBUTE TO THE JUDGMENT... 1...eee 197 THE TRIAL COURT’S ADMISSION OF TESTIMONIAL OUT- OF-COURT STATEMENTS OF NONTESTIFYING WITNESS ALEJANDRO DELALOZA MADE DURING POLICE INTERROGATION — IMPLICATING APPELLANTIN THE RALPHS PARKING LOT INCIDENT AND THE DOUBLE HOMICIDE OF MOLINA AND MURILLO — REQUIRES REVERSAL OF APPELLANT’S CONVICTIONS IN COUNTS1, 2,4 AND 5 FOR A VIOLATION OF STATE EVIDENTIARY RULES AND THE STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE PROCESS, EFFECTIVE ASSISTANCE OF COUNSEL, AND A FAIR AND RELIABLE JURY TRIAL (CAL. CONST., ART. I, §§ 7, 15 & 17; US. CONST., 57", 674, 8" & 147 AMENDS.). ........-.02-00 200 5- 210 A. INTRODUCTION AND PROCEDURAL BACKGROUND. B. THE ISSUES RAISED HEREIN HAVE BEEN PRESERVED FOR APPEAL; IF THIS COURT FINDS THAT ANY OF THE ISSUES HAVE BEEN FORFEITED BY FAILURE TO ADEQUATELY OBJECT IN THE TRIAL COURT, THEN APPELLANT WAS DEPRIVED OF THE STATE AND FEDERAL CONSTITUTIONAL RIGHT TO THE EFFECTIVE -{X- XI. ASSISTANCE OF COUNSEL(CAL. CONST., ART.I, §§ 15 & 17; U.S. CONST., 67, 8™ & L4™ AMENDS.) 2... . ceee ee eee 215 C. THE ADMISSION OF DELALOZA’S TESTIMONIAL OUT-OF-COURT STATEMENTS MADEDURING POLICE INTERROGATION DEPRIVED APPELLANT OF THE CONSTITUTIONAL RIGHT TO CONFRONTATION (CAL. CONST., ART.I, §§ 7, 15 & 17; U.S. CONST., 5™, 6™, 8™ & L4™AMENDS.).......0 00002 eee eee 218 D. THE ADMISSION OF DELALOZA’S OUT-OF-COURT STATEMENTS DEPRIVED APPELLANT OF THE CONSTITUTIONAL RIGHT TO DUE PROCESS AND A FAIR AND RELIABLE JURY TRIAL (CAL. CONST., ART.I, §§ 7, 15 & 17; U.S. CONST., 5™, 6™, 8™ & 14™ AMENDS.). 00.00 cc eceee teen eee eee nes 219 E. DELALOZA’S OUT-OF-COURT STATEMENTSTO THE POLICE WERE NOT PROPERLY OFFERED FOR ANY NONHEARSAY 1310010 )<)2220 F. THE JURY’S CONSIDERATION OF DELALOZA’S OUT-OF-COURT STATEMENTS REQUIRES REVERSAL OF APPELLANT’S CONVICTIONSIN COUNTS1, 2, 4 AND 5 BECAUSE THE PROSECUTION WILL BE UNABLE TO PROVE BEYOND A REASONABLE DOUBT THAT THE EVIDENCE DID NOT CONTRIBUTE TO THE JUDGMENT... 0.0... ce ee ees 226 THE TRIAL COURT PREJUDICIALLY ERRED BY FAILING TO INSTRUCT THE JURY ON THE RULES RELATING TO ACCOMPLICE TESTIMONY WITH RESPECT TO THE TESTIMONIAL STATEMENTS OF ALEJANDRO DELALOZA, THEREBY LOWERING THE PROSECUTION’S BURDEN TO PROVE EACH ELEMENT OF THE OFFENSES CHARGED IN COUNTS1, 2, 4 AND 5 WITH COMPETENT EVIDENCE BEYOND A REASONABLE DOUBT, AND DEPRIVING APPELLANT OF THE CONSTITUTIONAL RIGHTSTO TRIAL BY JURY AND DUE PROCESS(CAL. CONST., ART.I, §§ 7, 15,16 & 17; U.S. CONST. 5™, 6", 8™ & 14™ AMENDS.,)........ 236 A. INTRODUCTION AND PROCEDURAL BACKGROUND. .......... 236 XII. B. THE TRIAL COURTIS REQUIRED TO CORRECTLY INSTRUCT THE JURY SUA SPONTE ON THE GENERAL PRINCIPLES OF LAW RELEVANTTO THE ISSUES RAISED BY THE EVIDENCE, AND AN ERRORIN FAILING TO DO SO IS REVIEWED ON APPEAL DESPITE DEFENSE COUNSEL’S ACTIONS. .... 0.000: e eee eee eee 241 C. THE TRIAL COURT WAS REQUIRED TO SUA SPONTE INSTRUCT THE JURY THAT DELALOZA WAS AN ACCOMPLICE AS A MATTER OF LAW IN CONNECTION WITH COUNTS1, 2, 4 AND 5 (CALJIC NO. 3.16), THAT HIS TESTIMONIAL STATEMENTS MUST BE CORROBORATED(CALJIC NO. 3.11), AND THAT HIS TESTIMONIAL STATEMENTSMUSTBE VIEWED WITH “CARE AND CAUTION”(CALJIC NO. 3.18)... 0.0.0.0... 002 eee ee eee 243 D. THE INSTRUCTIONAL ERROR DENIED APPELLANT THE CONSTITUTIONAL RIGHTSOF JURY TRIAL AND DUE PROCESS, AND RESULTEDIN PREJUDICIAL ERROR REQUIRING REVERSAL OF APPELLANT’S CONVICTIONSIN COUNTS1, 2, 4 AND 5, BECAUSE THE DETERMINATION OF APPELLANT’S GUILT WAS BASED MATERIALLY ON DELALOZA’S TESTIMONIAL STATEMENTS... 0. 0c cece cece sence ee eee e eee e en ene 247 REVERSAL OF APPELLANT’S CONVICTIONS IS REQUIRED BECAUSE THE TRIAL JUDGE’S REMARKSIN THE PRESENCE OF THE JURY — VOUCHING FOR THE TRUTH OF THE PROSECUTION’S EVIDENCE AND INTERPRETING THE EVIDENCE IN A MANNER FAVORABLETO THE PROSECUTION — DENIED APPELLANT THE RIGHTS TOA FAIR TRIAL AND AN IMPARTIAL JURY (CAL. CONST., ART. I, §§ 7, 15, 16 & 17; U.S. CONST., 5™, 67™, 8™ & 147% AMENDS.)......- 0c ccececccceccueeeueeeueeeeueeneneee, 261 A. INTRODUCTION AND PROCEDURAL BACKGROUND. .......... 261 B. THE EXCUSABLE FAILURE OF TRIAL DEFENSE COUNSEL TO OBJECT TO THE JUDICIAL MISCONDUCT AND, ALTERNATIVELY, INEFFECTIVE ASSISTANCE OF COUNSELIN FAILING TO RAISE TIMELY AND SPECIFIC OBJECTIONS TO EACH INSTANCE OF MISCONDUCTAS DESCRIBED BELOW, WARRANTS REVERSAL OF APPELLANT’S CONVICTIONS FOR A VIOLATION OF HIS -xi- XIII. XIV. STATE AND FEDERAL CONSTITUTIONAL RIGHTSTO EFFECTIVE ASSISTANCE OF COUNSEL(CAL. CONST., ART.I, § 7, 15 & 17; U.S. CONST., 5™, 6™, 8™ AND 14™ AMENDS.). .........000-- 267 C. THE TRIAL JUDGE ENGAGEDIN PREJUDICIAL MISCONDUCT BY HOLDING AN EVIDENCE CODESECTION 402 HEARING IN THE PRESENCEOF THE JURY, BY VOUCHING FOR THE TRUTH OF THE PROSECUTION’S EVIDENCE, BY INTERPRETING THE EVIDENCE FOR THE JURY IN A MANNER FAVORABLE TO THE PROSECUTION (AND THUS USURPING THE JURY’S ESSENTIAL FACT-FINDING FUNCTION), AND BY CREATING THE IMPRESSION THAT HE WAS ALLYING HIMSELF WITH THE PROSECUTION, THEREBY REQUIRING REVERSAL OF APPELLANT’S CONVICTIONS FOR A DENIAL OF THE RIGHTS TO A FAIR TRIAL AND AN IMPARTIAL JURY (CAL. CONST., ART.J, §§ 7, 15, 16 & 17; U.S. CONST., 5™, 6™, 8™ & 14™ AMENDS.)... 270 THE TRIAL COURT’S INSTRUCTIONS TO THE GUILT- PHASE JURY IN THE LANGUAGEOF CALJIC NO. 17.41.1 - THE DISAPPROVED “JUROR SNITCH” INSTRUCTION — REQUIRES REVERSAL OF APPELLANT’S CONVICTIONS FOR A DENIAL OF THE FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS ANDA FAIR AND RELIABLE JURY TRIAL(U.S. CONST., 5™, 67%, 8°" & 14™ AMENDS.)..... 286 THE CUMULATIVE EFFECT OF THE GUILT PHASE ERRORS REQUIRES REVERSAL OF APPELLANT’S CONVICTIONS FOR A DENIAL OF THE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL AND RELIABLE JURY TRIAL (CAL. CONST., ART.I, §§ 7, 15, 16 & 17; U.S. CONST., 56, 8& 147* AMENDS.,). 0.0... 000: cece eee eee 291 PENALTY PHASE AND SENTENCING.................. 00000040. 296 XV. APPELLANT’S EXCLUSION FROM TRIAL DURING THE PENALTY PHASE CLOSING ARGUMENTS PURPORTEDLY RELATING TO CODEFENDANT CASTRO, WHICH INCLUDED ARGUMENTBY THE PROSECUTOR AND COUNSEL FOR CODEFENDANTCASTRO IMPLICATING APPELLANT, AND APPELLANT’S EXCLUSION DURING -Xii- XVI. THE TRIAL COURT’S INSTRUCTIONS TO THE JURY PURPORTEDLY RELATING TO CODEFENDANT CASTRO, ALL OF WHICH OCCURRED DURING PENALTY PHASE DELIBERATIONS - A CRITICAL STAGE OF THE CRIMINAL PROCEEDINGS —- VIOLATED STATE STATUTORY RULES AND THE STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE PROCESS, JURY TRIAL, AND A RELIABLE PENALTY DETERMINATION (CAL. CONST., ART.I, §§ 7, 15 & 17; U.S. CONST., 5™, 6™, 8™ & 14™ AMENDS.), THEREBY REQUIRING REVERSAL OF THE DEATH JUDGMENT... 0...ene 296 A. INTRODUCTION AND PROCEDURAL BACKGROUND. .......... 296 B. STANDARD OF REVIEW. «2.0... 2cte ee eee eee 298 C. APPELLANT WASDENIED THE STATE AND FEDERAL CONSTITUTIONAL RIGHTS, AND THE STATE STATUTORYRIGHT, TO BE PRESENT AT ALL CRITICAL STAGES OF THE CRIMINAL PROCEEDINGS. .. 2...eeee eee 299 D. APPELLANT DID NOT WAIVE THE RIGHT TO PERSONAL PRESENCE AT TRIAL. «20... . ccee ee ees 301 E. REVERSAL OF THE DEATH JUDGMENTIS REQUIRED BECAUSE THE PROSECUTION WILL BE UNABLE TO PROVE THAT THE ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT. ..... 303 THE PENALTY INSTRUCTIONS AND THE TRIAL PROCESS — WHEREBY CLOSING ARGUMENTSOF COUNSEL AND JURY INSTRUCTIONS PURPORTEDLY RELATING TO CASTRO WEREGIVEN IN APPELLANT’S ABSENCEANDIN THE MIDST OF PENALTY PHASE DELIBERATIONS — DENIED APPELLANT THE CONSTITUTIONAL RIGHT TO AN INDIVIDUALIZED SENTENCING DETERMINATION (U.S. CONST., 5", 6", 8™ & 14™ AMENDS.), THEREBY REQUIRING REVERSAL OF THE DEATH JUDGMENT........ 313 A. INTRODUCTION AND SUMMARY OF ARGUMENT... ............ 313 -Xiil- B. FACTUAL AND PROCEDURAL BACKGROUND. ............065 315 C. APPELLANT WAS PREJUDICIALLY DEPRIVED OF THE CONSTITUTIONAL RIGHT TO AN INDIVIDUALIZED SENTENCING DETERMINATION... 0... ceeete eens 317 XVII. THE TESTIMONY OF PROSECUTION PENALTY PHASE WITNESSES JAVIER CASTILLO AND LINDA CASTILLO THAT APPELLANT SHOULD BE SENTENCED TO DEATH VIOLATED STATE EVIDENTIARY RULES AND THE STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS, EFFECTIVE ASSISTANCE OF COUNSEL, AND A RELIABLE PENALTY DETERMINATION(CAL. CONST., ART.I, §§ 7, 15 & 17; U.S. CONST., 57, 6™™, 877 & 14™ AMENDS.), THEREBY REQUIRING REVERSAL OF THE DEATH JUDGMENT. ....... 0...eceee 326 A. INTRODUCTION, PROCEDURAL BACKGROUND AND SUMMARY OF ARGUMENT........ 0.00 ee eee eee eee eens 326 B. THEISSUES RAISED HEREIN HAVE BEEN PRESERVED FOR APPEAL;IF THIS COURT FINDS THAT ANY OF THE ISSUES HAVE BEEN FORFEITED BY FAILURE TO ADEQUATELY OBJECTIN THE TRIAL COURT, THEN APPELLANT WAS DEPRIVED OF THE STATE AND FEDERAL CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL (CAL. CONST., ART.I, §§ 15 & 17; U.S. CONST., 6™, 8™ & 14™ AMENDS.) 2.0.00 ccc cee eee 330 C. THE TESTIMONY OF PROSECUTION PENALTY PHASE WITNESSES JAVIER CASTILLO AND LINDA CASTILLO THAT APPELLANT SHOULD BE SENTENCED TO DEATH PREJUDICIALLY VIOLATED STATE EVIDENTIARY RULES AND THE STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A RELIABLE PENALTY DETERMINATION, REQUIRING REVERSAL OF THE DEATH JUDGMENT. ... 2... . ce ce ee et tee eee 333 XVIII.ADMISSION OF EVIDENCE IN AGGRAVATION OF A PURPORTED ASSAULT WITH A FIREARM ON JASON UZEL REQUIRES REVERSAL OF THE DEATH JUDGMENT FOR A VIOLATION OF APPELLANT’S STATE AND FEDERAL -XivV- XIX. CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A RELIABLE PENALTY DETERMINATION (CAL. CONST., ART.I, §§ 7, 15 & 17; U.S. CONST., 57, 6", 8 & 14™ AMENDS.) BECAUSE THE EVIDENCEIS WOEFULLY INSUFFICIENT TO SUSTAIN A FINDING THAT APPELLANT PERPETRATED THE ASSAULT........ 0.000.000 eee eee 339 A. INTRODUCTION AND PROCEDURAL BACKGROUND. .......... 339 B. THE EVIDENCEIS WOEFULLY INSUFFICIENT TO SUSTAIN A FINDING THAT APPELLANT PERPETRATED AN ASSAULT WITH A FIREARM ON UZEL..2.eeeee 340 C. THE JURY’S CONSIDERATION OF THE ASSAULT WITH A FIREARM ON UZEL REQUIRES REVERSALOF THE DEATH JUDGMENTFOR A VIOLATION OF APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A RELIABLE PENALTY DETERMINATION(CAL. CONST., ART.I, §§ 7,15 & 17; U.S. CONST., 5™, 67, 8™ & 147 AMENDS.) BECAUSE IT CANNOT BE PROVED BEYOND A REASONABLE DOUBT THAT THE EVIDENCE DID NOT CONTRIBUTE TO THE DEATH VERDICT. .... 00.0.0 cece cece cee eee eee eee es 352 IN VIEW OF THE ADMISSION OF PRIOR VIOLENT CRIMES EVIDENCE IN AGGRAVATION, THE TRIAL COURT’S INSTRUCTION THAT THE PROSECUTION BEARS NO BURDENOF PROOF AT THE PENALTY PHASE, AND THE FAILURE TO DEFINE REASONABLE DOUBT, VIOLATED APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO JURY TRIAL, DUE PROCESS, AND A RELIABLE PENALTY DETERMINATION (CAL. CONST., ART.I, §§ 7, 15 & 17; U.S. CONST., 5™, 6", 87" & 14™ AMENDS.), THEREBY REQUIRING REVERSAL OF THE DEATH JUDGMENT........ 358 A. INTRODUCTION AND PROCEDURAL BACKGROUND. .......... 358 B. THE TRIAL COURT HAS A SUA SPONTE DUTY TO CORRECTLY INSTRUCT THE JURY ON THE PROSECUTION’S BURDEN. ....... 359 C. STANDARD OF REVIEW. 1...ee 360 -XV- XX. D. THE TRIAL COURT ERRED BY INSTRUCTING THE PENALTY PHASE JURY THAT THE PROSECUTION BEARS NO BURDEN OF PROOF AND BY OMITTING AN INSTRUCTION DEFINING REASONABLE DOUBT... 2.0...eeeee 360 E. REVERSAL OF THE DEATH JUDGMENTIS REQUIRED BECAUSEIT IS REASONABLY LIKELY THAT THE JURY APPLIED THE INSTRUCTIONSIN A WAY THAT DEPRIVED APPELLANT OF A PROPERLY GUIDED, INDIVIDUALIZED SENTENCING HEARING; MOREOVER, THE PROSECUTION WILL BE UNABLE TO PROVE THAT THE INSTRUCTIONAL ERRORS WERE HARMLESS BEYOND A REASONABLE DOUBT.......... 0.0. cc ee ee ee ees 362 CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’STRIAL, VIOLATES THE FEDERAL CONSTITUTION(U.S. CONST., 5', 6", 8& 14™ AMENDS.). 368 A. APPELLANT’S DEATH PENALTYIS INVALID BECAUSE PENAL CODE § 190.2 IS IMPERMISSIBLY BROAD...........0000005- 370 B. APPELLANT’S DEATH PENALTYIS INVALID BECAUSE PENAL CODE § 190.3(A) AS APPLIED ALLOWS ARBITRARY AND CAPRICIOUS IMPOSITION OF DEATHIN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION. ......00 000 eee eee eee 373 C. CALIFORNIA’S DEATH PENALTY STATUTE CONTAINS NO SAFEGUARDS TO AVOID ARBITRARY AND CAPRICIOUS SENTENCING AND DEPRIVES DEFENDANTSOF THE RIGHT TO A JURY DETERMINATION OF EACH FACTUAL PREREQUISITE TO A SENTENCE OF DEATH; IT THEREFORE VIOLATES THESIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION... 0...eeeeens 376 1. APPELLANT’S DEATH VERDICT WAS NOT PREMISED ON FINDINGS BEYOND A REASONABLE DOUBT BY A UNANIMOUSJURY THAT ONE OR MORE AGGRAVATING FACTORS EXISTED AND THAT THESE FACTORS OUTWEIGHED MITIGATING FACTORS;HIS -XVI- CONSTITUTIONAL RIGHT TO JURY DETERMINATION BEYOND A REASONABLE DOUBTOF ALL FACTS ESSENTIAL TO THE IMPOSITION OF A DEATH PENALTY WAS THEREBY VIOLATED... .........00 02.2000: ee eee 377 a. IN THE WAKEOF APPRENDI, RING, BLAKELY, AND CUNNINGHAM, ANY JURY FINDING NECESSARY TO THE IMPOSITION OF DEATH MUST BE FOUND TRUE BEYOND A REASONABLE DOUBT.............. 380 b. WHETHER AGGRAVATING FACTORS OUTWEIGH MITIGATING FACTORSIS A FACTUAL QUESTION THAT MUST BE RESOLVED BEYOND A REASONABLE DOUBT. ...........0 000000005 388 THE DUE PROCESS AND THE 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 ONLYIF THEY ARE PERSUADED BEYOND A REASONABLE DOUBT THAT THE AGGRAVATING FACTORS EXIST AND OUTWEIGH THE MITIGATING FACTORS AND THAT DEATHIS THE APPROPRIATE PENALTY. 1.0... 2.000 eee eee eee 390 a. FACTUAL DETERMINATIONS. ...............0. 390 b. IMPOSITION OF LIFE OR DEATH. .............. 391 CALIFORNIA LAW VIOLATESTHESIXTH, EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION BY FAILING TO REQUIRE THAT THE JURY BASE ANY DEATH SENTENCE ON WRITTEN FINDINGS REGARDING AGGRAVATING FACTORS. ....... 393 CALIFORNIA’S DEATH PENALTY STATUTE AS INTERPRETED BY THE CALIFORNIA SUPREME COURT FORBIDS INTER-CASE PROPORTIONALITY REVIEW, THEREBY GUARANTEEING ARBITRARY, -XVil- DISCRIMINATORY, OR DISPROPORTIONATE IMPOSITIONS OF THE DEATH PENALTY............-4. 397 5. THE PROSECUTION MAY NOT RELY IN THE PENALTY PHASE ON UNADJUDICATED CRIMINAL ACTIVITY; FURTHER, EVEN IF IT WERE CONSTITUTIONALLY PERMISSIBLE FOR THE PROSECUTORTO DO SO, SUCH ALLEGED CRIMINAL ACTIVITY COULD NOT CONSTITUTIONALLY SERVE AS A FACTORIN AGGRAVATION UNLESS FOUND TO BE TRUE BEYOND A REASONABLE DOUBT BY A UNANIMOUS JURY. ........ 399 6. THE USE OF RESTRICTIVE ADJECTIVES IN THE LIST OF POTENTIAL MITIGATING FACTORS IMPERMISSIBLY ACTEDAS BARRIERS TO CONSIDERATION OF MITIGATION BY APPELLANT’S JURY.............--55 400 7. THE FAILURE TO INSTRUCT THAT STATUTORY MITIGATING FACTORS WERE RELEVANT SOLELY AS POTENTIAL MITIGATORS PRECLUDEDA FAIR, RELIABLE, AND EVENHANDED ADMINISTRATION OF THE CAPITAL SANCTION. 2.0... ce ce ee ee ee ee eee 400 THE CALIFORNIA SENTENCING SCHEME VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FEDERAL CONSTITUTION BY DENYING PROCEDURAL SAFEGUARDSTO CAPITAL DEFENDANTS WHICH ARE AFFORDED TO NON-CAPITAL DEFENDANTS. 2.2... 0.0... ceeeee eee eee 404 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;IMPOSITION OF THE DEATH PENALTY NOW VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION. ....... 000 cece eee e eee Lecce eeeeeeeaues 408 -XVill- XXI. THE ERRORSIN THIS CASE IN BOTH THE GUILT AND PENALTY PHASES OF TRIAL, INDIVIDUALLY AND CUMULATIVELY, OR IN ANY COMBINATION THEREOF, REQUIRE REVERSAL OF THE DEATH JUDGMENTFOR A VIOLATION OF THE STATE AND FEDERAL CONSTITUTION (CAL. CONST., ART. I, §§ 7, 15 & 17; U.S. CONST., 57, 67%, 8™ & 1477 AMENDS.,). 2.0... 0c een 412 CONCLUSION ...0.2eeeee 417 CERTIFICATE OF COMPLIANCE... 2...eeeee 417 //] -X1X- TABLE OF AUTHORITIES Page(s) FEDERAL CASES Abdul-Kabir v. Quarterman (2007) 550 U.S. 233 [127 S.Ct. 1654, 167 L.Ed.2d 585]... eseeennereeeeeeeen 318 Adamsv. Texas (1980) 448 U.S. 38 [100 S.Ct. 2521, 65 L.Ed.2d 581]...ee 82, 84, 85, 88 Aetna Insurance Co. v. Kennedy (1937) 301 U.S. 389 [57 S.Ct. 809, 81 L.Ed. L177]... eeeeeeseeeeeesensreneeeees 301 Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435]... 376, 385, 386 Arizona v. Fulminante (1991) 499 U.S. 279. eecccccccssceccesestsneeeeessaeeeeseenateeesestaneecesesneeesetenesetseenenaees 233, 356 Atkins v. Virginia (2002) 536 U.S. 304 [122 S.Ct. 2242, 153 L.Ed.2d 335]... 318, 408, 409 Attridge v. Cencorp. (2nd Cir. 1987) 836 F.2d 113. ec ccceceesssnsccceceecceeseesesncnetereeteressesssseaseeceeeessseeesegerteeaneeees 287 Ballard v. Estelle (9th Cir. 1991) 937 F.2d 453. ..cccccsccccccccsessessnneceeccesececeecneneeeeeeseessesesenseaeesesesessesesensreaeeeees 186 Barker v. Wingo (1972) 407 US. S14. coe eccccccccccceceeecsnnsnnceeeeeeeressanenaaneeeeeseeesensnsnseeseseseeseeeseneeeaas 301 Beasley v. United States (6th Cir. 1974) AOL F.2d 687. ....cecccssssccccccecceeessesnsnneeeeeeeccesnsnsenssecaeceesecsessnseeeeeeseueeeneeesenenes 179 Beck v. Alabama (1980) 447 U.S. 625 [100 S.Ct. 2382, 65 L.Ed.2d 392]... 93, 108, 122, 131, 138, 143, 300, 352 Berger v. United States (1934) 295 U.S. 78 [55 S.Ct. 629, 79 L.Ed. 1314).eeeeecteeeeeeteeeeneeeeeees 158 -XX- Blakely v. Washington (2004) 542 U.S. 296 [542 S.Ct. 296, 159 L.Ed.2d 403]... 377, 378, 383, 386 Bollenbach v. United States (1946) 326 U.S. 607 [66 S.Ct. 402, 90 L.Ed.350].eeeesesneteeeeeeeeeeeeeees 258 Booth v. Maryland (1987) 482 U.S. 496, .occccccccccsccesenteeeesecsneeeeseneterseeeeseeseraeeecessaaeeeeseas 327, 332, 336 Boyde v. California (1990) 494 U.S. 370 [110 S.Ct. 1190, 108 L.Ed.2d 316]... 248, 359, 365 Bracy v. Gramley (1997) 520 U.S. 899. ..occcccccccccesssscnceetececeeseseneeeeeceseneeseseeeeteeseerenseneneaeeeeeeees 269, 271 Bracy v. Schomig (7th Cir. 2002) 286 F.3d 406 (en banc). ]. oe ceeeeeenseeeteereesteeeuaaeaeceseesecssnaaeaaeeaeeoreeess 278 Brinegar v. United States (1949) 338 U.S. 160 [93 L.Ed.2d 1879, 69 S.Ct. 1602)... eececsereeeeeeeeteeees 187 Brownv. Sanders (2006) 546 U.S. 212 [126 S.Ct. 884, 163 L.Ed.2d 723)....0000.. 130, 133, 135, 136, 137, 139, 140, 141 Bruton v. United States (1968) 391 U.S. 123 [88 S.Ct. 1620, 20 L.Ed.2d 476]...eee 211, 223, 233 Bumperv. North Carolina (1968) 391 U.S. S43. i ieccccccccccessesneeeeeeeeeesssseaaaeeceeeeseesaeeaaanaeeecesesessenaaeeerseseereeeess 204 Burger v. Kemp (1987) 483 U.S. 76 [107 S.Ct. 3114, 97 L.Ed.2d 638]...eee 93, 300, 352 Bush v. Gore (2000) 531 U.S. 98, 121 S.Ct. 525. oo icccccccccecescessneeeeaeeeeeeeeeeeesssseeeeeseeseeseeeess 406 Calderon v. Coleman (1998) 525 U.S. 141 [119 S.Ct. 500, 142 L.Ed.2d 521)...cceecseeeeeeeeees 248 -XXI- Caldwell v. Mississippi (1985) 472 U.S. 320 [105 S.Ct. 2633, 86 L.Ed.2d 231]...cece seeeeessneeerees 415 Camley v. Cochran (1962) 369 U.S. 506 [82 S.Ct. 884, 8 L.Ed.2d 70]...ecccceccccseseereeeerees 302 Campbell v. Blodgett (9th Cir. 1993) 997 F.2d 512. ...cccccccsssssccccecescsnecceceeeereesesenaneceeeeesevsasnnsnseeeeeesesessenseneteseeees 402 Chambers v. Mississippi (1973) 410 U.S. 284 [93 S.Ct. 1038, 35 L.Ed.2d 297]... 290, 292, 411, 412 Chapmanv. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824]...ee 198, 199, 202, 225, 249, 280, 294, 302, 311, 324, 337, 352, 353, 356, 362, 363, 366 Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177]... 181, 182, 184, 185, 190, 192, 217, 218, 220, 257 Cunningham y. California (2007) 459 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856)... eeeeeeseereeeerereeees 377 Darden v. Wainwright(1986) 477 U.S. 168 [106 S.Ct. 2464, 91 L.Ed.2d 144]...cece 158, 163 Davis v. Alaska (1974) 415 USS. 308 [94 S.Ct. 1105, 39 L.Ed.2d 347)...eee eececeeeeeee 257, 258 Davis v. Washington (2006) SAT U.S. 813. cccccccecceeesnetersenscetereesenaeeeesessaseeeessneeeesetssseseeeseenereness 183, 184 Delaware v. Van Arsdall (1986) 475 U.S. 673 [106 S.Ct. 1431, 89 L.Ed.2d 674)...cece 198, 257 Depetris v. Kuykendall (9th Cir. 2001) 239 F.3d 1057. .oocceccesscceccceseeeessccneeecsesscereeereessnaeecessesseeeesersensseaseeesaas 207, 355 -XXil- Donnelly v. DeChristoforo (1974) 416 U.S. 637 [94 S.Ct. 1868, 40 L.Ed.2d 431]... 94, 170, 186, 219, 352 Duncanv., Louisiana (1968) 391 U.S. 145 [88 S.Ct. 1444, 20 L.Ed.2d 491)...eeeeeeeeeeeeees 288 Dunn v. United States (1932) 284 U.S. 390, oc ccccccccccsccseccssscsenneececeeeeeeeeteesesseeeeeeeeeeneesseaeeeaeeeteesenensanes 288 Eddings v. Oklahoma (1982) 455 U.S. 104 [102 S.Ct. 869, 71 L.Ed.2d VU).eeeeeseeeeeeees 317, 403 Estelle v. McGuire (1991) 502 U.S. 62 [116 L.Ed.2d 385, 112 S.Ct. 475]... 186, 219, 359, 365 Fetterly v. Paskett (9th Cir. 1993) 997 F.2d 1295. voeeeccccececseeseneeeneeeeseneeseessaeeeeeseeeessseseteseeeneeeeseeanes 186, 248, 402 Ford v. Wainwright (1986) 477 U.S. 399 [106 S.Ct. 2595, 91 L.Ed.2d 335)...ceceeee cere ene 409 Furmanv. Georgia (1972) 408 U.S. 238 [92 S.Ct. 2726, 33 L.Ed.2d 346].eeeeeeeeeeneaes 372 Gardnerv. Florida (1977) 430 U.S. 349. oc ecccccccsncececeeseneeeerteeeeeeeeeseetseeesaaesensaeceseusesssaseeseesenieees 389 Gerlaugh v. Stewart (9th Cir. 1997) 129 F.3d 1027. w..cccccccccsccccsssceeseeceeseceeseaeeeeeeaeeessaeeseeeeeeseaesensasesesneeseaeeesaae 291 Gilmore v. Taylor (1993) 508 U.S. 333 [113 S.Ct. 2112, 124 L.Ed.2d 306]... 93, 300, 352 Glasser v. United States (1942) 315 U.S. 60 [62 S.Ct. 457, 86 L.Ed. 680)...eectseeeeeeeeeeseeteeenens 278 Gray v. Klauser (9th Cir. 2001) 282 F.3d 633. ..cceccecccccssssscccessceeecsesneeesecessnsseeseesseeceesessaaeeecessneeeeesenaterssanenes 79 -XXIli- Gregg v. Georgia (1976) 428 U.S. 153 [96 S.Ct. 2909, 49 L.Ed.2d 859].eceeeeeenetees 316, 393 Hawkins v. United States (1954) 358 U.S. 74. icecceececessneeeeesesneeecessaeecceseeaesesenseneseeseesenseeseceesneaeasesseeenags 292 Herring v. New York (1975) 422 U.S. 853 [95 S.Ct. 2550, 45 L.Ed.2d 593]...eeenetererereeeees 300 Hewitt v. Helms (1983) 459 U.S. 460 [103 S.Ct. 864, 74 L.Ed.2d 675]...ee 186, 218, 247 Hicks v. Oklahoma (1980) 447 U.S. 343 [100 S.Ct. 2227, 65 L.Ed.2d 175]... 186, 218, 247, 402 Hilton v. Guyot (1895) 159 U.S. 113. ieeeccccecssnneeeessnneeecessaneeeeseieeseeseseneneeeesecssaeeeosenenaaeess 408, 409 Hitchcock v. Dugger (1987) 481 U.S. 393 [107 S.Ct. 1821, 95 L.Ed.2d 347]... ccceccceeeeeenenees 317 Hormel v. Haverling (1941) 312 U.S. 552 [61 S.Ct. 719, 85 L.Ed. 1037]...eeeeeeeee 176, 214, 330 Hudson v. North Carolina (1960) 363 U.S. 697 [80 S.Ct. 1314, 4 L.Ed.2d 934).eeeeens 277 Illinois v. Allen (1970) 397 U.S. 337 [90 S.Ct. 1057, 25 L.Ed.2d 353]...eee eeeeeeereeeeeeeereeeeee 298 Jackson v. Virginia (1979) 443 U.S. 307 [99 S.Ct. 2781, 61 L.Ed.2d 560]... 92, 93, 94, 106, 108, 120, 122, 129, 131, 132, 138, 139, 143, 151, 189, 219, 340, 352 Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d OL. oe eeeccccccccceesseeeesneeeeeeeesesncnaaeeeereeecersesnesenesieneeeeeeeceecereeseneegaea 187 -XX1V- Johnson v. Mississippi (1988) 486 U.S. 578 [108 S.Ct. 1981, 100 L.Ed.2d 575)...ceceeee 398 Johnson v. Texas (1993) 509 U.S. 350 [113 S.Ct. 2658, 125 L.Ed.2d 290)...eeeeee 318 Jurek v Texas (1976) 428 U.S. 262 [96 S.Ct. 2950, 49 L.Ed.2d 929]... eccceceeeeeeeeeeeteeaeee 361 Kansas v. Marsh (2006) 548 U.S. 163. ccccccssssnssceeeeeeeeeeseeesecsuseeeceeeesesaaensanenseeeeesessessnaaaaaeeeesees 367 Krulewitch v. United States (1949) 336 U.S. 440 [69 S.Ct. 716, 93 L.Ed. 790]. oo... ee ccseeneneeeeereeetesesneeaaes 292 Kyles v. Whitley (1995) 514 U.S. 419 [115 S.Ct. 1555, 131 L.Ed.2d 490]... 93, 300, 352 Larson v. Tansy (10th Cir. 1990) O11 F.2d 392. occccctseccccceeeeeeeeeeeneeneneneteseeeeeeeseetiaaaaeeeessesensrenennauaaea 310 Leev. Illinois (1986) 476 U.S. 530 [90 L.Ed.2d 514, 106 S.Ct. 2056]... eeeeeeee enone 220, 224 Lewis v. United States (1892) 146 U.S. 370. .ccccccccccccccesssssssecencceeeeeeeeseeessneaseeeseeeeeceseeaaaaaaeeceeeeeeseeseenaaaea 298 Lilly v. Virginia (1999) 527 U.S. 116.eeeeter rce eset renseseseeeeeeesneneneeeneees 213, 214, 220, 224, 225 Lockett v. Ohio (1978) 438 U.S. 586 [98 S.Ct. 2954, 57 L.Ed.2d 973]. cece: 313, 317, 319, 322, 399 Lockhart v. McCree (1986) 476 U.S. 162 [106 S.Ct. 1758, 90 L.Ed.2d 137].......ccccecccseseceeeeeeeeees 77, 80 Mansonv. Brathwaite (1977) 432 U.S. 98 [97 S.Ct. 2243, 53 L.Ed.2d 140]...eeeeeeeeeeeeteee 101, 102 -XXV- Marshall v. Jerrico, Inc. (1980) 446 U.S. 238 [100 S.Ct. 1610, 64 L.Ed.2d 182]...eee 271, 272 Marylandv. Craig (1990) 497 U.S. 836 [110 S.Ct. 3157, 111 L.Ed.2d 666]...eeeeeeeeees 180 Maynard v. Cartwright (1988) 486 U.S. 356 [108 S.Ct. 1853, 100 L.Ed.2d 372)...eeeeeeeeeeeeeeeees 374 McDonald v. Pless (1915) 238 U.S. 264. cccccccccececceeeeeeeeeeeeeeeeeeeeeeeeeee teen ee eeeeeeeteeeeesedeeeeeeseneeneeeneee tea 287 McDowell v. Calderon (9th Cir. 1997) 130 F.3d 83. coccecccsscceceescneeecenneeeeecsesneeeceesnaneeeetesieeeeeeeseaeeesersnneeeeeeesagaas 258 Mills v. Maryland (1988) 486 U.S. 367. ..ccccccccsscsscccceeeessssneeesececeesesessnenseeceteecesesessesniaeeneess 394, 399, 406 Mongev. California (1998) 524 U.S. 721 [118 S.Ct. 2246, 141 L.Ed.2d 615].......... 387, 388, 392, 403 Montana v. Egelhoff(1996) 518 U.S. 37 [116 S.Ct. 2013, 135 L.Ed.2d 361)...cece 290, 411 Moran vy. Burbine (1986) 475 U.S. 412 [106 S.Ct. 1135, 89 L.Ed.2d 410]...cececree 301 Morgan vy.Illinois (1992) 504 U.S. 719 [112 S.Ct. 2222, 119 L.Ed.2d 492). oo.eceeeeeeeneeteseeaes 77 In re Murchison (1955) 349 U.S. 133 [75 S.Ct. 623, 99 L.Ed. 942)... eeeecceessseeeeceeteeeeeeeeeneanes 270 Myers v. Yist (9th Cir. 1990) B97 F.2d 417. ooo cccccceeecseeeeesenseeeeressnaneeeesesaeecceeesneeeceeeseseeeeereneeeaaees 394, 407 Ohio v. Roberts (1980) 448 U.S. 56. oeccccccccecteecceesnneeccesnnneecersenanerecseneeeeseseneeesesestsnseeeeteeesaseeneees 181 Ortiz v. Stewart (9th Cir. 1998) 149 F.3d 923. oeeeeccccccceccsessnceceeeeeeeeeeseenneneeeeeereeseseesaeueeeneeceseeseseeneeneaeaees 186 -XXVI- Parle v. Runnels (9th Cir. 2007) 505 F.3d 922. .ooccccccccccccccceeeceteteeseeeteeeeeeneensnernsenaeaeasaeueseeeessees 290, 292, 411 Payne v. Tennessee (1991) 501 U.S. 808 [111 S.Ct. 2597, 115 L.Ed.2d 720]........... 328, 332, 333, 336, 362, 394, 412 Pennsylvania ex rel. Sullivan v. Ashe (1937) 302 U.S. 51 [58 S.Ct. 59, 82 L.Ed.2d 43]...cesseee eseeeeeeaeereeeeeeee 316 Penry v. Lynaugh (1989) 492 U.S. 302 [109 S.Ct. 2934, 106 L.Ed.2d 256)...ceeeeereeeee 318 Pointer v. Texas (1965) 380 U.S. 400 [13 L.Ed.2d 923, 85 S.Ct. 1065]...ee 185, 219, 298 Presnell v. Georgia (1978) 439 U.S. 14. iccccccccccccccceceeceeencnceeecesteessaeeeesentesteaaaeaeeaeeeeeeteeeteeneenssneneeese 389 Pulley v. Harris (1984) 465 U.S. 37 [104 S.Ct. 871, 79 L.Ed.2d 29)...eeeeee eeeeees 368, 396 Rice v. Collins (2006) 546 U.S. 333 [126 S.Ct. 969, 163 L.Ed.2d 824].eeeceeereeneeee 257 Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 553]... 377, 388, 406 Rose v. Clark (1986) 478 U.S. 570 [106 S.Ct. 3101, 92 L.Ed.2d 460]...es 271,272 Ross v. Oklahoma (1988) 487 U.S. 81 [108 S.Ct. 2273, 101 L.Ed.2d 80]...eee 90, 407 Santosky v. Kramer (1982) A55 U.S. 74S. iocccccccsccssscnceeesessecseeeeeeesesesecneaeeceereseseeessenenntegaee 388, 390-391 Skinner v. Oklahoma (1942) 316 U.S. 535. iciccccccccccceenseeeecsseeeeeceseeeeseaeeeceesaaaeeseeseenaaeseeeesenaeesenseneees 404 -XXVIi- Skipper v. South Carolina (1986) 476 U.S. 1 [106 S.Ct. 1669, 90 L.Ed.2d 1]...eeeeeeseeneneenees 317, 332 Speiser v. Randall (1958) 357 U.S. S13. cieeececccccceecceseneeneceeeeessesnaneeeeeeceneeteenesnneesereseseneseaeeaeeeuegenenee 389 Spivey v Zant (5th Cir. 1981) G61 F.2d 464. ooo. cceccececceesnneeeesenaeeceesenaneereeecensereesesenteesessaeeeseseseneeeenee 361 Stanford v. Kentucky (1989) A492 U.S. 361. eeccecceccesssneceeeeeneeecersneceeesesneneeseeeseeeceessneeeseesseeeeeentnsenenes 407 Strickland v. Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674, 104 S.Ct. 2052]... 177, 178, 215, 268, 330 Stringer v. Black (1992) 503 U.S. 222. ooecccccceesececeeceeeeeeeceeeeneneeeeeeeeeeeeeeeseeeseeetenteneneneneeeeneseseeeeess 402 Sullivan v. Louisiana (1993) 508 U.S. 275 [124 L.Ed.2d 182, 113 S.Ct. 2078].....0..... 198, 203, 204, 208, 209, 225, 234, 249, 259, 280, 284, 366 Taylor v. Hayes (1974) 418 U.S. 488 [94 S.Ct. 2697, 41 L.Ed.2d 897]...cece ceeeeeseteeeeeenees 279 Taylor v. Kentucky (1978) 436 U.S. 478. ooecccccccccccccceeeseseeneeeteeereensnsnaeaeecesseepeeseessseneeseseeee 284, 290, 411 Thompsonv. City ofLouisville (1960) 362 U.S. 199 [80 S.Ct. 624, 4 L.Ed.2d 654]... eeeeeeeeesneeeeeseteeeneees 94 Townsendv. Sain (1963) 372 U.S. 2938, ec cccccccccccccseeceeeeceeeeeeeeeseeeseeeeeeeeeeeseceecereeeeeeeceseseeetereeneeseeseseeas 393 Tuilaepa v. California (1994) 512 U.S. 967 [114 S.Ct. 2630, 129 L.Ed.2d 750]...eeeeeeeeees 373, 374 Turner v. Louisiana (1965) 379 U.S. 466 [85 S.Ct. 546, 13 L.Ed.2d 424].0eeeeee ee eeee 270, 271 -XXVili- United States v. Bernard (9th Cir. 1980) 625 F.2d 854. oecccccccccccseseesescnseeeeecsceceesneteresieeeeceesesuaeaeeessnaaeesensesessesen 247 United States v. Booker (2005) 543 U.S. 220 [543 S.Ct. 220, 160 L.Ed.2d 621]...ee 378, 379 United States v. Brown (D.C. Cir. 1972) 461 F.2d 134. occcccccccccccccstecenceeeeeceeseneeeeeeceesesaaeaaaaaeeseeeeeeessnseneaaeeeeenenees 102 United States v. Brown (D.C. Cir. 1987) 823 F.2d S591. oe cccccssesccceecceessesneeeeeeesesesncnceeeeeeeeeeeenensessaseatecereereesaaaaea 286 United States v. Canady (2nd Cir. 1997) 126 F.3d 352. .oeccccccccccccceesneceeceenneeeteenseeeesseeeecesseeseeeeseesageueseeeaeeeeete 309, 310 United States v. Carroll (6th Cir. 1994) 26 F.3d 1380. ....ceccccccccccccceesneeccceeeceeeeceseneeeeeseeeeseaeasnicerenaaeeeseesesssaaeeesereess 291 United States v. Davenport (9th Cir.1985) 7153 F.2d 1460. ice ciccccccccccsecsssesseeeceeeneeeseeneeecesnnaeenecenteeeaeeceesaeeeeessaneteees 170 United States v. De Coster (D.C. Cir. 1973) ABT F.2d L197. eecccccccecstceeecseeneeceessenecensnneeesessneessceseeseneeeesseeecerenaeeeees 177 United States v. Gagnon (1985) 470 U.S. 522 [105 S.Ct. 1482, 84 L.Ed.2d 486]...eeees 298, 299 United States v. Grayson (2d Cir. 1948) 166 F.2d 863. ...cccccccccccccccecssnecaeeeeeeeececseseeeceeeeceessaaeesnieecaaaenereeseenantaceeetenees 170 United States v. Harrison (9th Cir. 1994) 34 F.3d 886. .....cccccccccccccccccsseceeeeeeeseeseseseeeeeeeseeesaaaaasaeeeeeaeeeeseneecnauaeeeeteees 203 United States v. Marques (9th Cir. 1979) 600 F.2d 742. ooo. ccccccccccccesscecnceeeeeeeeeeeeneeeeeereceesaaaeesseseneeeeesensnensnneaeereeeess 288 United States v. McCoy (7th Cir. 1993) BS F.3d 495. i. cccccccccccsccccecssseeesessneeeeeseeeessseeaeeeeseeeeeaeecseaaaeseeseeseeseseeeeeneed 299 United States v. Miller (9th Cir. 1976) 546 F.2d 320. oo.ceeecccesccccesseesceeeetsseecessecesseeecssaecesneaaeessaeeeecsseeesceesensessneness 247 -XXIX- United States v. Sacerio (Sth Cir. 1992) 952 F.2d 860. 2.eeeecesceceeseeeesneeeesseetenatesessecerssesesseseeeseeneesesaneeeeeaes 115, 116 United States v. Sheldon (Sth Cir. 1976) 544 F.2d 213. ec iccccccccccssseceesssteeceeesneeeeceessntecessneceeeseeseesnueeesessnseeeessnsaneeees 270 United States v. Shryock (9th Cir. 2003) 342 F.3d 948. .ooceccccccccccsssssnsceeeeeessecsesneeeceeeceesensesnsanseeeaaseeseseveseessnanseeeess 159 United States v. Simtob (9th Cir. 1990) 901 F.2d 799. ooo eeecccccccesseeecrecseeecesensceceessaeeeseeesnateseesseeseueaceeessaneressneeerens 291 United States v. Smith (9th Cir. 1977) 563 F.2d 1361. ...eeeccccccccsccceceseeeeceeseneeeeceeseneecesenseaeeseesesesneesesseseeseeesetaeres 102 United States v. Symington (9th Cir. 1999) 195 F.3d 1080. 0... eecccceceeesenceesneeeeseeeeesaeeeesseeeeesuseceseessesseeeeceseseessnsesensaes 288 United States v. Thomas (2nd Cir. 1997) 116 F.3d 606, ooo... cececcsececcecsccccseneeeceesnanerersesarecessneseceeeeeeesseeeeetseneneass 287, 288 United States v. Tucker (9th Cir. 1983) T16 F.2d 576, coc cccccccccccccccccceseneeeeeeeeeeeeeeeeeeeeeeeeeeeeeee sees et ee sun ad Geen see ea aa eanaaeeEeaa 178 United States v. Wade (1967) 388 U.S. 218 [87 S.Ct. 1926, 18 L.Ed.2d 1149]...ceeeeeneeeeeeeres 101 United States v. Wallace (9th Cir. 1988) 848 F.2d 1464. oo cccccescsceecceeeseseeesncneeesceeresesessnaneceeeeaaeeseseseseensesseeaeeeess 291 United States v. Young (1985) 470 U.S. 1 [105 S.Ct. 1038, 84 L.Ed.2d Lp.cececeeeerreeeeneees 271 Uttecht v. Brown (2007) 551 U.S. 1 [127 S.Ct. 2218, 167 L.Ed.2d 1014].eee 69, 78, 89 Wade v. United States (D.C. Cir. 1971) AAL F.2d 1046, oo... ccccccssnnecececeeeresseeesnneeeeeceeeereeereeetensnsaaaaueeseserseneee 310 -XXX~ Wainwright v. Witt (1985) 469 U.S. 412 [105 S.Ct. 844, 83 L.Ed.2d 841)... 67, 68, 70, 73, 76, 77, 78, 79 Walker v. Deeds (9th Cir. 1995) 50 F.3d 670. ....cccccccccceccceesessneeceeeeseeeeeesesennsesaeeeserensensseeaaeesesseseesnanaaaaaeeesens 186 Walters v. Maass (9th Cir. 1995) 45 F.3d 1355. coecceccccccccccccceessenneceeeeeeeceeeeseeeeseseneeeeeeeeeennssenteeeeeeseseeeteneeneaaes 187 Walton v. Arizona (1990) 497 U.S. 639 [110 S.Ct. 3047, 111 L.Ed.2d 511)...eeeeeeee tree 377 White v. Illinois (1992) 502 U.S. 346 [112 S.Ct. 736, 116 L.Ed.2d 848]... 94, 108, 122, 131, 138, 143, 352 In re Winship (1970) 397 U.S. 358 [90 S.Ct. 1068, 25 L.Ed.2d 368]............ 249, 362, 389, 390, 391 Witherspoonv. Illinois (1968) 391 U.S. 510 [88 S.Ct. 1170, 20 L.Ed.2d 776). 0... ceccceceeeeteeeeneees 77, 78 Woodson vy. North Carolina (1976) 428 U.S. 280 [96 S.Ct. 2978, 49 L.Ed.2d 944]... 316, 362, 391, 400, 412 Yates v. Evatt (1991) 500 U.S. 391 [111 S.Ct. 1884, 114 L.Ed.2d 432]... 247, 253, 259, 364 Zant v. Stephens (1983) 462 U.S. 862 [103 S.Ct. 2733, 77 L.Ed.2d 235].eee 362, 400, 412 STATE CASES Alvarado v. Superior Court (2000) 23 Cal.4th L121.ceceeessscsecreeeeseceseesersensnesssseseess 159, 160, 164, 166, 167 -XXX1- In re Anthony P. (1985) 167 Cal.App.3d 502... ccccccsscecccnereecetecceececensnnneeersenenaeaseseseasseaeueeeuseneess 258 In re Bolden (2009) 46 Cal4th 216... cccesesscecnseeeenecsceeeeeeeeeeeeeeeesessnsssssseesssaseaeesnenerseeeeaees 256 Buzgheia v. Leasco Sierra Grove (1997) 60 Cal.App.4th 374. oo. cccccccccceessnneesecreeeeseesenuaeeeesesseeesensuseeseennees 207, 365 College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704. oo cceccsssssssscncececcersssaeeeeeeeececeeesensesssnaeaeeesoseensesesseeseneess 197 Conservatorship ofRoulet (1979) 23 Cal.3d 219. cccccccccccsssececeesenseeseneeeeeeessaceneeeseessneeseteseesesenseeeeeneeesaes 390 Cooperv. Superior Court In and For Los Angeles County (1961) 55 Cal.2d 291. .ecccccccccccccessesesessaneeeceteessseneeesaeeeeeeeetensesereeseeeeeeseeeeeseeeeneees 271 In re Cortez (1971) 6 Cal.3d 78. ...ccccccscssccccceceseeseesennnceeeeeceesenssgneeeeeeeeeesesseseeseesseaeeeeseseeeepeersnnanees 79 In re Courtney S. (1982) 130 Cal.App.3d 567. .....ccccccccccsescneecesseeeceeseeneeesecsesseeneseesseeeeeeesenaeeeeeenanes 279 Eramdjian v. Interstate Bakery Corp. (1957) 153 Cal.App.2d 590... ccccceecsceceseereseneeereeteeteesaeessnseresssesessaeeeessseeeesseees 350 In re Ferguson (1971) 5 Cal.3d 525. eeccccccccccccccssssssnsnceceescesssneeeeeeeeeececetessesesssnauseneccsesesessenpenaaees 158 In re Gomez (2009) 45 Cal.4th 650... cccccccccccccssseeceeesnneecessncececcesesseeeeeeesssseuaeeesseeraeeeeeseses 70, 405 Green v. Southern Pac. Co. (1898) 122 Cal. 56. .ccccccccccccccccccecceeceeseceeceseeeceeeceeseseeceeeenaueceneaaaaessnansneeseresesescoesees 329 In re Hall (1981) 30 Cal.3d 408... cccccccceessssnsecececersessncaceeeeesececerenseesneaseeeaeeuseseceeeerensnaea 178 In re Hardy (2007) Al Cal.4th 977. .....cccccccsccccccccccesssncenceeeeesseesessacnuscianeserseesscosneesenrsneeseaeeeaeeess 110 -XXXIi- Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627... ccccscececerteetereneeeeseeseseerstiaseteeteseetennennessenaaaea 349 Louis & Diederich, Inc. v. Cambridge European Imports, Inc. (1987) 189 Cal.App.3d 1574. ...cccccccccccccccccccessnsieeeeeteeessensenieeeeseeeeeneeseannnneneeseeeaes 350 In re Marquez (1992) 1 Cal.4th 584... cccccccccccseeeceeeeeeeeeeeereesetseneteeeeeenenereeceeteeeeeeeeeseeeeeeeeeeaaa 412 McGeev. United States (D.C. 1987) 533 A.2d 1268.....ccccccccescceessssnseeeeeseceeeeeseeeceeeenneeeeeeenteateetsenenentessesseeaees 145 Patterson v. San Francisco etc. Railway Co., 147 Cal. 178 [81 P. S31).ceceetrneeeerereeeeeertnsaseeseseeseneneenraaeeeaaas 351 People v. Abilez (2007) AY Cal4th 472... cccccccccccccccceececcneeeeeeeeeeeeeeeeeeeeeeeeecesaneeeesseeeseesneneaeeaaaaeees 78 People v. Adcox (1988) 47 Cal.3d 207. ..ccccccccccccccccssssssscscneeeeeeeeesesesaeeeceeeeeeeeeeneenenaeeteseseeeeseneeeneneees 372 People v. Albertson (1944) 23 Cal.2d 550. oo ccccecceeneecnenereeeeeeeeeeeneeeseeseseeeseestieaenseneeteesteneeee 164, 169 People v. Allen (1978) 77 Cal.App.3d 924. .....cccccccccccesssscccceesnesersceteeeetensneseeesesaeeesensnenseeers 168, 169 People v. Allen (1986) 42 Cal.3d 1222. icceccccccccccssccccccccsneeeeeecenseeeeeenaeeecessesneeeeeeesiaeeeeesteenneseneeeees 381 People v. Anderson (2001) 25 Cal.4th S43... cccccccccccccccenceeeeenaeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeneeeeeneeeeeeeeeteneaaeea 384 People v. Antick (1975) 15 Cal.3d 79.icecccccccessnceeeeesescaeeeeesssseeesesnaeeeceecessneeeeessnseeeeeeeseatereneeeed 329 People v. Aranda (1965) 63 Cal.2d 518. oi cccccccessscceecneeeeeeceeseeenceeeeeeseeeceseseenenaeeeeseeereesees 211, 223 People v. Arguello (1966) 244 Cal.App.2d 413. .....cccccscesssscecccceceeeseeneeeeeeeseeeeseseesessaeeeeeeseeeeseteenenees 335 -XXXili- People v. Ashmus (1991) 54 Cal.3d 932. oo. ecececsscccceceeeeesnsncnneceeeeeerenssnieteeeeereseseessssneneseeereneneesages 163 People v. Avila (2006) 38 Cal.4th 491.ccccecccccccecceeseeeesenaeeeeceeeeesencneeeeeeserseseesesaaaneeeesesereeanea 89 People v Bacigalupo (1993) 6 Cal.4th 857. oo. ccececessncccceeeeeeseeseneneeceseesenessnceeeeeeeseeseseesneeneeeneneeesegea 370 People v. Barton (1995) 12 Cal.4th 186.0... eeccscceesssteeceeessnneeeeeessneeresseeeeeessnaeeeeesseseeereseeneeeene 241 People v. Bean (1988) 46 Cal.3d 919. oececeeesnenereeeeeeteesesesneneeneeesereeessaasaeaaas 94, 106, 120, 129, 132, 139, 151, 352 People v. Beeman (1984) 35 Cal.3d 547.iccccceccssscececceeeeeeseeeeenaaeeeeecesenesnsniereceeseseseseseneeiseeteeneeeeey 125 People v. Bell (1989) 49 Cal.3d 502. oo... eeeeccccccesssecceeensneeeecesenceeeesensneeseresuaeecesessseneeesesssaesesensagees 162 People v. Belmontes (1988) 45 Cal.3d 744. cc ccccccccccsecceceeeeecscecceeeeaeeaeceaeaeeeneececserereesaeaeaeaeaeacaaneaeenneaees 322 People v. Benson (1990) 52 Cal.3d 754. cccccccccccsssssnecececeeesseceesesneeeececeseeseeneaneeeeseeseesesesesssaenaeeeeeess 163 People v. Bentley (1955) 131 Cal.App.2d 687. ......ccccecccccesecececeeececceeeeeeceeereeerereeesesesetens 158, 171, 172 People v. Berti (1960) 178 Cal.App.2d 872. .....ccccccccccsssccceesesceeceesecneeecssestereresessneeesesesiaeeeeeeenaates 350 People v. Bevins (1960) 54 Cal.2d 71. cieeccccccccccccssesssnecceceeeeeeseeeennneeceeeceesseescueeeeeeccesessensnsensnaaaaeeeees 242 People v. Bittaker (1989) AB Cal.3d L046... ccccccccccceeeeeceeeneeeceeancasaeeeeeeeeeeeseessaneeeseeseueaaaeanaeaoes 373 -XXXIV- People v. Black (2005) 35 Cal.4th 1238.oe ccceessceceeceeereeseeeeseeeesesssaaueeeseeeseeseseenensssaaeaaas 382, 383 People v. Bonin (1988) 46 Cal.3d 659. ..cccccccccccccccccsssneeeeeceecesneeceneeeeseesesncaseeecensereeeeteseenpesnineeeerees 163 People v. Bonner (2000) 80 Cal.App.4th 759... cccceccseeceeeeeeseeeeseeeneneseeesessseeeseeneeeerers 116,117,118 People v. Boyd (1985) 38 Cal.3d 762. o...ccccccccccccccsseccssscceeesenteeeeeceseserensenaceesesessaeeeeesesesaaaeees 351, 359 People v. Boyd (1985) 38 Cal.3d 765. ..ccccccccccscccccccssssseceeececsssseeeeeeecesecesesneaeeeeeeeeceeecesenssaaeaseeesesens 401 People v. Brady (1987) 190 Cal.App.3d 124. ..cceccccccccccesennencneeeceeseesessneeeaaeeeseseetersenenenas 207, 355 People v. Breverman (1998) 19 Cal.4th 142. oo ccccesescecceeeeeeesneeeeeeeeseeeeeessneseeesenteeseseseeseeeegas 241, 319 People v. Briggs (1962) 58 Cal.2d 385. oecccccccceceessssneceeeeeersneeanaeeresssssssaasseceeseseseecoseveraesaaeeeseeess 291 People v. Brophy (1954) 122 Cal.App.2d 638. .o.ccccccccccscccccecesesseseseeeeceeeeesenssaagaeeseeeeteeeeteeessianaeeess 168 People v. Brown (2003) 31 Cal.4th 518... cccceeeeeeeeeeeeteeeeeeeeeesneeeresersenneeees 181, 185, 219, 223, 233, 241, 359 People v. Brown (1981) 116 Cal.App.3d 820. .o.cccccccccccccccccnseececeeeeeeeceeeeeeeeeeeeeeaeeeeaeaeeaeaaeeeseeseneaeea 334 People v. Brown (1988) 46 Cal.3d 432. oo cccccccccssteeeeseeseecseceenerersneceeeeeesseeeneesensenaees 302, 362, 380 People v. Brown (1988) 46 Cal.3d 432. .occcccccccceccccesseceeeseeeeceeessneeesecneerecesseneneeeeeeeesaeseeeseeeeeesees 412 -KXXV- People v. Brown (1989) 212 Cal.App.3d 1409... eeccccccccccccecseessncceeceeeeceeeeecesnenneneeetecesseseestageeneess 144 People v. Brown (1985) AO Cal.3d S12. ic ceccccccecsssccessscteeeeeesneeeesseenentseresseaneeseessieasessensaeeeeneenegegs 381 People v. Burgener (1990) 223 Cal.App.3d 42. .oc..cccccccccessneeceessnceeerescenneresesesseeesesesnsetesesseesenaeeeeaees 170 People v. Burnett (1993) 12 Cal.App.4th 469. 0... ceccccccccccesssesssneeteececeeceseseessaaaaeeeseceresensessegeneaeaess 281 People v. Burney (2009) AT Cal.Ath 203.00... ccccecccsccsceeessnneecesesneeceessenneeeeesessteceesensneseesseseeersessanees 333 People v. Burnick (1975) 14 Cal.3d 306. oo... cecccceccecsceccceesnneeeeeseceeeeerseneneeeceesnaaeeeersnsaserersenssseseeeseaes 390 People v. Cabrellis (1967) 251 Cal.App.2d 681. ......eccccceccseseccesesneceesestsneeeeeesseeeeereesateeteeneaness 158, 161 People v. Camarillo (2000) 84 Cal.App.4th 1386. 0... ceccccccessnctectesssnteeeceeeesseeeeeesssseeerssseeessesenenees 159 People v. Carey (2007) Al Cal.4th 109.oiiecccccecessnceceerenseeeeeeesenseeeseenseseeeetensateeessaseueesesengs 246 People v. Carmen (1951) 36 Cal.2d 768. ...ccccccceceessssscceceeseeeeessescneneeseeeeeecesersesssnseaeseeeteesesseeeeaaees 145 People v. Carpenter (1997) 15 Cal.4th 312... ..ccceeccsccecessssneeceesseneeeseesenceeceesesseeeetensseeerseesanees 241, 401 People v. Cervantes (2004) 118 Cal.App.4th 162.0...eeeeenseeeeneeeeeeeneseseesecesneeeesseeceesseeesteaeeeses 192 People v. Champion (1995) 9 Cal.4th 879.ccccccccccsssseccecesneceeeseseeeceesesenreeeereesaeeeeeseeseeerseseseseeeeeeneeees 79 People v. Chance (2008) 44 Cal.4th 1164...eeeccccccceeeeeeceenseentneneneeeaeeeeeeseseeesesseees 144, 145, 146 -XXXVI1- People v. Clark (1990) 50 Cal.3d 583... ceccccecccceeeeeeceneneeeeeseneeeeetceeaeaaaaaeeagaeaaesaaeaasaeaneeeeeeeeeeaeaeees 329 People v. Cleveland (2004) 32 Cal.4th 704. ....cccccccccccccccccccceeeesessencaeeeeeeeseeaeeeeaeeeeeeeeesesesaeeeeeeeenes 66, 401 People v. Coddington (2000) 23 Cal.4th 529... cecsscsececeeeeeeeeseseseeeeetesssnsaaeaaeaeaes 177, 274, 276, 400 People v. Coffey (1911) 161 Cal.433. oo. .ccccceeccccccsscteceeessneeeeeeesnseeecseeeeeeessiaesesesestaneresseneeeeenenenaaaes 240 People v. Coffman and Marlow (2004) 34 CalAth Loi ccecccsssccceeceeeeeeeceesneaeeeeesecseceneeeeeeeeeeeeseeeeeteeeeeesers 191, 242 People v. Colantuono (1994) 7 Cal.4th 206... ccccecssscccccccceeccesssnnnnaeetereesensseaaaanaaeateceterssseeeeeeseceeeeees 144 People v. Cole (1952) 113 Cal.App.2d 253. ....cccccccccccccccccceccssssnecceeeeseeetncnaaaeaaeeeeeeeenennereeeenes 274, 276 People v. Collins (1968) 68 Cal.2d 319.i cecccccssssccesesnceceeeessneeecesneeeeresneeecersessseeteetenseerseeeneeeeetess 292 People v. Cook (2006) 39 Cal.4th S66...cccc ccc ccecececeeeeeeeeeeeeeeceaeeeseeeeceeeseseseeeeeerereieneeeeeteeeeeess 250 People v. Coria (1999) 21 Cal.4th 868... cccesscccccecceeccessesnceeeeeceesesnaasnsnaaaeeeseeeessseeseeeeeeseeees 125 People v. Cortez (1998) 18 Cal.4th 1223.ecccccceceeeccesesenseeeeeteesesneaeaeeeaeeseeeeseenes 108, 109, 110 People v. Cowan (2010) 50 Cal.4th 401...eceeeeeeeeeeeeeeeeeenenaeaeneaeeaeeeneeeees 302, 311, 324, 329, 333, 337, 356, 360, 363, 366 People v. Cruz (2008) 44 Cal4th 636. eccccccccccccccccccccccceeeeeeeeeeeeeeeeeeeeeeeeeseeeeeuseeeeeeeeseeeeseseceeeneeaeanes 401 -XXXVII- People v. Cunningham (2001) 25 Cal.4th 926... ccceccccccsssccecesnerececscneeecesseeceeeseseeeeeseessseeeesesseseeesesseaeeeesenees 78 People v. Dagnino (1978) 80 Cal.App.3d 981.eceeececcessseeeeeesseeecesenssseerenersesuesecesseeneessrsseeeesenss 300 People v. Daniels (1991) 52 Cal.3d 815... .ccccccccccsssecceesnnceeesesneeceesaererecsuaneeeesesesneetecesesserenssseeeesees 349 People v. Daniels (1993) 18 Cal.App.4th 1046. oo... ccceccccecceeeeseeeeeeeeereeereeeereresesseesuseaueneceneeeeetaes 149 People v. Demetroulias (2006) 39 Cal4th Lee ccecccceecceeceeecceeeeeeeeeseetentereeereseeseseceeeeeaeeees 381, 394, 405 People v. Dickey (2005) 35 Cal.4th 884. oo ccccccccccecssssnceecceeeesesseneetereteresseeeeseenaaaaaeeeeegeecersneeaaeaaenes 382 People v. Dillon (1984) 34 Cal.3d 441... ieee ceecesteecesenereeeeessneeesensneeeeessnsnseeesesseessasenersesneeseseagaes 370 People v. Drolet (1973) 30 Cal.App.3d 207. ......cccecccsccccceceteseesnenecetereerersassaaeaeeuenseeeseeeeesssseueeeeuees 350 People v. Duarte (2000) 24 Cal.4th 603.0... iecccceeceseeceseneeeereessaeeeeessneeeseesesseateees 189, 193, 197, 219, 222, 223 People v. Dyer (1988) A5 Cal.3d 26. oo... cccceccccesssseeceeeeseseecneeceeeeesensnannaneeeesereeeeseeseceesesnesseeeeeeeeeeees 372 People v. Dykes (2009) 46 Cal.4th 731. .....ccccccccccccccssesssnceeeeeeeesseeneeeeseceeeeeesersessnensaaaaueeeeeeesiea 257, 373 People v. Edelbacher (1989) 47 Cal.3d 983.iiecccscceessceceeessneeseessneecensneeeeresssseessesseeseenenseesnees 369, 399 People v. Engelman (2002) 28 Cal.4th 436... ccccccsccsssscnececcceceeeesececeeeeceeeeeeeeeeneeaeneeeeeeeseneseneeeseeenees 286 -XXXVIlLI- People v. Ervine (2009) AT Cal4th 745. oc ccccccceceseesecceecceeeesneneennneseaseeseseneseeesceeeneseesessneeesneaseenes 373 People v. Escarcega (1974) 43 Cal.App.3d 391. oo eeccecceeeeeeeeenesensnseeeceeesesenneesseeseeeeseneessenenieeeeees 144 People v. Fain (1983) 34 Cal.3d 350. ....ccccccccccssssscccesssneeeeceseeeesesessneneesssaaeeeeessaeeeeeesessaeeeeeesssaaeees 148 People v. Fairbank (1997) 16 Cal.4th 1223... cccccsccccsseceeccessceeeeeecesnnaceserssaeecessnseeeeeesessaeeeesersnaaeees 376 People v. Farnam (2002) 28 Cal.4th LOT... ccccccccccccceceeeeececeeeseeeeeeeeeeeeeeeeeeeeeeeeeeeeneeeeeeeeeeeeeeneeeeseeess 380 People v. Fauber (1992) 2 Cal.4th 792.ecccccceeeereesssecceeeesneeeeeeeseessseeeeenbreeeeenneseeseneeaaaeeee 77, 393 People v. Feagley (1975) 14 Cal.3d 338. ....ccccccccccccccssccesessneeecsenenneceeessencneesesneeeeesensaaeeeesenseaeeeseeaaes 390 People v. Figuieredo (1955) 130 Cal.App.2d 498. .o...ccccccccccccccesteeeeeseesenetecsenereeseenaeeeeees 161, 168, 169 People v. Fitzpatrick (1992) 2 CabApp.4th 1285.eeceesccecessseeeeeeessnceessessaseeeesssgeeeeesesaaeeseesesgaanes 241 People v. Flannel (1979) 25 Cal. 3d 668. occcccceessenccecceeeeeersneseensneaeseeceeseessessaeeeeeeeseseseeseenesaeeeeeess 145 People v. Fletcher (1996) 13 Cal.4th 451. ccccceccssscecceceeeesssnessnaneeeeeeeeesessanaaaeeceeeeeeceteeseeteniseeseess 211 People v. Fonseca (1995) 36 Cal.App.4th 631. 2... eeceeeeeseneeeeeeseeeeeeeeeseenesenensssseeeeceseeeeeeeeesereeees 279 People v. Ford (1983) 145 Cal.App.3d 985. ....cccccceccccessnecsseceesesseeeeeseecteaeeeseseeersenaeeesnneeersseesteas 118 People v. Frazier (2001) 89 Cal.App.4th 30...cence eee ce renee eeeteneeeeseesenseaeesseeesenesseneeeeeees 207, 355 -XXX1X- People v. Friend (2009) AT Cal4th Leecccccccccssesnececsesneeesesneeeessaneeeecessnneeeeesssaeeeesesageeeesesseeeeere 158 People v. Frierson (1979) 25 Cal.3d 142.iececescsccecccceesesenaceeeeseseesenencneeeeereeeresersssueeeeeeeesoeeseneeges 178 People v. Fusaro (1971) 18 Cal.App.3d 87... .ccccccccccccccceceeeereeseeeeeeeeeseseseeesereseerererseseneesessesseneeees 162 People v. Garcia (1984) 159 Cal.App.3d 781. .....cccccccscccccececsessnneceeeeseeeseenenaseeeenereressessaeaaeeseseneenenes 144 People v. Garrison (1989) AT Cal. 3d 746. oc. eccccccccccccscnsecesecceeeeesnseeressnnetecesseseeeeesesaeeeesenssnaeeeeneeegens 13] People v. Gibson (1976) 56 Cal.App.3d 119... eccccccccceceeessseneeeessseeeesanceeeeeeeseeseeesessneneateeseeneseregeas 169 People v. Gomez (1957) 152 Cal.App.2d 139. .....cccceccssccccccceessesneeeeeeeseesessnsneeeeeseseseeseeesnneesneseeeseenes 168 People v. Gordon (1973) 10 Cal.3d 460. 0... cccccececscsscnnceeeeeeseeesneeecesererereeesaaaaeaeeeeseseeeeeserseeaeeenes 247 People v. Guiuan (1998) 18 Cal.4th 558... cccccccesescsssccecccessesseececeseeeseesneneeeceseeeeesensnernaaaaoas 243, 256 People v. Gutierrez (2000) 78 Cal.App.4th 170. 0... cceeesseecesreeesereressesctesseeesseeessesesessseeesesaeesensaes 196 People v. Guzman (1988) 45 Cal.3d 915. ....ccccccscccccccccccessssssnceeecessenneceaeecececeseeeseenaaeaeeeetecerenene 206, 354 People v. Hamilton (2009) 45 Cal.4th 863. ......cccccccccccccccceesessssneeeceesessenacneeeeceseceseesecsnsnniaseeseseseseneepenenyes 69 People v. Hamilton (1963) 60 Cal.2d 105... cccccessessssnceeeeceeeecseeeeceeeeeesesenensaaneeeesereeseseeesesnaeeneaeds 412 People v. Hamilton (1989) 48 Cal. 3d 1142.icccceccscscncceceeeeresanneeeeeeeeeeesensnesncenenecaeeeseeesessesnenanas 399 -xi- People v. Hardy (1992) 2 Cal.4th 86. ....ccccccccccccccccccccceceeeeeneeeeeeeeeeeeeteeeeceeeeeeeeeneceseeeeeeeeteeteeeetenesaei 373 People v. Haskett (1982) 30 Cal.3d 841. .ccccccccceeeeeeeeeeeeeeeeeteeeeeeeeeeertneeeeeetereeeerteeseeenerseseseeseeaea 165 People v. Hawthorne (1992) A Cal.4th 43... ccccccccccccceeseeescnsecsecneeeeseeenieetecaeesseeesesseneenenaaseaes 191, 380, 395 People v. Hayes (1990) 52 Cal. 3d 577. cecccccccccccccscesscsnececeeeeeeeestenneeeceseeeesseneeesninassadaeeseeeeseeeenaaeaaaes 412 People v. Heard (2003) 31 Cal.4th 946.oeeecccsseeceeeeceeeeseesneeeesesesereseeerenseeeeeeeeess 85, 86, 87, 88, 89, 90 People v. Hill (1998) 17 Cal.4th 800.0...eee eeeseeeeeeneeseeseeerenseceseeeeeneeereeeeneesees 157, 158, 268, 274, 291,411 People v. Hillhouse (2002) 27 Cal.4th 469.cccccccccscecceerenseneeeseneeeeeeeesnaeeseeeeesaeeeeeeeneaeesegeeaaeeeee tee 371 People v. Howard (1987) 190 Cal.App.3d 41. oecceeee eres eter eter ernie rene tiseeseseeneeeesenneeeeennete 178 People v. Jackson (1996) 13 Cal.4th 1164.0... cccccccccceseecseeeesenteeeesesenecereessesaaeceseessseeesesnnaeeseeeeeed 353 People v. James (2000) 81 Cal.App.4th 1343.occcccceeeesssteessceeceseetreeseesssesneueeesneeaneeeea 207, 364 People v. Jenkins (2000) 22 Cal.4th 900... cccececceseeesencneeeeeeesseneceeeeeeteeseseseneenesseeeeeeeeeeeeneeneeeees 165 People v. Jennings (2010) 50 Cal.4th 616... ceccccscssecnseceeeeeeesssneeeceeeeeseseeceresenenssesteeeeseeeeeeeenagaaees 360 People v. Johnson (1980) 26 Cal.3d 557.ieccesesseeeeeseeeeeeereeesssseeeseeeeneeneeeseeeeeaanes 91,92, 107, 121, 131, 138, 143, 339 -xli- People v. Johnson (1981) 121 Cal.App.3d 94. ieecccccsseeccessnerecetstsnsereresseeeeesssaaeeeecesnneeeetenieeenene 168 People v. Johnson (1993) 6 Cal4th boi ecceccceceececeeeeseeeeeeceeeeeeeseeseeeeeeeceeeneenereeererereresessceserersenenees 301 People v. Jurado (2006) 38 Cal4th 72...ec eecssceecceesessesnctererecseeseeeseensasoeeeesenees 109, 110, 112, 114, 115,119 People v. Kaurish (1990) 52 Cal.3d 64. ....cccccccccccssssceccessnscceccsnerecersssnneeesessseseceessnateeesessessesesentereeeenas 81 People v. Kelley (1977) 75 Cal.App.3d 672. ....ccccccceeeeeeeeeeeeeeeeeeeeeeeereeeeneneneeeneeeeseseseseeseeseseseeeeees 158 People v. Kennedy (2005) 36 Cal.4th 595. ccccccccccccecseceeseceeseeeeeceeeereeceeeereneresesesecsescessessereereenesenegs 159 People v. Kipp (2001) 26 Cal.4th L100... cccccccccccceeecssessncnneeeececeeeeesensaaaneeeeseeseseseeseesneeeseeass 271 People v. Lancaster (2007) Al Cal4th 50... ccccccecceccceeeereeereneeeseceeaeeeeeeeeenenesseasueaeaeseaegeeeeeaesaeaea 353 People v. Lawley (2002) 27 Cal.4th 102... ceccccccccsesecceeeeeeeeeeeeeeeeeeeeeeeeeeeeeneeeeeeeseeeseseeneeenes 221, 246 People v. Leach (1975) 15 Cal.3d 419.iccecccssnsceceeeeecesseseesnsneeeeseeeerenenseguaaaeeseseeeeetesssneeseenes 223 People v. Ledesma (2006) 39 Cal.4th 641.cccceccsccecccecceeeteeeensnaceeserereeseneensaeaeeaeesesseeesnesneneaneeens 132 People v. Lee (2003) 31 Cal.4th 613... ccccccccesnncecessssneteerevsnneeeesesseeeeceesesaseeterssseeseseeesenees 125 People v. Leonard (1983) 34 Cal.3d 183.cc cecceccsssscceceeeeceseeensnneeeeeececereresssnssnaeeeceeesecnsesesseseaseeees 277 -xlii- People v. Letner (2010) 50 Cal.4th 99.iceeccsssccceeeceeessssseeeeeeeeeessessaeeeeeeeseeesseseseanaeeeeaneees 323, 360 People v. Lewis (2001) 26 Cal.4th 334. occcccccccceeececeeeeeeeseeteeteeseeseeeeeeeeeeeenenes 243, 246, 247, 250 People v. Lewis (2008) 43 Cal.4th 415.cccecceeeeeseteeeeeeeeeeeteeseeteeseneserenenes 190, 193, 312, 319, 320, 360 People v. Lewis (1990) 50 Cab.3d 262. .cccccccccccccssssnceeceeeceesecnncneeeeeeeeseesieaeeeeeeeeeresensen 179, 216, 331 People v. Lewis and Oliver (2006) 39 Cal.4th 970... cccccccccccccceceeeeeceeeeteceeeeseseeeeseesesseseseesesseeeeeeeeceeeseeeeeeeres 333 People v. Lochtefeld (2000) 77 Cal.App.4th 533... .cccccccccesnseceesesneeeeessnneeesesseteseessseneeeeesessaeeeeeeres 146, 148 People v. Long (1907) T CalApp. 27. ..ccceccccccceeeeccetecetetececeeeeeee ee tine neenenniseaeeseaseeeesseseeseeseseeesenerteres 113 People v. Lopez (1999) 71 Cal.App.4th 1550... ccescceeecsnsceeecesnneeseessneeeesesessaeeecessssaaaeeesensaaees 279 People v. Lucas (1995) 12 Cal.4th 415... cccccccccccccccssneeeeeenneeeeesnaaeeesesaaeeeeeseenseeeeeessenaeeerseeaeees 322 People v. Mahoney (1927) 201 Cal. 618.cece cccceeeeeceeseneeeceseeeeeneeceseeeeseecessatesesseeeseeeeeesessaeees 282, 283 People v. Majors (1998) 18 Cal.4th 385.0.ccece cereeseteeceennneeeseesaaeeesssgaeeeeeneeaeeeeee 179, 216, 331 People v. Malone (1988) AT Cal3d Loccccccccccccccccccccceeecenenseeeeeeeseesscneeeeeeseeseecenennaaeeeeseeeeeeeeeesessnsasaees 277 People v. Marshall (1990) 50 Cal.3d 907. ..cceccccscccccceesssssecceeeeeeeseeeeneneeeceecessssaaaaeeeeeeeseeeeeseneetenaneseetess 397 -xlill- People v. Marshall (1997) 13 Cal.4th 799.ieceessseeeceeeerenenceeeeeecerseseesesecaeeeeseseseeesnaseseneeeseneeeea 138 People v. Martinez (2000) 22 Cal.4th 106... cccceccccsssseecceesnneeecessneeeecersssnseseessssneeeessees 190, 193, 220 People v. Martinez (2009) AT Cal.4th 399. oo iicccccsssseeceststceseeeneereeseeseneeeccesseneeeesesneaeeesessnatess 69, 70, 80 People v. Martinez (1986) 188 Cal.App.3d 19.0...eee eeeeeeeeeneeeseteneeeeetesessereenerreeeeeeseeenee nee 206, 355 People v. Matlock (1959) 51 Cal.2d 682. .....ceccccccccccccceceeeseseeeeseseeseseeeeeeeeeeseseeetereerteners 94, 122, 200, 227 People v. Matteson (1964) 61 Cal.2d 466.iccececcesccccceeeeeesessneneseeteetessenennanaeeaecesessenspneuseneesereeneee 233 People v. Mazoros (1977) 76 Cal.App.3d 32. .occcccccccccssscececresnecccesseneeeecesseaeeceessaeteeesnsnssessensseeeness 163 People v. McCoy (2001) 25 Cal.4th LLL Loccccecssscccceecessesneneeecceeeceseeessnnenanereseeeressegaeuaeanenseeens 124 People v. McDonald (1984) 37 Cal. 3d 35. ....ccccccccccssesceecessneeeeesessneereressneeecessesecaeeseessateeeetessaresseaseeaeeess 102 People v. Mearse (1949) 93 Cal.App.2d 834. ......ccceccsccccccecceseessnneecececeeeeeeeesnsnesnantecesesessesanaaeeeeneners 148 People v. Melton (1988) M4 Cal.3d 713. ...ccccccsccscccccccessescncececeecesecessnensesenececeeeeeeesesnaaeereerestensneaagaaaes 275 People v. Memro (1995) LL Cab.4th 786... cccccccccececenceeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeseuneeseeeseeteeseeeeeenes 400 People v. Mendoza (1998) 18 Cal.4th L114.ccccssscccccceceesssesssneeeeeeecerereseseensuneeeeeeetentenesenaaeaeas 124 People v. Miceli (2002) 104 Cal.App.4th 256. ......cccccccccccccccceessesnencseeeeeeceeeeeeeeenssnaeeereeteneesessnenaeeess 146 -xliv- People v. Montgomery (1911) 15 Cal.App. 315. 0...eeee reece ereeneeeserseasauaaseeeeesseeeeesseneesssssseeseeeeeeeneeee 149 People v. Montiel (1994) 5 Cal4th 877. ...cccccccccccsssccesssnceeeecsesssecessceeeceeeeesesesesetecetesssneesensanieeereeteeed 401 People v. Morante (1999) 20 Cal.4th 403.0... cccccccceeseseseececeeneeeessneeeceeseeeeeeseseceeaeeesanes 109, 112, 122 People v. Morris (1988) 46 Cal.3d Le .ceccccccccccsscccceeseeceeeeeeeeeeeseneeeressueeeceseaaaesessgaas 93, 102, 118, 128, 340 People v. Morrison (2004) 34 Cal.4th 698... ccccccccceeeteeeeeeeeeseeeeescaeneaaaaeeeesaeaaeeeeeeeaeeeseeeaesaueeeeaeeeees 401 People v. Murtishaw (1981) 29 Cal.3d 733. cccccccccccccccseseceeecesneeeceenareceesaneeecssqcageeeseessnaeesesnieeeessosssiaaee 334 People v. Najera (2008) 43 Cal.4th 1132... ccccccceccccceeccceeeceeeeeeeeeteeeesseeeeeeseeeeeseseseneneeeeeeees 242, 245 People v. Naverrette (2010) 181 Cal.App.4th 828. ooccccceceeessssceeeeeceseeseeensseeeeseeesernssseeeanags 167, 233 People v. Nicolaus (1991) 54 Cal.3d S51. cccccccccsscccccccccecseecessceeeeseseceecneeseeceeeeteneeeeeeaeaseserseeeteeneeeees 373 People v. Ochoa (2001) 26 Cal.4th 398.0... ecececececececceeeeeeeeceeesteeeeeertesseneeteneneeerenenegs 68, 73, 78, 299 People v. Ochoa (1998) 19 Cal.4th 353... cccccccscccccssssececesssneeeceesneeecesseeeeseessaneeeseeseseeseesesseeeeeenes 353 People v. Olivas (1976) 17 Cal.3d 236.ieeeceeessncecneceeeeeeeresseeeseneeesssaaeesseeseeseseceenaaaeeeteneeseeeees 404 People v. Ortiz (1995) 38 Cal.App.4th 377. ....cceccccceceeeceeeeeeeceeeeeeseteaeeeeeeteneeeeeeettenneeeeenees 189, 193 -xlv- People v. Ozuna (1963) 213 Cal.App.2d 338. ......cceccccccccceeccesssneceecesesessnsnececeeeeeerersensnsnsaeasenss 168, 169 People v. Parrish (1948) 87 Cal.App.2d 853. .....cccccccccsccccessnneeceeseeteeteesceeesessaneseeseessaaes 116,117, 118 People v. Parsons (1984) 156 Cal.App.3d 1165. oo... ceeceeesescceeeeeeessestnenereceeeosensesseessssneeeseseeeneages 163 People v. Pearch (1991) 229 Cab.App.3d 1282. ......ccccccccccccceeeesssceeceeseeeenensaeneeeseeeeeeeeseseenssneegerseeees 209 People v. Petznick (2003) 114 Cal.App.4th 663... cccccccecssnsecesenneeecessneeeressnsaeesceesensneeeeteesseseneegea 110 People v. Pinholster (1992) 1 Cal.4th 865... ccccccccccceeceesceneeeeeceeeeeeeecnenesesesnscnsnteesereerereseseseesseerseeeeess 196 People v. Poggi (1988) 45 Cal.3d 306. .....ccccccccccccccsssssseecceecceesseseneeeeceeeseesnsssnanecansasesesestenereea 188, 194 People v. Pollock (2004) 32 Cal.4th 1153.0... eeecceessceseceecesneereseseesaseceesesecscesecsesseesensseeeensesesaeess 333 People v. Pope (1979) 23 Cal.3d 412. eecccccccccccesssesnceecceeeeeesennneteceterersenssaauaneenes 177, 178, 179, 215, 216, 268, 330, 331 People v. Prettyman (1996) 14 Cal.4th 248.ccccccssssececeeeesesssnneeeeceseesesssaaauaaneeeeeeaeeeeseseseenerenesess 124 People v. Prevost (1998) 60 Cal.App.4th 1382... ceccccecsescecessneeceeseesneeeceeessssnaeeesessssseesseeneeeees 113 People v. Price (1991) 1 Cal.4th 324. oo cccccccceccececeeeeeeeeeeeeeeeesesnsssannsrsesssnsreesssseeseveesecceeeereereeneses 163 People v. Prieto (2003) 30 Cal.4th 226. 0... cceccecceeceeeeeeeeeeseneeteseetensenessneaeaaenenes 110, 382, 384, 404 -xlvi- People v. Quartermain (1997) 16 Cal.4th 600. 0.0... cccceccccsccteeeeceeeeeeseneeteeeeeeeeeeseeseasaeueesueeeeeeteneneeeeees 203 People v. Redmond (1969) TI Cal.2d 745. ccccccccccccccccccsnseceeeesneeseeeeeneeeseeseeneeeeseneeeeteessneeeseneneaeeeees 93, 340 People v. Reyes (1974) 12 Cal.3d 486. ......ccccccccccccecccssceeteneeeeeeeeeeereseeetenteteteeeseeneege 93, 106, 119, 128, 340 People v. Rhodes (2005) 129 Cal.App.4th 1339. .....cceccceseeeseeeeeeeseteesentettesesesseesteaeeeseeeeee 207, 365 People v. Robertson (1982) 33 Cal.3d 21. iccccccccccccccccsscceescseneeesseceeeeeceesteneecensenseceesesnsaeeeseessaaseestenaeess 352 People v. Robertson (1989) AS Cal. 3d 18. cccccccccsecsceeeceeeceeeseeeuseeeeaeaesassseseseusseneeess 301, 302, 324, 337, 356, 366 People v. Robinson (2005) 37 Cal.4th 592.i ccccccccscceececeneeeseeeeneeeresesteeeseeseseeeesneseuseuteneseeeeensaatas 373 People v. Rocha (1971) 3 Cal.3d 893. .occccccccccessneeceteseeeeeeeeeseeeeeeeetesieeeeeniaseeseneeseeseneneeenes 144, 145 People v. Roder (1983) 33 Cal.3d 491.icccccccccseecceeseeneeeeeeeenaeeeeeceeneeeesseseeeeesenesgeeeeenenees 206, 354 People v. Rodriguez (1999) 20 Cal.4th Loecccccccesceeeeeesneeeeeesessnteeesesseeeeeteneteseene 92, 143, 146, 148, 151, 199 People v. Roehler (1985) 167 Cal.App.3d 353. ....ececccccsscceceeceeeeeeteeesseaeeeeeeeeeeceeessaaeeaseneeesenenaaase 241 People v. Rogers (2006) 39 Cal.4th 826. ......ccccccccccccssccceesenseceseeseneeeeeeecsneserseniteeeseseesneeeeeseeeresenaatees 393 People v. Rowland (1982) 134 Cal.App.3d Loeeeececcssncecceceeeeeeeeessesneeeeeeseeseseensnseaateesesesenteaeerenes 128 -xlvii- People v. Rubalcava (1988) 200 Cal.App.3d 295. ......cccccssssccccceccssssneceeeeeseeeeeesessneeeeeteresensessgaeeeeenenerenee 303 People v. Russo (2001) 25 Cal.4th 1124. oocccccccssscececceessssececeeeeeeeeeesevecneneeseeseesseseensnsnraeesesees 108 People v. Sakarias (2000) 22 Cal.4th 596. icccecececcsscnceeecceceesssneeeeerersseeeeeeneaseneaes 198, 223, 249, 280 People v. Samarjian (1966) 240 Cal.App.2d 13. oo eeecccceseeseeecceseeeeeeesiseeseesensssecennesneeestesaeeesesenaenees 350 People v. Samuel (1981) 29 Cal.3d 489. oo. ccccccccccccssccceceessneeeersieeeceseseeeeeceressesseseeeeneaeensees 91, 339, 364 People v. Sanders (1988) 203 Cal.App.3d 1510. ..ccecesscecessneeeceseneeeesessesseseeensssseeesesesseeesessnenaeees 270 People v. Sanders (1995) 11 Cal.4th 475... ccccccccssssncecccecersesieceeeeerereeseesssnaceeessecersesseeeesnsaaananenes 281 People v. Santo (1954) 43 Cal.2d 31. .ecccccccccccccccesssssscntecececeseeenenneeeeceeeseeesseneeeeeeeneeeeeeseespeeeeaaneeetes 245 People v. Schiers (1971) 19 Cal.App.3d 102. i.eeeeccsseecsceeeeereeeeeeeesnteeeeeessieeeserseenanees 161, 168 People v. Schmaus (2003) 109 Cal.App.4th 846, 0... eeeseesnscessssseesseceecssseeenseneeeseesessereseneueeeennes 224 People v. Schwartz (1992) 2 Cal.App.4th 1319.eecesceeeseeesesseresseesecseecessseeeesseeeesereeeeeneeeeny 150 People v. Scott (1978) 21 Cal. 3d 284. .occcccccccccssssesnseececeeeestssnneeeeeeesesscessepecsseensseees 176, 214, 330 People v. Seijas (2005) 36 Cal.4th 291... ccccscseccesssnceeeessneeceesesseeeeecessesseeesssessaseeseeneagees 190, 220 People v. Sengpadychith (2001) 26 Cal.4th 316... cccccecececenseeeeesesseeeseesseeeetssseseueeessenaes 198, 249, 352, 362 -xlvili- People v. Smith (2003) 30 Cal.4th 581.ccececeeeeeeeeerenetereeseereeneseeneeeseaeeeeneee 328, 332, 336 People v. Smith (2007) AO Cal.4th 483... ccccccccecceeeceee eee eee eee ee cece ee ee teen eeeeeeeeeeaneseeseeeseeeeeeeenaeaia 167 People v. Snow (2003) 30 Cal.4th 43.ecceeccesceeeccceeeeeerersiseeeoeesosestsseesesssseeaeseeeneeeeseaneees 382, 404 People v. Stanley (1995) LO Cal4th 764. oc. cccccccccceececeeeeeeeeeeee cere cece cere eee seats sede ean aeedeseeeseeseeeeeaaueeeees 92 People v. Stein (1979) 94 Cal.App.3d 235. wo... seeneeeeeeeneee te tesee eter reeeneeeseeteneseeeneeeeeeeeeneeas 350 People v. Stewart (2004) 33 Cal.4th 425.ccc ccccceececeeeeeeesieeteseseneeseneneeseeseeseseeneee 67, 69, 78, 81 People v. Stratton (1998) 205 Cal.App.3d 87. ....cceeeeccceeeeseeneeecetseeeetetnenseeseseseseeseeeseeetena 179, 216, 331 People v. Sturm (2006) 37 Cal.4th 1218...cceeeeeeceeerseseneeseeseeeseeseeeeseeeaas 266, 267, 268, 270, 280, 281, 284 People v. Superior Court (1982) 31 Cal.3d 797. cccccccccccccccssecceecesessteecceseeeeeeseseeeeeeeeseaeeaeesosnaeeeesseaeeeeeeerees 370 People v. Swain (1996) 12 Cal.4th 593.0... cecccccseecceesenceeeeeneeeseeereeneesesseasaeseaeeesecssesessaseneaeess 109, 110 People v. Sylva (1904) 143 Cal. 62. ...cccccecccccccceeceeeesnceeeneneneeeeeesnsnnsceeneseeeeeeenenseseneeatees 143, 146, 148 People v. Tate (2010) 49 Cal.4th 635... cccccccccccccceseeeesesssnacceeeeseeesesnceeenenaaeeeeeeeseersnsaeeseseeeeseerseeess 336 People v. Taylor (2001) 26 Cal.4th 1155... cccccccccssesssenceeeeesesenecnneeeeeeeeeeeeeteeeesetsaeeeeeeeeesseeeseeeees 320 -xlix- People v. Teale (1965) 63 Cal.2d 178. ccccccecesssccececeesesseccncceeeeeeseesesnenaeeeceeeeseessesnnsneuieeterseseaaees 201 People v. Terry (1970) 2 Cal. 3d 362. ...ccccccccccccccccsssssssceecesessesessssceeeeeseeesesessnaceeeseceeeceeeseseeseaeeeesnees 266 People v. Tewksbury (1976) 15 Cal.3d 953... eecscccccessnccccsssneeeceenseneeetensieeeceeseneeeeseseeeaeesecesenneeeenesenenea 249 People v. Thomas (1977) 19 Cal. 3d 630... eeccesesseecesssneeecesssneeeessssneeeeeserensereessesesessaseesenseneeeesensea 390 People v. Tidwell (1970) 3 Cal.3d 02... ccccccccccccessesenceeceeeeeeeseseessceeeeteecessesesseaeeeeeceseoteetensssseeeeeenene 270 People v. Tobias (2001) 25 CalAth 327... ccececcccceseceeseeeeeseeeeteceeeeeeeserseesererenseneenees 240, 242, 243, 245 People v. Trevino (1985) 39 Cal.3d 667. .cccccccccccsssncccceereseeeeeeenneeeeceeeeseversnnsessesesesseseeee 106, 119, 128 People v. Valdez (2004) 32 Cal.4th 73. ....cccccccccccccsscececseseeecessseeneeceessnneeeecsnsneeeeesessneeesersessssseeseneeess 165 People v. Valdez (1985) 175 Cal.App.3d 103. .....cccccccccccccsesssesseseeeeeeeeceesenerenceeeeeseeseeseesenseseees 145, 146 People v. Virgil (2011) 51 Cal.4th 1210. oo... cccccecssscccccceeeseeeessneeceeeeceeesessssncneeeeeeseceeeeseseenerseaeeeesees 297 People v. Von Villas (1992) 11 Cal.App.4th 17... eccccccccccccccesesseessaneeeseseeerersnsssauaeeaeseeseeseeseeesseeeeeeenss 291 People v. Wagner (1975) 13 Cal.3d G12. ccccccccssnsneccececeececeeeessaeeeeecceeeessesnsneneeeeeeeeceesesseesengeaneeess 292 People v. Walker (1988) AT Cal.3d 605. oo... .ceecceccccecccseecceesntneeceessseeeeeressneceeeesaeeeeeeeeesnateretenseeeeseeeea 373 People v. Ward (2005) 36 Cal4th 186... ccccccccessnneeereeesneeeeeseneeeeeeessneeeeesseeseeeeeseressesesneneaeas 247 -l- People v. Warren (1940) 16 Cal.2d 10...cccccceee settee tree eet eeeee terete nnn ener neesenieeeeereeereneneneneeees 242 People v. Warren (1988) A5 Cal.3d 471... cecccccceccceccessssensneeeeceeesescneeeeseessesssseaeeeaseesesesensessestaneeenees 161 People v. Watson (1959) 46 Cal.2d 818. .occcccesesesceeceeceeeneeeceeeeeeeceeeeeeteteeteesneneneeess 197, 198, 199, 225 People v. Wharton (1991) 53 Cal.3d 522. ...ccecccccccccccsscceesenseeeeeeeeeceessneeeersiaceeeresasueeeeesessnaeeeesesaneneesees 165 People v. White (1958) 50 Cal.2d 428. occ ccccccccccceceeeeceeeeeeteeeteeeeeeeeaeeeessnesenteneeteserseteeterseseneness 158 People v. Wickersham (1982) 32 Cal.3d 307. ....cccccccccccccecsesetseteeeeeceessessneaeeeesesessesseeeseeeueeeesesneeepeseasesenees 241 People v. Williams (2001) 26 Cal.4th 779. ....ccccccscsccccccssssessnscececessesesnaeeceeeeeesseeeeeenaeeeeeeeeeessessncnaeeetees 144 People v. Williams (1971) 22 Cal.App.3d 34. c..ceccceescecsteesesneceseeseesestietesteaeeseseseetesseuesesaeseenseeseegs 209 People v. Williams (1988) A5 Cal.3d 1268. ....ccccccccccccccccscsencnensnsceeeeeceeseeeeeceseeeeeeeeeesaeeseesaaeeeeaaaaaaaaaaeaaa 245 People v. Williams (1997) 16 Cal.4th 153... cccccececsssenaceeeeeeeeseeeesneeereeeesessassssaaeneaseereeeseneesneaees 164 People v. Wilson (2008) AA Cal.4th 758. ..ccccccccccccccesscececsssneecsssseceesseeeeeseseeeeseeestesaneeneneaas 70, 76, 89 People v. Wolcott (1983) 34 Cal.3d 92. ccccccsccccccssececceesseeceeeseeeeeesseeeeeseceueeeeeeetenseeeeeees 143, 144, 145 People v. Wright (1990) 52 Cal.3d 367. ...cccccccccccccccceteeeeeeeeeeeeeeteeeeeeseessenseeseessgeeeeeeeseeeeeetereeeeeetersenees 300 People v. Yeoman (2003) BL Cal.4th 93. ccccccscsecccceceeeeeeeeeeeeeeeceeeeeeeeeseeeeseeeeeeeueeseeeseceeeeeneaes 177, 215 -li- People v. Young (1978) 85 Cal.App.3d 594.oecceesssessesesecnsecncereeerneeseeneensseeeeeneneeesaseanenseseeeeeeeeees 277 People v. Younger (2000) 84 Cal.App.4th 1360... eceeeesenceeesnneeeeeenseeeeerseseeeseensnenseesensnaes 207, 355 People v. Zammora (1944) 66 Cal.App.2d 166, .......cececesccccceeesesesneeeteeesenseseenseaeeaeesocessesnueeeeeeeseeeninea 283 People v. Zapien (1993) 4 Cal.4th 929.iccccceeceseessneeeceeeseeenaceeeeeeeteseeesesseaeeeeseeerenee 243, 245, 250 Reese v. Smith (1937) D Cal.2d 324. ..eeccecccccccccccssscsnsceeeceeeeceesneeeeeeeeeetecresesneaanaeeeeesenseseseeeeeeanees® 351 In re Robert E. (2000) 77 Cal.App.4th 557... eceeeesessseceeeecesenteceeeeseseesseeeseeeeeeaeeseesneeseseaeeeeneeenes 279 In re Sakarias (2005) 35 Cal.4th 140... cccecccccceesneceseseneeetennaeeeeesseseesensessesesenaas 222, 223, 224 Shamblin v. Brattain (1988) 4A Cal.3d 474. oececccccccccccccssssessnecceceresessneeeeseeeeeseeeeesaauaeseseeeesesenenneeeaaeeeseese 79 Showalter v. Western Pacific R.R. Co. (1940) 16 Cal.2d 460. oo... cccccccesssnceceeeeesencneeeeeeeeseneneerensaeeeueeeerensessneeeeeeseseeeeees 194 State v. Bobo (Tenn. 1987) T27 S.W.2d 945 ecccccccccccccsssecssncececereeseeeneeaeeeeeeeeeecesesneauaeaeeeenerenensseseeeeaaeens 398 In re Sturm (1974) V1 Cal.3d 258.icccccccseessnececeeereressneeeeeeceseseseeeneseeseaseeeseseeseeeanaes 393, 394 Taylor v. Superior Court (1970) 3 Cal. 3d 578. ...cccccccccceccccecceeeeeceseeeeeeeeerseseeeretesssesseseneveeeseres 94, 122, 200, 227 Weiner v. Fleischman (1991) 54 Cal.3d 476. i cccccccccccsssscsnececetesecencneeceeeeceeseetenseceenseaeceseseeseesssneeeseseenas 209 Westbrook v. Milahy (1970) 2 Cal.3d 765. cecccccccccesesseeceessnseceesnscesessesnesecceserreeeessessesaseseseeeseseeaaeess 404 -lii- STATUTES AND CONSTITUTIONS Cal. Const., art. 1, § 7..ccccccccceeeeeeerereeeeeeeeeeaaeaaeeaeseseeeeneanneeesesteeeesseeea passim Cal. Comst., art. 1, § la.ceessscscccsneeeeeeeeneeseneceneeneeeeseeeeeeeeneeeeeeeeenes passim Cal. Const., art. 1, § LO... ceesseesenenenseeeeeeeeeeeseaeasaeeeeeeeeaeseaeaeessseaeeeneeea passim Cal. Const., art. 1, § 17...cccccceeseseeeececeeeeeeeeeeaeneseneaneeeaaaeneseseoueaeeeea passim Cal. Const., art. VI, § Ll...ccc eccceeeeseeeeeeceneeeeeeeeeeeeeaeeeaaeaaaaaaaseeeeeeeeeeaaaaeaenenens 7 Evid. Code, § 353. cccecccccceeecceeeeesenneeeseseseetetensseseeseeuseesesseeeeseseeeeente 215, 330 Evid. Code, § 402. ......cccccccccccececeseeeenneeeeeeseneerenseeeeseeseeeeseseessnsssensisessssssneagaeaes 196 Evid. Code, § 411. cecceeccccceeeeetneeceseneeeeseteneuetenneeeseeeeseeeesenseesseeseneeenaes 102 Evid. Code, § 770.. ....ccecsccscceceeteeeeseeseneeeeeeteensessaeseeeeeseeeseeeeesseuteateneeeeeeesesagaes 191 Evid. Code, § 780. .......cccccccceceeeeeeeeeeeeteeeeeereteeeeetenenentaressseeseesesesseereieseeeeeeeeenes 256 Evid. Code, § 1200. oiecece eeesesereseeceeesssseeerenersaeeeeeeens 189, 190, 192, 193, 219 Evid. Code, § 1223. ...ccccccccccccceccccceceeeeeeeeeeeeeteeeeneeeneeecsteeseneeeeeseeeeneneeteeteeneaess 110 Evid. Code, § 1230. ...ccccccccccscceccccssneneeeesneeeeeesenaeeeseseesneeueeseneaesasensuenaes 220, 223 Evid. Code, § 1291, subd. (8). 0... eeeeecesesnneeeceseneeeeeeesnaeeeeeetesseestesaaseeeeeeseaas 190 Pen. Code, § 31 o..ccccccceccccceseeeeeeeceeseseteeeneneneeesenensegeesesseeeesesenesseseseneeseeeeeeeeees 124 Pen. Code, § 136.1, Subd. (C).... ec cccessccnetserereeeesceanaaeneeesesceeeeeneeaaaeneeeseaea 2,118 Pen. Code, § 182, subd. (a)(1). 2... eee cccceeeesseseseneeeeeeeeeeeeeeeneneaaeeeeeteeteeeeeeenaaes 112 Pen. Code, § 184... ccccccecsesceccereseeneeesesneeeesessnaeeeeessnssassseetsessseoesnaaeseresesaaes 108 Pen. Code, § 187, subd. (a)... eeecceecceeesesssnsneseeseeseeceesensensaseeeeeenerse passim -liii- Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. USS. USS. US. USS. Code, § 189... ccceeceesesessnneeeeeceerssssnaeetceeeceeeresenernsnaeeeseeteeeerens passim Code, § 190.2, SUB. (a)... cccccccssneeeeeeeceeceeteterereeeeeeees 2, 130, 131, 137, 138, 375 Code, § 190.3... cecccccsseeeceeeeeeeeesesssseeeeececesensauaaenertenetenanerersseees 351, 375 Code, § 21 Liv. cccccccccssssseccceneeeeccceenaeecesenaeesceceaseeeaageeseeaeereeees 1, 2, 235 Code, § 240... ecccceccccccnesesecceecuececceeneueessceeaeneeeeeaeetsensnereetauseseeeuaenaees 144 Code, § 245, Subd. (a)... ceeeseccercreneeeeceeeeeeeescerecerereesueneuenaa 1,2, 147, 173, 338 Code, § 417i... eccccccscccccccnssesecececeeseceeneeaereceonsareceeeneeeeeuseeseeueerensenenaeneess 144 COde, § 654... ccesceeseceeeececcccaceueeeeeeesseeeceseeeneuenseeseceeaaaaeeeessessneeusueeegneneees 4 Code, § 977, Subd. (D). Loo ccetsteeeeeeeeeeeeeceeneneneereesseseeneneeeseuees 299, 301 Code, § LULL.ececccccceeeeeaeteeteeeesececeseneeaeeseeesessueauaenessenseaeea 242, 245 Code, § 1239. ccsscsscscnsecceecceeceeeeeseccseeececeeeeeceeseeeeananeneesseeeessaeeaeneneraeea 7 Code, § 1259. ieeeeccesecececeeeeeaneeeeseneeeeesseseneeneeseseeeaes 240, 241, 319, 359 Code, § 12022.5, subd. (a)(1). ccssssessssssseseesssssseessssssssseeeseessssevessessssssseneees 3 Code, § 12022.7ecccccccssssssssssssssessesessesssssssnisessvesessesenssssnenstsessessisessuneneesseee 2 Code, § 12022.53 0... ccccccccccscnnneeeteteeetereeceeeeeneeseeeseegeaeseesesseaenagensereneseega 2 Const., S™ AMeNd.. ....ccccceccccsscsscsseescesseseeseceseeseeneecsesaeeneeeaeensetereeeess passim Const., 6" AMENd.. ....cceccccccsccsscsscesscsscseeeceseesececesseeaecnsesaeenseeereeeeess passim Const., 8" Amend. ....ccccccccesccsscsscescesseseesecseccseeeeeseeeceseenatenseeeeraetaes passim Const., 14" AMEN... .ccccecccceccssceseeseesecsscseeseeeneeseecesecseeeeeneetartats passim -liv- MISCELLANEOUS /// 5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989). ...cceccccseesseeeesseeteees 280 CALJIC No. 2.90......cccccccccccecceceeeeeesencceeeteeeeesessssanaeuaeeeeeseeesseeeeeaes 358, 360, 363 CALIJIC No. 3.1 Leccccccccececcceeeesneceeseeneeeeeesneeeeesesseaesteeseesesessensenenes 243, 244, 245 CALSIC No. 3.12. ....ccccccccceeccnceceeeeeeeeeeeeceeeeceeeecesesesssnsaeessseeeeneepeaaes 243, 244, 245 CALIIC NO. 3.13 ...ccccccecccecscccceceeeeeeeseeeeneeeeeeeteteessnsgaeeasaeeesenseeeugeeas 243, 244, 245 CALJIC No. 3.16. ccccccccccccccccsseeeeescsaeeeseceeeeeeseseneaeeseesneaeeseseseauesessneeseeeeengags 244 CALJIC No. 3.18 ..c..ccccccceccccceccseeeceeeenaceecsnsneaeeesessssaeteeseeseeeseessanees 239, 245, 246 CALIIC NO. 6.24. .cccccccccccccssssccccceeeessccecseeeceseecerseensenadeeceeseeseeseneneeseaeeseneged 110 CALIIC NO. 8.84. .cccccccccccccccccsseseeeesseeeeeeseseaaeeeecseeeneeseeseeeseeeetesaeeeenaseseseueeeseees 358 CALITIC No. 8.84.1 .cccccceccccccccssneeeceeeceneeetensaaeeeseesssesaeetesseeseseseeeeeeeeenngs 357, 358 CALIIC No. 8.87 .cccccccccccceccceeseseeeceeencneeseentneeeseseneeeeesssessusteseeeeseneeeesseceeaes 361 CALJSIC NO. 8.88. .....cccccceccsscccececeeeereeseneeeeceeecesossesnsseneessueeneess 336, 372, 380, 386 CALIIC No. 17.41 Lice ccccccccccccceceeeseesesceeceeeeeeseennensaeaaeseseesoesesssesnaneaueess 285, 286 Levine & Tapp, The Psychology of Criminal Identification: The Gap From Wade to Kirby (1973) 121 U.Pa.L.Rev. 1079... ecceceessseeeeeeeenseeeenaes 101 Stevenson, The Ultimate Authority on the Ultimate Punishment: The Requisite Role of the Jury in Capital Sentencing (2003) 54 Ala.L.Rev. 1091...... ence cece ee eecn eee e tees cece ed eH DLLME AEE EAHS DEEDES ESE GGAEGH EASE A DED EEELESSGEEGGES Cee BESS EDEEEAE ES 387 -lv- No. S095076 IN THE SUPREME COURT OF CALIFORNIA THE PEOPLE, LOS ANGELES COUNTY SUPERIOR COURT Plaintiff and Respondent, Superior Court Case Vv. No. BA189633 RICHARD PENUNURI, Defendant and Appellant. ON AUTOMATIC APPEAL FROM A JUDGMENT AND SENTENCE OF DEATH Superior Court of California, County of Los Angeles The Honorable Robert W. Armstrong, Judge Presiding APPELLANT?’S OPENING BRIEF STATEMENT OF THE CASE On October 25, 1999, the Los Angeles County grand jury returned an indictment against appellant and codefendants Joseph Castro, Jr., Arthur Bermudez and Alfredo Tapia.' (CT 1:1-9.)’ Appellant was charged with second A fourth defendant, Alejandro Delaloza (aka Hondo and/or Snoopy), wastried separately in a jury trial that ended priorto the start of appellant’s trial. Delaloza was convicted of robbery of Shawn Kreisher and Randy Cordero (Pen. Code, § 211; counts 1 and 2, respectively), assault with a deadly weapon on David Bellman (Pen. Code, § 245, subd. (a)(1); count3), 1 degree robbery of Shawn Kreisher and Randy Cordero (Pen. Code, § 211; counts 1 and 2, respectively), assault with a firearm on Carlos Arias (Pen. Code, § 245, subd. (a)(2); count 3), first degree murder of Brian Molina, Michael Murillo, and Jaime Castillo (Pen. Code, §§ 187, subd. (a), 189; counts 4, 5 and 7, respectively), and conspiracy to commit murder of Jaime Castillo (Pen. Code,§ 182, subd. (a)(1); count 6).’ The indictment alleged two special circumstances, multiple-murder (Pen. Code, § 190.2, subd. (a)(3); counts 4 & 5) and witness murder (Pen. Code,§ 190.2, subd. (a)(10); count 7), and alleged that appellant personally used a conspiracy to commit murder of Luke Bissonnette and Carlos Arias (Pen. Code, § 182, subd. (a)(1); count 4), and the first degree murders of Michael Murillo and Brian Molina (Pen. Code, §§ 187, subd. (a), 189; counts 5 and 6, respectively). (CT Supp. VI, pp. 1170-1184.) 2 Referencesto rules are to the California Rules of Court. “RT” designates the reporter’s transcript and “CT” designates the clerk’s transcript, in the format “volume:page.” 3 Codefendants Castro, Bermudez, and Tapia were charged with the first degree murder of Jaime Castillo (Pen. Code, §§ 187, subd. (a), 189; count 7) and conspiracy to commit murder of Jaime Castillo (Pen. Code, § 182, subd. (a)(1); count 6). It was alleged in connection with count 7 that Castro was a principal in the offense and at least one principal intentionally and personally discharged and personally used a firearm, proximately causing great bodily injury, within the meaning of Penal Code sections 12022.7 and 12022.53, subdivision (d). The indictment also alleged the special circumstance of witness murder (Pen. Code, § 190.2, subd. (a)(10); count 7) as to each ofthe codefendants. Finally, codefendant Bermudez was charged with dissuading a witness from testifying (Pen. Code, § 136.1, subd. (c)(1); counts 8, 9, and 10). (CT 1:1-9.) firearm in the commission ofthe offenses charged in counts 1 through 5, inclusive (Pen. Code, § 12022.5, subd. (a)(1)). (CT 1:1-9.) Appellant entered pleas of not guilty to the charges and denied the enhancementallegations. (CT 1:11-12.) Trial commenced with jury selection on October 30, 2000. (CT 7:1895- 1896.) On November 14, 2000,the trial and alternate jurors were impaneled and sworn. (CT 11:3223-3224.) The jury commenceddeliberations on December 11, 2000. (CT 12:3317- 3318.) On December15, 2000, appellant was convicted as charged, except the jury found nottrue the personal firearm use allegation (Pen. Code, § 12022.5, subd. (a)(1)) in connection with count 1, and of the nine (9) overt acts alleged in connection with count 6 (conspiracy to commit murderof Castillo) the jury found true overt acts 3, 4, 5, 6, and 7. (RT 25:3823-3830, 3833-3834; CT 12:3452- 3466.) On December18, 2000, a joint penalty phase ofthe trial began as to appellant and codefendant Castro.” (CT 12:3487-3492.) The jury commenced deliberations on December 26, 2000. (CT 12:3504-3505.) The following day the ‘ Codefendants Castro and Bermudez were convicted as charged, except Bermudez wasacquitted of the charges in counts 8, 9, and 10. Codefendant Tapia was acquitted. (RT 25:3823-3834; CT 12:3452-3466.) ° The death penalty was not sought against codefendant Bermudez. 3 jury returned a verdict of death as to appellant only. (RT 30:4511-4513; CT 13:3541-3542.) On January 25, 2001, appellant filed a motion to set aside the verdicts and for a new trial. (CT 13:3558-3562.) On January 29, 2001, appellant filed an amended motionto set aside the verdicts and for a new trial. (CT 13:3564-3577.) On January 31, 2001, the trial court denied the motion to set aside the verdicts and for a newtrial, and sentenced appellant to death on counts 4, 5, and 7.6 (RT 31:4527-4536; CT 13:3589-3610.) /// 6 On the noncapital counts and enhancementsthetrial court sentenced appellant as follows: 1) count 1, one year (one-third the midterm of three years), stayed pursuant to Penal Code section 654; 2) count 2, the upper term of five years, plus ten years for the firearm use enhancement, stayed pursuant to Penal Codesection 654; 3) count 3, one year (one-third the midterm of three years), plus sixteen monthsfor the firearm use enhancement, stayed pursuant to Penal Codesection 654; and, 4) count 6, 25 years-to-life, stayed pursuant to Penal Code section 654. A restitution fine was imposed andappellant was given custody credit. (CT 13:3589-3610.) 4 TABLE OF CHARGES & VERDICTS For ease of reference, appellant provides the following Table of Charges and Verdicts, which includes separately-tried defendant Delaloza: Charge Penunuri Castro Bermudez Tapia | Delaloza Ralphs Parking Lot Incident Robbery, Kreisher & Cordero, 10/23/1997 at approx. 9 p.m. a Count 1: Robbery (§ 211) of Shawn Kreisher Guilty; not true firearm use -- Guilty; true principal armed Count 2: Robbery (§ 211) of Randy Cordero Guilty; true firearm use -- Guilty; true principal armed -- Guilty; assault with a deadly weapon on David Bellman (count 3) Hornell Street Incident Assault with a Firearm, Carlos Arias, 10/24/1997 at approx. 12:30 a.m. Count 3: Assault with a firearm (§ 245(a)(2)) on Carlos Arias Guilty; true firedrm use Goodhue Street Incident Murder, Brian Molina and Michael Murillo, 10/24/1997 at approx. 4 a.m. Count4: Firstdegree murder(§§ 187(a), 189)of Brian Molina Guilty; truefirearm use;true PC §190.2(a)(3) -- Guilty(charged ascount 6) Charge Penunuri Castro Bermudez Tapia Delaloza Count5; First Guilty; true -- -- -- Guilty degree murder firearm use; (§§ 187(a), 189) true PC § of Michael 190.2(a)(3) Murillo -- -- -- -- -- Guilty; conspiracy to murder Carlos Arias & Luke B. (charged as count 4) Conspiracy to Commit Murder and Murder, Jaime Castillo 1/15/1998, 8 a.m. & 7 p.m., body found andidentified as Castillo, respectively Count6: Guilty; true Guilty; true Guilty; true NG -- Conspiracy to overt acts 3,4, overt acts overt acts 3, commit murder 5,6&7 3,4,5,6& |4,5,6&7 (§ 182(a)(1)) of [overt acts 1, 7 [overt [overt acts Jaime Castillo 2,8 &9 acts 1,2,8 |1,2,8&9 blank] & 9 blank] blank] Count 7: First Guilty; true Guilty; true Guilty; true NG -- degree murder PC § PC § PC § 190.2, (§§ 187(a), 189) 190.2(a)(10) 12022.53, subd. of Jaime Castillo subd.(d); (a)(10) true PC § 190.2, subd. (a)(10) /// STATEMENT OF APPEALABILITY This is an automatic appeal from a judgmentof death. (Cal. Const., art. VI, § 11, subd. (a); Pen. Code, § 1239, subd. (b).) STATEMENTOF FACTS A. GUILT PHASE — THE PROSECUTION’S CASE The evidencepresented by the prosecution at the guilt trial consisted of the following: 1. THE RALPHS PARKING LOT INCIDENT (COUNTS 1&2- ROBBERIES OF SHAWN KREISHER AND RANDY CORDERO, RESPECTIVELY) On October 23, 1997, at approximately 9:00 p.m., Randy Cordero was driving Shawn Kreisher and David Bellman to the Ralphs market in Whittier. They noticed a white Cadillac with four or five occupants staring at them. While stopped at traffic light, Kreisher put a hockey mask on his face and looked at the Cadillac. Shortly thereafter, Cordero parked in the Ralphs parking lot andall three exited the vehicle. They started walking towards the entrance and observed the Cadillac parked nearby. Several males got out of the Cadillac and came running towards them. (RT 8:885-888, 9:968-970.) A physical altercation ensued, during which someonegotout of the Cadillac, walked over to Kreisher, and demanded money. The person had a bulge in his pocket, which Kreisher thought might be a gun, and so Kreisher gave him $40. The person demanded money from Cordero, but was rebuffed when Cordero told him he had none. (RT 8:886-889, 9:977-985.) As Cordero, Kreisher and David Bellman were attempting to get back to their vehicle, someone from the Cadillac group yelled, “Get his keys. Get his keys.” (RT 8:891.) Cordero ran to his trunk and pulled out a baseball bat. (RT 9:980-981, 987-988.) Someoneyelled, “Blast ‘em” or “Blast his ass.” (RT 9:980-981, 987-988.) Someone from the Cadillac group started walking towards the three men, pulled a gun from his jacket, and appeared to cock the gun in order to fire it. (RT 9:981-984.) Cordero, Kreisher, and Bellman fled on foot through the parking lot and to the adjacent intersection, where several police officers were gathered investigating a traffic accident. (RT 9:983-984.) Two employees of Ralphs observed the incident and recorded the Cadillac’s license plate number. The Cadillac was registered to Delaloza. (RT 8:856-863, 9:923-938.) a. PERCIPIENT WITNESS TESTIMONY ShawnKreishertestified that on October 23, 1997, while he and David Bellman were being driven by Randy Cordero to the Ralphs market in Whittier to purchase somebeer andcigarettes, he noticed a white Cadillac with four or five occupants “mad dogging” them. (RT 8:875-878.) While stoppedat a traffic light, Kreisher, seated in the back seat behind Bellman, put a hockey mask on his face, turned to the white Cadillac “for the hell of it,” and then turned back. (RT 8:879-881.) Cordero went through the light, turned into Ralphs, and parked. (RT 8:881-882.) Kreishertestified that as the three were walking to the entrance of Ralphs the white Cadillac pulled up about ten feet from the main entrance. (RT 8:882- 885.) After the Cadillac cameto a stop, four of the occupants got out and came running towards Kreisher, Cordero, and Bellman. The driver stayed in the car. The individuals were asking, “Who’s Jason?” (RT 8:885.) One of them confronted Kreisher and asked him if he was Jason. Kreisher recalled that Jason, the main character in the movie Friday the 13th, wears a hockey mask. (RT 8:885-886.) The person swungat Kreisher with both hands; Kreisher fought back. (RT 886-887.) The individual then went over to Cordero and began fighting with him. Kreisher couldnot identify the person in the courtroom. (RT 8:886-888.) The biggest one of the group, wearing a large jacket and baggy pants, and with his left hand in his pocket as if he had a weapon,told Kreisherto give him his money. Kreisher openedhis wallet and gave the individual two $20 bills. (RT 8:888-889.) Kreishertestified that as Cordero, Bellman and he weretrying to return to Cordero’s car, he heard one memberofthe Cadillac group yell, “Get his keys.” (RT 8:891.) Cordero ran to his trunk and pulled out a baseball bat. (RT 8:891.) One memberofthe Cadillac group then yelled, “Blast ‘em.” (RT 8:892.) Kreisher, Cordero, and Bellman then ran downthe street to where they saw several police officers gathered near a fire hydrant. As they were running towards the police officers, Kreisher looked back and saw oneofthe individuals from the Cadillac group grab a black bag. (RT 8:892-893.) Kreisher did not recognize the bag, but he knewit fell out of Cordero’s trunk because it was on the groundin front of the trunk. (RT 8:891-893.) Kreishertestified that because the incident occurred so long agoheis not sure whether he could recognize the person who took his money. (RT 8:889- 890.) A few days after the incident, however, Kreisher identified appellant from a photographic display as the person whotook his money. (RT 8:887-889.) Turning to the defendants and squinting, Kreisher identified appellant in court as the person he identified in the photographic display; Kreisher admitted he is supposed to wear prescription glasses, but was not wearing them oneither the night of the incident or while testifying in court. (RT 8:897-899, 900-901.) Kreishertestified that People’s Exhibit 5, a large black jacket with a hood,is similar to the one worn bythe individual that took Kreisher’s money. (RT 8:899- 900.) Randy Cordero testified that he and his friends, Kreisher and Bellman, were driving to Ralphsin his silver Hyundai when he saw a white Cadillac to 10 their right with five guys staring and “giving dirty looks.” (RT 9:954-955.) He got a good lookat the driver of the Cadillac and had subsequent contact with him after they pulled into the parking lot. (RT 9:955-958.) Corderotestified that they were about 20 feet from the entrance to Ralphs when the groupof five people from the Cadillac confronted them. (RT 9:968- 970.) Someone wearing black cotton gloves, and with a knife in his hand, punched Bellman. (RT 9:970-973, 989-993; People’s Exh. 9.) Another person approached Kreisher with his handin his jacket andstated, “Let me see your wallet.” (RT 9:977-980.) This person was wearing a long,thick, heavy, and bulky sports coat or jacket that hung downto his knees, which Cordero recognized as People’s Exhibit 5. (RT 9:974-977.) The person asked Cordero for money; Cordero told him he had none. (RT 9:984-985.) Corderotestified that he retrieved a baseball bat from the trunk ofhis vehicle. A duffle bag containing his clothes fell out of the trunk. He heard someonesay, “Blast his ass.” Someone removed a handgun, which appeared to be a 9-millimeter gun, and cocked backthe firearm’s slide piece. (RT 9:980-981, 987-988.) The gunman approached him with the handgun exposed. Cordero “froze” and then ran back “the other way.” (RT 9:981-983.) Cordero turned and stated, “He’s got a gun. Let’s go. Let’s run.” They ran and contacted the police. (RT 9:983-984.) 11 Corderotestified that appellant, wearing a long, bulky sports coat or jacket (RT 9:974-977), was the driver of the Cadillac. (RT 9:955-959.) Cordero testified that appellant was the person who took Kreisher’s money and approached him for money (RT 977-985), and he also was the person who subsequently displayed a handgun (RT 9:980-988). Corderotestified that Delaloza was the person with the knife, wearing black cotton gloves, that punched Bellman. (RT 9:970-973, 989-993.) Cordero testified that Castro assisted Delaloza in the physical altercation with Bellman. (RT 9:995-996.) Corderotestified that he gave the police the following description of the gunman:black jacket; heavyset; light complexion, maybe mixed Hispanic and white; bald; about 175 to 180 pounds; and, no facial hair. (RT 9:988-989.) Cordero did not see anyonetake his duffle bag, which was missing when he returned to the vehicle. (RT 9:985-986.) On October 28th, Detective Greg Hamilton showed Cordero some boxershorts, which he recognized as having been inside the duffle bag when it was taken. (RT 9:985-987.) Tammy Winters, an employee of Ralphs, was in the parking lot when she observed some malesgetout of a little gray Hyundai and four other males that were already outside of a large white car. (RT 8:856-858.) Winters was making these observationsat night, but there was lighting around the parking area. (RT 8:859-860.) The individuals in the white Cadillac were running towards those in 12 the Hyundai andstarted “hitting them and stuff.” The occupants of the Hyundai were hitting too. (RT 8:860-863.) Winters testified that one of the individuals from the Hyundai opened the trunk and got out a bat, after which an individual from the Cadillac said, “Let’s get ‘em.” Oneof the individuals from the Cadillac, whom she could not describe (RT 8:864-866), had somethingin the right hip area of his pants, but she never saw it removed. Her observations were madeat night; there are lights in the parking lot, but she could not recall whether they were on, although she wasable to see the cars. (RT 8:860-864, 872-873.) She recorded the license plate number of the Cadillac and gaveit to the police. (RT 8:866-868.) Steven Rapp, an employee of Ralphs, wasin the parking lot escorting Winters to her vehicle. Rapp saw the physical altercation between the two groups. (RT 9:923-932.) He never saw any weapon,such as a handgunor other firearm, being used by anyone involvedin the altercation. (RT 9:937-938.) Jaime Castillo’s uncle, Francisco Castillo, testified that on Saturday, October 25, 1997, Jaime showed him a newspaperarticle from the Whittier Daily News, and then proceededto describe the contents of the article, which related to appellant and Delaloza. As Jaime was describing the article, Francisco noticed that it appeared Jaime had beenin a fight of some kind because he hada cut lip and few scratches on his face. The wounds appearedfairly fresh. When he saw 13 Jaime the morning of the previous day he did not notice Jaime’s face, but recalls that Jaime put his head down and walked into the house without speaking to him directly. He asked Jaime how he wasinjured. Jaime told him that he was injured at the location of the Ralphs parking lot, but he did not say whenit occurred. (RT 18:2644-2650.) Freddie Becerra (aka Clever), testifying under a grant of prosecutorial immunity, stated that as of October 1997 he had been a memberof East Side Whittier Cole Street gang for about three years. He identified fellow gang members as appellant, Delaloza, Castillo, Castro, Bermudez, Tapia, and Richard Delaloza (aka Rock; Alejandro Delaloza’s brother). He denied being there on the night of October 23, 1997, but previously had been in Delaloza’s white Cadillac. (RT 12:1499-1514.) b. POLICE INVESTIGATION Officer Jeff Piper testified that he was traveling on Whittier Boulevard whenheheardthe broadcast of the license plate of a white Cadillac involved in the Ralphs parking lot incident (RT 9:1032-1038) and saw the Cadillac with matching plate. (RT 9:1040-1046.) He pursued the Cadillac to the area of GoodhueStreet, but then lost contact. (RT 9:1051-1053.) The white Cadillac was registered to Delaloza at 15058 Carnell Street, Whittier. (RT 9:942, 1045- 1047.) 14 Detective Greg Hamilton spoke with a man by phone whoidentified himself as Richard Delaloza (Alejandro Delaloza’s brother). He never met Richard Delaloza. Richard Delaloza provided him with information regarding two individuals. Based on that information, Hamilton identified Freddie Becerra and Jaime Castillo. He was familiar with Becerra, but was unable to contact him. Richard provided information on Castillo’s location. (RT 13:1585, 1589-1594.) After Detective Hamilton received the information from Richard Delaloza, Hamilton prepared six-pack photographic displays containing the photographs of Becerra and Castillo. He contacted Cordero and showed him the photographs. Cordero wasnotable to identify anyone from the photographs. (RT 13:1592- 1595.) Detective Mary Hansontestified that Kreisher did notinitially identify appellant as the one wearing the big heavy coat, but instead identified someone else from the first lineup that Hanson showed him. (RT 9:1090-1091.) When Kreisher looked at Hanson’s second photo lineup, he immediately said, “No,it’s not the other guy. It’s this guy,” and pointed at appellant’s photo as the person wearing the big heavy coat. (RT 9:1090-1091.) Hansontestified that she interviewed Delaloza in the afternoon on October 24th about his involvementin the robbery at the Ralphs parking lot. (RT 13:1746-1747.) After initially denying any involvement, Delaloza stated that he 15 and three friends wentto the Ralphs parking lot so one of them could use the pay telephone. While there, they got into a fistfight with a group of three other people. (RT 13:1747-1750.) Hansontestified that Delaloza stated that during the fight he went over to assist one of his friends that was being badly beaten. He punchedthe person in the face, and when he did so the knife that was clipped to his belt fell off and skidded across the pavement. (RT 13:1747-1750.) Delaloza retrieved the knife and wentbackto the car. He then saw oneof the other three people retrieve a baseball bat from the trunk. He stayed in his car as his friends chasedafter the other group of people. Delaloza described one of his friends as “a big guy,” but refused to give any names. (RT 13:1749.) After the three people they were fighting started running away towards the intersection of La Puebla and Whittier, Delaloza’s friends returned to their vehicle and they left the area. (RT 13:1747- 1750.) Hansontestified that Delaloza first denied taking any property, but then stated they had picked up a bag containing some clothes and CDs. Delaloza stated that his friends may have divided the property, but acknowledged that some items from the bag might be at his home. (RT 13:1750-1753.) /// 16 2. THE HORNELL STREET INCIDENT (COUNT 3 — ASSAULT WITH A FIREARM ON CARLOSARIAS) At approximately 12:30 a.m. on October 24, 1997, a few hoursafter the Ralphs parking lot incident, Luke Bissonnette’ (aka “Youngster”), a 16-year-old former memberof the Cole Street gang, and Carlos Arias were seated inside Luke’s car eating some food; the vehicle was inoperable and was parked in the front of Luke’s grandfather’s house at 15030 Hornell Street in Whittier. (RT 9:1111-1122, 1128-1133, 1138.) After Luke finished eating, he stepped outside to smokea cigarette, leaving Arias inside the vehicle. (RT 9:1132-1133.) Luketestified that he saw Delaloza’s white Cadillac approach and park next to the curb on the opposite side of the street from his grandfather’s house. (RT 9:1132-1134; People’s Exh. 3.) Someoneexited the passengerside ofthe two-door vehicle, walked up to within a few feet of Luke, called Luke “Youngster,” told Luke he (Luke) was an “East Sider” (i.e., a memberofthe Eastside Whittier Cole Street gang), and stated, “Get in the car.” (RT 9:1133- 1138, 10:1156-1157.) Luke, feeling threatened by the unfriendly attitude and the fact that he had stopped hanging around with the Cole Street gang, ran to his grandfather’s backyard. (RT 9:1138.) From there he ran back to his house at 15171 Goodhue Street and met Arias on the back patio. (RT 10:1167-1172.) 7 Forease of reference, and in order to avoid confusion with other witness with the same surname, Luke Bissonnette is referred to herein as “Luke”. 17 While there, Arias told Luke that he (i.e., Arias) “almost got killed” that night because “Richard Penunuri had pulled out a gun and putit to his head.” (RT 10:1181-1182.)° Luketestified that Delaloza was driving the white Cadillac, and that appellant, Jaime Castillo and an unidentified female were inside the vehicle. (RT 9:1136-1137.) Luketestified that appellant was the person who exited the passengerside of the vehicle and approached him. (RT 9:1133-1138, 10:1156- 1157.) Luketestified that he knew several membersof the Cole Street gang, including appellant (aka “Dozer’’), Delaloza (aka “Hondo”) and Castro (aka “Stalker”). (RT 9:1111-1122.) Luke identified all four defendants in court, and identified Delaloza from a photograph. (RT 9:1124-1128.) He testified that he had knownappellant for several years. (RT 9:1119-1122.) Luke also knew Jaime Castillo. (RT 9:1124-1125.) Thetrial court found Carlos Arias was an unavailable witness. Over defense objection his testimony from Delaloza’s trial was read to the jury. (RT 14:1840-1841.) Arias recanted muchof his taped statementto the police. (RT 8 Although Luketestified that Arias told him that the gunman “pulled out a gun and putit to his head” (RT 10:1181-1182), the ambiguity in the phrase “put it to his head” was resolved whenthe prosecution presented Arias’s tape- recorded statementto the police, wherein Arias stated that the gunman only pointed the gun at him. (CT Supp. Vol. IV-1, pp. 162 [the gunman was “pointing” the gun at him].) 18 14:1849-1852) Arias told the police that he saw Luke run andthen hegot out of the car and ran too, but not before seeing that the person — whom he had not seen before but identified as “that guy ... I guess Dozer or whatever” (CT Supp. Vol. IV-1, p. 160) — was pointing a black gun at him, was wearing a black jacket with a hood, and was chubby. (CT Supp. Vol. IV-1, pp. 160-163 [People’s Exh. 74].) Arias, in fear for his own safety, ran and hid in a neighbor’s backyard, and then ran back to Luke’s house on GoodhueStreet. (CT Supp. Vol. IV-1, p. 160.) 3. THE GOODHUE STREET INCIDENT (COUNTS 4 & 5 - MURDERSOF BRIAN MOLINA AND MICHAEL MURILLO, RESPECTIVELY) a. PERCIPIENT EYEWITNESS TESTIMONY After running from the person who approached him on Hornell Street (RT 9:1133-1138), Luke wentto the back of his grandfather’s house, which was located on Hornell Street, and knocked onthesliding glass door. (RT 9:1135- 1138.) His mother, Roxanne Bissonnette, was inside. Through the door, he told her that he was with Arias and that Dozer was outside. She would notlet him inside the house because Luke’s nephew wasinside andshe did not want any problems. A few momentslater, as Luke washidingin the rear patio area, Luke heard his mother and appellant speaking in the front of the house, but he could not understand their conversation. (RT 9:1142-1143, 10:1162-1163.) At the same time, Luke saw Arias, wearing a white T-shirt, jump the fence into the 19 backyard of Luke’s grandfather’s house (where Luke waslocated). (RT 10:1163- 1164.) After the conversation ended, Luke returned to the front of the house; Delaloza’s vehicle was gone and everyonehad left. (RT 10:1166.) Luke identified People’s Exhibit 5 as the dark, heavy jacket that appellant was wearing that night. (RT 10:1159-1160.) Luketestified that he then ran back to Laraine Martinez’s house at 15171 GoodhueStreet, where he had beenliving, arriving there in two minutes. (RT 10:1167-1169, 1187.) He went to the back patio. Arias was there talking with Luke’s sister, Laura Bissonnette. Brian Molina and Michael Murillo were asleep on the patio. (RT 10:1168-1172.) Luke did not wake them,nor did he speak with them. (RT 10:1176-1177.) After a few minutes on the patio, Luke, Laura, and Arias went inside, leaving Murillo and Molina asleep on the patio. (RT 10:1180, 1185-1186.) There were a numberof other people inside the house, including Laraine Martinez (the ownerof the house), Laraine’s 19-year-old daughter Monique Martinez, Monique’s infant son Eric, and Shane Bissonnette (Luke’s brother). (RT 10:1186-1187; see RT 11:1389-1393 [Laraine Martinez’s testimony].) Approximately twenty minutes later, Luke heard about ten gunshots, which soundedlike they came from the front of the house. (RT 10:1186-1193.) Luketestified that as he “looked outside [the window], J seen somefigure 20 running outside, and myfirst action [sic] was, “fucking Dozer.” (RT 10:1190 [emphasis added].) He then yelled the name “Dozer” because he saw a person running acrossthe street; he saw the jacket and the size of the body. It was dark outside with the only light coming from streetlight from acrossthe street. (RT 10:1189-1192.) When Luke had contact with appellant on Hornell Street, appellant was wearing a big, bulky jacket. When Luke saw the person on GoodhueStreet, the person was wearing what appeared to be the samejacket. (RT 10:1193-1195.) Luke was able to see the person’s head, which appeared to be appellant’s head. (RT 10:1193-1196.) Appellant and Delaloza had previously visited the GoodhueStreet residence, and appellant knew where Luke lived. (RT 10:1081-1083.) Luketestified that after hearing the gunshots he wentto the patio and observed that Murillo had three holes in his sweatshirt jacket and was unresponsive. Hetold his sister to call 911. (RT 10:1199-1200.) He did not see Molina on the couch, and so he wentback inside. Momentslater, he heard Molina moaning and found him onthe patio on the otherside of the tarp, with what appearedto be a gunshot wound abovethe eye. (RT 10:1200-1201.) Laraine Martineztestified that she had just started to fall asleep when she heard a noise,“like a back fire,” and then she turned around towards the window that faced the backyard and could see “more shooting — or bullets and the flashes 21 of light.” (RT 11:1397.) It was dark in her bedroom and outside the window. (RT 11:1397-1398, 1404 [“it was very dark” in the backyard].) She jumped up, ran outside to the backyard, and then called 911. (RT 11:1400.) While in the kitchen calling 911, she heard Luke and Shane Bissonnette yell the name Dozer. (RT 11:1400-1402.) She knew Dozerto be appellant. (RT 11:1402.) Arias testified in Delaloza’s trial that on the evening of October 23, 1997, he and Luke were together at Taco Bell.” (RT 14:1844-1847.) Theyleft and went to Luke’s grandfather’s house on Hornell Street, and ate in front of the house. (RT 14:1847.) “Some dude” came around the corner. It was too dark for him to describe the person, except that he wastall and skinny, and was wearing a black jacket with a hood that extended slightly below the waist. The person did not do anything, except talk. Luke became scared because he knew this person and so Luke ran. Arias also ran because the person was“taking charge against us.” Arias did not see anything in the person’s hand. (RT 14:1847-1849.) Arias initially testified in Delaloza’s trial that he did not recall giving a statementto the police, but then testified that he remembered “somethinglike that.” (RT 14:1848-1849.) When questioned in detail about his prior tape- recorded statements to the police, Arias generally denied that he made such , Arias wasfriends with Luke’s brother, Shane Bissonnette. (RT 14:1844-1845.) Arias was not a memberof a gang, but was friends with members of the Chivas gang. (RT 14:1903-1904.) 22 statements (RT 14:1849-1852), and he explicitly stated that he did not see the person pointing a black gun at him. (RT 14:1849-1851.) Arias testified that he probably lied in his statement because he was in shockat the time, and the “detectives were just forcing me to say anything.” (RT 14:1855-1856.) Arias admitted lying to the prosecution’s investigator about his address and telephone number,stating that he did not want to cometo court as he did not even know Delaloza. (RT 14:1841-1844.) Detective Ray Lugotestified that he interviewed Arias on October24, 1997, at the Whittier Police Department about the murders of Molina and Murillo. A cassette tape of the interview (People’s Exhibit 73) was played to the jury. (RT 14:1916-1917; CT 12:3287; CT Supp. Vol. IV-1, pp. 159-176 [People’s Exh. 74, transcript of tape].) In the interview Arias stated that he was in the car with Luke at Luke’s grandfather’s house whenhefell asleep in the passenger seat. He was waiting for someoneto pick him up. (CT Supp. Vol. IV-1, p. 159.) Luke was outside smoking a cigarette. He woke up and saw “I guess Dozer or whatever” charging at Luke. Luke ran to the back of the house. Arias got out of the car, and he and “that guy” ran around the car. Arias took off running, jumped somefences, and hid for about twenty minutes. He went to the backyard of the house on Goodhue Street and saw that Molina and Murillo were asleep in the backyard. He smoked 23 a cigarette and then he and Luke wentinside the house. Twenty minuteslater, while inside the house, he heard gunshots. (CT Supp. Vol. [V-1, p. 160.) He ran to the window and saw someoneat the endof the street wearing a black, parka-like football jacket with a hood, which was the “same thing that I saw on him at... the other house....” (CT Supp. Vol. IV-1, p. 161.) He did not see the person’s face. He found Brian [Molina] by the water hose. (CT Supp. Vol. IV-1, p. 161.) Arias told Detective Lugo that he was“still half asleep” when he saw the person whomheidentified as “Dozer.” (CT Supp. Vol. IV-1, p. 162.) Arias told Detective Lugo that he identified the person by the name “Dozer”because he (Arias) was subsequently told by Luke that Luke’s mother (Roxanne Bissonnette) told Luke that she had seen Dozerlater that night. (CT Supp. Vol. IV-1, pp. 166- 167.) Arias stated that he exited the car and “the guy” pointed a black gun at him. (CT Supp. Vol. IV-1, pp. 162, 165.) Arias did not get a good look at the person becauseit was too dark, but he could see that the person “had a beanie” and was chubby. (CT Supp. Vol. IV-1, p. 162.) Later in the interview, however, Arias clarified that he could nottell if the person was chubbyor fat because he was wearing a big jacket that went downto just above the knees. (CT Supp. Vol. 24 IV-1, pp. 174-175.) The person was 5'9"tall, close to 6" tall. (CT Supp. Vol. IV- 1, p. 175.) Roxanne Bissonnette testified that on October 24th at approximately 2:30 a.m., while spending the night at her father’s house on Hornell Street, she heard some loud noises. She looked out the window and saw Delaloza’s white Cadillac parked to the left of the neighbor’s driveway. (RT 11:1331-1336.) She saw “bodies or heads” going back and forth across the front yard. She openedthe front door and saw Delaloza standing approximately 15 feet away on the walkway in front of the porch. (RT 11:1336-1381.) Roxanne Bissonnette testified that “Dozer,” whom sheidentified as appellant, was standing outside the house next to Delaloza on the same walkway. Appellant was wearing a dark jacket (similar to People’s Exh. 5), dark shorts, and white socks. (RT 11:1338-1341.) He asked if she had seen Carlos. Roxanne knew Carlos Arias to be her son’s (Shane Bissonnette’s) friend. (RT 11:1341- 1344.) Appellant stated he neededto talk to “them,” and then clarified that he meant Carlos and Luke. (RT 11:1343.) Roxanne warned appellant not to touch Luke. Appellant responded that he would not touch a minor. (RT 11:1344.) Shortly thereafter, Luke knocked at the back door. (RT 11:1346-1348.) The prosecution also presented the testimony of two neighbors, Matthew Walker and Marjorie Holder, both of whom heard gunshots and then looked 25 outside and saw a white Cadillac. Walker saw two figures come from the backyard of a residence next to Luke’s house and enter a white Cadillac. (RT 10:1309-1312, 1317-1319.) Holder saw a male passenger, wearing dark pants and a white t-shirt, exit a white Cadillac and stand on the corner. (RT 13:1599- 1601.) The person stood there for less than two minutes, returned to the passenger compartmentof the vehicle, and then the vehicle left the area. (RT 13:1600-1601.) Alejandro Delaloza provided a taped statementto the police shortly after he wasarrested. In the statement, which wasplayed to the jury over defense objection, Delaloza admitted that he was a memberof Eastside Whittier Cole Street gang. As to the events relating to the double homicide, Delaloza told the police that he and appellant went to the house on GoodhueStreetto talk to Monique Martinez. When they arrived, Delaloza parked around the corner, and appellant went to the house. While Delaloza wassitting in the car, he heard gunshots and saw appellant running. He thought appellant was being fired upon because when he saw appellant running he could still hear gunshots. (RT 12:1443-1444; CT 12:3280-3281 [People’s Exh. 37 [audiotape]; CT Supp. IV:109-142 [People’s Exh. 38 [transcript].) Francisco Castillo, Jaime Castillo’s uncle, testified that during 1997 and until Castillo’s death in 1998 he and Jaime shared a room togetherat a house in 26 La Mirada. As he wasleaving for work on the morning of Friday, October24, 1997, at 7:00 a.m., he saw Jaime coming into the house from Francisco’s van. (RT 17:2631-2632, 2641-2642.) Francisco discovered appellant sleeping inside the van, and offered him a ride home. (RT 17:2642-2643.) Francisco gave appellant a ride home that morning, which wasabout a five-minute drive. (RT 17:2631-2638.) Jaimedid not stay at the house the previous night(i.e., the night of October 23rd). (RT 17:2641-2642.) b. RECORDED JAIL CONVERSATIONS BETWEEN APPELLANT AND MARIA PENUNURI Appellant’s mother, Maria Penunuri, testified about the substance of two recorded conversations she had with appellant while he was in county jail — one on July 19, 1998 (People’s Exh. 46) and another on August 15, 1998 (People’s Exh. 43). (RT 12:1469, 1559-1570.) After listening to the conversation of August 15, 1998 (see below), she could not recall whether appellant stated that he was at the Ralphs parking lot with Castillo. (RT 12:1558.) She also recalled that it was stated on the tape that she wanted Delaloza to “clean this shit up,” but does not recall what she meant. (RT 12:1559.) After listening to the conversation of July 19, 1998 (see below), she testified that she could not recall whether she passed a note to appellant. (RT 12:1563.) She also denied makingany of the statements contained on the tape 27 (RT 12:1566), and specifically denied that she was trying to manufacture an alibi for appellant. (RT 12:1569.) The two recorded conversations were played to the jury. (RT 12:1551- 1553, 1560-1563; CT Supp. IV, Vol. 1, pp. 143-158.) In the recorded conversation of August 15, 1998, Maria Penunuristates that “Hondo [Delaloza] better find a way to clean this up too.” (CT Supp. IV, Vol. 1, p. 144.) Appellant states that he was telling Delaloza that “all he had to do was just get up there and say... you know... tell them the truth.... [] I wasn’t with you guys... yeah I was with you that night... I was with you at Ralph’s yeah I was... but... you had dropped meoff... after allthat.... [4] Cause I didn’t wanna be out no more, cause I knew the cops were gonna probably be looking forus....” (CT Supp. IV, Vol. 1, p. 146.) Appellant stated that Castillo was with them at Ralphsthat night. (CT Supp. IV, Vol. 1, p. 147.) Appellant stated that Castillo was probably with Delaloza that night “cause look at where he’s at... he died... someone killed him... .” (CT Supp. IV, Vol. 1, p. 147.) Appellant also stated, “And then um. . . he [Delaloza] just said ’m tripping, I’m tripping, I’m.. . stupid idiot if you wouldn’t of said I was with you in the damn car I probably wouldn’t be here I’d probably be here for a stupid robbery ....” (CT Supp. IV, Vol. 1, pp. 148-149.) Appellant also states he was 28 dropped off between 2:50 and 3:00 in the morning. (CT Supp. IV, Vol. 1, pp. 149-150.) In the recorded conversation of July 19, 1998, Maria Penunuri states that she has “a note I wanted to show... .” (CT Supp. IV, Vol. 1, p. 153.) Appellant states their conversation is not recorded; Maria Penunuri responds she does not want to take the chance. (CT Supp. IV, Vol. 1, p. 154.) Maria Penunuristates that a female cameto see appellant at 3:00 a.m. (CT Supp. IV, Vol. 1, p. 155.) Appellant and Maria Penunuri then engagedin the following colloquy: Appellant: Maria Penunuri: Appellant: Maria Penunuti: Appellant: Maria Penunuri: Appellant: Maria Penunuri: Appellant: Maria Penunuri: Appellant: See you at three in the morning? Okay. Alright Yeah. Yeah I'll do thatsh... Okay cause... Yeah [Il call (unint) But I gotta talk to herfirst. Alright And... you know... that... so... no... no... Well let me know you’re gonnatalk to her, that way I’ll tell the investigator too... I was messing around with... so and so... but... I kept it a secret because... she... P’ll say she married too. 29 Maria Penunuri: Appellant: Maria Penunuri: Appellant: Maria Penunuri: Appellant: Maria Penunuri: Appellant: Yeah. [ll say she married too. [{] No but she has a boyfriend too... and then you have a girlfriend and you didn’t. Yeah we weresecret, alright, yeah, yeah I knowall that. See what I mean? Alright... yeah momma... alright. Ya know... I mean people... some... you know Pauline told me to do this a long... from the beginning... but I told dad and dad’s all... nah... ya know and then I told Jessie and Eddie and I asked them if they could get someone... and they’re like well who?... And I go well any... I go even Aunt Laurie... ya know forher... you are to say she was with you.. Yeah. [CT Supp. IV, Vol. 1, pp. 155-156.] POLICE INVESTIGATION Murillo and Molina died as the result of multiple gunshot wounds. (RT 11:1372-1373, 13:1619-1622.) Firearms examiner Richard Catalani testified that all eleven expended casings, and the expended bullets and bullet fragments, recovered at the Goodhue Street location were fired from the same 9-millimeter firearm. (RT 13:1674- 1678.) Catalani found eleven expended 9-millimeter casings at the Goodhue Street location, and is of the opinion that a minimum of 11 rounds werefired in 30 the backyard, which is consistent with a fully loaded semi-automatic pistol with a magazine capacity of 10 (i.e., 10 rounds in the magazine and | roundin the chamber). (RT 13:1687-1689.) Catalani testified that the casings foundat the GoodhueStreet location and People’s Exhibit 17 that was found at Delaloza’s residence were cycled through the same gun. (RT 13:1692-1695.) The brands of the expended casings found at the GoodhueStreet location werenot the same; they were Norinco, Winchester, Federal, and GFL. People’s Exhibit 16, the box of live rounds found at Delaloza’s house, contains a variety of brands. (RT 13:1692-1693, 1695-1698.) Catalani testified that a comparison ofthe one live round of 9-millimeter ammunition (Federal type) found at the GoodhueStreet location and one ofthe live rounds from the box of ammunition found at Delaloza’s residence “have marks on them which indicate that they have been worked through the action of the same firearm that fired the expended cartridge cases” found at the Goodhue Street location. (RT 13:1685.) 4, CONSPIRACY TO MURDERAND THE MURDEROF JAIME CASTILLO (COUNTS 6 & 7) a. PERCIPIENT EYEWITNESS TESTIMONY Jesus Marin, testifying under a grant of immunity, recounted a series of events culminating in Castillo’s murder. These events included 1) driving Castro, Bermudez, Tapia, and Castillo to the mountains, 2) watching Castro shoot 31 Castillo in the back of the head, 3) driving Castro, Bermudez and Tapia back to Whittier, and 4) observing Castro dispose of the gun used to kill Castillo. (RT 14:1954-2104.) Marintestified that he lived in an apartment in Whittier with his wife, Tracie McGuirk, their two children, and his wife’s friend Carmen Miranda. (RT 14:1954-1956; see RT 16:2315-2317 [McGuirk’s testimony]; 17:2452-2455 [Miranda’s testimony].) Marin was not a memberofthe Eastside Whittier Cole Street gang, but associated with its members since 1994 as he knew someof them before they became membersof the gang. (RT 14:1957-1959.) Marin knew appellant (aka Dozer), Castillo (aka Cartoon), and codefendants Castro (aka Stalker), Bermudez (aka Droopy), and Tapia (aka Freddie and/or Rascal) to be membersof the Eastside Whittier Cole Street gang. (RT 14:1959-1966, 15:1989-1991.) Marin had known Castro for a numberofyears and allowed him to live in his detached garage from the end of December 1997 to the beginning of January 1998. (RT 14:1954-1957.) Several members of the gang would come over and hang out in Marin’s garage and some,in addition to Castro, would spend the night. Marin worked on weekdays, but would join the group in the garageat night and would party with them, drinking and using drugs. (RT 14:1954-1957, 15:1995-1997, 2001-2007; see RT 16:2322-2323, 2325-2326 [McGuirk].) While 32 Castro wasliving in the garage, Miranda and Castro developed a relationship, and Castro began sleeping downstairs in the apartment with Miranda. (RT 15:2007-2009; see RT 16:2315-2318, 2320-2321, 2330-2332 [McGuirk].) While Castro was living at Marin’s apartment, several members of the Cole Street gang, including Bermudez and Tapia, would call the apartment looking for Castro. Beginning in December 1997, appellant would call collect from county jail looking for Castro, Bermudez and Tapia. The caller would identify himself as either “Richard” or “Dozer.” Marin accepted the calls because he recognized his voice and they were friends. When appellant would call, he and Marin wouldtalk for a while and then appellant would askif the “home boys” were there. Appellant never called Marin’s apartmentprior to Castro moving in. (RT 15:2011-2013, 2016-2017.) Marin does notrecall ever receiving calls from Delaloza. (RT 15:2015.) There were two times when Marin stayed in the room when Castro was speaking with appellant. (RT 15:2022.) On one of those occasions, Marin heard Castro mention the name “Cartoon,” whichis Castillo’s gang moniker, and heard Castro say, “I’ll handle it.” (RT 15:2023-2025.) Bermudez was present and participated in the telephone call. (RT 15:2024-2027.) After the phone call, Marin, Castro, Bermudez and Tapia wentto the garage. (RT 15:2030.) Castro and Bermudez were agitated and walking around 33 saying, “It’s fucked up ... Cartoon’s gonnarat,” and they needed to shut him up. (RT 15:2030-2031.) Tapia said that Castillo “wouldn’t do that shit and stuff like that.” (RT 15:2031.) Castro stated that appellant told him “Cartoon was gonna rat him out, that he was gonnatestify against him and tell fucking Cartoon to shut up, keep his mouth shut.” (RT 15:2031.) A dayor twolater, appellant called and told Marin that his homeboy was going to rat him out. Marin testified on direct examination,in part: Q: During that conversation that you had with Richard Penunuri, what, if anything, did he say, one way orthe other, that expressed concern about a witness? A: There he said that his home boy’s gonna rat him out, that I guess this guy Cartoon wascloserfriends with the other guy that he was in the case with and that he was gonnatestify on his behalf and that’s fucked up to him,to his case. Q: Did he mention anything about having to do anything about Cartoon, to you? A: Just “he can’t testify. Tell him not to say shit, that that’s wrong.” (q] Q: Howlong did your conversation take to finish between you and Dozer? A: Wejust talked for, like, five, ten minutes. Q: Other than mentioning his concerns about Cartoonand that cartoon mightbe testifying for the other people involvedin his case, did he mention anything else about his case that was pendingat that time? A: That there was a lot of witnesses, yes, that it wasn’t going good for him. [RT 15:2033-2034.] 34 After these phonecalls, there were two to four times when Marin, Castro, Bermudez and Tapia were in the garage and Castillo was discussed. During each of these occasions, a plan to harm Castillo was mentioned. Castro and Bermudez did most of the talking. (RT 15:2035-2036.) They said that Tapia hadto doit “or else they were gonna fuck him up,too, so that Freddie had to shut up Jaime.” (RT 15:2036.) They were going “to blast” Castillo. (RT 15:2036.) Marin testified that Castro, Bermudez and Tapia discussed a planto kill Castillo by driving Castillo to the mountains, on a ruse to party, and shooting him. (RT 15:2036-2052.) Tapia asked Marin to drive, and so Marin agreedto be the driver. (RT 15:2041-2044.) Tapia told Marin that he did not wantto kill Castillo. (RT 15:2053-2054.) In the evening on January 14, 1997, Marin drove Castro, Bermudez, Tapia, and Castillo into the San Gabriel Mountains north of the City of Azusa. (RT 15:2055-2071.) Marin stopped the vehicle off Highway 39 at Mile Marker 22.27, and everyone exited the vehicle. (RT 15:2072-2074.) Castillo pulled out some dopeandtheystarted hitting the pipe. (RT 15:2076-2079.) Tapia separated from the group and told Marin that he was not going to shoot Castillo. (RT 15:2081-2083.) Marin returned to the car with Bermudez because Bermudezsaid he had some weed and wantedto roll a joint. (RT 15:2083-2084.) Looking into the rear-view-mirror, Marin would see Tapia going back up the embankment 35 towards Castro and Castillo (RT 15:2084-2085.) Bermudez told Marin, “Joe’s (i.e., Castro’s) gonna do it. Joe’s gonna do ‘em both. Joe’s gonna shoot ‘em both.” (RT 15:2086.) Tapia was standing in front of Castillo. Castro walked behind Castillo, stretched out his arm, and pulled the trigger. Marin heard a single shot, and saw Castillo drop. (RT 15:2086-2088.) Tapia and Castro returned to the vehicle and they returned to Marin’s apartment. (RT 15:2088-2090.) On the way back, Castro said that he had shot Castillo. (RT 15:2090.) Once back at the garage, Castro removed a gun and started cleaning it. The gun was the same chrome, semi-automatic, .22 or .25 caliber gun that he had seen earlier in the day before the group left for the mountains. (RT 15:2095-2097.) After clearing the gun, Castro placed it on the refrigerator in Marin’s apartment. (RT 15:2101-2102.) Marin then told McGuirk that Castillo had been shot. (RT 15:2101-2104.) Marinreceived a visit from Bermudez and some other homeboysa couple of weeksafter the shooting of Castillo. He is not exactly sure of the date or time, but he wasstill residing at the apartment. (RT 15:2109-2111.) They threatened Marin and accused him of talking and being a “rat.” (RT 15:2111-2116.) In March 1999, Marin and his family moved out of the apartment because he wasscared. (RT 15:2109-2110.) On March 24, 1999, Marin gave a statement to the police about the shooting of Castillo, stating that Castro shot Castillo. (RT 36 15:2107-2109.) Marin acknowledgedtestifying under a grant of prosecutorial immunity, after having been relocated from the State of California as a result of speaking to law enforcement regarding the death of Castillo. (RT 15:2126-2127.) Marin understands that the grant of immunity by the prosecution meansthat he does not expect to face any chargesarising out of his involvement in the murder of Castillo. (RT 16:2278-2279.) McGuirktestified that they received eight to nine telephonecalls from appellant (calling from countyjail) while she lived at the apartment, but she only personally answered the telephonefour or five of those times. (RT 16:2334- 2339.) She recalled a telephonecall from appellant during which she overheard Castro say that Castillo was goingto testify against appellant. (RT 16:2341, 2343-3447.) She also overheard Castro tell appellant not to worry and that he would take care of it. (RT 16:2344.) Both Bermudez and Tapia were present in the living room during the telephone call, although Tapia was not paying attention. (RT 16:2340-2345.) Bermudez responded to Castro’s comments by saying, “Got it. Don’t worry about it. We’ll take care of it.” (RT 16:2346.) Bermudez wasnot speaking into the receiver on this occasion, but on a different occasion he had spokenwith appellant on the telephone. (RT 16:2346.) McGuirkalso recalled other telephone calls from appellant to her apartmentin which she heard Castillo’s name mentioned. 37 McGuirk testified that on January 13 or 14, 1997, Marin, Bermudez, Castro and Tapia congregated in the garage and then left the apartment together in a vehicle. (RT 16:2347-2358.) She recalls the incident and noted it on her calendar becauseafter they returned she found outthat Castillo had been killed. (RT 16:2347-2349, 2353-2354.) After leaving the apartment between 11:30 p.m. and midnight, Marin, Castro, Bermudez and Tapia eventually returned to the apartmentat between 3:00 a.m. and 4:00 a.m. (RT 16:2358-2359.) Marin entered their bedroom alone and was shaking. Marin provided McGuirk with information as to what had happenedthat night. She did not understand whyit happened and was upset. She and Marin stayed awake for the remainderof the night. (RT 16:2358-2361.) McGuirk was convicted of the crime of elder abuse, a misdemeanor, on August 12, 1997. (RT 16:2436-2437.) Mirandatestified that she recalled appellant calling the apartment in the first part of January and talking first to McGuirk and then to Castro and Bermudez. Miranda recalled that Castro and Bermudez tookthe call upstairs in Marin’s and McGuirk’s bedroom. Mirandasat at the top of the stairs and listened to the conversation. (RT 17:2461-2465.) She heard Castro say, “Oh. You want us to — you wantusto get rid of him -.” (RT 17:2466; see RT 17:2468.) She then heard Castro say, “Yeah. Me and Artie [Bermudez] will get rid of ‘em.” 38 (RT 17:2466; see RT 17:2468.) She heard Bermudez’s voice, but could nottell whathe said. (RT 17:2466-2467.) She also heard them mention the name Cartoon. (RT 17:2467.) The next week, between 10:00 p.m. and 11:00 p.m., Miranda saw Marin, Castro, Bermudez and Tapia leave the apartment together in a vehicle. (RT 17:2475.) Before they left, Castro told her they needed to pickup Cartoon. (RT 17:2475.) Castro returned to the apartment the following morning. A few hours later, Castro told her that he shot Castillo. (RT 17:2496.) b. STIPULATION Theparties stipulated that “the decedent, Jaime Castillo, the individual whois alleged to be the victim with respect to counts 6 and 7 of the indictment,is the same individual who Mr. Luke Bissonnette claimed he saw the evening of October 23rd, 1997, or the early morning hours of October 24th, 1997, who is also the individual depicted in People’s [Exhibit] 13, the photograph labeled ‘Jaime Castillo’[].” (RT 10:1217.) c. POLICE INVESTIGATION Castillo’s body was discovered by CalTrans workers in Azusa Canyon on the morning of January 15, 1998. (RT 14:1770-1772, 1814-1818.) Castillo died as a result of a single gunshot woundto the back of the head. (RT 14:1819-1820, 1922.) The bullet, which was found in Castillo’s body, was a small-caliber lead 39 projectile with no jacketing. (RT 14:1929.) Also found within a few feet of Castillo’s body was a live.22 caliber shell. (RT 18:2676-2679.) Telephone records showedthat appellant called Marin’s apartment from county jail as follows: 1) January 5, 1998, a 31-minute call; 2) January 8, a 5- minute call; 3) January 9, two calls lasting one minute and fifteen minutes, respectively; 4) January 10, a 3-minute call; 5) January 11, a 2-minute call; and, 6) January 15, a 30-minute call. (RT 18:2698-2700, 2711-2723, 2727; People’s Exhs. 80 & 92.) Additionally, there was a series of telephone calls from appellant in county jail to Marin’s apartment between January 15 and 25. (RT 18:2723-2727.) d. GANG EXPERT AND RELATED TESTIMONY Detective Curt Levsen of the Whittier Police Departmenttestified that he is familiar with the East Whittier Cole Street gang, having been raised in Whittier. About ten years ago, the Cole Street gang was formed byindividuals living on Cole Road and it migrated south through the city and into the county area. Aboutthree years ago, they changed their nameto East Side Whittier Cole Street, with Cole Street being a subgroup within the larger East Side Whittier. (RT 18:2779-2780.) Levsen knowsappellant to be a self-admitted memberof the East Side Whittier Cole Street gang. Appellant told Levsen that his nickname was ‘Oso,’ 40 but Levsen knowsthatit is not his true moniker. Levsen knowsCastro, Bermudez and Tapia, all of whom have previously identified themselves to him as membersof the East Side Whittier Cole Street gang. (RT 18:2785:1-2789:14.) Levsentestified that a member of East Side Whittier Cole Street would display certain hand signs that indicate the gang membership. Throwing up a sign is a form of communication within Hispanic and moststreet gangs as a way of showing gang affiliation and responsibility in passing by rival gangsor committing crimes. The handwriting on People’s Exhibit 77, containing three photographs,says, “East Side” and then “C.E.E.S.T.E.” The individuals in the photographs are showingloyalty to the gang by their gestures and handsigns. The hand signs, which show the letter groups “E, A, and W”and “A and C,” stand for East Whittier and Cole Street, respectively. The photographs also show three individuals displaying an “X 111,” which is the number 13. The number13 is used by Southern California Hispanic street gangs to show allegiance to the Mexican Mafia. It represents the 13th letter of the alphabet, which is M. It does not showthat they are membersof the Mexican Mafia, but are under the jurisdictional rule of the Mexican Mafia. They are Surenos in Southern California and pay taxes to the Mexican Mafia (RT 18:2784 [court strikes references to paying taxes to the Mexican Mafia andinstructs the jury to disregard that portion]). (RT 18:2782-2784; RT 19:2816-2818 [court tells jury 41 that testimony about the number13 and the Mexican Mafia wasstricken and should not be considered].) Appellant’s uncle, Ruben Pozo, testified that he was presentat the Penunuri residence when appellant wasarrested, having lived there for many years. (RT 12:1446-1448.) Pozo knew appellant to be a memberof the East Side Whittier Cole Street gang. (RT 12:1447.) 5. THE SEARCH OF DELALOZA’S RESIDENCE AND APPELLANT’S RESIDENCE Onthe afternoon of October 24th, Officer Piper executed a search warrant at Delaloza’s residence. Piper testified he uncovered, among otherthings, the following items: 1) a black jacket similar in appearance to People’s Exhibit 5; 2) a black long-sleeve sweatshirt with a hood; 3) a dark blue long-sleeve sweatshirt with a hood; 4) a small black knife with a belt clip attachment (People’s Exh.9); 5) a pair of black cotton gloves (People’s Exh. 10); 6) a plastic box of 9- millimeter ammunition with some of the bullets missing; 7) keys to the white Cadillac, which wasparked in front of the residence; and, 8) some men’s briefs and socks, which wereinside a trash can. (RT 9:1054-1065, 1069; see RT 13:1586-1587 [Detective Gregory Hamilton’s testimony regarding recovery of men’s briefs].) That same day, Piper went to appellant’s residence and arrested him inside the house. Piper seized a large black jacket (People’s Exh. 5) from inside 42 appellant’s bedroom. (RT 9:1065-1067; see RT 14:1761-1766 [Sergeant Mark Jones’ testimony re same].) While appellant was being arrested, Officer Terence McAllister spoke with appellant’s uncle, Ruben Pozo. (RT 13:1719-1720, 1724-1725.) McAllister testified that Pozo told him that appellant did not arrive back at the house that morning until between 7:00 a.m. and 7:30 a.m. (RT 13:1725.) Pozo also testified, but denied telling Officer McAllister that appellant arrived homethat morning between 7:00 a.m. and 7:30 a.m. (RT 12:1449-1452.) Pozotestified that he told McAllister that when he woke up that morning at approximately 5:30 a.m. to get ready for work, appellant was presentin their shared bedroom. (RT 12:1449.) Delaloza wasarrested later that same day. (RT 9:1063-1064.) B. GUILT PHASE — THE DEFENSE CASE Defense counsel presented a defense consisted of the following: 1) showingthat the prosecution presented evidence pointing to Delaloza as the likely perpetrator of the Molina and Murillo homicides; 2) impeaching the testimony of key prosecution witnesses; 3) presenting physical evidence supporting appellant’s innocence and implicating Delaloza; and, 4) presenting expert eyewitness identification testimony pointing to the misidentification of appellant as the perpetrator of the Molina and Murillo homicides. 43 Defense counsel presented evidence that Delaloza wasthelikely perpetrator of the Molina and Murillo homicides. Delaloza was wearing clothing similar to that of the shadowyfigure seen by Luke Bissonnette. (RT 9:988-989, 11:1361-1367; 19:2878-2880.) The ammunition found at Delaloza’s house matchedballistics evidence from the crime scene. (RT 13:1692-1695.) The duffle bag taken during the robbery at the Ralphs market was foundat Delaloza’s house. (RT 9:985-987, 9:1054-1065, 13:1586-1587.) A black jacket and two sweatshirts, one with a hood, were found at Delaloza’s house, but the prosecution never tested these items for gunshot residue. (RT 19:2873-2878.) The jacket found in appellant’s house tested negative for gunshot residue. (RT 19:2832- 2833.) Delaloza could have been the shadowyfigure running away from the double homicide. (RT 9:988-989, 11:1361-1367; 19:2878-2880.) With respect to the Goodhue Street incident, the defense presented evidence that Luke’s testimony was entirely unreliable because he only saw the person from a distance, in the dark, from behind, and only for couple of seconds, and thus could not identify the person, although he assumed it was Dozer because that wasthe person he anticipated seeing (having earlier seen Dozer on Hornell Street), as explained by the defense eyewitness identification expert Dr. Pezdak. (RT 10:1059-1066, 19:2850-2852.) Luke’s drug use earlier that day would have impaired his ability to observe accurately. (RT 10:1232-1233, 1237-1238.) 44 Lukestated that the person “might have been wearing shorts.” (RT 10:1160.) Roxanne Bissonnette testified that earlier appellant was wearing shorts and white socks. (RT 11:1338-1341.) Appellantis light skinned. (RT 9:989, 10:1245.) If appellant was the gunman, then the witnesses(i.e., Bissonnette and Arias) would have readily noticed his light skin and white socks, but they never mentionedseeing a light-skinned person wearing white socks. (See RT 10:1111- 1201, 14:1841-1856; CT Supp. Vol. IV-1, pp. 159-175.) The defense impeached the testimony of key prosecution witnesses Cordero and Luke Bissonnette. Appellant impeached Cordero’s testimony identifying appellant’s black jacket with Cordero’s own admissionthat the color of the jacket alone wasthe only distinctive feature enabling Corderoto identify it three years later as having been wornby appellant. (RT 9:974-977; People’s Exh. 5.) The defense impeached Cordero’s testimony with evidence that Cordero admitting lying under oath aboutthe facts of the instant case. Cordero admitted lying in his testimonyat the preliminary hearing about not recalling whether Delaloza had a weapon. (RT 9:1005-1008, 1020-1022.) Cordero testified on cross-examination,in part: Q: Do you knowthatit’s illegal to lie in a court proceeding after you take an oath witness? A: I know it’s illegal. 45 Q: And you knew it was illegal when you did it, right? A: At the time of the preliminary hearing? Q: Right. A: That’s correct. Q: Okay. And you did it anyway? A: Yeah. I did it anyways. [RT 9:1021.] Appellant also impeached Cordero’s testimony with evidence that Cordero suffered prior convictions for forgery and attempted strong-arm robbery, and used to associate with members of the Pagans gang in Whittier. (RT 9:996-998.) Appellant impeached Luke’s testimony with evidence that he had previously consumed drugsthat might have impairedhis ability to accurately perceive the events to which hetestified. Luke admitted to having consumed methamphetamine onthe afternoon or evening of October 22nd, and further testified that he might have smoked a joint of marijuana on the dayof the incident. (RT 10:1232-1233, 1237-1238.) Appellant impeached Luke’s eyewitness identification with evidence that Luketestified at the preliminary hearing that he saw a heavyset person running acrossthe street, but that it was too darkto tell what the person was wearing. (RT 10:1059-1061.) Luketestified that he only saw the person from behind running away,and never saw the person’s face. (RT 10:1064-1066.) 46 Appellant also impeached Luke’s testimony with Luke Bissonnette’s own admission that although he had earlier identified appellant, Delaloza and Castro as membersof the Cole Street gang, he in fact did not really know whether they were members of any gang. (RT 10:1281.) With respect to counts 4 and 5, appellant presented evidence that no gunshotresidue particles were found on the black jacket foundin his residence. (RT 19:2832-2833; People’s Exh. 5.) Yet, if eleven rounds werefired from a 9-millimeter handgun,a firearm expert would expect gunshot residue to be found on any jacket the shooter was wearing. (RT 19:2840-2841.) Deborah Anderson, senior criminalist employed by the Los Angeles County Sheriff’s Department, testified that in preparation for the gunshot residue test on the black jacket (People’s Exh. 5) she sampled the inside and outside surfaces of both sleeves and the inside and outside surface areas of the pockets. (RT 20:2897-2899.) Anderson testified that the more shots fired, and the larger the caliber of the gun, the greater the likelihood of residue being deposited on the gun, hand, or clothing adjacent to the weapon. (RT 20:2906-2907.) Appellant put on the jacket in front of Anderson and the jury, and demonstrated that, “with the hands extended, the jacket sleeves come downpast the knuckles, almost to the middle of the fingers.” (RT 20:2908-2910.) 47 Debra Kowal, a criminalist employed by the Los Angeles County Department of Coroner, conducted a gunshotresidue test on appellant’s black jacket. (RT 19:2827-2829.) Kowal analyzed a sample collected from the black jacket and found noparticles of gunshot residue on the sample collected from the jacket. (RT 19:2832-2833.) The magnification wasset at about 550x,allowing Kowalto see particles of a submicrometer size; for comparison, one hair is about 150 micrometers. (RT 19:2832-2833.) Ifa person is wearing a jacket andfires a weapon, then Kowal would expect some kind of gunshotresidueto be present. (RT 19:2840-2841.) Indeed, the more times the firearm is discharged, the more gunshot residue Kowal would expectto find. (RT 19:2843.) Lawrence Baggett, a firearms expert, testified that the firing of eleven rounds from a 9-millimeter pistol should deposit gun shot residue on the hand, which is not visible. (RT 20:2921.) The firing of a 9-millimeter handgun will deposit dirt on the handsofthe person firing the handgun, and the handgunitself will get dirty with the firing of only three or four rounds. This is so because the partially burned gunpowdergoes forward out of the barrel, but the burned powderresidue goes backwardonto the gun. If eleven roundsare fired through a 9-millimeter semiautomatic handgun,there will be gunpowder, gunshotresidue, soot, and smokedebris from the firing of the weapon, both on the gun and onthe hand of the shooter. The residue on the gun will be a visible black residue from 48 the carbonation. There may bevisible debris on the hand. He would also expect to find gunshot residue that is not visible on the hand of the shooter. If the shooter fired eleven shots from such a handgun wearinga black jacket which extended past the knuckles and almost to the middle ofthe fingers, Baggett would expect a powderresidue to be on the fabric of the jacket. (RT 20:2921- 2923.) Appellant produced evidence that a black jacket also was recovered from Delaloza’s residence. Officer Jeff Piper of the Whittier Police Department testified that a search of Delaloza’s residence uncovered the following items: 1) a bag containing a black sweatshirt, a dark blue jacket, and a black pair ofjeans (Defense Exh. K); and, 2) a bag containing a black jacket (Defense Exh. L). (RT 19:2873-2878.) These items were seized based on descriptions of suspects provided to Piper by officers investigating the Ralphs parking lot incident. (RT 19:2876-2878.) Appellant impeached Luke’s eyewitness identification by evidence that Luke did not observe the discharge of the firearm, and only saw the back ofa person’s head — a person he assumed was the gunman — running away from a distance in the night. (RT 10:1059-1061, 1064-1066.) Luke did notsee the person in possession of a gun. (RT 10:1064-1066.) 49 Kathy Pezdak, Ph.D., an eyewitness identification expert, testified about the following hypothetical situation where a witness named Luke encounters appellant on October 1997 and runs away from him: appellant is wearing a black jacket; later that night, while lying on a bed without any sleep, Luke hears a series of gunshots, get up, and peeks out the window;looking acrossthestreet, he sees a person for one or two seconds running away; and, becauseit is dark outside and the only light is from a single streetlight across the street, Luke does not see the person’s face and cannottell what the person is wearing. (RT 19:2849-2851.) Pezdak testified that under these circumstances Luke could not possibly see what the person looked like, and thus it would be very unlikely that he could correctly identify the suspect. (RT 19:2850-2852.) Pezdaktestified that if the witness had an expectation of seeing a particular person, but did not get a good look at the person, then that expectation could result in an erroneousidentification. (RT 19:2856.) Pezdak testified on direct examination, in part: “The witness expects to see a person, sees this vague thing out there for one or two seconds, confirmshis expectation. Doesn’t perceive a particular person, but confirms his expectation in his own mind, and thereafter that’s who heclaimsit was, claims he can recognize, and so forth.” (RT 19:2856.) 50 Pezdak testified on cross-examination, in part, as follows: Q: Whatif the clothing that Luke described is consistent with the clothing that Richard was wearing during the first confrontation a few blocks away? Wouldn’t that bolster or at least support the subsequentidentification? A: If he actually saw that clothing, but in fact if he said to the police, I — the lighting was so poor I couldn’t see what the clothing looked like, but then later reported a heavy black jacket. I would say that’s a case where expectation is effecting [sic] perception. You know, if initially a witness said I couldn’t tell what the clothing was because it was too dark, but then later said he had on the same dark black jacket, that could be just he remembered the dark jacket from the earlier incident, so over time, his expectations and memoryis just being fulfilled by the expectation. Butif he literally said I couldn’t tell what his clothes was [sic] because it was too dark,I take him at his word. Q: I see. And were you present when Luke Bissonnette testified in this courtroom? A: No. I was excluded. Q: And wouldn’t it have been beneficial for you to actually see his demeanor in answering these questions to actually evaluate the degree of certainty in his identification? A: No. Certainty is not a good reflection of accuracy. A witness has expressedcertainty is a [sic] personality characteristic. We know from a numberof studies that have been done that witness confidence, witness certainty is not a good indication of whether that witnessis likely to be correct or incorrect. So, no. Judging — looking at a witness’s demeanor, looking at the presentation style, looking at their confidence or certainty is not a good wayto judge whether they really saw the person or not. [RT 19:2868-2869.] Pezdak testified that in her opinion Luke’s eyewitness identification testimony wasvery unreliable. (RT 19:2872.) 51 With respect to the Castillo homicide and conspiracy,trial defense counsel argued that there was no evidence to prove the content of appellant’s telephone calls to the Marin household. (RT 23:3500-3501.) Marin, McGuirk and Miranda were not credible, and in fact had ample timeto assimilate their stories prior to being interviewed bythe police. (RT 23:3500-3506.) Further, even if Marin were to be believed, appellant only told him to tell Castillo not to testify; appellant did not say to kill him. (RT 23:3504-3505, 3507.) C. GUILT PHASE — THE PROSECUTION’S REBUTTAL EVIDENCE On May 21, 1999, wiretaps were placed on the telephonesat the residences of Marin, Castro, Bermudez and Tapia. Wiretaps were also placed on the jail telephones of appellant and Delaloza. The same day, searches were conducted of the residences of Castro, Bermudez and Tapia. (RT 22:3307-3311.) Several calls were recorded to and from the residence of Bermudez. In three telephone calls recorded from Bermudez’s residence on May 21, 1999, Bermudezstated that 1) the police had searched his house, 2) the police were trying to “get him” for Castillo’s murder, and 3) “Tony” (i.e., Marin) was “ratting” on him. In a telephone conversation on May 23, 1999, with an unknownindividual, Bermudez asked the individual how thepolice got their information and commented, “You know wecan do Tony [Marin] right away.” In anothertelephone call that same day, Bermudezsaid that he was going to 52 “jam,” meaning that he was going to leave town. Ina telephonecall on May 26, 1999, Bermudezsaid that he was sleeping with his shoes on so he could run if the police came for him. (RT 22:3312-3331, 3337-3339.) Tapia was arrested on May 26, 1999. Castro was arrested on May 27, 1999. (RT 22:3340-3341.) Bermudez called his friend Josh right after Castro wasarrested and asked Josh to comeget him so he could hide. On May 28, 1999, when Bermudez’s mother called him and told him that the police were looking for him, he told her that he was going to leave town and wouldcall herlater. Bermudez wasarrested later that day at Josh’s house. (RT 22:3341-3359.) D. PENALTY PHASE — THE PROSECUTION’S EVIDENCE 1. ASSAULT WITH A FIREARM ON R.J. UZEL R.J. Uzel’® testified that on May 20, 1997, he wasin the City of South Whittier (an area close to Goodhue Street) with two people, Debra Recio and a male friend (identified by Recio as Michael Orozco). Recio was driving Uzel’s vehicle. She parked in the parking lot of a McDonald’s restaurant so that Uzel could use the pay telephonein front of the restaurant. (RT 27:4022-2025.) Uzel and the male friend exited the vehicle. (RT 27:4025.) ‘0 R.J. Uzel also is variously referred to in the record on appeal as either R. Jason Uzel or Jason Uzel. (RT 19:2796, 26:3855, 3862-3863, 27:4006, 4010, 4016.) For ease of reference, and to conform to the name most usedby the parties and the court, he will be referred to herein as Jason Uzel. 53 While using the pay telephone, Uzel was approached by an unknown person. It was dark outside, and Uzel could notidentify the age of the person, nor any physical characteristics of significance, including the person’s race. (RT 27:4026-4034.) The person did not do anything to Uzel. (RT 27:4030.) After using the phone, Uzel and his male friend got into Uzel’s vehicle. (RT 27:4031.) Recio was already in the car and wasin the driver’s seat. (RT 27:4024-4025, 4027-4032.) As Recio pulled out of the parking lot bullets came through the windowon the passengerside and shattered the glass. (RT 27:4031- 4032.) A bullet went through Uzel’s leg and skimmed his chest. He did not see wherethe bullets came from, nor did he see anyone in the immediate area. Recio drove to the Whittier Hospital. Uzel knew of no reason why anyone would shoot at him. (RT 4027-4032.) Uzel testified that he knows appellant because they went to high school together, but does not know him to have a nicknameof any kind, he has never referred to him as Dozer, and he has never confided to anyone it was Dozer who shot him. (RT 27:4038-4044.) Debra Reciotestified that she was with Uzel and Michael Orozcoat the McDonald’s restaurant on May 20, 1997. (RT 27:4047-4053.) She wasdriving Uzel’s blue Honda. Uzel was using the pay telephone and Orozco wasstanding nearby. She did not notice anyone approach the twoat the pay telephone. A few 54 people weresitting outside. At one point, Uzel came back, got in the car, and sat down. Orozco got into the back seat. Uzel was then shot. Recio lookedto his direction and Uzel was leaning on her. She put the car in reverse and took off. She did not see anyonenearthe car and does not know whoshot Uzel. She took Uzel to Whittier Hospital. Uzel did not say who shot him. Uzel has nevertold her that Dozer was the person, but that was the word “on the street.” (RT 27:4047-4051, 4056-4057.) Recio’s prior testimony wasread into the record. She previously stated that a couple of days after the incident when Uzelgot out of the hospital “all I rememberhimit (sic) was Dozer,” and he wastrying to decide howto get backat the Cole Street gang for shooting at him. (RT 27:4053-4054.) Recio testified that when Uzel got out of the hospital the word on the street was that Dozer shot Uzel, but Uzel never told her that he saw Dozer shoot him. (RT 27:4055.) Abraham Van Roodtestified that he wasin his car at the intersection in front of the McDonalds restaurant. He did not observe any particular vehicle, but he heard shots fired and saw the muzzle of the gun, and saw the muzzle flashes in the McDonalds parking lot. He heard two or three shots. He saw a young man in the vicinity who was a holding a gun and shooting at the car. The gunman then ran to a vehicle and got into the passenger seat. He observedthe license plate 55 numberand then flagged down anofficer and relayed the information. (RT 27:4058-4063.) Deputy Jeffrey Reiley responded to the call at McDonalds. He spoke with Van Roodand recorded the license plate numbergiven to him. (RT 27:4067- 4070.) The vehicle was registered to Diana Hara, 8511 Dalewood Avenue, Pico Rivera. (RT 27:4070-4071.) Bermudez’s driver’s license showshis address as 8511 Dalewood Avenue, Pico Rivera. (RT 27:4071-4072; People’s Exh.6.) Deputy Ramon Lascanotestified that on May 20th he went to 8511 Dalewood Avenueto checkthe location for a suspect vehicle involved in an assault with a deadly weapon. He spoke with Hara, and Hara provided unspecified information about the person driving the vehicle that night. (RT 27:4074-4076.) 2. VICTIM IMPACT With respect to Brian Molina, the prosecution presented the testimony of the following victim impact witnesses: John Molina (father), Brandon Molina (youngerbrother), John Molina (older brother), Sandy Esparza (aunt), Yolanda Peru (godmother), and Keryn Serna (mother). (RT 26:3899-3934, 3940-3943.) With respect to Michael Murillo, the prosecution presented the testimony of the following victim impact witnesses: Sarah Teutimez (grandmother), Maria Enriquez (aunt), Jami Murillo (sister), Janice Chamberlin (aunt), Heather 56 Chamberlin (cousin), Esther Murillo (mother), Sylvia Fuchs (godmother), and Mike Murillo (father). (RT 26:3941-3970, 3976-3984.) The prosecution also played a videotapetribute to the life of Murillo, containing pictures of him with music soundtrack (but no lyrics). (RT 26:3936-3937, 3968-3970; People’s Exh. P-3.) With respect to Jaime Castillo, the prosecution presented the testimony of the following victim impact witnesses: Javier Castillo (father), Linda Castillo (stepmother), David Castillo (younger brother), Luci Castillo (aunt), Maria Novela (aunt), and Juan Castillo (cousin). (RT 27:3981-4005.) E. PENALTY PHASE — THE DEFENSE EVIDENCE 1. CLINICAL ASSESSMENT OF MENTAL HEALTH ISSUES ADVERSELY AFFECTING APPELLANT Dr. Cynthia Stout, a forensic examiner with a doctorate in psychology, testified that she examined appellant by conducting a clinical interview, gathering a psychological history, and doing some psychological testing. (RT 28:4211:1- 4212:8.) She administered the MMPI-2, whichis an objective test that looks at personality structure and functioning. She also gave appellant the Shipley Hartford, which is a screening test for getting an estimate of intelligence. Appellant was given the Hand Test, whichis a projective test that looks at underlying issues or underlying structures to a person’s personality. (RT 28:4212-4213.) 57 Dr. Stout testified that there was a discrepancy between what she saw of appellant during his clinical interview and the test results. Appellant was very cooperative. He was a nice, social, and friendly kid, and had natural and normal responses andreactions. Nothing in his history stood out as being contributory or underlying as far as the crimes for which he had been convicted. Stout was surprised whenthetest results revealed a different picture; she found those results to be reflective of, and very consistent with, excessive use of methamphetamine. (RT 28:4215-4217.) Appellant’s test results indicated a prolonged and intense use of methamphetamine. Appellant had elevations on the scales for paranoia and schizophrenia, which suggests delusions and hallucinations, where one may see something that is not there or believe something that is not based in reality. He had an elevation on the scale for mania, meaning lot of agitation, energy, restlessness, and irritability. Appellant had been using unbelievable amounts of methamphetamine, together with other substances, for about a two-year period. (RT 28:4218-4220.) Dr. Stout testified that appellant used about two grams of methamphetaminethe night of October 23, 1997, and throughout the night he consumedatleast 24 beers and smoked marijuana. With that much methamphetamine,there wascertainly a propensity for an outburst of violence. 58 (RT 28:4244-4247:) Methamphetamineinduces violence in people. With chronic use, people becomeparanoid, feel alienated, and can havehallucinations and delusions. They do notinterpret like normal people and are aptto misinterpret social things. They have feelings of persecution and fear, and are always looking over their shoulder. They do not sleep for days or weeks at a time. They do not attend to personal hygiene very well. If a person uses methamphetaminefor a long period, it can change the chemistry in the person’s body so that it becomes their normalstate. It can alter the person’s personality through chronic use and from intense situations. (RT 28:4217-4218.) Dr. James Rosenberg, a medical doctor and psychiatrist, did not evaluate appellant but, instead, testified to educate the jurors on the effects of methamphetamine on the human body and to explain subsequentviolent behavior. (RT 28:4253-4254, 4262-4264.) Methamphetamineis a psycho- stimulant that enhancescertain chemicals in the brain. (RT 28:4254-4256.) If methamphetamineis abused,it can cause psychological effects and other types of psychiatric effects. When a methamphetamine useris in an intoxicatedstate, there are symptomssuchas elevated mood, feeling grandiose, feeling euphoric, decreased appetite, decreased need for sleep, and being energized. It is similar to whatis seen in manic depression or bipolar disorder. Individuals who use methamphetamine heavily or over extended periods can develop more severe 59 symptoms,even short-term, called psychotic disorders. They could look like someone with paranoid schizophrenia and havefalse beliefs that people are after them or out to get them; they can have trouble with judgment, impulse control, and aggressiveness. There are also long-term syndromes. Methamphetamineis something that people generally become rapidly addicted to psychologically and physically. (RT 28:4256-4258.) Long-term effects of methamphetamine use include permanent brain damage. Studies show that neurons, the main brain cells, can be permanently destroyed by methamphetamine use. They are major neuronsthatcontrol personality, thinking, impulse control, and judgment. The brain damage can lead to a permanent changein personality and the development of psychotic symptoms. The psychotic symptomscan continue for monthsor years, or be permanent. They can also go away for a while and then come back under marked stress. They can come and goin responseto other triggers. Another long-term effect can be frontal lobe brain syndrome. Thefrontal lobe is the part of the brain that controls judgment, impulse control, and the ability to control aggressive feelings. People who are demented or have brain damageto their frontal lobe from a car accident have problemscontrolling aggressive tendencies and have a lack ofjudgment. (RT 28:4260:21-4262:6.) 60 2. CHARACTER WITNESSES George Garcia, appellant’s cousin and bestfriend, testified that they were part of a very close family and saw each other almost every weekend. (RT 28:4188-4190.) In October 1997, he and appellant became involved in the drug culture, particularly methamphetamine. Methamphetamine is a demonthateats you up and makes you mean; it makes you do things you would not do ina normalstate of mind. (RT 28:4190-4191.) He knew that appellant was using methamphetamine almost every day. Once they did an “eight ball” in one day, whichis up to forty or fifty lines. Garcia observed changesin appellant as a result of drug use. Prior to his drug usage, appellant wasthe “light of the room.” Helaughedall the time and was very down-to-earth. Appellant was funny and cared for Garcia. (RT 28:4191-4195.) Garcia testified that he is familiar with the effects of methamphetamine becauseat one time he wasa user. Methamphetaminecan affect the mind and control a person’s actions. It makes you go crazy. Garcia knew appellant used methamphetamine on a daily basis and is pretty sure he was using methamphetamine on October 23 or 24, 1997 because he had comeinto a large amountprior to that weekend. (RT 28:4195-4200.) Garciais testifying out of love for appellant. (RT 28:4200-4202.) Matthew Penunuri, appellant’s 11-year-old brother, is very close to appellant. At some point, Matthew saw appellant get involved in gang life and 61 taking drugs. (RT 28:4205-4206.) Appellant was never mean to him andis not the type of person who would kill someone. (RT 28:4206-4209.) Lupe Villalba testified that appellant is her sister’s grandson. She has knownappellantall of his life. She knows him to be a good and loving son that is close to his family. He was a happy kid. He always waskind andrespectful, and never exhibited any violence. Appellant had a good relationship with his brother, cousins, nieces, and nephews. The family has cometo thetrial. Those currently present include appellant’s mother, father, younger brother, cousins, uncle, aunt, grandmother, grandfather, and Villalba’s sister and sister-in-law, and Villalba’s brother-in-law and sister and husband Tommy. (RT 28:4302-4307.) Villalba still loves appellant and wants him to live. (RT 28:4310-4312.) Rita Garcia, appellant’s aunt and mother of George Garcia, testified that appellant is very loving and funny, and he always made them laugh. Heis capable of love, and Garcia loves her son just as she loves appellant. (RT 29:4385:22 - 4387:6.) Appellant was always respectful to Garcia. (RT 29:4392- 4394.) Frances Martinez, appellant’s great grandmother, knowsappellant as a very nice boy. He respects her and neverdid anything to her. He is kind and shows compassion anda heart. Martinez feels there is hope for appellant and would like to see him live. (RT 29:4395-4398.) 62 Josi Penunuri, appellant’s grandmother,testified that appellant is a wonderful boy. She loves her grandson a lot and does not want to lose him. (RT 29:4401 - 4403.) Maria Penunuri, appellant’s mother, testified that she and appellant’s father dated for five years before appellant was born, but they were not married at the time. She and appellant have a special bond. Until appellant was 14 years old, they were very deeply involved in religion. (RT 29:4404-4406.) Appellant is full of life, always laughing and joking around. (RT 29:4407-4408.) He isa very protective big brotherto his brother and cousins, always showing them lot of love. (RT 29:4408-4409.) She does not believe him capable of committing the crimes of which he has been found guilty, and she believes he is not guilty of those crimes. She was very angry about Delaloza’s statementto the police because he did nottell the truth, and that anger showed through on the recorded jail conversations she had with appellant. (RT 29:4409-4412.) Appellant told her in confidence that he waspart of the robbery at the Ralphs parkinglot in Whittier, and she believed him. He nevertold her that he used a gunin that robbery, but he told her that he took property that did not belong to him from people in that parking lot. (RT 29:4416-4419.) Maria Penunuritestified that she manufactured analibi for the period when the murder occurred because she knew that Delaloza wasresponsible, not 63 appellant, and Delaloza wastrying to blame appellant. She recalls the recorded conversation where she recommended that Aunt Laurie say that she was with appellant that night. She thinks that all mothers would be there for their children out of desperation for a loved one. (RT 29:4419-4422.) She loves her son and knowsthatif he lives throughthis, then he will be in prison for the rest of hislife. She hopesthatheis still going to be alive. (RT 29:4424.) /// 64 ARGUMENT JURY SELECTION THE TRIAL COURT’SDISMISSAL FOR CAUSE OF PROSPECTIVE JUROR STEVEN METCALF — WHERE METCALF STATED HE COULD FAIRLY AND IMPARTIALLY DECIDE THE CASE AND RETURNA VERDICT FOR EITHER LIFE OR DEATH - REQUIRES REVERSAL OF THE DEATH JUDGMENTFOR A DENIAL OF THE STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS, EQUAL PROTECTION, AN IMPARTIAL JURY, AND A FAIR AND RELIABLE PENALTY DETERMINATION(CAL. CONST., ART.I, §§ 7, 15, 16 & 17; U.S. CONST., 57%, 67%, 8" & 14" AMENDS.) A. INTRODUCTION, PROCEDURAL BACKGROUND AND SUMMARY OF ARGUMENT Thetrial court began hearing challenges for cause on November7, 2000, after all prospective jurors had completed a 16-page jury questionnaire, and after dismissal of certain prospective jurors by stipulation. (RT 6:428-431, 444-451.) Prospective Juror Steven Metcalf wasin the third group of nineteen prospective jurors called on the afternoon of November 8". (RT 7:713; CT Supp. V, Vol. 3, p. 662.) As explained in subsection C, post, Metcalf’s jury questionnaire revealed that Metcalf was a middle-aged Caucasian male, married ~ with twochildren, and employed as a pastor at the La Verne Heights Presbyterian Church. (CT 8:2170-2171.) He had previously served as a foreman on a jury that reached a verdict in an armed robbery case. (CT 8:2177.) His religion does not advocate the abolition of the death penalty. (See CT 8:2181-2182 [does not 65 belong to such a group].) He could apply the law regardless of his personal views. (CT 8:2180, 2181.) Although his current view of the death penalty was “in flux — away from its use...” (CT 8:2181), he would not “automatically vote for life imprisonment without the possibility of parole and under no circumstancesvote for a verdict of death.” (CT 8:2181.) During oral voir dire, he gave a single response to a general question from the trial judge, stating “I should probably include myself, your honor” (RT 7:722), to the judge’s question to the panel whether anyone “could under no circumstances; no matter what the evidence was; no matter what the factors in aggravation were, ever vote for a penalty of death[.]” (RT 7:721-722.) During subsequent questioningbytrial defense counsel, Metcalfdid not respond when counsel inquired of the panel whether anyone would say, “[M]y mindis closed; I can’t under any circumstances even consideras an alternative the death penalty, period.” (RT 7:733.) The prosecutor’s subsequent challenge for cause against Metcalf was granted without objection by trial defense counsel'' (RT 7:752), and without individual voir dire of Metcalf. (Cf. RT 713-752.) " People v. Cleveland (2004) 32 Cal.4th 704, 734-735 [“failure to object does not forfeit the right to raise the issue on appeal, althoughit does suggest counsel concurred in the assessmentthat the juror was excusable”]. 66 Metcalf’s responsesto the jury questionnaire revealed that his view of the death penalty was “in flux” but that he could follow the law as stated by the judge and that he would not “automatically vote for life imprisonment without the possibility of parole and under no circumstances vote for a verdict of death.” (CT 8:2181-2182.) His response to the court’s general inquiry of the panel, “I should probably include myself, your honor” (RT 7:722), suggested the need for further questioning of Metcalf.'? Yet, momentslater trial defense counsel explained to the panel that merely feeling stress over having to potentially make such a weighty decision whether someonelives or dies makes the person “a good juror.” (RT 7:732.) Counsel explained that “[t]hese are some of the heaviest and most important decisions that you will ever be asked to make. And we expect you to deal withit on that basis.” (RT 7:732.) Counsel then stated: What becomesa negative is if you say my mindis closed; I can’t under any circumstances even consider as an alternative the death penalty, period. Or my mindis closed; I don’t care what comes before me,if I convict him of murder, eye for an eye, they’re gonnadie. Thatrigidity, that not being open to being involved in the process is what makes you unfit to serve as a juror in this case. "? It also suggested, as explained below,that the prosecutorfailed to meet its burden of demonstrating to the trial court that the Witt standard was satisfied when striking Metcalf. (People v. Stewart (2004) 33 Cal.4th 425, 445 [moving party bears the burden of demonstrating to the trial court that the Witt standardis satisfied as to each of the challenged jurors]; Wainwright v. Witt, supra, 469 U.S. at p. 423.) 67 So, with that in mind, I’m going to ask you now ts there anybody here whofeels that they really shouldn’t be a jurorin this case? [RT 7:733.] Several jurors responded (RT 7:733-734), but Metcalfdid not, indicating that after thinking things through, and consistent with the statements made in his questionnaire, Metcalf could fairly decide the case and wasnot so rigid as to be precluded from returning a verdict of death. As explained below, Metcalf affirmed that he would follow the law during the penalty phase and could return a verdict of death, and that his beliefs about capital punishment, includinghis religious beliefs, would not prevent or substantially impair his ability to return a verdict of death in this case. Thetrial court’s implicit finding of substantial impairment, which was made without the benefit of any individual voir dire of Metcalf, is not supported by substantial evidence, thereby requiring reversal of the death judgment. (Cf. Wainwrightv. Witt (1985) 469 U.S. 412, 424 [105 S.Ct. 844, 83 L.Ed.2d 841]; People v. Ochoa (2001) 26 Cal.4th 398, 431.) B. THE TRIAL COURT’S IMPLICIT FINDING OF SUBSTANTIAL IMPAIRMENTIS NOT ENTITLED TO DEFERENCE BECAUSE METCALF WAS NOT MEANINGFULLY EXAMINED ON VOIR DIRE AND THE TRIAL COURT’S RESOLUTION,IF ANY, OF CONFLICTS ON THE QUESTION OF JURORBIAS IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE The trial court summarily dismissed Metcalf on the prosecutor’s motion to excuse for cause, without any individual oral voir dire of Metcalf to assess his 68 demeanorand attitude, and without making any findingsor stating any reasons for the dismissal. (RT 7:713-752.) Thetrial court thus made no explicit finding of bias or substantial impairment. Appellant recognizes that granting a motion to excuse for cause constitutes an implicit finding of bias, warranting some degree of deference by the reviewing court. (People v. Stewart, supra, 33 Cal.4th at p. 451; Uttecht v. Brown (2007) 551 U.S. 1, 7-9 [127 S.Ct. 2218, 167 L.Ed.2d 1014].) Yet, the trial court’s resolution of conflicts on the question of juror bias is binding on this Court, and thus due some deference, only where supported by substantial evidence. (People v. Hamilton (2009) 45 Cal.4th 863, 889-890; People v. Martinez (2009) 47 Cal.4th 399, 427 [“Thetrial court’s resolution of conflicts on the question of juror bias is binding on the reviewing court if supported by substantial evidence.”J.) No deference is due here because by summarily dismissing Metcalf without engaging him in individualvoir dire the trial court utterly failed to resolve any conflicts on the question ofjuror bias. The record in this case of no individual voir dire — and no attempt to resolve any perceived conflicts on the question of juror bias — stands in stark contrast to those cases where careful voir dire warranted deference. (Cf. Uttecht v. Brown, supra, 551 U.S. at p. 11 [before deciding a contested challenge for cause,the trial judge gave each party a chance 69 to argue its position and recall the potential juror for additional questions, and then the trial judge gave “careful and measured explanations”]; People v. Martinez, supra, 47 Cal.4th at pp. 429-430 [affirming trial court’s dismissal of Prospective Juror B.S. based on the “extensive transcript documenting the voir dire of B.S.”, noting that the trial court “supervised a diligent and thoughtful voir dire” (quoting Uttecht v. Brown, supra, 551 U.S. at p. 20), and took painsto state and apply the correct standard and to explain the overall impression it received from the entire voir dire of B.S.]; People v. Wilson (2008) 44 Cal.4th 758, 780 [faced with a conflict in the juror’s responses, the trial court pursued the matter further, producing what it viewed reasonably under the circumstancesas an anti-death penalty “epiphany”].) Nor could Metcalf’s demeanorand attitude reasonably supportthetrial court’s ruling because the trial court failed to engage Metcalf in voir dire, thereby revealing that the trial court did not critically examine Metcalf’s demeanor and attitude. (Cf. People v. Hamilton, supra, 45 Cal.4th at pp. 809-891 [demeanor andattitude revealed on the record bytrial court’s questioning of prospective juror and juror’s answersto the court’s questions]; Wainwright v. Witt, supra, 469 U.S. at p. 428 [the “mannerof the juror while testifying is oftentimes more indicative of the real character of his opinion than his words” ].) 70 Accordingly, the trial court’s resolution, if any, of conflicts on the questionofjuror bias is not entitled to deference because it is not supported by substantial evidence. OF METCALF’S RESPONSES TO THE JURY QUESTIONNAIRE, AND HIS SINGLE UNEXPLORED RESPONSE DURING ORAL VOIR DIRE, REVEAL THAT HE COULD FAIRLY AND IMPARTIALLY DECIDE THE CASE AND RETURN A VERDICT FOR EITHER LIFE OR DEATH Metcalf was well qualified to serve as a juror in a capital murdertrial. Metcalf’s jury questionnaire, whichthetrial judge previously stated he had read (RT 6:428 [read all jury questionnaires]), revealed that Metcalf was a middle-aged Caucasian male, married with two children. (CT 8:2170.) He was employedas a pastor at the La Verne Heights Presbyterian Church, where he had worked for seven years. (RT 8:2171.) He described his political viewsas consistent with that of a moderate Democrat. (CT 8:2173.) He enjoyed, among other things, hiking, backpacking, reading, and sports. (RT 8:2174.) Two or three years earlier he served as the foreperson on a jury involving the charge of armed robbery, wherein the jury reached a verdict. (CT 8:2177.) In the section of the questionnaire entitled General Bias (CT 8:2179- 2180), Metcalf affirmed his positive views ofthe trial and jury system. (CT 8:2179.) Responding to question 101 about his feelings in connection with judging the conduct of another, he wrote, “I take it with great seriousness and must admit to some fear and trembling concerning the responsibility.” (CT 71 8:2179.) In response to question 104 aboutsitting as a juror in this case, he wrote, “Potentially sitting in judgment onthe lives of others that could lead to such extreme consequencesfeels very hard.” (CT 8:2179.) When askedin question 114 about being able to “follow the court’s instructions on the law regardless of whether you personally agree with the law as given to you by the court[,]” he checked the “yes” box, affirming his ability to do so, and candidly added,“I can only try and hopeto do whatis right.” (CT 8:2180.) In the section of the questionnaire entitled Death Penalty (CT 8:2181- 2183), Metcalf affirmed that he does not belong to any group that advocates the abolition of the death penalty. (CT 8:2181-2182.) Although describinghis current views of the death penalty as being “in flux — away from its use as presently practiced in this country” (CT 8:2181), Metcalf unequivocally stated in response to question 128 that he could “set aside” his “own personal feelings regarding what the law oughtto be and follow the law as the court explains it... .” (CT 8:2181.) In response to question 130,'* “Do you entertain such a ° Asthe trial court noted, question 130 omitted any check box fora “ves” or “no” answer. (RT 6:428-429.) Thetrial court stated, in part, “[T]here was not a ‘yes’ or ‘no’ box underneath it, and manyofthe jurors wrote in their answer, a few yeses, mostly noes. But a lot of people understandably left that blank because there wasn’t any place for them to check like in the other places. They had to write it in. So I think we’ll have to inquire. Generally you cantell from the context of the questionnaires that their answers would have been noto that question in almostall of the cases, but, nevertheless, that’s something we’re going to have to look into.” (RT 6:428-429.) 72 conscientious opinion concerning the death penalty that you would automatically in every case vote for a verdict of life imprisonment withoutthe possibility of parole and under no circumstancesvote for a verdict of death?,” Metcalf responded,“I don’t think so.” (CT 8:2181.) Metcalf thus affirmed that he would follow the law during the penalty phase and could return a verdict of death, and that his beliefs about capital punishment, and his religious beliefs, would not prevent or substantially impair his ability to return a verdict of death in this case. (Cf. Wainwright v. Witt, supra, 469 U.S. at p. 424; People v. Ochoa, supra, 26 Cal.4th at p. 431.) During general voir dire, and after giving some general instructions, the trial judge asked: So, preliminarily, is there any one of the group of you whoat this time feel that should the case get to that place, that you could under no circumstances; no matter what the evidence was; no matter what the factors in aggravation were, ever vote for a penalty of death? Let’s see. We have jurors numberin thefirst alternate position, juror number7 and8, and in the back row andjuror number 4. Acosta, Vanessa. [RT 7:721-722.] Metcalf then stated, “I should probably include myself, your honor” (RT 7:722), to which the court responded, “All right.” (RT 7:722.) Thetrial court gave some additional general instructions (RT 7:722-726), and then appellant’s trial defense counsel conducted individual voir dire of 73 several of the prospective jurors. (RT 7:726-729.) Thereafter, appellant’s trial defense counsel explained to the prospective jurors that they were looking for jurors that could be fair to both sides. (RT 7:729-730.) Trial defense counsel stated, in part: This is an inquiry for cause. If we find cause to dismiss you, it doesn’t mean there’s anything wrong with you as a person.It meansthat because of accumulation of your life experiences or who you are or what youbelieve in or any of the things that make you an individual, renders you in our opinions incapable of being neutral and fair to both sides in this case. [RT 7:730.] Trial defense counsel continued: I know a bunchof you raised your hands in the beginning, and I didn’t get any names down.But let me -- before I ask you to raise your handsagain, let me give youa little more of what I’m after here. [4] The secondaspectofthe case,if it gets that far, is what’s the punishment. How should the accused be punished. Asthe judge has explained to you, there’s two choices: life without the possibility of parole it’s called L-WOP,and it means go to prison and youstay there, period. It doesn’t change. You die in prison -- versus you go to prison and you’re executed some time in the future. [RT 7:731-732.] Trial defense counsel also correctly explained the law that simply because a juror finds the processto be difficult does not mean that the juror would not be a good juror to hear the case. Defense counselstated, in part: So the fact that you’re now grappling with this thing, oh, my goodness, you know,this is really heavy decisions; these are really heavyjudgments that I have to deal with, makes you a goodjuror. 74 That makes you exactly the type of person we all want. No one wants this case dealt with cavalierly or lightly. This is major, major, major stuff. These are someof the heaviest and most important decisions that you will ever be asked to make. And we expect you to deal with it on that basis. So the fact that you’re hesitant or the fact that you’re uncomfortable or the fact that you’re not -- you know,oh, my goodness, the death penalty is involvedin this, is not a negative. It’s a positive. What becomesa negative is ifyou say my mindis closed; I can’t under any circumstances even consider as an alternative the death penalty, period. Or my mindis closed; I don’t care what comesbefore me, ifI convict him ofmurder, eye for an eye, they're gonna die. That rigidity, that not being open to being involvedin the process is what makes you unfit to serve as a jurorin this case. So, with that in mind, I’m going to ask you now is there anybody here whofeels that they really shouldn’t be a jurorin this case? [RT 7:732-733 (emphasis added).] Prospective Juror Metcalf never raised his hand in responseto this question, thereby revealing that he could keep an open mind and return a verdict of either life or death. (See RT 7:733-738.) Instead, Prospective Jurors Jackson, Martin, Peralta, Acosta, Lord, Lopez, Duncan, and Enosraised their hands and were acknowledged by defense counsel. (RT 7:733-734.) After a short discussion with Enos, Jackson, and Martin (RT 7:734-735), Prospective Juror Williamson stated that he was “against the death penalty.” (RT 7:735.) Defense counsel then questioned Lopez, Duncan,Peralta, Acosta and Lord. (RT 7:736- 738.) No other prospective jurors, including Metcalf, indicated that they could not fairly decide the case and, if appropriate, return a death verdict. (See RT 75 7:733-738.) Additional oral voir dire was conducted of Prospective Jurors Garza, Bosnyak, Loerasacks, Jackson, and Martin. (RT 7:738-750.) The prosecutor then moved to excuse Prospective Juror Metcalf for cause. (RT 7:752.) The prosecutor did so without asking any questions of Metcalf during voir dire; nor had the trial judge examined Metcalf. (See RT 713-752.) The court granted the motion and dismissed Metcalf. (RT 7:752.) Trial defense counsel did not object to the dismissal, but also did not affirmatively express approval thereof. (RT 7:752.) Metcalf’s responsesto the jury questionnaire, and his single unexplored response during oral voir dire, reveal that he could fairly and impartially decide the case andreturn a verdict for either life or death. (CT 8:2169-2184; RT 7:713- 752.) D. THE TRIAL COURT’S IMPLICIT FINDING OF SUBSTANTIAL IMPAIRMENTIS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, THEREBY REQUIRING REVERSAL OF THE DEATH JUDGMENT The state and federal Constitutions guarantee a criminal defendant the right to due process, equal protection, trial by an impartial jury drawn from a representative cross-section of the community, and a fair and reliable penalty determination. (Wainwright v. Witt, supra, 469 U.S. at p. 424; People v. Wilson, supra, 44 Cal.4th at p. 778; Cal. Const., art. 1, §§ 7, 15, 16 & 17; U.S. Const., 5", 6", 8" & 14" Amends.) 76 An accused’s right to a fair and impartial jury drawn from a representative cross-section of the community is guaranteed by the Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as well as article I, section 16, of the California Constitution. (Morganv. Illinois (1992) 504 U.S. 719, 727 [112 S.Ct. 2222, 119 L.Ed.2d 492]; People v. Fauber (1992) 2 Cal.4th 792, 816.) Ina capital case, “the decision whether a man deservesto live or die must be made on scales that are not deliberately tipped toward death.” (Witherspoonv.Illinois (1968) 391 U.S. 510, 522-522, fn. 20 [88 S.Ct. 1170, 20 L.Ed.2d 776].) Thus, “Tijt is important to rememberthat not all who oppose the death penalty are subject to removalfor cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that the are willing to temporarily set aside their own beliefs in deference to the rule of law.” (Lockhart v. McCree (1986) 476 U.S. 162, 176 [106 S.Ct. 1758, 90 L.Ed.2d 137].) In effect, when those opposed to capital punishment are excluded from the 99 66venire, the State “crosse[s] the line of neutrality,” “produce[s] a jury uncommonly willing to condemn a manto die,” and violates the Sixth and Fourteenth Amendments. (Witherspoonv.Illinois, supra, 469 U.S. at pp. 520- 521.) “[A] sentence of death cannot be carried out if the jury imposing or recommending it was chosen by excluding veniremen for cause simply because 77 they voiced general objections to the death penalty or expressed conscientiousor religious scruples againstits infliction.” (/d. at p. 522 [fn. omitted].) As the United States Supreme Court has madeclear, a prospective juror’s personal views concerning the death penalty do not necessarily afford a basis for excusing the juror for bias. .... Because “[a] man who opposesthe death penalty, no less than one whofavors it, can makethe discretionary judgment entrusted to him bythe State,” . . . [it follows that] “a sentence of death cannot be carried out if the jury that imposed or recommendedit was chosen by excluding veniremenfor cause simply because they voiced general objections to the death penalty.” [Uttecht v. Brown, supra, 551 U.S. at p. 6, citing Witherspoonv. Illinois, supra, 391 U.S. at pp. 522-523, fn. 21.] A juror may be excused for cause if the juror’s views about capital punishment would prevent or substantially impair that juror’s ability to return a verdict of death in the case before the juror. (Wainwrightv. Witt, supra, 469 U.S. at p. 424; People v. Ochoa, supra, 26 Cal.4th at p. 431.) Reviewing for abuse of discretion (People v. Abilez (2007) 41 Cal.4th 472, 497-498), the trial court’s dismissal of a juror for cause is affirmed if “fairly supported” by the record. (People v. Cunningham (2001) 25 Cal.4th 926, 975.) The moving party bears “the burden of demonstrating to the trial court that the [Witt] standard [is] satisfied as to each of the challenged jurors.” (Peoplev. Stewart, supra, 33 Cal.4th at p. 445.) “As with any othertrial situation where an adversary wishesto exclude a juror because of bias, .. . it is the adversary 78 seeking exclusion who must demonstrate through questioning that the potential juror lacks impartiality .... It is then the trial judge’s duty to determine whether the challenge is proper.” (Wainwright v. Witt, supra, 469 U.S. at p. 423.) A trial court abusesits discretion if its ruling exceeds the bounds of reason (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478), is arbitrary and capricious, or is rendered without knowledge and consideration of “all the material facts in evidence ... together also with the legal principles essential to an informed, intelligent and just decision.” (Jn re Cortez (1971) 6 Cal.3d 78, 85-86.) Moreover,a trial court must apply the Witt standard in an even-handed and impartial manner. (Cf. People v. Champion (1995) 9 Cal.4th 879, 908-909 [holding that“trial courts should be evenhandedin their questions to prospective jurors during the ‘death qualification’ portion of the voir dire... .”].) A court’s application of the Witt standard in an arbitrary, capricious, or partial manner does not comport with the essence offairness guaranteed by due process of law. (Cf. Gray v. Klauser (9" Cir. 2001) 282 F.3d 633, 645-648, 651 [and authorities cited therein, holding that a trial court’s unjustified or uneven application of legal standard in a way that favors the prosecution over the defense violates due process].) Prospective Juror Metcalf did not express a view concerning capital punishmentthat warranted his exclusion from the jury. His answersto the jury 79 questionnaire revealed that his current view of the death penalty was “in flux — away from its use...” (CT 8:2181), but he would not “automatically vote for life imprisonment without the possibility of parole and under no circumstances vote for a verdict of death.” (CT 8:2181.) When asked in question 133, “Over the last 10 years, have your viewson the death penalty changed?[,]” Metcalf checked the box marked “Yes,” and wrote, “Less likely to be in favor.” (CT 8:2182.) In other words, Metcalf wasnot entirely against the death penalty, and he certainly could apply the law as stated by the judge and return a death verdict, if warranted by the facts. ... [W]e must keep in mind that a prospective juror who is [even] firmly opposedto the death penalty is not disqualifiedfrom serving on a capital jury. “[N]ot all who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.” [People v. Martinez, supra, 47 Cal.4th at p. 427, citing Lockhart v. McCree, supra, 476 US. at p. 176.] Metcalf was not firmly opposed to the death penalty (CT 8:2181-2182), but even if he had been that would not have been a basis to exclude him from appellant’s jury. (People v. Martinez, supra, 47 Cal.4th at p. 427.) Thecritical issue is whether the juror can apply the law and perform his duties as a juror in accordance with his oath without substantial impairment from his personal views on capital punishment. (/bid.) 80 “A juror whose personal opposition toward the death penalty may predispose him to assign greater than average weight to the mitigating factors presented at the penalty phase may not be excluded, unless that predilection would actually preclude him from engagingin the weighing process and returning a capital verdict.” [Ibid. (emphasis added), citing People v. Stewart, supra, 33 Cal.4th at p. 446; see People v. Kaurish (1990) 52 Cal.3d 648, 699.] Thecritical question of Metcalf on this issue —i.e., whether his views would actually preclude him from engaging in the weighing process and returning a capital verdict — is question 130 on the jury questionnaire, which states: “Do you entertain such a conscientious opinion concerning the death penalty that you would automatically in every case vote for a verdict of life imprisonment withoutthe possibility of parole and under no circumstances vote for a verdict of death?” (CT 8:2182.) Metcalf responded, “I don’t think so.” (CT 8:2182.) Combining the question and the response, Metcalf’s response would read, “I do not think that I entertain such a conscientious opinion concerning the death penalty that [I] .. . would automatically in every case vote for a verdict of life imprisonment without the possibility of parole and under no circumstancesvote for a verdict of death.” This is a clear statement of Metcalf’s mental state, showing that he could apply the law,set-aside his views leaning against the death penalty, and return a verdict of death. This clear statement of Metcalf’s mental state — showinganability to return a verdict of death — was not impeached during oral voir dire. Although 81 Metcalf stated that he “should probably”be included in the group of people that could not return a verdict of death (RT 7:722), the use of the word probably showsthat his response wasnot absolute, and thus could not be relied upon as an adequate basis for exclusion of Metcalf based on an inability to return a death verdict, especially in view of his unequivocal responseto this very question in the jury questionnaire. Moreover, moments after making the “probably” statementto thetrial judge, Metcalf implicitly reaffirmed his ability to return a verdict of death by remaining silent when trial defense counsel explained this very matter and requested that jurors identify themselvesif they felt they could not serve according to the rules. (RT 7:721-723 [several jurors identify themselves as not being able to apply the law, but Metcalf remainssilent].) The decision of the United States Supreme Court in Adamsv. Texas (1980) 448 U.S. 38 [100 S.Ct. 2521, 65 L.Ed.2d 581] is instructive, and reveals that the trial court’s dismissal of Metcalf is contrary thereto. In Adams, the United States Supreme Court held that the exclusion of prospective jurors on the ground that they were unwilling or unableto take a statutory oath that a mandatory penalty of death or life imprisonment would not “affect” their deliberations on any issue of fact contravened the Sixth and Fourteenth Amendments. (/d. at p. 40.) The state has a legitimate interest in 82 obtaining jurors who will be impartial on the question of guilt and will make the discretionary judgments entrusted to them without conscious distortion orbias, despite their conscientious scruples against the death penalty. Nevertheless, the Texastrial court erred by excluding prospective jurors who could not or would not state under oath (as required by Texas Penal Codesection 12.31(b)) that the mandatory penalty of death or imprisonmentfor life (on conviction ofa capital felony) would not affect their deliberations on any issue of fact. (/d. at pp. 48- 50.) Justice White, writing for an 8-1 majority, observed that the state cannot require as a condition of service as a juror in a capital case, a statement that the juror does not feel any burden of rendering judgment on another humanbeing. (Ud. at p. 50.) Although herethetrial court did notstate its reasons for dismissing Metcalf, presumably the court was concerned about Metcalf’s statements expressing a heavy burdenin rendering judgment on another humanbeing. Metcalf stated in response to question 104 aboutsitting as a jurorin this case, “Potentially sitting in judgment on the lives of others that could lead to such extreme consequencesfeels very hard.” (CT 8:2179 emphasis added].) Metcalf further stated in response to question 122 about the things that he would wantto know about the defendant before deciding between death andlife, “At this point I cannot honestly say. The possibility of being involved with making such a 83 decision feels staggering at the moment.” (CT 8:2181 [emphasis added].) Reliance bythe trial court on these statements as a basis for dismissal would contravene the rule set forth in Adamsv. Texas, supra, 448 U.S. at p. 50, prohibiting exclusion of a juror from a capital case on the basis of the burdenfelt in rendering judgmenton another human being. Adams v. Texas, supra, 448 U.S. 38 remains good law today, andits teaching, thirty years hence,still rings true: [N]either nervousness, emotional involvement, nor inability to deny or confirm any effect whatsoever is equivalent to an unwillingness or an inability on the part of the jurors to follow the court’s instructions and obeytheir oaths, regardless of their feelings about the death penalty. ... Nor in our view would the Constitution permit the exclusion ofjurors from the penalty phase . .. if they aver that they will honestly find the facts and answer the questionsin the affirmative if they are convinced beyond a reasonable doubt, but not otherwise, yet who frankly concedethat the prospects of the death penalty may affect what their honest judgmentofthe facts will be or what they may deem to be a reasonable doubt. Such assessments and judgments by jurors are inherent in the jury system, and to excludeall jurors who would be in the slightest way affected by the prospect of the death penalty or by their views about such a penalty would deprive the appellant of the impartial jury to which he or she is entitled under the law. [/d. at p. 50.] In Adams v. Texas, supra, the trial court excluded jurors whose only “fault” was “to take their responsibilities with special seriousness orto acknowledge honestly that they might or might not be affected.” (/bid.) Metcalf stated he could set aside his personal viewsand apply the law to return a death 84 verdict, if appropriate. Thus,the trial court’s unstated reasons for dismissing Metcalf may well have included Metcalf’s statements reflecting the heavy burden he would feel in rendering judgmenton another humanbeing. Yet, this is precisely the litmustest that was repudiated in Adams v. Texas, supra, 448 U.S. at pp. 48, 50. This Court’s decision in People v. Heard (2003) 31 Cal.4th 946alsois instructive, and fully supports reversal of the death judgment. In People v. Heard, supra, this Court reversed the death judgmentfinding that the trial court erred in excusing a prospective juror for cause based upon his views concerning the death penalty. (/d. at p. 959.) There, Juror H.’s responses to the questions posed on voir dire indicated he was preparedto follow the law. (/d. at pp. 959- 960.) This Court recognizedthat, to the extent that the prospective juror’s responseswereless than definitive, any vagueness reasonably must have been viewed as a product of the ambiguity of the question itself. (/d. at p. 967.) Like Juror H. in People v. Heard, supra, Metcalf’s questionnaire showed that he was preparedto follow the law andthetrial court’s instructions. (CT 8:2182; People v. Heard, supra, 31 Cal.4th at p. 959 [Juror H. affirmed he would neither vote automatically for life without parole or death, no matter whatthe evidence showed].) Juror H. denied that he would be reluctant to get to penalty phase, but answered “no”to the question, “Would you decide the case based 85 upon the evidence without fear of having to reach the next stages?” (d.at p. 960.) In this case, as discussed above, Metcalf stated that “sitting in judgment on the lives of others that could lead to such extreme consequencesfeels very hard” (CT 8:2179), and the “possibility of being involved with making such a decision feels staggering at the moment” (CT 8:2181). In terms of the heavy moral burden of imposing judgment on another human being, Metcalf’s responsesto the jury questionnaire share somesimilarity to those of Juror H. in People v. Heard, supra, although the statements by Metcalf make a stronger case for reversal. There,the trial court engaged in the following colloquy, in part: The Court: Do youthink if there were past psychological factors that they would weigh heavily enough that you probably wouldn’t impose the death penalty? Prospective Juror H.: Yes, I think they might. [/d. at p. 961.] Significantly, in People v. Heard, supra, unlike this case, the trial court posed the following three follow-up questions, and both parties posed their own additional questions, as follows,in part: The Court: You think they might auger towardlife without possibility of parole? Prospective Juror H.: Yes. The Court: Are you absolutely committed to that position? Prospective Juror H.: Yes. 86 The Court: Are you saying if there were psychological, without naming what they might be, you would automatically vote for life without possibility of parole? Prospective Juror H.: Without naming them, I don’t think so. [/d. at p. 961.] The record of Prospective Juror H. in People v. Heard, supra, is similar to the instant case in several respects. First, Metcalf’s questionnaire responses qualified him to serve in this case. He affirmed that he could apply the law, set- aside his views leaning against the death penalty, and return a verdict of death. (CT 8:2179-2182; People v. Heard, supra, 31 Cal.4th at p. 964 [noting that Prospective Juror H.’s questionnaire response that life without parole was a “worse” punishment than death, given without benefit of the trial court’s explanation of governing legal principles, did not provide an adequate basis to support excusal for cause].) Second, there was nothing in Prospective Juror H’s responsesthat would support a finding that his views would prevent or substantially impair performanceof his duties as a juror. In particular, the circumstance that the existence of psychological factors might influence Prospective Juror H.’s penalty determination did not suggest he could not properly exercise the role that California law assigns to jurors in a death penalty case. (People v. Heard, supra, 31 Cal.4th at p. 965.) Similarly, as discussed above, Metcalf’s unequivocal statement in his jury questionnaire that he could return a verdict of death (CT 87 8:2182) was not impeached duringoral voir dire. Although Metcalf stated that he “should probably” be included in the group of people that could not return a verdict of death (RT 7:722), the use of the word probably showsthat his response was not absolute, and thus could not be relied upon as an adequatebasis for exclusion without follow-up questions. Momentslater Metcalf implicitly reaffirmed his ability to return a verdict of death by remaining silent whentrial defense counsel explained this very matter and asked for jurorsto identify themselvesif they felt they could not serve according to the rules. (RT 7:721- 723.) Further, Metcalf’s responses that sitting in judgment “feels very hard” (CT 8:2179) and “feels staggering at the moment” (CT 8:2181) did not suggest that he would not properly be exercising the role that California law assigns to jurors at the guilt or penalty phase in a death penalty case. (Cf. Adams v. Texas, supra, 448 US.at p. 49; People v. Heard, supra, 31 Cal.4th at p. 965.) Third, in contrast to several questions asked of Prospective Juror H. during oral voir dire, here the trial court entirely failed to question Metcalf during oral voir dire, and the court failed to follow up on Metcalf’s response that he “should probably” be included in the group of people that could not return a verdict of death. (RT 7:722.) In Heard, this Court observed that when eventhe slightest reason to doubtarises the trial court should follow up with additional questions to resolve its uncertainty. (Cf. People v. Heard, supra, 31 Cal.4th at p. 967, fn. 9 88 [advisingtrial courts to follow up on ambiguous answers to make a complete record ofthe basis for a cause challenge]; cf. People v. Wilson, supra, 44 Cal.4th at p. 777 [affirming exclusion ofjuror wheretrial court asked a significant question, absent in this case: “do you think you’d be tempted or would you refuse to find the appellant guilty of first degree murder just to stop yourself from having to go any further?”]; People v. Avila (2006) 38 Cal.4th 491, 528, fn. 23 [sameresult; trial court posed a significant question, absent in this case: “do you honestly think that you could set aside your personal feelings and follow the law as the Court explains it to you, even if you had strong feelings to the contrary?”].) What wastrue in People v. Heard, supra, rings especially true here: “to the extent H.’s responses wereless than definitive, such vagueness reasonably must be viewed as a productofthetrial court’s own unclear inquiries.” (People v. Heard, supra, 31 Cal.4th at p. 967.) As Justice Kennedy observed, The need to deferto the trial court’s ability to perceive jurors’ demeanordoesnotforeclose the possibility that a reviewing court mayreversethe trial court’s decision where the record discloses no basis for a finding of substantial impairment. [Uttecht v. Brown, supra, 551 U.S. at p. 19 (emphasis added).] The record in the instant case — a questionnaire affirming Metcalf’s ability to follow the law and return a death verdict (CT 8:2181-2182), a single answerto a question by the court during group voir dire (RT 7:722), and Metcalf’s implicit 89 affirmation of an ability to return a verdict of death by remaining silent whentrial defense counsel requested that jurors identify themselves if they could not following the law and return a death verdict (RT 7:721-723) — discloses no basis for a finding of substantial impairment. Thetrial court thus exceededits discretion in excusing Metcalf, thereby requiring reversal of the death judgment. (Cf. People v. Heard, supra, 31 Cal.4th at p. 966; Ross v. Oklahoma (1988) 487 U.S. 81, 88 [108 S.Ct. 2273,101 L.Ed.2d 80]. /// 90 GUILT PHASE II. THE EVIDENCEIS INSUFFICIENT TO SUSTAIN A FINDING THAT APPELLANT WASA PRINCIPAL IN THE MURDERSOF BRIAN MOLINA AND MICHAEL MURILLO, THEREBY REQUIRING REVERSAL OF THE CONVICTIONS IN COUNTS 4 AND 5 FORA DENIAL OF THE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR AND RELIABLE JURY TRIAL (CAL. CONST., ART.I, §§ 7, 15 & 17; U.S. CONST., 5™, 67", 8™ & 147" AMENDS.) A. INTRODUCTION Appellant was found guilty in counts 4 and 5 ofthe first degree murders of Brian Molina and Michael Murillo (Pen. Code, §§ 187, subd. (a), 189). (CT 12:3455-3456; RT 25:3825-3827.) As explained below,there is insufficient evidence, which is reasonable, credible, and of solid value, to sustain the requisite finding that appellant was a principal in the commission of these offenses. B. STANDARD OF REVIEW Faced with a challengeto the sufficiency of the evidence, the court reviews “the whole record in the light most favorable to the judgment below to determine whetherit discloses substantial evidence — that is, evidence which is reasonable, credible, and ofsolid value — such that a reasonabletrier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578 [emphasis added]; People v. Samuel (1981) 29 Cal.3d 489, 505 [evidencerelied upon mustbe “reasonable in nature, credible and of 91 solid value”].) “The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence.” (People v. Rodriguez, supra, 20 Cal.4th at p. 11.) “Ifthe circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” (/bid., citing People v. Stanley (1995) 10 Cal.4th 764, 792- 793.) In determining whether a reasonabletrier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court “must view the evidencein a light most favorable to respondent and presumein support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” [Citation omitted.] The court does not, however, limit its review to the evidence favorable to the respondent. As People v. Bassett, supra, 69 Cal.2d 122, explained, “our task ...is twofold. First, we must resolve the issue in the light of the whole record — i.e., the entire picture of the defendant put before the jury — and may not limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of each of the essential elements . . . is substantial; it is not enough for the respondent simply to point to ‘some’ evidence supporting the finding, for ‘Not every surface conflict of evidence remains substantial in the light of other facts.’ [People v. Johnson, supra, 26 Cal.3d at pp. 576-577 (citation omitted).] The federal standard of review, underprinciples of federal due process, entails a determination of whether, upon review of the entire record in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia 92 (1979) 443 U.S. 307, 317-320 [99 S.Ct. 2781, 61 L-Ed.2d 560].) The requisite qualitative nature of the evidence is that which is sufficient to permit the trier of fact to reach a “subjective state of near certitude of the guilt of the accused... .” (Id. at p. 315.) “Evidence which merely raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely - raises the possibility, and this is not a sufficient basis for an inference of fact.’” (People v. Reyes (1974) 12 Cal.3d 486, 500, citing People v. Redmond (1969) 71 Cal.2d 745, 755.) Nor can “substantial evidence” be based on speculation: We mayspeculate about any numberof scenarios that may have occurred on the morning in question. A reasonable inference, however, “may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [{] . . ._ A finding of fact must be an inference drawn from evidencerather than .. . a mere speculation as to probabilities without evidence. [People v. Morris (1988) 46 Cal.3d 1, 21 (citations omitted).] In capital cases it is well recognized that heightened verdictreliability is required at both the guilt and penalty phasesoftrial. (Beck v. Alabama (1980) 447 U.S. 625, 627-646 [100 S.Ct. 2382, 65 L.Ed.2d 392]; see also Kylesv. Whitley (1995) 514 U.S. 419, 422 [115 S.Ct. 1555, 131 L.Ed.2d 490]; Burgerv. Kemp (1987) 483 U.S. 76, 785 [107 S.Ct. 3114, 97 L.Ed.2d 638]; Gilmorev. Taylor (1993) 508 U.S. 333, 342 [113 S.Ct. 2112, 124 L.Ed.2d 306].) 93 Moreover, even in non-capital cases, a conviction that is based on unreliable and/or untrustworthy evidence violates the constitutional guarantee of due process. (Cf. White v. Illinois (1992) 502 U.S. 346, 363-364 [112 S.Ct. 736, 116 L.Ed.2d 848] [“Reliability is ...a due process concern”]; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 646 [94 S.Ct. 1868, 40 L.Ed.2d 431] [due process “cannottolerate” convictions based on false evidence]; Thompson v. City ofLouisville (1960) 362 U.S. 199, 204 [80 S.Ct. 624, 4 L.Ed.2d 654].) A conviction unsupported by substantial evidence denies a defendant due process of law. (Jackson v. Virginia, supra, 443 U.S. at p. 318; People v. Bean (1988) 46 Cal.3d 919, 932.) Cc. THEREIS INSUFFICIENT EVIDENCE, WHICH IS REASONABLE, CREDIBLE, AND OF SOLID VALUE, TO SUSTAIN A FINDING THAT APPELLANT KILLED MOLINA AND MURILLO (COUNTS 4 & 5, RESPECTIVELY) It is axiomatic that to be convicted of first degree murder the defendant must have either directly perpetrated the murder or he must have been provento be vicariously liable for the murder. (People v. Matlock (1959) 51 Cal.2d 682, 685 [where the person actually performs or actively assists in performing an overt act resulting in death, his act constitutes murder]; Taylor v. Superior Court (1970) 3 Cal.3d 578, 582-583 [vicariousliability of aider and abettor].) The prosecution proceeded onthe theory that appellant was the direct perpetrator of the murders of Molina and Murillo, not that he had aided and 94 abetted another person in the commission of the offenses. (RT 22:3411-3412.) Nordid the court instruct on aiding and abetting liability in connection with counts 4 and 5. (RT 24:3729-3794.) The prosecution’s case against appellant rested principally on a purported motive to kill, and on the testimony of Luke Bissonnette, Roxanne Bissonnette, Matthew Walker, and Marjorie Holder, and the prior statements of Alejandro Delaloza and Carlos Arias. (Ante, Statement of Facts, § A.3.) The prosecution sought to prove that a few hours after the Ralphs parking lot incident (counts | & 2), and an hourafter the assault on Carlos Arias (count 3) and intimidation of Luke(related to count 3), appellant committed a double homicide shooting, intending to kill Arias and Luke, both of whom haddisrespected appellant by running away from him on Hornell Street, but instead mistakenly shooting Brian Molina (count 4) and Michael Murillo (count 5). (RT 22:3411-3415.) At approximately 4:00 a.m. on October 24, 1997, Molina and Murillo were shot and killed while sleeping on the rear patio of Laraine Martinez’s residence at 15171 Goodhue Street. The prosecution presented evidence that sometimeprior to the shooting appellant was seen by Luke and Roxanne Bissonnette in the vicinity of a nearby residence on Hornell Street (RT 11:1336-1341; CT Supp. Vol. IV-1, pp. 160, 162, 165), and then at the time of the shooting he was purportedly seen by Luke and Alejandro Delaloza at the 95 location of the shooting (RT 10:1189-1192, 12:1443-1444; CT Supp. IV:109-142). The States’s evidence amounted to the following: Luketestified that earlier that morning on Hornell Street he saw Delaloza’s white Cadillac approach and park next to the curb on the opposite side of the street. (RT 9:1132-1134; People’s Exh. 3.) Delaloza was driving, and appellant, Jaime Castillo and an unidentified female were inside the vehicle. (RT 9:1136-1137.) Appellant exited the vehicle and told Luke to get inside the car. (RT 9:1133-1138, 10:1156-1157.) Appellant was wearing a dark, heavyjacket identified as People’s Exhibit 5. (RT 9:1133-1138, 10:1159-1160.) Luke testified that approximately twenty-two minuteslater, after returning to Laraine Martinez’s residence, he heard aboutten gunshots. (RT 10:1186-1193.) From inside the house he looked out the window and saw figure wearing a big, bulky jacket running outside, and thought “fucking Dozer”(i.e., appellant). He then yelled the name “Dozer.” (RT 10:1189-1192.) Roxanne Bissonnette testified that on October 24th at approximately 2:30 a.m. she was inside her father’s house on Hornell Street and saw Delaloza’s white Cadillac parked to the left of the neighbor’s driveway. (RT 11:1331-1336.) She openedthe front door and saw both Delaloza and appellant standing nearby. (RT 11:1336-1341.) Appellant was wearing a dark jacket (consistent with 96 People’s Exh. 5), dark shorts and white socks. (RT 11:1338-1341.) Appellant asked her if she hadseen Carlos Arias and Luke. (RT 11:1341- 1344, 1343.) The prosecution presented the testimony of two neighbors who heard gunshots and looked outside. One neighbor, Matthew Walker, saw two figures comefrom the backyard of the house next to Luke’s house and enter a white Cadillac. (RT 10:1309-1312, 1317-1319.) Another neighbor, Marjorie Holder, looked out her window after she heard the shots and saw a male passenger, wearing dark pants and a white t-shirt, get out of a white Cadillac and stand on the corner. (RT 13:1599-1601.) The person stood there for less than two minutes and then got back into the vehicle beforeit left the area. (RT 13:1601.) The prosecution also presented Alejandro Delaloza’s tape-recorded statementto the police, which was made on October 24, 1997 after his arrest.'* (RT 12:1443-1444; CT 12:3280-3281 [People’s Exh. 37 [audiotape]; CT Supp. IV:109-142 [People’s Exh. 38 [transcript].) Delaloza stated that he and appellant went to the house on Goodhue Street to talk to Monique Martinez (Laraine Martinez’s daughter). When theyarrived, Delaloza parked around the corner and appellant went to the house. While 4 Delaloza’s testimonial out-of-court statements made during police interrogation wereentirely inadmissible, however, as a violation of appellant’s constitutional rights to due process, confrontation, and a reliable penalty determination (Cal. Const., art. I, §§ 7, 15 & 17; U.S. Const., 5", 6", 8" & 14" Amends.). (Post, § X.) 97 Delaloza wassitting in the car, he heard gunshots and saw appellant running. He thought appellant was being shot at because when appellant was running he could still hear shots being fired. (RT 12:1443-1444; CT Supp. [V:109-142.) As explained below, the evidenceis insufficient as a matter of law to sustain a finding that appellant perpetrated the killings because 1) the testimony of the prosecution witnessesas to the identity of the shooter was unreliable and 2) there is substantial physical evidence pointing to appellant’s innocence and implicating Delaloza as the likely perpetrator of the Molina and Murillo homicides. Luke’s purported identification of appellant was entirely unreliable. He consumed drugsearlier that day, impairing his ability to accurately observe the events. (RT 10:1232-1233, 1237-1238.) He admitted that after the shots were fired he looked out through the window and only saw the person for a couple of seconds. (RT 10:1059-1066.) He did not view the person’s face, but instead only caught a glimpse of the person from behind in the distance. (RT 10:1059- 1066.) It was too dark to tell what the person was wearing, and thus Luke could not identify the person, although he assumedit was appellant because he had seen appellant earlier. (RT 10:1059-1066.)"° 8 Appellant also impeached Luke’s testimony with an admissionthat although he had earlier identified appellant, Delaloza and Castro as members of the Cole Street gang, Luke did not in fact know whether they were members of any gang. (RT 10:1281.) 98 Bissonnette’s assumption that it was appellant running away from the scene is consistent with an erroneousidentification based on an expectation of seeing a particular person, as explained by the defense eyewitness identification expert Dr. Kathy Pezdak, Ph.D. (RT 19:2850-2852.) Dr. Pezdak, an eyewitness identification expert, testified about a hypothetical situation where a witness named Luke encounters appellant, and then runs away. Appellant was wearing a black jacket. Later that night while lying on a bed without any sleep, Luke hears a series of gunshots. He gets up and peeks out the window. Lookingacross the street, he sees a person for one or two seconds running away. But becauseitis dark outside and the only illumination is from a single streetlight across the street, he does not see the person’s face and he cannottell what the personis wearing. (RT 19:2849-2851.) Dr. Pezdak testified that under these circumstances Luke could not possibly see what the person looked like, and thus it would be very unlikely that he could correctly identify the suspect. (RT 19:2850-2852.) Dr. Pezdaktestified that if the witness had an expectation of seeing a particular person, but did not get a good look at the person, then that expectation could result in an erroneousidentification. (RT 19:2856.) Dr. Pezdaktestified on direct examination, in part: “The witness expects to see a person, sees this vague thing out there for one or two seconds, confirms his expectation. Doesn’t 99 perceive a particular person, but confirmshis expectation in his own mind, and thereafter that’s who he claimsit was, claims he can recognize, and so forth.” (RT 19:2856.) Dr. Pezdak testified on cross-examination,in part, as follows: Q: Whatif the clothing that Luke described is consistent with the clothing that Richard was wearing during the first confrontation a few blocks away? Wouldn’t that bolster or at least support the subsequent identification? If he actually saw that clothing, but in fact if he said to the police,I — the lighting was so poor I couldn’t see what the clothing looked like, but then later reported a heavy black jacket. I would say that’s a case where expectation is effecting [sic] perception. You know, if initially a witness said I couldn’t tell what the clothing was because it was too dark, but then later said he had on the same dark black jacket, that could be just he remembered the dark jacket from the earlier incident, so over time, his expectations and memoryis [sic] just being fulfilled by the expectation. Butif he literally said I couldn’t tell what his clothes was[sic] because it was too dark,I take him at his word. I see. And were you present when Luke Bissonnette testified in this courtroom? No. I was excluded. And wouldn’t it have been beneficial for you to actually see his demeanorin answering these questions to actually evaluate the degree of certainty in his identification? No. Certainty is not a good reflection of accuracy. A witness has expressed certainty is a [sic] personality characteristic. We know from a numberof studies that have been done that witness confidence, witness certainty is not a good indication of whether that witness is likely to be correct or incorrect. So, no. Judging — looking at a witness’s demeanor, looking at the presentationstyle, 100 looking at their confidence or certainty is not a good way to judge whetherthey really saw the person or not. [RT 19:2868-2869.] Dr. Pezdaktestified that in her opinion Luke’s eyewitness identification testimony was very unreliable. (RT 19:2872.) “Erroneousidentification of criminal suspects has long been recognized by commentators as a crucial problem in the administration of justice.” (Levine & Tapp, The Psychology of Criminal Identification: The Gap From Wadeto Kirby (1973) 121 U.Pa.L.Rev. 1079, 1081.) Numerous examples of misidentification have been extensively documented andthe problems of eyewitness identification are well chronicled in the legal and psychological literature. Over three decades ago, the United States Supreme Courtstated, “The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.” (United States v. Wade (1967) 388 U.S. 218, 228 [87 S.Ct. 1926, 18 L.Ed.2d 1149].) The United States Supreme Court also noted “the high incidence of miscarriage ofjustice” caused by such mistaken identifications, and warned that “the dangers for the suspect are particularly grave when the witness’ opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest.” (/d. at pp. 228-229.) As Justice Marshall pointed outin his dissent in Manson v. Brathwaite (1977) 432 U.S. 98, 125 [97 S.Ct. 2243, 53 L.Ed.2d 140] in referring to several additions to the literature: “Studies since Wade have only reinforced the validity 101 of its assessment of the dangers of identification testimony.” (/d. at p. 125.) Subsequently, this Court observed: Therule that the testimony of a single witness is sufficient to prove identity (see Evid. Code, § 411) is premised in part on the assumption that an eyewitness identification is generally reliable. Yet Judge Hufstedler has declared that premise to be “at best, highly dubious, given the extensive empirical evidence that eyewitness identifications are not reliable.” (United States v. Smith (9th Cir. 1977) 563 F.2d 1361, 1365 (conc. opn.).) And with his characteristic vigor, Chief Judge Bazelon hascalled on the courts to face up to the reliability problems of eyewitness identification, to inform themselvesof the results of scientific studies of those problems, and to allow juries access to that information in aid of their factfinding tasks. (United States v. Brown (D.C. Cir. 1972) 461 F.2d 134, 145-146, fn. 1 (conc. & dis. opn.).) [People v. McDonald (1984) 37 Cal.3d 351, 364.] The qualified, inconclusive eyewitness identification made by Luke, suggesting that appellant was the shooter, was thus too unreliable to sustain convictions for first degree murder in a capital case becauseit fails to meet the substantial evidence test set forth above andit fails to meet the heightened verdict reliability requirement at the guilt phase of a capital trial. The most that can be said from reviewing the testimony of Lukeis that he suspected that appellant might be the shooter; but with only a fleeting glimpse of the back of the shooter in the distance at night, he could not be certain of the identification. The jury could not reasonably infer from Luke’s testimony that appellant perpetrated the killings. (Cf. People v. Morris, supra, 46 Cal.3d at p. 21 [“A reasonable inference ... may not be based on suspicion alone, or on imagination, 102 speculation, supposition, surmise, conjecture or guess work .... A finding of fact must be an inference drawn from the evidence rather than ... a mere speculation as to probabilities without evidence.”].) Further, Roxanne Bissonnette’s testimony identified appellant earlier that morning — well before the shooting — and thus did not establish that appellant was the shooter. (RT 11:1336-1341.) Indeed, her testimony about appellant wearing white socks (RT 11:1338-1341) stands in stark contrast to the omission of such an identifying feature in Luke’s testimony. (RT 10:1111-1201.) The testimony of the two neighbors, Walker and Holder, identified Delaloza’s white Cadillac at the scene, but they did not identify the shooter. (RT 10:1309-1312, 1317-1319, 13:1599-1601.) Delaloza’s statementto the police, which placed appellant at the scene, did not identify appellant as the shooter. (RT 12:1443-1444; CT Supp. IV:109-142.) Delaloza’s statementalso is unreliable because Delaloza’s white Cadillac was at the scene of the shooting, and thus Delaloza had a motive to fabricate and shift blame to another for the shooting. Moreover, the physical evidence revealed that Delaloza wasthe likely perpetrator of the Molina and Murillo homicides. Delaloza was wearing clothing similar to that of the shadowy figure seen by Luke, and thus could have been the shadowyfigure running away from the double homicide. (RT 9:988-989, 103 11:1361-1367; 19:2878-2880.) A black jacket and two sweatshirts, both with hoods, were found at Delaloza’s residence, but the prosecution never tested these items for gunshot residue. (RT 19:2873-2878.) The 9-millimeter ammunition found at Delaloza’s residence matched the 9-millimeter ammunition from the crime scene. (RT 13:1692-1695.) Prosecution firearm examiner Richard Catalani testified on cross- examination that the 9-millimeter bullet recovered from Delaloza’s residence and the 9-millimeter shell casings found at the GoodhueStreet location had been cycled through the same firearm. (RT 13:1693-1695.) Appellant presented evidence that no gunshotresidue particles were found on the black jacket found in his residence. (RT 19:2832-2833; People’s Exh.5.) Yet, if eleven rounds were fired from a 9-millimeter handgun, a firearm expert would expect gunshot residue to be found on any jacket the shooter was wearing. (RT 19:2840-2841.) Deborah Anderson, senior criminalist employed by the Los Angeles County Sheriff’s Department, testified that in preparation for the gunshot residue test on the black jacket (People’s Exh. 5) she sampled the inside and outside surfaces of both sleeves and the inside and outside surface areas of the pockets. (RT 20:2897-2899.) Andersontestified that the more shots fired, and the larger the caliber of the gun, the greater the likelihood of residue being deposited on the 104 gun, hand, or clothing adjacent to the weapon. (RT 20:2906-2907.) Appellant put on the jacket in front of Anderson and the jury, and demonstrated that, “with the hands extended,the jacket sleeves come downpast the knuckles, almost to the middle of the fingers.” (RT 20:2908-2910.) Debra Kowal, a criminalist employed by the Los Angeles County Departmentof Coroner, conducted a gunshot residue test on appellant’s black jacket. (RT 19:2827-2829.) Kowal analyzed a sample collected from the black jacket and foundnoparticles of gunshot residue on the sample collected from the jacket. (RT 19:2832-2833.) The magnification wasset at about 550x, allowing Kowalto see particles of a submicrometer size; for comparison, one hair is about 150 micrometers. (RT 19:2832-2833.) Ifa person is wearing a jacket andfires a weapon,then Kowal would expect some kind of gunshotresidue to be present. (RT 19:2840-2841.) Indeed, the more times the firearm is discharged, the more gunshot residue Kowal would expect to find. (RT 19:2843.) Lawrence Baggett, a firearms expert, testified that the firing of eleven rounds from a 9-millimeter pistol should deposit gun shot residue on the hand, whichis not visible. (RT 20:2921.) Thefiring of a 9-millimeter handgun will deposit dirt on the handsofthe person firing the handgun,and the handgunitself will get dirty with the firing of only three or four rounds. This is so because the partially burned gunpowder goes forward outofthe barrel, but the burned 105 powderresidue goes backward onto the gun. If eleven roundsare fired through a 9-millimeter semiautomatic handgun,there will be gunpowder, gunshotresidue, soot, and smoke debris from the firing of the weapon, both on the gun and on the hand of the shooter. The residue on the gun will be a visible black residue from the carbonation. There maybe visible debris on the hand. He would also expect to find gunshot residue that is not visible on the hand of the shooter. If the shooter fired eleven shots from such a handgun wearinga black jacket which extended past the knuckles and almost to the middle of the fingers, Baggett would expect a powderresidue to be on the fabric of the jacket. (RT 20:2921- 2923.) Accordingly, the evidence does no more than raise a suspicion of appellant’s involvement, which aloneis insufficient to sustain appellant’s conviction for the murders of Molina and Murillo. (Cf. People v. Reyes (1974) 12 Cal.3d 486, 500 [“Evidence which raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction.”]; People v. Trevino (1985) 39 Cal.3d 667, 698-699.) Reversal of appellant’s convictions in counts 4 and 5 is required. (Cf. Jackson v. Virginia, supra, 443 U.S. at p. 318 [a conviction unsupported by substantial evidence denies a defendant due process of law]; People v. Bean, supra, 46 Cal.3d at p. 932.) 106 Hl. THE EVIDENCEIS INSUFFICIENT TO SUSTAIN FINDINGSIN CONNECTION WITH THE CONVICTION FOR CONSPIRACY TO COMMIT MURDEROF JAIME CASTILLO (COUNT6) THAT APPELLANT AGREED OR CONSPIRED TO COMMIT MURDER AND THAT HE HAD THESPECIFIC INTENTTO KILL CASTILLO, THEREBY REQUIRING REVERSAL OF THE CONVICTION IN COUNT6 FOR A DENIAL OF THE CONSTITUTIONAL RIGHTS TO DUE PROCESSANDA FAIR AND RELIABLE JURY TRIAL (CAL. CONST., ART.I, §§ 7, 15 & 17; U.S. CONST., 5™, 67", 8™" & 14™ AMENDS.) A. INTRODUCTION Appellant was found guilty in count 6 of conspiracy to commit murder of Jaime Castillo, on or between January 1, 1998 and January 15, 1998, a violation of Penal Codesection 182, subdivision (a)(1). (CT 12:3457-3458; RT 25:3827- 3828.) As explained below,there is insufficient evidence, which is reasonable, credible, and of solid value, to sustain findings that appellant agreed or conspired to commit murderandthat he hadthe specific intent to kill Castillo. B. STANDARD OF REVIEW Thestandard of review in assessing a claim of insufficiency of the evidence,the heightened verdict reliability requirementin a capital trial, and the California and federal constitutional violations that result from a conviction unsupported by the requisite evidenceattrial, as here, are set forth in section II.B., ante, and incorporated herein. (Cf. People v. Johnson, supra, 26 Cal.3d at 107 p. 578; Beck v. Alabama, supra, 447 U.S. at pp. 627-646; White v. Illinois, supra, 502 U.S. at pp. 363-364; Jackson v. Virginia, supra, 443 U.S. at pp. 317-320.) C. THEREIS INSUFFICIENT EVIDENCE, WHICH IS REASONABLE, CREDIBLE, AND OF SOLID VALUE, TO SUSTAIN THE FINDINGS THAT APPELLANT AGREED OR CONSPIRED TO COMMIT MURDER AND THAT HE HAD THESPECIFIC INTENT TO KILL CASTILLO A conspiracy consists of two or more persons conspiring to commit any crime. (Pen. Code, § 182.) The defendant and another person must have the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proofof the commission of an overt act by one or more ofthe parties to the agreement in furtherance of the conspiracy. (Pen. Code, § 184; People v. Russo (2001) 25 Cal.4th 1124, 1131; RT 24:3762-3769, 3777-3778.) Thetrial court instructed on conspiracy to commit murder only, with the target offense being “the murder of Jamie Castillo.” (RT 24:3766.) Thetrial court did notinstruct the jury on any other conspiracy(e.g., conspiracy to commit witness intimidation), nor did it instruct on any other target offense (e.g., witness intimidation). Accordingly, the natural and probable consequences doctrineis not relevant to the analysis whether appellant committed the charged offense of conspiracy to commit murderof Castillo. (People v. Cortez (1998) 18 Cal.4th 1223, 1238-1239 [the court has a sua sponte duty to instruct on the elements of the offense alleged to be the target of the conspiracy].) 108 A conviction for conspiracy to commit murderrequires a finding of dual specific intents, i.e., the intent to agree and the intent to kill. (People v. Cortez, supra, 18 Cal.4th at pp. 1238-1239; People v. Jurado (2006) 38 Cal.4th 72, 120 [“*A conviction of conspiracy requires proof that the defendant and another person hadthe specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act “by one or moreofthe parties to such agreement”in furtherance of the conspiracy’”].) The requirement of dual specific intents makes the mental state for conspiracy to murderidenticalto premeditation and deliberation as used in Penal Code section 189. (Peoplev. Cortez, supra, 18 Cal.4th at pp. 1238-1239.) In other words, the law on conspiracy to commit murderrequires that the defendant “intend to agree” and that the defendant himself (not merely two or more other conspirators) “intend to kill.” (Jbid.) A conspiracy to commit murder may exist if, among otherthings, “at least two” ofthe participants intended to kill. (People v. Swain (1996) 12 Cal.4th 593, 613.) But for defendantto be guilty of the crime of conspiring to commit murder, he had to have been one of the participants who harbored thespecific intent to kill. (People v. Morante (1999) 20 Cal.4th 403, 416 [“[a] conviction of conspiracy requires proofthat the defendant and another person hadthe specific intent to agree or conspire to 109 commit an offense, as well as the specific intent to commit the elements of that offense”].) Accordingly, if appellant only intended a conspiracy to intimidate and neverharbored the specific intent that Castillo be killed, he could not be convicted of conspiracy to commit murder. (Cf. People v. Cortez, supra, 18 Cal.4th at pp. 1238-1239; People v. Jurado, supra, 38 Cal.4th at p. 123; People v. Swain (1996) 12 Cal.4th 593, 600; People v. Petznick (2003) 114 Cal.App.4th 663, 680-681 [“for defendant to be guilty of the crime of conspiracy to commit murder, he had to have been oneofthe participants who harboredthe specific intent to kill’”].) Moreover, statements of coconspirators cannot be considered against the defendantunless and until the prosecution has proven by “independent evidence” that “the person against whomit was offered was participating in the conspiracy before or during that time... .” (RT 24:3768-3769 [emphasis added]; CT 12:3404; CALJIC No. 6.24.) In other words, the jury was required to make the preliminary finding whether appellant joined the conspiracy to murder Castillo before it could consider statements of coconspirators against him, and only then could it consider the statements of coconspirators madeator after the time that appellantjoined the conspiracy. (Cf. People v. Prieto (2003) 30 Cal.4th 226, 251, fn. 10; In re Hardy (2007) 41 Cal.4th 977, 995-996; Evid. Code, § 1223.) 110 Here,although there was evidence appellant was concerned Castillo might provide some unspecified testimony against him (RT 15:2033-2034), the evidence is woefully insufficient to sustain a finding that appellant agreed or conspired to commit murder and that he had the specific intent to kill Castillo. The prosecution presented evidence that on January 15, 1998, while appellant was incarcerated in county jail on charges relating to the murders of Molina (count 4) and Murillo (count 5), Jesus Marin drove Castillo and codefendants Castro, Bermudez and Tapia to the San Gabriel Mountains, where Castro killed Castillo by shooting him in the back of the head. (RT 15:2070- 2074, 2086-2088, 2090.) The prosecution sought to link appellant to a conspiracy to kill Castillo by attempting to show that 1) appellant was concerned that Castillo would provide testimony against him in the case involving Molina and Murillo and 2) appellant solicited the murderof Castillo through a series of telephonecalls he initiated from county jail. (RT 18:2698-2700, 2711-2723, 2727; People’s Exhs. 80 & 92.) Prosecution witnesses Marin, McGuirk (Marin’s wife), and Miranda (McGuirk’s friend) testified to a numberoftelephonecalls that appellant placed to Marin’s apartment where appellant spoke with, at various times, Marin and codefendants Castro, Bermudez and Tapia. (RT 15:2023-2044, 16:2334-2368.) Yet none ofthe telephonecalls established the necessary intents. 111 Marintestified that in December 1997, appellant called Marin’s apartment and spoke with codefendants Castro and Bermudez. During the conversation Castro mentioned Castillo and said, “I'll handle it.” (RT 15:2023-2025.) After the conversation, Castro stated appellant told him “Cartoon [1.e., Castillo] was gonnarat him out, that he was gonnatestify against him and fellfucking Cartoon to shut up, keep his mouth shut.” (RT 15:2031 [emphasis added].) A day or two later, appellant called and told Marin that Castillo was “gonna rat him out” (RT 15:2033) and that Marin should tell Castillo “not to say shit, that that’s wrong.” (RT 15:2034 [emphasis added].) Although evidence that appellant told Castro and Marin to tell Castillo to be quiet might be sufficient to sustain a finding of conspiracy to commit witness intimidation (Pen. Code, §§ 182, subd. (a)(1), 136.1, subd. (c)), a conspiratorial agreementto intimidate a witnessis insufficient as a matter of law to sustain a conviction for conspiracy to commit murder. (People v. Morante, supra, 20 Cal.4th at p. 416 [for the defendant to be guilty of the crime of conspiring to commit murder, he had to have been one of the participants who harboredthe specific intent to kill].) The conversations identified above evidence neither an agreementto kill nor an intent to kill, and thus are insufficient to sustain appellant’s conviction for conspiracy to commit murder. (Cf. People v. Jurado, supra, 38 Cal.4th at p. 123 112 [“{T}he crime of conspiracy requires dual specific intents: a specific intent to agree to commit the target offense, and a specific intent to committhat offense’’].) Nordid the rest of the State’s evidence established that appellant had the necessary intents. Marin testified that after these phonecalls there were several conversations between Castro, Bermudez and Tapia in which a plan to harm Castillo was mentioned. (RT 15:2035-2036.) In one conversation there was mention that Tapia would “blast” Castillo. (RT 15:2036.) Marin then testified that Castro, Bermudez and Tapia discusseda plan to kill Castillo by driving Castillo to the mountains and shooting him. (RT 15:2036-2052.) Tapia asked Marin to drive, and so Marin agreedto be the driver. (RT 15:2041-2044.) Appellantdid not participate in any of these conversations. (RT 2035-2044.) Nordid the prosecution present evidence that appellant was even aware of these conversations between Castro, Bermudez and Tapia. Any purported plan to kill Castillo thus could not be attributed to appellant. (Cf. People v. Long (1907) 7 Cal.App. 27, 33 [“Conspiracies cannot be established by suspicions. There must be some evidence. Mere association does not make a conspiracy. There must be evidence of some participation or interest in the commission of the offense.”]; People v. Prevost (1998) 60 Cal.App.4th 1382, 1400 [while mere association cannot establish a conspiracy, evidence ofparticipation with the 113 evidence of the association may supportan inference of a conspiracy to commit the offense].) McGuirktestified she received several telephonecalls from appellant at the apartment. (RT 16:2334-2339.) During one call Castro stated that Castillo was goingto testify against appellant and that appellant should not worry aboutit as Castro would take care of it. (RT 16:2341, 2343-2347.) Castro’s statement that he would take care ofit is consistent with appellant’s earlier requestto tell Castillo to be quiet. (See RT 15:2034.) McGuirk did not testify that appellant stated an intent to harm Castillo, nor did shetestify that Castro mentioned harming Castillo. (See RT 16:2341-3447.) The conversation neither suggests, nor gives rise to a reasonable inference of, an agreementto kill or an intent to kill, and thus is insufficient to sustain appellant’s conviction for conspiracy to commit murder. (Cf. People v. Jurado, supra, 38 Cal.4th at p. 123.) Mirandatestified that in early January 1998, approximately one week before Castillo was killed, she was at Marin’s apartment when appellant called from countyjail and spoke with Castro and Bermudez. (RT 17:2461-2467, 2475, 2496.) She heard either Castro or Bermudez mention Castillo’s name. (RT 17:2467.) She heard Castro say, “Oh. You want us to — you want usto getrid of him —.” (RT 17:2466.) She then heard Castro say, “Yeah. Me andArtie [Bermudez] will get rid of “em.” (RT 17:2466; see RT 17:2468.) However, 114 when the prosecutor asked Mirandato recount the precise substance of the conversation, she clarified her previous testimony,stating, Um,I heard that, “Oh. He’s gonnatestify against you in your case? Oh. Don’t worry. We’re gonnaget rid of him. Me and Artie’s gonna get rid of him.” [RT 17:2468.] The prosecutor then asked, “Did you hear anything that soundedlike the voice of Artie reacting to what Joe [Castro] was saying regarding Cartoon[i.e., Castillo]?” (RT 17:2468.) Miranda responded,“Just laughing.” (RT 17:2468.) In other words, Miranda only overheard Castro telling appellant they were “gonna getrid of him.” She did not overhear Castro stating that appellant requested that they get rid of him. Nor did Mirandatestify to any statement that might have suggested appellant’s response,if any, to Castro’s statement. Miranda thus did not overhear any statement from whichit could be inferred that appellant solicited a killing or that appellant intended a killing. Accordingly, the conversation neither suggests, nor gives rise to a reasonable inference of, an agreementto kill or an intent to kill, and thusit is insufficient to sustain appellant’s conviction for conspiracy to commit murder. (Cf. People v. Jurado, supra, 38 Cal.4th at p. 123.) In United States v. Sacerio (5" Cir. 1992) 952 F.2d 860, for example, the defendant agreed to drive a car for a friend from Miami to New Orleans. (Jd.at p. 862.) He was stopped in Mississippi and, after consenting to a search of the 115 car, two kilos of cocaine were discovered hidden in the car. (/bid.) In the meantime, the defendant had requested a friend to come out and help him. (/bid.) Whenthe room wassearched where the defendant and his friend were staying, additional cocaine was found. (/bid.) The Fifth Circuit Court of Appeals held that the evidence did not support the defendant’s (or his friend’s) conviction for conspiracy to possess the cocaine in the car. (/d. at pp. 865-866.) The court stated, “Although some ofthe circumstances are suspicious, mere suspicion cannot support a verdict of guilty.” (/d. at p. 863.) The insubstantial evidence of appellant’s intent in the instant case — where the prosecution was required to prove beyond a reasonable doubt that appellant had the specific intent to commit murder as the object of the conspiracy andthat he had the specific intent to kill — stands in stark contrast to cases finding sufficient evidence of a criminal attempt (whichalso require a finding of a specific intent to commit an offense), which have emphasizedthe clear nature of the evidence of defendant’s criminal intent. (Cf. People v. Parrish (1948) 87 Cal.App.2d 853, 855-856; People v. Bonner (2000) 80 Cal.App.4th 759, 764.) For example, in People v. Parrish, supra, 87 Cal.App.2d 853, the court found substantial evidence to support the defendant’s conviction for attempted murderof his wife. (/d. at p. 855-856.) The defendant engaged an associate to help kill his wife. (/d. at p. 855.) They went to the wife’s house. (bid.) The 116 defendant had a loaded gun and listened outside a window to make sure she was home. (/bid.) The defendant sent his associate into the house with instructions to choke his wife, and then let the defendant into the house so he could kill her. (/bid.) The associate was a police informant. (/bid.) Officers arrived before the defendant could get into the house. (/bid.) The appellate court found that the defendant’s conduct outside the house, along with his clear intent, was sufficient to constitute an attempt. (/d. at pp. 855-856 [defendant’s intent to kill was revealed in his out-of-court statement that he intendedto kill his wife].) In People v. Bonner, supra, 80 Cal.App.4th 759, the defendant was convicted of two counts of attempted robbery, with the victims being a hotel managerandhis assistant. (/d. at p. 764.) The defendant had formerly workedat the hotel, and knew that the managerandassistant routinely took a large deposit of hotel receipts to the bank on Mondayat the beginning of each month, using an elevator to get to the manager’s carin the hotel garage. (/d. at p. 761.) The defendant went to a laundry room on the garage level on the first Mondayofthe month, wearing a maskandcarrying a pistol. However, he was discovered by other employeesand fled from the scene before coming into contact with the intended victims. (/d. at pp. 761-762.) The appellate court rejected the defendant’s argumentthat since he never came into actual contact with the victims there wasinsufficient evidence of attempted robbery. (/d. at p. 764, fn. 117 3.) “It was [the defendant’s] clear intention to rob [the managerandassistant manager]. He madedetailed preparations for the crime, went armed to the scene, placed a mask overhis face, waited in hiding moments before his victim’s approach, and gave up the enterprise only when discovered byother hotel employees. The evidence wassufficient to convict appellant of attempted robbery. [Citations.]” (/d. at p. 764, fn. 3.) In contrast to the clear nature of the defendant’s criminal intent shown in People v. Parrish, supra, 87 Cal.App.2d 853 and People v. Bonner, supra, 80 Cal.App.4th 759, the prosecution’s evidence showedonlythat appellant intended that Castillo be told not to talk (RT 15:2034), an intent perhapssufficientto support a conspiracy to intimidate a witness, but entirely insufficient to support an agreementto kill and a specific intent to kill. (Cf. People v. Ford (1983) 145 Cal.App.3d 985, 990; Pen. Code, § 136.1.) Moreover,although Castro stated an intent to kill Castillo (RT 15:2036- 2052), there is no credible evidencethat appellant agreed with Castro to the killing and harboredthespecific intent to kill Castillo. The jury thus could not reasonablyinfer, absent speculation, that appellant formed the requisite dual specific intents. (Cf. People v. Morris, supra, 46 Cal.3d at p. 21 [“A reasonable inference ... may not be based onsuspicion alone, or on imagination, speculation, supposition, surmise, conjecture or guess work.... A finding of 118 fact must be an inference drawn from the evidencerather than . . . a mere speculation as to probabilities without evidence.”]; People v. Reyes, supra, 12 Cal.3d at p. 500; People v. Trevino (1985) 39 Cal.3d 667, 698-699.) Further demonstrating the insufficiency of the evidenceis the jury’s failure to return a true finding on several of the overt acts alleged in connection with the charge of conspiracy to commit murder. The prosecution alleged nine overt acts. (CT 12:3457-3458.) The jury returned true findings on only five of the overt acts (Nos. 3 through7, inclusive), none ofwhich referred to conduct by appellant. (CT 12:3457-3458; RT 25:3828-3830.) Althougha finding of only one overt actis sufficient (provided there is evidence of the requisite dual specific intents), and indeed committing murderin furtherance of a conspiracy to commit murdersatisfies the overt act requirement,’° the failure of the jury to return a true finding onthe first overt act is particularly telling. The first charged overt act — and the only oneto referto conduct by appellant — states, “that on and between January 1, 1998 and January 14, 1998, Richard Penunuri, Joe Castro, Arthur Bermudez, and Alfredo Tapia, discussed a plan to murder Jaime Castillo... .” (CT 12:3457.) The jury did not find this overt act true (CT 12:3457; see RT 25:3828), thus revealing a failure of the prosecution to provethe truth of the overt act by unanimousverdict. The '6 People v. Jurado, supra, 38 Cal.4th at pp. 121-122. 119 jury’s failure to return a true finding on the first charged overt act — which alleged that appellant, Castro, Bermudez, and Tapia, discussed a plan to murder Jaime Castillo — is consistent with the prosecution’s failure, as shown above,to adduce evidence that appellant discussed a plan to kill Castillo, which further reveals that the evidence is woefully insufficient to sustain a finding that appellant entered into a conspiratorial agreement to kill and/or that he had the specific intent to kill. Appellant’s conviction in count 6 must be reversed. (Cf. Jackson v. Virginia, supra, 443 U.S. at p. 318 [a conviction unsupported by substantial evidence denies a defendant due process of law]; People v. Bean, supra, 46 Cal.3d at p. 932.) /// 120 IV. THE EVIDENCEIS INSUFFICIENT TO SUSTAIN A FINDING THAT APPELLANT EITHER PERPETRATEDTHE KILLING OF JAIME CASTILLO, AIDED AND ABETTED THEKILLING, OR ENTERED INTO A CONSPIRATORIAL AGREEMENTTO KILL, THEREBY REQUIRING REVERSAL OF THE CONVICTION FOR MURDERIN COUNT 7 FOR A DENIAL OF THE CONSTITUTIONAL RIGHTS TO DUE PROCESSANDA FAIR AND RELIABLE JURY TRIAL (CAL. CONST., ART.I, §§ 7, 15 & 17; U.S. CONST., 5™, 6™, 87" & 14™ AMENDS.) A. INTRODUCTION Appellant was found guilty of the first degree murder of Jaime Castillo (Pen. Code, §§ 187, subd. (a), 189; count 7). (CT 12:3459; RT 25:3833-3834.) As explained below,there is insufficient evidence, which is reasonable, credible, and of solid value, to sustain the finding that appellant either directly perpetrated the killing, aided and abetted the killing that was perpetrated by codefendant Castro, or that he joined in a conspiratorial agreementto kill with the specific intent to kill Castillo. B. STANDARD OF REVIEW The standard of review in assessing a claim of insufficiency of the evidence, the heightened verdict reliability requirementin a capitaltrial, and the California and federal constitutional violations that result from a conviction unsupported by the requisite evidenceattrial, as here, are set forth in section II.B., ante, and incorporated herein. (Cf. People v. Johnson, supra, 26 Cal.3d at 121 p. 578; Beck v. Alabama, supra, 447 U.S. at pp. 627-646; White v. Illinois, supra, 502 US.at pp. 363-364; Jackson v. Virginia, supra, 443 U.S. at pp. 317-320.) Cc. THEREIS INSUFFICIENT EVIDENCE, WHICH IS REASONABLE, CREDIBLE, AND OF SOLID VALUE, TO SUSTAIN A FINDING THAT APPELLANT PERPETRATED THEKILLING OF CASTILLO, THAT HE IS VICARIOUSLY LIABLE FOR THE KILLING, OR THAT HE ENTERED INTO A CONSPIRATORIAL AGREEMENT WITH THE SPECIFIC INTENT TO KILL CASTILLO It is axiomatic that to be convicted of murder the defendant must have either actually perpetrated the murder(i.e., an unlawful killing with either express or implied malice) (People v. Matlock (1959) 51 Cal.2d 682, 685 [where person actually performs or actively assists in performing overt act resulting in death, his act constitutes murder]), or he mustbe vicariously responsible for the murder (Taylor v. Superior Court (1970) 3 Cal.3d 578, 582-583), or he must have entered into a conspiratorial agreement with the specific intent that the victim be killed (People v. Morante, supra, 20 Cal.4th at p. 416). The jury was instructed on express malice murder, aiding and abetting, and conspiracy to commit murder. (RT 24:3756-3757 [aiding and abetting], 3774-3775 [express malice murder], 3777-3780 [conspiracy to commit murder].) Appellant was incarcerated in county jail when Castillo was killed, and thus the evidence showedthat he did not actually perpetrate the killing. (RT 9:1065-1067, 22:3439-3440.) The prosecution sought to hold appellant liable for the killing, however, on either of two theories: aiding and abetting and conspiracy 122 to commit murder. (RT 22:3432-3428, 3436-3441, 24:3703-3711, 3720-3721, 3756-3757.) As explained in section III., ante, which is incorporated herein by reference, the evidence is insufficient as a matter of law to sustain a finding of conspiracy to commit murderof Castillo (count 6). Accordingly, the focus of this argumentis on the insufficiency of the evidence to sustain a finding of aiding and abetting liability. The prosecution presented evidence that on January 15, 1998, while appellant wasincarcerated in county jail, Jesus Marin drove Castillo and codefendants Castro, Bermudez and Tapia to the San Gabriel Mountains, where Castro killed Castillo by shooting him in the back of the head. (RT 15:2070- 2074, 2086-2088, 2090.) The prosecution sought to prove that appellant was vicariously liable for the killing by attempting to show that 1) appellant was concerned that Castillo would provide evidence against him in the case involving Molina and Murillo and 2) appellant solicited the murder of Castillo through a series of telephonecalls he initiated from county jail. (RT 18:2698-2700, 2711- 2723, 2727; People’s Exhs. 80 & 92.) As explained below,the evidenceis insufficient as a matter of law to sustain a finding of murder based on a theory that appellant aided and abetted the killing of Castillo. The jury was instructed, in part, as follows: A person aids and abets the commission of a crimeif he, with knowledgeofthe unlawful purpose of the perpetrator and with 123 the intent or purpose of committing or encouraging orfacilitating the commission of the crime by act or advice, aids, promotes, encourages, or instigates the commission of a crime. [RT 24:3756 (emphasis added). ] “All persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abetin its commission, ... are principals in any crime so committed.” (Pen. Code, § 31; see People v. Mendoza (1998) 18 Cal.4th 1114, 1122-1123; People v. Prettyman (1996) 14 Cal.4th 248, 259-260.) Thus, a person who aids and abets a crimeis guilty of that crime even if someone else committed someorall of the criminal acts. (bid.) It is important to bear in mind that an aider and abettor’s liability for criminal conduct is of two kinds. First, an aider and abettor with the necessary mentalstate is guilty of the intended crime. Second, underthe natural and probable consequences doctrine, an aider and abettoris guilty not only of the intended crime, but also “for any other offense that was a ‘natural and probable consequence’ of the crime aided and abetted.” [People v. McCoy (2001) 25 Cal.4th 1111, 1117, citing People v. Prettyman, supra, 14 Cal.4th at p. 260.] In connection with aiding and abetting liability the trial court did not instruct the jury on the natural and probable consequences doctrine. The jury was only instructed on an aider and abettor’s guilt of the intended crime.'’ (RT " The jury wasinstructed, in part: “A person aids and abets the commission of a crime if he, with knowledge of the unlawful purposeof the perpetrator and with the intent or purpose of committing or encouraging or facilitating the commission of the crime by act or advice, aids, promotes, encourages,or instigates the commission of a crime.” (RT 24:3756; CT 124 24:3756-3757.) Accordingly, only an aider and abettor’s guilt of the intended crime is relevant here. “TAJn aider and abettor [must] act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” (People v. Beeman (1984) 35 Cal.3d 547, 560; People v. Lee (2003) 31 Cal.4th 613, 623-624.) Knowledge,therefore, is an essential element and must be proven. (Peoplev. Coria (1999) 21 Cal.4th 868, 871-872.) Whenthe crimeat issue requires a specific intent, in order to be guilty as an aider and abettor the person “must share the specific intent of the [direct] perpetrator,”that is to say, the person must “know[] the full extent of the [direct] perpetrator’s criminal purpose and [must] give[] aid or encouragement with the intent or purposeoffacilitating the [direct] perpetrator’s commission of the crime.” [People v. Lee, supra, 31 Cal.4th at p. 624, citing People v. Beeman, supra, 35 Cal.3d at p. 560.] Accordingly, since the crime of murder as charged here required the specific intent to kill, to be guilty of murder on a theory of aiding and abetting the prosecution was required to prove beyond a reasonable doubtthat appellant gave aid or encouragement with knowledgeofthe direct perpetrator’s intent to kill and with the purposeoffacilitating the direct perpetrator’s accomplishmentof the intended killing. (Cf. ibid.) In other words, the prosecution was required to prove that appellant harbored the specific intent to kill. (Cf. ibid.) 12:3384.) 125 Here,just as there was no credible, reliable evidence to support an inference that appellant agreed with codefendants Castro, Bermudez and/or Tapia to kill Castillo, the evidence also is insufficient as a matter of law to show that appellant aided and abetted them with the specific intent to kill Castillo. (Ante, § III.) The prosecution’s case against appellant, which was based on circumstantial evidence,rested on the testimony of prosecution witnesses Marin, McGuirk and Miranda recounting portions of several telephone conversations that were initiated by appellant from countyjail. (Ante, Statement of Facts, § A.4.; RT 18:2698-2700, 2711-2723, 2727; People’s Exhs. 80 & 92.) Marintestified that during the period of time two or three weeksprior to the killing, appellant called Marin’s apartment several times and spoke with various people, including codefendants Castro, Bermudez and Tapia. Marin recounted one conversation in which appellant called and the telephone was passed to Castro. He overheard Castro say, “I’ll handle it.” (RT 15:2023-2025.) After the conversation, Castro told Marin that appellant said that Castillo was “gonna rat” on him andthat Castro should “tell... [Castillo] to shut up, keep his mouth shut.” (RT 15:2031.) A couple days later, Marin received a call from appellant and wastold essentially the same thing: 1.e., to tell Castillo to not say anything. (RT 15:2033-2034].) As explained in section ILC, ante, there was no 126 testimony that in any of these conversations appellant suggested harming Castillo. Indeed, Marintestified that the plan to harm and/or kill Castillo was only mentioned during later conversations he overheard at the apartment between Castro, Bermudez and Tapia, none of which involved appellant. (RT 15:2035- 2044.) McGuirk testified that she also received several telephone calls from appellant at the apartment. (RT 16:2334-2339.) She recounted one conversation in which appellant called and the telephone was passed to Castro. She overheard Castro say that Castillo was goingto testify against appellant and that appellant should not worry about it as Castro would take care of it. (RT 16:2341, 2343- 3447.) Yet there was no testimony that during this conversation either appellant and/or Castro intended to harm Castillo. (Ante, § HII.C.) Indeed, as appellant had asked Castro to talk to Castillo (RT 15:2031), the only reasonable inferenceis that Castro wastelling appellant that he would “take care ofit” by talking to Castillo. Mirandatestified that she was at the apartment and overheard Castro speaking on the telephone with appellant. (RT 17:2461-2467, 2475, 2496.) She, like Marin and McGuirk, was not actually privy to the call, but merely overheard some of what Castro was saying to appellant. Althoughsheinitially testified on direct examination to hearing Castro say, “Oh. You want us to — you wantusto 127 get rid of him —“ (RT 17:2466), moments later she clarified that she had actually heard Castro state, “Oh. He’s gonnatestify against you in your case? Oh. Don’t worry. We’re gonnaget rid of him. Me and Artie’s gonna get rid of him.” (RT 17:2468.) In other words, Miranda only overheard Castro telling appellant they were “gonnaget rid of him.” She did not overhear Castro stating that appellant requested that they get rid of him. Nor did Mirandatestify to any statement that might have suggested appellant’s response,if any, to Castro’s statement. Miranda thus did not overhear any statement from whichit could be inferred that appellant solicited and/or encouraged a killing or that appellant intended a killing. A reasonable inference ... may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture or guess work .... A finding of fact must be an inference drawn from the evidence rather than . .. a mere speculation as to probabilities without evidence. [People v. Morris, supra, 46 Cal.3d at p. 21.] Indeed, “[e]vidence whichraises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction.” (People v. Reyes (1974) 12 Cal.3d 486, 500.) “[A]ll reasonable inferences must be drawnin support of the judgment. This rule, however, does not permit us to go beyond inference and into the realm of speculation in order to find support for the judgment. A finding ... which is merely the product of conjecture and surmise may not be affirmed.” (People v. Rowland (1982) 134 Cal.App.3d 1, 8-9; see People v. Trevino (1985) 39 Cal.3d 667, 698-699.) 128 Appellant’s murder conviction in count 7 must be reversed for insufficient evidence that appellant participated in the commission of the offense, aided and abetted the offense, and/or entered into a conspiratorial agreementto kill Castillo. (Cf. Jackson v. Virginia, supra, 443 U.S. at p. 318 [a conviction unsupported by substantial evidence denies a defendant due processof law]; People v. Bean, supra, 46 Cal.3d at p. 932.) /// 129 Vv. THE EVIDENCEIS INSUFFICIENT TO SUSTAIN THE TRUE FINDING ON THE WITNESS-KILLING SPECIAL CIRCUMSTANCE, REQUIRING REVERSAL THEREOF AND REVERSAL OF THE DEATH JUDGMENTASA DENIAL OF THE CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS, AND A VIOLATION OF THE CONSTITUTIONAL PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT(CAL. CONST., ART.I, §§ 7, 15 & 17; U.S. CONST., 5™, 67", 8™ & 14™ AMENDS.) A. INTRODUCTION The jury found true the witness-killing special circumstance (Pen. Code, § 190.2, subd. (a)(10)) in connection with the killing of Jamie Castillo in count 7. (CT 12:3459; RT 25:3834.) As explained below,there is insufficient evidence, which is reasonable, credible, and of solid value, to sustain a finding that appellant either directly perpetrated the killing, that he aided and abetted the killing that was perpetrated by codefendant Castro, or that he joined in a conspiratorial agreementto kill Castillo. Accordingly, the true finding on the witness-killing special circumstance mustbeset aside. As explained belowin subsection D., the invalid witness-killing special circumstance renders appellant’s sentence unconstitutional by reason ofits adding an improper element to the aggravation scale in the weighing process because noneof the other sentencing factors enabled the jury to give aggravating weight to the same facts and circumstancesas the invalid sentencing factor. (Cf. Brownv. Sanders (2006) 546 U.S. 212, 220 [126 S.Ct. 884, 163 L.Ed.2d 723].) 130 B. STANDARD OF REVIEW The standard of review in assessing a claim of insufficiency of the evidence, the heightened verdict reliability requirementin a capital trial, and the California and federal constitutional violations that result from a conviction unsupported bytherequisite evidenceattrial, as here, are set forth in section II.B., ante, and incorporated herein. (Cf. People v. Johnson, supra, 26 Cal.3d at p. 578; Beck v. Alabama, supra, 447 U.S. at pp. 627-646; White v. Illinois, supra, 502 U.S. at pp. 363-364; Jackson v. Virginia, supra, 443 U.S. at pp. 317-320.) C. THEREIS INSUFFICIENT EVIDENCE, WHICH IS REASONABLE, CREDIBLE, AND OF SOLID VALUE, TO SUSTAIN A FINDING THAT APPELLANT PERPETRATEDTHEKILLING OF CASTILLO, THAT HE IS VICARIOUSLY LIABLE FOR THE KILLING, OR THAT HE ENTERED INTO A CONSPIRATORIAL AGREEMENTTO KILL CASTILLO, AND THUS THEREIS NO SUBSTANTIAL EVIDENCE THAT APPELLANT PHYSICALLY AIDED OR COMMITTED THE ACT CAUSING CASTILLO’S DEATH The witness-killing special circumstanceconsists of the following elements: (1) a victim who witnessed a crime; (2) was intentionally killed; and (3) the purposeof the killing was either to prevent the victim from testifying about the crime he or she had witnessed or wasin retaliation for testimony given; and (4) the killing was separate from the commission or attempted commission of the crime witnessed. (People v. Garrison (1989) 47 Cal.3d 746, 792; Pen. Code, § 190.2, subd. (a)(10); RT 24:3783-3788; CT 12:3420-3421.) 131 “The special circumstance requires that the defendant physically aid or commit the act causing death and that the killing be intentional, deliberate, and premeditated.” (People v. Ledesma (2006) 39 Cal.4th 641, 726.) As explained in sections II. & IV., ante, which are incorporated herein by reference, the evidenceis insufficient as a matter of law to sustain a finding that appellant perpetrated the killing of Castillo, that he is vicariously liable for the killing, or that he entered into a conspiratorial agreementto kill Castillo. Accordingly, there is no substantial evidence that appellant physically aided or committed the act causing the death of Castillo, a necessary element of the witness-killing special circumstance. (Cf. People v. Ledesma, supra, 39 Cal.4th at p. 726.) Reversal of the true finding on the witness-killing special circumstanceis required. (Cf. Jackson v. Virginia, supra, 443 U.S. at p. 318 [a conviction unsupported by substantial evidence denies a defendant due process of law]; People v. Bean, supra, 46 Cal.3d at p. 932.) //1 132 D. THE DEATH JUDGMENT MUSTBE REVERSED BECAUSETHE JURY’S USE OF THE INVALID SENTENCING FACTOR — THE WITNESS- KILLING SPECIAL CIRCUMSTANCE — RENDERED THE SENTENCE UNCONSTITUTIONAL BY REASONOF ITS ADDING AN IMPROPER ELEMENTTO THE AGGRAVATION SCALE IN THE WEIGHING PROCESS AND NO OTHER SENTENCING FACTOR ENABLED THE JURY TO GIVE AGGRAVATING WEIGHT TO THE SAME FACTS AND CIRCUMSTANCESAS THE INVALID SENTENCING FACTOR In Brown v. Sanders, supra, 546 U.S. 212, the United States Supreme Court articulated the following standard for determining prejudice when an aggravating factor is reversed: Aninvalidated sentencing factor (whether an eligibility factor or not) will render the sentence unconstitutional by reason of its adding an improper elementto the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentencerto give aggravating weight to the same facts and circumstances. [/d. at p. 220 (emphasis in original).] The high courtheld thatthis test is not an inquiry based solely on the admissibility of the underlying evidence because “[i]f the presence of the invalid sentencing factor allowed the sentencer to consider evidence that would not otherwise have beenbefore it, due process would mandate reversal without regard to the rule we apply here.” (/d. at pp. 220-221.) The issue that the high court confronted in Brown v. Sanders, supra, was “the skewing that could result from the jury’s considering as aggravation properly admitted evidence that should not have weighed in favor of the death penalty.” (Id. at p. 221.) Asthe high court explained, “such skewing will occur, and give rise to constitutional error, only where the jury could not have given aggravating 133 weight to the same facts and circumstances under the rubric of someother, valid sentencing factor.” (/bid.) In Brown v. Sanders, supra, in connection with a home-invasion robbery where defendant and his companion invaded a home where they bound and blindfolded the male inhabitant andhis girlfriend, at the penalty phase of the capital trial the jury found true four special circumstances (robbery-murder, burglary-murder, witness-killing, and “heinous, atrocious, or cruel” murder), each of which independently rendered him eligible for the death penalty. (/d. at p. 214, 223-224.) The jury then weigheda list of sentencing factors, including the circumstancesof the crime, and sentenced defendant to death. bid.) On appeal, this Court declared two of the special circumstances invalid (burglary-murder and “heinous, atrocious, or cruel” murder). (/d. at pp. 214-215, 223.) The burglary- murderspecial circumstance wasset aside under the merger doctrine because the instructions permitted the jury to find a burglary (and thus the burglary- murder special circumstance) based on defendant’s intent to commit assault, which was an element of homicide. (/d. at p. 223.) The “heinous, atrocious, or cruel” murder special circumstance wasset aside because it was unconstitutionally vague. (/d. at p. 223.) This Court upheld the death judgment, however, because 1) the jury properly considered the two remaining special circumstances (eligibility factors) and 2) the facts and circumstances admissible to establish the 134 “heinous, atrocious, or cruel” murder and burglary-murderspecial circumstances were also properly adduced as aggravating facts bearing upon the “circumstances of the crime” sentencing factor. (/d. at pp. 214-215, 223.) Following reversal by the Ninth Circuit Court of Appeals, the high court reversed, stating: ... [T]he jury’s consideration of the invalid eligibility factors in the weighing processdid not produce constitutional error because all of the facts and circumstances admissible to establish the “heinous, atrocious, or cruel” and burglary-murdereligibility factors were also properly adduced as aggravatingfacts bearing upon the “circumstances of the crime” sentencingfactor. They were properly considered whetheror not they bore upon the invalidated eligibility factors. (Id. at p. 224 (emphasis added).] Here, the jury found true two special circumstances (witness-killing and multiple-murder). (CT 12:3456, 3459; RT 25:3826-3827, 3834.) For purposes of this argument(see, post, § VI. [invalid multiple-murder special circumstance]), although the invalid witness-killing special circumstancestill leaves one eligibility factor (i.e., the multiple-murder special circumstance), reversal of the death judgment is required because the facts and circumstances admissible to establish the witness-killing special circumstances(i.e., among other things, that appellant was responsible for the murder of Castillo) were not properly adduced as aggravating facts bearing on any other sentencing factor. (Cf. Brown v. Sanders, supra, 546 U.S. at p. 220 [invalidated sentencing factor renders sentence unconstitutional “unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances”].) 135 The witness-killing special circumstance must be set aside because the evidenceis insufficient as a matter of law to sustain a finding that appellant perpetrated the killing of Castillo, that he is vicariously liable for the killing, or that he entered into a conspiratorial agreementto kill Castillo. (Ante, §§ III. & IV.) Whenthe witness-killing special circumstance is removed from consideration, so too are the facts and circumstances admittedattrial in support thereof (i.e., that appellant perpetrated the intentional killing of Castillo, a victim who witnessed a crime), including the penalty phase aggravation evidence relating to the killing of Castillo and the victim impact evidence admitted in connection therewith. (See, ante, Statement of Facts, § A.4. & D.1.) Accordingly, the invalid sentencing factor renders appellant’s sentence unconstitutional, in violation of due process, because none of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances. (Cf. Brown v. Sanders, supra, 546 U.S. at p. 220.) The witness-killing special circumstance must be set aside and the death judgmentreversed. /// 136 VI. THE EVIDENCEIS INSUFFICIENT AS A MATTER OF LAW TO SUSTAIN THE TRUE FINDING ON THE MULTIPLE-MURDER SPECIAL CIRCUMSTANCE, REQUIRING REVERSAL THEREOF AND REVERSAL OF THE DEATH JUDGMENTAS A DENIAL OF THE CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS, AND A VIOLATION OF THE CONSTITUTIONAL PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT (CAL. CONST., ART.I, §§ 7, 15 & 17; U.S. CONST., 57, 67%, 8'" & 147 AMENDS.) A. INTRODUCTION The jury foundtrue the multiple-murder special circumstance (Pen. Code, § 190.2, subd. (a)(3)) in connection with the killings of Brian Molina and Michael Murillo in counts 4 and 5, respectively. (RT 25:3826-3827; CT 12:3456.) As explained below,there is insufficient evidence, whichis reasonable, credible, and of solid value, to sustain the finding that appellant was a principal in the commission ofeither offense. Accordingly, the true finding on the multiple-murder special circumstance mustbesetaside. As explained below in subsection D., the invalid multiple-murder special circumstancerenders appellant’s sentence unconstitutional by reason ofits adding an improper elementto the aggravation scale in the weighing process because noneofthe other sentencing factors enabled the jury to give aggravating weight to the same facts and circumstancesas the invalid sentencing factor. (Cf. Brownv, Sanders, supra, 546 U.S. at p. 220.) 137 B. STANDARD OF REVIEW The standard of review in assessing a claim of insufficiency of the evidence, the heightened verdict reliability requirement in a capital trial, and the California and federal constitutional violations that result from a conviction unsupported by the requisite evidenceattrial, as here, are set forth in section II.B., ante, and incorporated herein. (Cf. People v. Johnson, supra, 26 Cal.3d at p. 578; Beck v. Alabama, supra, 447 U.S. at pp. 627-646; White v. Illinois, supra, 502 US.at pp. 363-364; Jackson v. Virginia, supra, 443 U.S. at pp. 317-320.) C. THEREIS INSUFFICIENT EVIDENCE, WHICH IS REASONABLE, CREDIBLE, AND OF SOLID VALUE, TO SUSTAIN A FINDING THAT APPELLANT PERPETRATED THE KILLING OF EITHER MOLINA OR MURILLO The multiple-murder special circumstance requires a finding that appellant has been convicted of murderin the first degree and also has been convicted of at least one additional count of murder in the same proceeding. (People v. Marshall (1997) 13 Cal.4th 799, 852; Pen. Code, § 190.2, subd. (a)(3); RT 24:3783-3788.) As explained in section II., ante, which is incorporated herein by reference, the evidenceis insufficient as a matter of law to sustain a finding that appellant was a principal in the commission ofeither the murder of Molina (count 4) or the murder of Murillo (count 5). With the reversal of appellant’s convictions in counts 4 and 5, there remains no substantial evidence that 138 appellant stands convicted of murderin the first degree and also has been convicted of at least one additional count of murderin the sameproceeding. Reversal of the true finding on the multiple-murder special circumstanceis required. (Cf. Jackson v. Virginia, supra, 443 U.S. at p. 318 [a conviction unsupported by substantial evidence denies a defendant due processoflaw]; People v. Bean, supra, 46 Cal.3d at p. 932.) D. THE DEATH JUDGMENT MUSTBE REVERSED BECAUSETHE JURY’S USE OF THE INVALID SENTENCING FACTOR — THE MULTIPLE- MURDER SPECIAL CIRCUMSTANCE — RENDERED THE SENTENCE UNCONSTITUTIONAL BY REASON OF ITS ADDING AN IMPROPER ELEMENT TO THE AGGRAVATION SCALE IN THE WEIGHING PROCESS AND NO OTHER SENTENCING FACTOR ENABLED THE JURY TO GIVE AGGRAVATING WEIGHT TO THE SAME FACTS AND CIRCUMSTANCESOF THE INVALID SENTENCING FACTOR The standard for determining prejudice when an aggravating factoris reversed and the federal due process violation arising therefrom are set forth in section V.D., ante, and incorporated herein. (Cf. Brown v. Sanders, supra, 546 U.S. at p. 220.) Here, the jury found true two special circumstances (witness-killing and multiple-murder). (CT 12:3456, 3459; RT 25:3826-3827, 3834.) For purposes of this argument(see, ante, § V. [invalid witness-killing special circumstance]), although the invalid multiple-murder special circumstancestill leaves one eligibility factor(i.e., the witness-killing special circumstance), reversal of the death judgmentis required becausethe facts and circumstances admissible to 139 establish the multiple-murder special circumstances(1.e., that appellant was responsible for the murders of Molina and Murillo) were not properly adduced as aggravating facts bearing on any other sentencing factor. (Cf. Brown v. Sanders, supra, 546 U.S. at p. 220 [invalidated sentencing factor renders sentence unconstitutional “unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances” J.) The multiple-murder special circumstance must be set aside because the evidenceis insufficient as a matter of law to sustain a finding that appellant was a principal in the commission of either the murder of Molina (count 4) or the murder of Murillo (count 5). (Ante, § II.) When the multiple-murder special circumstance is removed from consideration, so too are the facts and circumstances admittedat trial in supportthereof(i.e., that appellant perpetrated the intentional killing of Molina and Murillo, and that appellant stands convicted of murderin the first degree (i.e., Castillo) and also has been convicted ofat least one additional count of murder in the same proceeding), including the penalty phase aggravation evidencerelating to the killings of Molina and Murillo and the victim impact evidence admitted in connection therewith. (See, ante, Statement of Facts, § A.3. & D.1.) Accordingly, the invalid sentencing factor renders appellant’s sentence unconstitutional, in violation of due process, because none of the other sentencing factors enables the sentencer to give aggravating weight 140 to the samefacts and circumstances. (Cf. Brown v. Sanders, supra, 546 U.S. at p. 220.) The multiple-murder special circumstance mustbe set aside and the death judgmentreversed. /// 141 VII. THE EVIDENCEIS INSUFFICIENT TO SUSTAIN APPELLANT’S CONVICTION FOR ASSAULT WITH A FIREARM ON CARLOSARIAS (COUNT 3) BECAUSE MERELY POINTING AN UNLOADED GUN AT SOMEONE - WITHOUT ANY EVIDENCEOF A VERBAL OR PHYSICAL THREAT TO DISCHARGE THE GUN AND WITHOUT ANY ATTEMPT TO ACTUALLYFIRE THE GUN — CONSTITUTES MISDEMEANOR BRANDISHING, NOT ASSAULT WITH A FIREARM, THEREBY REQUIRING REVERSAL OF THE CONVICTION FORA DENIAL OF THE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR AND RELIABLE JURY TRIAL (CAL. CONST., ART.I, §§ 7, 15 & 17; U.S. CONST., 5™, 67%, 87" & 1474 AMENDS.) A. INTRODUCTION AND SUMMARYOF ARGUMENT Appellant was found guilty in count 3 of assault with a firearm on Carlos Arias, a violation of Penal Code section 245, subdivision (a)(2). (CT 12:3454; RT 25:3825.) The prosecution argued that the offense was shown by evidence that appellant pointed a gun at Arias, thereby placing him “in apprehension of being shot.” (RT 22:3399.) The prosecution further argued that sufficient evidence the gun was loaded was shownbythe fact that “the same gunman”fired the shots an hourlater that killed Molina and Murillo. (RT 22:3400-3401.) Appellant’s conviction must be reversed because the evidence is insufficient as a matter of law to sustain the requisite finding that the gun was loaded. The record showsthat while Arias was at the Hornell Street location a gun waspointed at him. (RT 10:1181-1182 [“pulled out a gun andputit to his head”]; CT Supp. Vol. IV-1, pp. 162 [pointed a gun].) The gun wasnot discharged. (RT 22:3399-3401; CT Supp. Vol. IV-1, pp. 161-163.) Nor did the 142 prosecution present evidence that the gunman’s finger was on the trigger, or that the gunmanattemptedto fire the gun. (RT 22:3399-3401; CT Supp. Vol. IV-1, pp. 161-163.) Moreover, there were no verbal threats accompanying the display of the gun. (RT 22:3399-3401; CT Supp. Vol. IV-1, pp. 161-163.) Accordingly, there was no evidence, nor reasonable inference therefrom, that the gun was loaded. Merely pointing a gun at another, without any attemptto actually fire the gun or without evidence that the gun was loaded, constitutes misdemeanor brandishing, not assault with a firearm. (Cf. People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3; People v. Wolcott (1983) 34 Cal.3d 92, 99; People v. Sylva (1904) 143 Cal. 62, 64.) B. STANDARD OF REVIEW The standard of review in assessing a claim of insufficiency of the evidence, the heightened verdict reliability requirement in a capitaltrial, and the California and federal constitutional violations that result from a conviction unsupported by the requisite evidenceattrial, as here, are set forth in section IL.B., ante, and incorporated herein. (Cf. People v. Johnson, supra, 26 Cal.3d at p. 578; Beck v. Alabama, supra, 447 U.S. at pp. 627-646; White v. Illinois, supra, 502 USS. at pp. 363-364; Jackson v. Virginia, supra, 443 U.S. at pp. 317-320.) 143 OF THEREIS INSUFFICIENT EVIDENCE WHICH IS REASONABLE, CREDIBLE, AND OF SOLID VALUE TO SUSTAIN THE FINDING THAT APPELLANT COMMITTED AN ASSAULT WITH A FIREARM IN COUNT 3 Assault is defined by statute as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (Pen. Code, § 240 (emphasis added); see People v. Williams (2001) 26 Cal.4th 779, 784.) Assault (and thus assault with a firearm) is a general intent crime. (People v. Chance (2008) 44 Cal.4th 1164, 1170.) Nonetheless, assault requires an intent to commit a “violent act” whichis “likely” to result in a touching of the victim. (People v. Colantuono (1994) 7 Cal.4th 206, 218, fn. 10.) A conviction for assault may not be grounded uponan intent merely to frighten (People v. Wolcott, supra, 34 Cal.3d at p. 99) or upon mererecklessness (People v. Brown (1989) 212 Cal.App.3d 1409, 1419). The prosecution must prove the intent to apply physical force beyond a reasonable doubt. (People v. Garcia (1984) 159 Cal.App.3d 781, 787.) Thus a person whorecklessly exhibits a weaponin a threatening manner which accidentally discharges injuring another doesnot commit an assault with a deadly weapon, but would be guilty of... [brandishing (Penal Code § 417)]. [People v. Rocha, supra, 3 Cal.3d at p. 898, fn 5.]'* 8 Brandishing a firearm (Pen. Code, § 417) is not a lesser included offense of assault with a deadly weapon. (People v. Escarcega (1974) 43 Cal.App.3d 391, 396.) 144 (Cf. People v. Carmen (1951) 36 Cal.2d 768, 775-76, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12 [disapproving cases which held that mere reckless conduct alone can constitute assault]; McGee v. United States (D.C. 1987) 533 A.2d 1268, 1270 [where only attempted-battery assault is charged, the defendant’s mere “brandishing” of a gunis not sufficient to prove the required intent to commita battery].) In People v. Wilcott (1983) 34 Cal.3d 92, this Court explained how the California law of assault differs from the commonlaw definition. Penal Codesection 240 defines assault as “[an] unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” So defined, assault under California law departs from the commonlaw definition in two crucial respects. First, under the California definition “a conviction for assault may not be grounded uponintent only to frighten.” [Citations omitted.] Second, to constitute an assault, the defendant must not only intend to commit a battery (People v. Rocha (1971) 3 Cal.3d 893, 899 .. .); he must also have the present ability to do so. [Peoplev. Wilcott, supra, 34 Cal.3d at p. 99.] The purposebehind the present ability requirement of assault is to show that the defendant has gone beyond the steps required for attempt. (Peoplev. Valdez (1985) 175 Cal.App.3d 103, 112.) It constitutes “the actus reus of assault.” (People v. Chance, supra, 44 Cal.4th at p. 1172.) This means that the defendant must have comecloserto inflicting injury than required in orderto satisfy the elements of an attempt. (People v. Valdez, supra, 175 Cal.App.3d at p. 112.) “[W]hen a defendant equips and positions himself to carry out a battery, he 145 has the ‘present ability’ required by section 240 if he is capable of inflicting injury on the given occasion, even if some steps remain to be taken... .” (People v. Chance, supra, 44 Cal.4th at p. 1172.) The present ability requirement of assault is met “[o]nce a defendant has attained the means and location to strike immediately ....” (People v. Valdez, supra, 175 Cal.App.3d at p. 113 [emphasis added].) When addressing whether a defendant has the meansto strike immediately, “courts have held [that] attempting to shoot someone with an unloaded gun does not constitute the crime of assault because the perpetrator lacks the ‘present ability’ to inflict injury.” (People v. Valdez, supra, 175 Cal.App.3d at p. 111, citing People v. Sylva, supra, 143 Cal. at p. 64; People v. Rodriguez, supra, 20 Cal.4th at p. 11, fn. 3 [“A long line of California decisions holds that an assault is not committed by a person’s merely pointing an (unloaded) gun in a threatening mannerat another person”]; People v. Lochtefeld (2000) 77 Cal.App.4th 533, 542 & fn. 10 [applying rule that an assault cannot be committed by merely pointing an unloaded firearm at a victim]; People v. Miceli (2002) 104 Cal.App.4th 256, 269.) Here, there was notestimony that the gun was loaded when the gunman pointed it at Arias. (RT 10:1181-1182, 22:3399-3401; CT Supp. Vol. IV-1, pp. 161-163.) The prosecution presented evidence that when Arias saw Luke 146 running from the gunman, Arias exited the vehicle and ran too, but saw the person point a gun athim. (RT 10:1181-1182; CT Supp. Vol. IV-1, pp. 161- 163.) The evidence showsthat the gunman did notactually place the gun against Arias’s head or touch him with the gun but, rather, merely pointed the gun at Arias. (RT 10:1181-1182; CT Supp. Vol. IV-1, pp. 162 [the gunman was “pointing” the gun at him].) In his statementto the police Arias stated,'’ in pertinent part as shown in the transcript of the taped statement: I fell asleep ... on the ... in the passenger seat ... Luke was outside smoking a cigarette ... an when I woke up ... [seen ... um... that guy ... I guess Dozer or whatever... tellin (unint)like... charging like Luke... so Luke runsinto the back ofthe house... the beige house of his grandpa’s house... so I get outta the car ... so I run aroundthe car ... while that guy goes around ... arounda the car so ... like go in circles,.. so I jus take off ... ta left ... ta the left side of the house... an after that I jus hop a couple fences.... [CT Supp. Vol. IV-1, p. 160 (grammatical errors in original).] Arias further stated that he heard the person ask Luke, “[W]hose [sic] with you, whose [sic] with you?” (CT Supp. Vol. IV-1, p. 162.) Luke did not respond,but just “took off... .” (CT Supp. Vol. IV-1, p. 162.) Arias exited the vehicle. (CT Supp. Vol. IV-1, p. 162.) Arias was then asked by the detective "9 Arias’s testimonial statementsto the police, and the entirely of the evidence on the charge of assault with a firearm (Pen. Code, § 245), were admitted in violation of appellant’s rights to confrontation, due process, effective assistance of counsel, and a fair andreliable jury trial (Cal. Const., art. I, §§ 7, 15 & 17; U.S. Const., 5", 6, 8" & 14" Amends.). (Post, Argument, § IX.) 147 during the police interview, “He point (sic) something at you?” (CT Supp.Vol. IV-1, p. 162.) Arias responded, “Yeah... he was pointing it.” (CT Supp. Vol. IV-1, p. 162.) Arias clarified that the person was pointing a gun. (CT Supp.Vol. IV-1, p. 162.) For well over a century this Court has held that an assault is not committed by merely pointing an unloaded gun in a threatening mannerat another person. (People v. Fain (1983) 34 Cal.3d 350, 357, fn. 6; People v. Sylva, supra, 143 Cal. at p. 64.) Appellant recognizes that a defendant’s statement and behavior while making an armed threat against a victim may supporta jury’s finding that the firearm used to make the threat was loaded. (Cf. People v. Rodriguez, supra, 20 Cal.4th at pp. 12-13; People v. Lochtefeld, supra, 77 Cal.App.4th at pp. 536, 541-542 [defendant’s act of pointing a gunat officers, with his finger on the trigger, was an implied assertion the gun was charged; Lochtefeld’s own words and actions, in both verbally threatening and in displaying and aiming the gunat others, fully supported the jury’s determination the gun wassufficiently operable]; People v. Mearse (1949) 93 Cal.App.2d 834, 836-838 [evidence sufficient gun was loaded where,inter alia, the defendant commandedthe victim to halt, or he would shoot].) 148 In People v. Montgomery (1911) 15 Cal.App. 315, for example, the defendant was enraged whenheleft a fight; upon his return he pointed a gun at the victim andsaid, “‘J have got younow....’” (Ud. at p. 317 [emphasis added].) The appellate court held that even though there was no direct evidencethat the gun wasloaded,and despite the fact that the defendanttestified that the gun was not loaded, the jury could reasonably reject the defendant’s testimony and find that the gun was loaded. (dd. at p. 318.) In contrast to Montgomery, where the verbal threat implied that the gun wasloaded, there was no evidence here that pointing the firearm at Arias was accompanied by a verbalthreat of implied use. In People v. Daniels (1993) 18 Cal.App.4th 1046, the evidence supported a conviction for assault with a firearm where the defendant pointed his gun at everyonein the room andinstructed them to break. (Id. at p. 1049-1050.) Defendant argued that an assault is an unlawful attempt to commita battery, and the evidence only showedthat he pointed his gun at the victims, not that he attempted to shoot them. (Ibid.) However, the appellate court reasoned that a threatened act may amountto an assault even thoughthe threat is conditioned or qualified. The defendant pointed his gun at everyonein the living room andtold them to break. The jury reasonably could have construed this conductas a conditional threat constituting an assault because the defendant would havefired if the victims did not do as ordered. (/d. at p. 1051.) In contrast to Daniels, 149 where there was evidence of a verbal conditional threat of implied use of the gun, there was no evidenceherethat pointing the firearm at Arias was accompanied by a verbalthreat of implied use. Finally, in People v. Schwartz (1992) 2 Cal.App.4th 1319, the evidence supported a conviction for assault with a firearm where the defendant pointed a gun at several victims and verbally threatened them. (/d. at p. 1324.) Defendant ordered the employeesto lay down while pointing the gun randomly towards them. The defendant cocked the gun, and then told the victims that their safety was dependentontheir cooperation. (Jd. at p. 1321.) In contrast to Schwartz, the gunmannether cocked the gun nor verbally threatened Arias. Moreover, the manner in which the handgun wasused(i.e., pointing it at Arias) was not “likely” to result in the infliction of serious bodily injury. Indeed, the evidence showsthat despite ample opportunity to fire the handgun andstrike Arias, or attemptto strike him, the gunmandid not do so. The gunmanalso did not make a verbal threat to fire the handgun at Arias. The evidence thusis susceptible to only one inference and conclusion — i.e., the gunman was merely attempting to frighten Arias by displaying the handgun. Accordingly, the evidence is insufficient as a matter of law to support appellant’s conviction for assault with a firearm in count 3 because merely pointing the handgunat Ariasis not a violent act likely to result in a touching. 150 (Cf. People v. Rodriguez, supra, 20 Cal.4th at pp. 10-11 [absent evidence a defendanttried to use the gun as a club or bludgeon,the defendant cannot be convicted of assault with an unloaded firearm;this is so because the People must prove the defendant had the presentability to inflict violent injury].) Reversal of appellant’s conviction for assault with a firearm in count 3 is warranted for lack of substantial evidence. (Cf. Jackson v. Virginia, supra, 443 U.S. at p. 318 [a conviction unsupported by substantial evidence denies a defendant due processof law]; People v. Bean, supra, 46 Cal.3d at p. 932.) //1 151 VIII. THE TRIAL COURT PREJUDICIALLY ERRED IN DENYING APPELLANT’S MOTION FOR MISTRIAL AFTER THE PROSECUTOR ELICITED INADMISSIBLE TESTIMONY FROM DETECTIVE CURT LEVSEN THAT APPELLANT WAS ACTING UNDER THE JURISDICTION OF THE MEXICAN MAFIA, THAT HE SHOWED ALLEGIANCE TO THE MEXICAN MAFIA, AND THAT HE PAID TAXES TO THE MEXICAN MAFIA BECAUSE THE HIGHLY INFLAMMATORYAND POISONOUS NATURE OF SUCH INADMISSIBLE TESTIMONY WAS INCURABLEBY ADMONITION, REQUIRING REVERSAL OF APPELLANT?’S CONVICTIONS AND DEATH JUDGMENTFOR A VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR AND RELIABLE JURY TRIAL (CAL. CONST., ART.I, §§ 7, 15 & 17; U.S. CONST., 5™, 674, 8™ & 147" AMENDS.) A. INTRODUCTION AND PROCEDURAL BACKGROUND Duringtrial on December1, 2000, the prosecution stated an intent to present the expert testimony of Detective Curt Levsen on defendants’ gang affiliation, including testimony explaining the nature of certain hand signs displayed by defendants in photographs obtained during an investigation of the case. (CT 3:666-683; RT 18:2750-2756.) The prosecutor argued, in part: Your honor, what I’m primarily interested in is a general explanation to the jury as to what some of these symbols or signs that Mr. Marin, even Luke Bissonnette even mentioned aboutthese individuals throwing signs. I want the expert to be able to explain to the jury the significance of that, that they’re identifying themselves as a group. A very cohesive group. A criminalstreet gang. [RT 18:2750.] 152 After codefendant Bermudez’s counselstated the evidence was cumulative of other testimony and wassimply “overkill” under Evidence Code 352 (RT 18:2750), the trial court initially agreed, stating: I understand yourpoint, but going back to what Mr. Araujo’s point about overkill, we have established from a number of witnesses that each of the defendants was a memberofthe Cole Street East Side gang. And as far as throwing signs are concerned, those have been interpreted even. That what is he doing? He’s making an E. He’s making aC. So these signs that they make with their fingers are signs in which they boast or announce or whatever their gang membership. And I don’t see how a gang expert is going to add anything to what the jury already knowsorto further the case. [RT 18:2751.] After further argument by counsel,the trial court reiterated its concern aboutthe potential reversible error that could arise from such testimony: This is what my concern is, Mr. Camacho[1.e., the prosecutor]. We’ve beenintrial now,this is our 11th day of actual trial. And in my opinion, you tried a very clean case upto this time. I think that the evidence has been admissible, and you’ve created enoughfact situation for you to appropriately argue this to the jury. Now,if we go beyond the line here and muddythe waterat this time -- and I rule in this court not with my eye on the Supreme Court, but in a capital case, I can’t help but glance that way occasionally. And Ijustfeel that there’s so much chance of reversible error creeping in with a person expressing these kinds of opinions which might have an undue influence on thejury, more so than others. Because going back to the questionnaires that the jury have, there’s a general disapproval of gangs. We have that built in. We knew that when wesat the jury. And I don’t knowthe I can’t recite the individual questionnaires of the jurors that are sitting here, but I 153 think that as I recall reading the majority of the juror’s questionnaires there was a disapproval of gangs. And there wasn’t anyone whofelt favorably of them certainly. [RT 18:2758-2759 (emphasis added).] Nonetheless, the trial court ruled that Detective Levsen could testify in a limited manner about the defendants’ gang affiliation and the nature of the gang signs shownin certain photographs. (RT 18:2759-2760.) In the afternoon on December 1, 2000, Detective Levsentestified on direct examination that appellant, Castro, Bermudez and Tapia were membersof the East Side Whittier Cole Street gang. (RT 18:2785:1-2789:14.) He testified that members of the East Side Whittier Cole Street gang, as well as membersof other gangs, use hand signs as a form of communication and to show gangaffiliation. (RT 18:2782-2783.) The prosecutor then engaged Levsenin the following colloquy regarding the significance of certain hand signs contained in the photograph in the upper left-hand corner of People’s Exhibit 77: Q: Look at the individuals in that photograph. Do you see anything significant about their gestures or their hand signs that enables you to form an opinion whetheror not they’re showing any type of loyalty to a particular gang? A: Actually, it appears to me they’re showing loyalty to two areas here. Up here we have an E, a W,and aC,which is East Whittier, C for Cole Street, which is the clique within the larger gang. Down below we havethese three in connection with each other throwing a X 111, which is for the number13. 154 Q: What’s the significance ofdisplaying a Roman numeralof13? A: 13 is the numberthat is used by Southern California Hispanic Street gangs to showtheir allegiance to the Mexican Mafia, because 13 is the -- represents the 13th letter of the alphabet, which is M, which is their way ofshowing their allegiance to the Mexican Mafia. Not saying these individuals are membersof that Mexican Mafia, but just they re under the jurisdictional rule of the Mexican Mafia. In other words, they are Surenos in Southern California, and they pay taxes to the Mexican Mafia. [RT 18:2783-2784 (emphasis added).] Appellant’s trial defense counsel immediately objected on the grounds of lack of foundation, movedto strike the testimony, and movedfor a mistrial. (RT 18:2784.) Thetrial court overruled the objections, except that it struck the testimony about paying taxes to the Mexican Mafia andinstructed the jury to disregard that portion of the testimony. (RT 18:2784.) Following the conclusion of Levsen’s testimony, appellant renewed his motion for mistrial, stating that incurable harm was caused by the prosecution’s testimony linking appellant to the Mexican Mafia, which counsellikened to a “nuclear bomb” exploding midtrial. (RT 18:2792-2793.) The trial court again denied the motion, and then adjourned the proceedings to December4, 2000. (RT 2795.) On December4, 2000, trial defense counsel filed a written motion for mistrial. (RT 19:2799; CT 12:3299-3306.) The motion argued the prosecutor engaged in egregious, prejudicial misconductby failing to inform the defense of 155 an intent to introduced evidence regarding the Mexican Mafia and byeliciting evidence of appellant’s purported affiliation with the Mexican Mafia, where such evidence wasirrelevant and highly prejudicial, and where it would have been excluded bythetrial court if advance notice had been given. (CT 12:3299-3306.) The motion further argued that the testimony caused incurable harm and denied appellant the right to a fair trial. (CT 12:3305.) At a hearing on the motion that same day, the prosecutor argued that the defense was on notice of the possibility of such testimony because evidence relating to the Mexican Mafia waselicited from Levsen duringthetrial of Delaloza in 1999. (RT 19:2801-2802.) Trial defense counsel stated that although he wasnot aware ofsuch testimony in Delaloza’s trial, the issue was one of relevancein this trial. (RT 19:2802.) Thetrial court agreed, explicitly stating that if the court had been given advance notice of an intent by the prosecutorto elicit testimony aboutthe Mexican Mafia it would have excluded the evidence. (RT 19:2802.) Nonetheless, the court denied the motion for mistrial, but stated that it would strike all references to “Mafia.” (RT 19:2806-2807.) The prosecutor argued that the defendants were not prejudiced by the testimony about the Mexican Mafia. (RT 19:2807.) The trial court agreed, but stated that the testimony regarding the Mexican Mafia wasentirely inappropriate and irrelevant. (RT 19:2807-2808.) 156 The court denied the motion for mistrial and stated that it would extend its previousruling to strike all references to “Mafia.” (RT 19:2806-2807.) After the hearing, the court instructed the jury to disregard all references to the Mexican Mafia (RT 19:2816-2817), stating, in part, “So any reference to Mexican Mafia or dues paying or anything of that nature is stricken andis not to be regarded by you in any way.” (RT 19:2817; see CT 12:3350 [jury instruction on stricken evidence]; RT 24:3735 [jury instruction on stricken evidence].) Asexplained below,this is a case where the admonition failed to cure the prejudice appellant suffered by being associated with the Mexican Mafia because of the nature of the charges (conspiracy to commit murder and murder and the witness-killing special circumstance) and because after the admonition the trial jurors expressed concernedfor their personal safety (RT 31:4518-4519). (Post, § VIILC.) B. THE PROSECUTOR COMMITTED MISCONDUCTBY DELIBERATELY ELICITING INADMISSIBLE TESTIMONY DURING DIRECT EXAMINATION OF DETECTIVE LEVSEN LINKING APPELLANT TO THE MEXICAN MAFIA Every defendanthasa right to a fair trial. (Cal. Const., art. I, §§ , 15 & 17; U.S. Const., 5", 6", 8" & 14" Amends.) “Prosecutors ... are held to an elevated standard of conduct.” (People v. Hill (1998) 17 Cal.4th 800, 819) “‘A prosecutoris held to a standard higher than that imposed on other attorneys because of the unique function he or she performsin representing the interests, 157 and in exercising the sovereign power,of the state.’” (Ud. at p. 820, citing People v. Kelley (1977) 75 Cal.App.3d 672, 690.) As the United States Supreme Court has explained, the duty of a prosecutorin this regard is to ensure that justice is done, not to secure convictions. (Berger v. United States (1934) 295 U.S. 78, 88 [55 S.Ct. 629, 79 L.Ed. 1314]; In re Ferguson (1971) 5 Cal.3d 525, 531.) The prosecutorhas the duty to see that the witness volunteers no statement that would be inadmissible and especially careful to guard against statements that would also be prejudicial. (People v. Bentley (1955) 131 Cal.App.2d 687, 690, disapproved on another point in People v. White (1958) 50 Cal.2d 428, 431; People v. Cabrellis (1967) 251 Cal.App.2d 681, 688 [a “prosecutor is under a duty to guard against inadmissible statements from his witnesses and guilty of misconduct whenheviolates that duty”].) Prosecutorial misconduct violates the federal Constitution where the misconduct so infects the trial with unfairness as to make the resulting conviction a denial of due process. (Darden v. Wainwright (1986) 477 U.S. 168, 181 [106 S.Ct. 2464, 91 L.Ed.2d 144].) Under California law, a prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, requiring reversal, even when those actions do notresult in a fundamentally unfair trial. (People v. Friend (2009) 47 Cal.4th 1, 29.) “A finding of misconduct does not require a 158 determination that the prosecutor acted in bad faith or with wrongfulintent.” (People v. Kennedy (2005) 36 Cal.4th 595, 618 [citation omitted].)”° The prosecutorelicited testimony during direct examination of Detective Levsen that appellant was acting underthe jurisdiction of the Mexican Mafia, that he showed allegiance to the Mexican Mafia, and that he paid taxesto the Mexican Mafia. (RT 18:2782-2784.) The prosecutor did so deliberately and with full knowledge that Detective Levsen would link appellant to the Mexican Mafia. (See RT 19:2801-2802 [prosecutor argues that the defense was on notice of the possibility of such testimony because evidence relating to the Mexican Mafia waselicited by the prosecution from Levsen during the trial of Delaloza the prior year, andall parties to the instant case had a copyofthe transcript of the Delalozatrial].) The Mexican Mafia is one of the oldest and most powerful and violent prison gangsin the United States.”’ (Cf. Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1128-1129; United States v. Shryock (9" Cir. 2003) 342 F.3d 948, 70 The de novo standard of review applies to this claim because the material facts concerning appellant’s prosecutorial misconduct claim are undisputed. (Cf. People v. Camarillo (2000) 84 Cal.App.4th 1386, 1389.) 2 The brutal force of the Mexican Mafia subculture received wide- spread notoriety in 1992 with the release of the film American Me, a biographical crime drama film depicting 30 years of Chicano ganglife in Los Angeles. (American Me, Wikipedia, The Free Encyclopedia, http://en.wikipedia.org/wiki/American_Me[as of October 27, 2011].) 159 961.) As this Court stated in Alvarado v. Superior Court, supra, 23 Cal.4th 1121, the trial court in that case found, amongother things: (2) The Mexican Mafia is well-known for retaliatory acts against... informants and governmentwitnesses, including murder. [4] Information disclosed in camera documented 12 incidents of murder or attempted murderat the county jail of inmates between 1988 through 1991 which were committed byorat the direction of the Mexican Mafia. The additional five murders linked to the Mexican Mafia during this period of time were committed on persons who werenot incarcerated. [4] The Mexican Mafia is believed to have ordered the murders of witnesses in protective custody and incarcerated in other states .... [1] (4)... [T]he danger the Mexican Mafia poses to government witnesses is extreme. In camera, a witness stated that the Mexican Mafia has ordered so many hits and there are so many witnesses in protective custody that we cannot adequately protect them all. (Id. at pp. 1128-1129 (emphasis added).] Here,after the prosecutorelicited testimony during direct examination of Detective Levsen about appellant’s allegiance to the Mexican Mafia,thetrial court ruled that the testimony was entirely inadmissible because it was irrelevant and not support by substantial evidence. (RT 19:2802, 2807-2808.) The court stated, in part: ... I don’t think that there’s — there’s any reason for us to believe that any of these defendants were paying taxes or duesto any overall criminal organization, such as the Mexican Mafia. And I don’t believe they were subjected to the orders, and the evidence doesn’t support that sort of thing. I mean,all the evidence you adduced in this case is a local issue. It refers to Cole Street. And loyalty to Cole Street. And membersin Cole Street. So as far as 160 any umbrella organization is concerned, I don’t think thatit’s the evidence justifies it. [RT 19:2807-2808.] The prosecutor engaged in misconduct when hedeliberately elicited inadmissible testimony from Detective Levsen linking appellant to the Mexican Mafia because a prosecutor has the duty to see that his or her witnesses volunteer no statement that would be inadmissible, and must be especially careful to guard against statements that would be prejudicial. (People v. Schiers (1971) 19 Cal.App.3d 102, 113-114.) This includes a duty to warn the witness against volunteering inadmissible statements. (Cf. People v. Warren (1988) 45 Cal.3d 471, 482-483; People v. Cabrellis (1967) 251 Cal.App.2d 681, 688 [“A prosecutoris under a duty to guard against inadmissible statements from his witnesses and guilty of misconduct when he violates that duty”]; People v. Figuieredo (1955) 130 Cal.App.2d 498, 505-506 [“references by the officer to San Quentin deprived defendantofa fair trial”].) Here, in addition to breaching his duty to ensure that the witness volunteers no statement that would be inadmissible (i.e., by telling the witness prior to taking the stand to avoid mentioning certain subjects during testimony), the prosecutor deliberately elicited the inadmissible testimony from Detective Levsen by asking him,“What’s the significance of displaying a Roman numeral of 13?” (RT 18:2784), knowing that the answer would be about the Mexican 161 Mafia (RT 19:2801-2802). Accordingly, the record establishes that the prosecutoractively sought to introduce inadmissible and prejudicial testimony. “The deliberate asking of questions calling for inadmissible evidence and prejudicial answers is misconduct.” [People v. Bell (1989) 49 Cal.3d 502, 532, quoting People v. Fusaro (1971) 18 Cal.App.3d 877, 886.] The evidence further reveals that the prosecutor used deceptive and/or reprehensible methods to persuade the jury. The testimony blind-sided both the defense andthetrial judge. During an Evidence Code section 402 hearing immediately preceding the testimony, wherein the prosecutor explained the relevance of Detective Levsen’s proposed testimony, the prosecutor never told the judge or defense counsel that he intendedto elicit from Levsen a purported connection between appellant and the Mexican Mafia. (RT 18:2750-2760.) The prosecutor knew that his questions of Levsen would elicit testimony about the Mexican Mafia becausehespecifically asked a question calling for such a response and he admitted to being aware of such testimony by Levsen in the previoustrial of Delaloza. (RT 18:2784, 19:2801-2802; CT Supp. Vol. VI-5, pp. 945, 949-951.) Whena prosecutor intentionally asks questions, the answers of which he [or she] knowsare inadmissible, the prosecutoris guilty of bad faith attempts to improperly persuade the court or jury. 162 (People v. Parsons (1984) 156 Cal.App.3d 1165, 1170; Cf. People v. Mazoros (1977) 76 Cal.App.3d 32, 48; People v. Bonin (1988) 46 Cal.3d 659, 689 [“It is, of course, misconductfor a prosecutorto ‘intentionally elicit inadmissible testimony.’”].)”” C. THE TRIAL COURT PREJUDICIALLY ERRED IN DENYING APPELLANT’S MOTION FOR MISTRIAL BECAUSE THE ADMONITION WAS WOEFULLY INSUFFICIENT TO CURE THE HARM THAT APPELLANT SUFFERED FROM TESTIMONYLINKING HIM TO THE MEXICAN MAFIA (TESTIMONY THAT IMPROPERLY SUGGESTED HIS DANGEROUSNESSTO THE JURY), THEREBY DEPRIVING APPELLANT OF A FUNDAMENTALLYFAIR TRIAL GUARANTEEDBY THE STATE AND FEDERAL CONSTITUTIONS Although the court sustained appellant’s objection to Detective Levsen’s testimony about the Mexican Mafia and admonishedthe jury to disregard references thereto (RT 18:2782-2784; RT 19:2816-2818), the admonition failed to cure the prejudice that appellant suffered by being associated with the Mexican Mafia, thereby depriving appellant of the due processright to a fundamentally fair trial. (Cf. Darden v. Wainwright, supra, 477 U.S. at p. 181.) 22 Although notan issue here because of the prosecutor’s deliberate moveto place before the jury inadmissible and prejudicial testimony, a claim of prosecutorial misconductis not even defeated by a showingof the prosecutor’s subjective good faith; nor need a defendant show that the prosecutor acted in bad faith or with appreciation for wrongfulness of his conduct. (People v. Price (1991) 1 Cal.4th 324, 447.) “‘Whatis crucial to a claim of prosecutorial misconductis not good faith vel non ofthe prosecutor, but potential injury to the defendant.’” (People v. Ashmus (1991) 54 Cal.3d 932, 976, citing People v. Benson (1990) 52 Cal.3d 754, 795.) 163 The words “Mexican Mafia” conjure immediate fear among those that hear them spoken because the Mexican Mafiais not only one of the most notorious and dangerous gangs, but the Mexican Mafia is well-knownfor retaliatory conduct, including the murderof prosecution witnesses. (Cf. Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1128-1129.) In a case such as this where the jurors expressed concerned for their personal safety after hearing the improper testimony (RT 31:4518-4519), and especially considering the nature of the charges (conspiracy to commit murder and murder, and the witness-killing special circumstance), it would defy reason to hold that the jurors in this case could each disregard Detective Levsen’s testimony about the Mexican Mafia and successfully prevent the memoryofhis testimony from entering into their deliberative process. (Cf. People v. Albertson (1944) 23 Cal.2d 550, 577 [“It does not reflect in any degree upon the intelligence, integrity, or the honesty or purpose of the juror that matters ofa prejudicial character find a permanent lodgmentin his mind, which will, inadvertently and unconsciously, enter into and affect his verdict.” ].) Moreover, even without prosecutorial misconduct, a witness’s volunteered statement can provide the basis for a mistrial where,as here, it constitutes incurable prejudice. (Cf. People v. Williams (1997) 16 Cal.4th 153, 211 [witness’s volunteered statement can trigger mistrial when it causes incurable 164 prejudice]; People v. Wharton (1991) 53 Cal.3d 522, 565 [same].) If testimony considered by a jury rendersa trial unfair, the court must declare a mistrial. (People v. Jenkins (2000) 22 Cal.4th 900, 985-986.) “Whethera particular incident is incurably prejudicial is by its nature a speculative matter, and thetrial court is vested with considerable discretion in ruling on mistrial motions.” (People v. Haskett (1982) 30 Cal.3d 841, 854.) A trial court’s ruling on a motion for mistrial is reviewed for abuse of discretion. (People v. Valdez (2004) 32 Cal.4th 73, 128.) “Such a motion should only be granted when a defendant’s ‘chancesof receiving fair trial have been irreparably damaged.’” (Jbid. [citation omitted].) Thetrial court concluded that Detective Levsen’s testimony linking appellant to the Mexican Mafia wasentirely inappropriate and irrelevant, and would have been excluded if the prosecutor had given advance notice, but the court ultimately stated that appellant was not prejudiced by the testimony. (RT 19:2807-2808.) The court’s conclusion was unreasonable, amounting to an abuse of discretion, because the testimony was irrelevant and extremely inflammatory, and thus irreparably damaged appellant’s chances of receivinga fairtrial, especially in view of the nature of the charges (conspiracy to commit murder and murder, and the witness-killing special circumstance) and the weaknessof the evidence on the murder charges and the witness-killing special circumstance 165 allegation (ante, §§ II., I]., IV. & V.). The testimony was highly prejudicial in the penalty phase ofthe trial too because it communicatedto the jury that appellant would be a dangerousprisonerif imprisoned for life without the possibility of parole. The extremely prejudicial impact of testimony linking appellantto the Mexican Mafia cannot be gainsaid. The Mexican Mafia is a notorious and highly dangerousprison gang. (Cf. Alvarado v. Superior Court, supra, 23 Cal.4th at pp. 1128-1129.) As this Court noted in Alvarado v. Superior Court, supra, 23 Cal.4th 1121, the trial court in that case found that “the Mexican Mafia [is]... a notorious prison gang”that “is well-known forretaliatory acts against... informants and government witnesses, including murder.” (/d. at p. 1128.) “The Mexican Mafia is believed to have ordered the murders of witnesses in protective custody and incarcerated in other states... .” (Ud. at pp. 1228-1129.) “The Mexican Mafia has an excellent intelligence network which includes sources in several public agencies andis able to obtain confidential information.” (/d.at p. 1129.) “Penetration [by] the Mexican Mafia of penalinstitutions is so extensive that one in camera witnessdescribed the organization as having ‘de facto control’ overall penal institutions in California.” (/bid.) The trial court in that case also found that “the danger the Mexican Mafia poses to government witnessesis extreme. In camera, a witnessstated that the Mexican Mafia has ordered so 166 manyhits and there are so many witnessesin protective custody that we cannot adequately protect them all.” (/bid.) The testimony was sensational as the Mexican Mafiais a feared prison gang and Detective Levsen linked appellant and his codefendants to the Mexican Mafia in very specific detail, charging that 1) appellant was acting under the jurisdiction of the Mexican Mafia, 2) appellant was showingallegianceto the Mexican Mafia, and 3) appellant paid taxes to the Mexican Mafia. (RT 18:2783- 2784.) Thetrial court thus abusedits discretion in denying the defense motion for a mistrial because the testimonyleft the jury with the inescapable image of appellant’s association with the Mexican Mafia, which suggested his extreme dangerousnessto the jury. In addition, absent Detective Levsen’s testimony linking appellantto the Mexican Mafia, and in view of the weakness of the evidence on the murder charges andthe witness-killing special circumstance allegation (ante, §§ II., IIL, IV. & V.), the jury likely would not have returned a unanimousverdict on the murder charges and the witness-killing special circumstanceallegation. Although recognizing that generally jurors are presumed to follow curative instructions (People v. Smith (2007) 40 Cal.4th 483, 517), our courts have unhesitatingly reversed convictions where, as here, inadmissible and prejudicial evidence could not be cured by a cautionary instruction. (People v. Naverrette 167 (2010) 181 Cal.App.4th 828, 833-834 [police officer’s blurting out prejudicial statement not cured by admonition to disregard testimony]; People v. Allen (1978) 77 Cal.App.3d 924, 934-935; People v. Schiers (1971) 19 Cal.App.3d 102, 107-108 [the admission and subsequentstriking of evidencerelating to a lie detector test was so prejudicial that defendant was denieda fairtrial]; People v. Ozuna (1963) 213 Cal.App.2d 338, 342 [reversible error, and admonition insufficient, when the defendant was called an “ex-convict’|; People v. Figuieredo, supra, 130 Cal.App.2d at pp. 505-506; People v. Gomez (1957) 152 Cal.App.2d 139, 144-145 [reversible error, despite the trial court’s striking of evidence of the defendant’s juvenile prior conviction and instruction that the jury disregard it]; People v. Johnson (1981) 121 Cal.App.3d 94, 103; People v. Brophy (1954) 122 Cal.App.2d 638, 651-652.) In People v. Allen, supra, 77 Cal.App.3d 924, for example, the Court of Appealheld that the trial court erred in failing to grant defendant’s motion for a mistrial after a rebuttal witnessin his trial for robbery testified that defendant was “on parole.” (/d. at p. 934.) Althoughthe trial court admonished the jury to disregard the statement regarding defendant’s parole status, the Court of Appeal reversed the conviction in view of the closenessof the case, holding that “it is reasonably probable that a result more favorable to appellant would have been 168 reached had the prejudicial information of appellant’s parole status not been divulged to the jury.” (/d. at p. 935.) Similarly, the appellate courts have found reversible, incurable error in People v. Ozuna, supra, 213 Cal.App.2d at p. 342, where the defendant was called an “ex-convict” and in, amongother cases cited above, People v. Figuieredo, supra, 130 Cal.App.2d at pp. 505-506, where a witness stated that defendant “did time” in San Quentin. The belief that a limiting instruction or admonition to a jury could possibly cure the prejudicial effect of the testimony linking appellant to the Mexican Mafiais entirely unrealistic. (Cf. People v. Gibson (1976) 56 Cal.App.3d 119, 130.) In the face of such devastating testimony, jurors simply do not havethe ability to abide by an admonition wherethe case is disputed and improper evidence of gang involvementhas been introduced over objection. It does not reflect in any degree uponthe intelligence, integrity, or the honesty or purpose ofthe juror that matters of a prejudicial character find a permanent lodgmentin his mind, which will, inadvertently and unconsciously, enter into and affect his verdict. [People v. Albertson, supra, 23 Cal.2d at p. 577.] The inflammatory nature of the testimonylinking appellant to the Mexican Mafia certainly had an emotional effect on the minds of the jurors. Powerful words such as “Mexican Mafia,” and the images and associations they conjure, participate actively in forming human judgments. In anytrial, such wordsare 169 particularly decisive. No admonition could cure the emotional impact of these wordsin the minds of the jurors. The jury has heard the bell ring, the Court can tell them, “You didn’t hear any bell,” and they know, “Wedidn’t hear any bell,” and they can talk aboutit and say, no, they didn’t hear anybell, but they also know they heard the bell. [People v. Burgener (1990) 223 Cal.App.3d 427, 432.] As Judge Jerome Frank wrote, some comments are of “such a character that no one can say that the judge’s warnings effectively removedtheir poisonous consequences. Indeed, as experiencedtrial lawyers have often observed, merely to raise an objection to such testimony — and more,to have the judgetell the jury to ignore it — often serves but to rub it in.” (United States v. Grayson (2d Cir. 1948) 166 F.2d 863, 871 [concurring in reversal]; see United States v. Davenport (9th Cir.1985) 753 F.2d 1460, 1464 [“A limiting instruction would be ineffective in preventing an unjustified innuendo from comingto the attention of the jury.”]; Donnelly v. DeChristoforo, supra, 416 U.S. at p. 644 [“some occurrencesattrial may be too clearly prejudicial for such a curative instruction to mitigate their effect’’].) This was a close case, as evidenced bythe insufficiency of the evidence to sustain appellant’s convictions in counts 4, 5, 6, and 7, and the special circumstancetrue findings of multiple-murder and witness-killing. (Ante, §§ II., IIl., 1V., V. & VI.) Considering the highly inflammatorynature of the testimony 170 about the Mexican Mafia, and the fact that the charges involved multiple murders (counts 4, 5, and 7), including conspiracy to commit murderinvolving a purported witness to a crime (count6), the trial court’s admonition to disregard the testimony could not possibly have cured the prejudicial impact of the jury hearing this evidence. Moreover, the jury expressed fear that the defendants might learn of their identity (see RT 31:4518-4519), reinforcing the fact that testimony about the Mexican Mafia, which suggested appellant’s dangerousness to the jury, could not be set aside by the jury. The misconduct here echoesthat in People v. Bentley, supra, 131 Cal.App.2d 687. There, the defendant stoodtrial for lewd acts against a minor. (id. at p. 688.) The investigating officer testified that he questioned the defendant one weekafter the alleged offense, but the defendant denied touching the child. The officer then volunteered in the jury’s presence that he “went on to question [the defendant] about activities he had been involved in... when he had been a suspect in another case,” which he also denied. (People v. Bentley, supra, 131 Cal.App.2d at p. 689.) The trial court granted the defendant’s motion to strike the volunteered statement and instructed the jury to disregardit, but the court denied the defendant’s motion for mistrial. (/d. at pp. 690-691.) On appeal following his conviction, the appellate court reversed, stating: 171 It is obvious from the record that the police officer deliberately made the statement about defendant being a suspect in another case in 1942 with the idea in mindofprejudicing defendant. There can be no doubtthat the statement was highly prejudicial. The district attorney knew, or should have known, the testimony the officer was going to give and should have warned him not to make the statement. ... The court struck out the objectionable statementof the officer but the damage had been done and could not have been cured by the court’s admonition. The mere direction that the testimony should be disregarded was no antidote for the poison that had been injected into the mindsofthe jurors. [Id. at p. 690 (emphasis added).] Accordingly, it is reasonably probable that the effect of the prosecutor’s misconduct caused an erroneousresult, especially where, as here, the testimony constitutes incurable prejudice, irreparably damaging appellant’s chances of receiving a fair trial. Reversal of appellant’s convictions and death judgmentis required. /// 172 IX. THE TRIAL COURT’S ADMISSION OF OUT-OF-COURT STATEMENTSAND PRIOR TESTIMONY OF NONTESTIFYING WITNESS CARLOSARIAS - IDENTIFYING APPELLANT AS THE PERSON WHO ASSAULTED HIM WITH A FIREARM AN HOUR PRIOR TO THE HOMICIDES OF MOLINA AND MURILLO — REQUIRES REVERSAL OF APPELLANT’S CONVICTIONSIN COUNTS3, 4 AND 5 FOR A VIOLATION OF STATE EVIDENTIARY RULES AND THESTATE AND FEDERAL CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE PROCESS, EFFECTIVE ASSISTANCE OF COUNSEL, AND A FAIR AND RELIABLE JURY TRIAL (CAL. CONST., ART.I, §§ 7, 15 & 17; U.S. CONST., 57", 6™, 87" & 147" AMENDS.) A. INTRODUCTION AND PROCEDURAL BACKGROUND Appellant was convicted in count 3 of assault with a firearm on Carlos Arias (Pen. Code, § 245, subd. (a)(2)), and in counts 4 and 5 with the first degree murders of Brian Molina and Michael Murillo (Pen. Code, §§ 187, subd. (a), 189), respectively. (CT 12:3454-3456; RT 25:3825-3827.) The prosecution sought to prove these charges, in material part, with prior testimony and out-of- court statements of Carlos Arias, whomthetrial court found wasan unavailable witness. (Ante, Statement of Facts, §§ A.2. & A.3.) Thetrial court admitted the following three categories of out-of-court statements and/orprior testimony: 1) nontestimonial out-of-court statements that Arias purportedly made to Luke Bissonnette (RT 10:1181-1182); 2) prior testimony that Arias gavein the trial of Alejandro Delaloza (RT 12:1532-1533, 14:1840-1907); and, 173 3) testimonial out-of-court statements that Arias made to the police in a tape-recorded interview on October 24, 1997 (RT 14:1912-1917). In connection with the first category (Arias’s nontestimonial out-of-court statements purportedly made to Luke Bissonnette), Luke testified that after seeing appellant on Hornell Street he ran to the house at 15171 GoodhueStreet, where he met Arias on the back patio. (RT 10:1167-1172.) Luke testified, over defense hearsay objection, that Arias told him that he (Arias) “almost got killed”that night because “Richard Penunuri had pulled out a gun andputit to his head.” (RT 10:1181-1182.) The trial court admitted the statements as an “excited or spontaneous utterance.” (RT 10:1181; see RT 10:1182.) In connection with the second category (Arias’s prior testimony in the Delalozatrial), the entire testimony was read into the record (RT 14:1840-1907), over defense objection that Arias was not subject to “cross-examination” by appellant’s counsel and thus the prior testimony presented a “confrontation” problem. (RT 12:1532-1533; see RT 14:1806.) In that testimony, Arias recanted muchofhis original taped statementto the police, including the statement about a person pointing a black handgun at him (RT 14:1855-1856) and the statement about the gunman’s jacket (RT 14:1870-1875, 1879-1880). The court admitted the testimony on the groundsthat it was prior sworn testimony of an unavailable and essential witness. (RT 1:192-193, 12:1532-1533, 1535-1538, 14:1806.) 174 In connection with the third category (Arias’s testimonial out-of-court statements madeto the police in a tape-recorded interview), the court admitted, over defense hearsay objection (RT 14:1910), the tape-recorded statement and an 18-pagetranscript of the statement. (RT 14:1912-1917; People’s Exh. 73 [audiotape of statement]; People’s Exh. 74, CT Supp. Vol. IV-1, pp. 159-174 [transcript of statement].) Arias told the police that after Luke ran he (Arias) exited the vehicle and ran too, but not before seeing that the person — whom he had not seen before but identified as “that guy .. . I guess Dozer or whatever” (CT Supp. Vol. IV-1, p. 160) — was pointing a black gun at him, was wearing a black jacket with a hood, and was chubby. (CT Supp. Vol. IV-1, pp. 160-163 [People’s Exh. 74].) Arias, in fear for his own safety, ran and hid in Luke’s grandfather’s backyard, before running back to Luke’s house on GoodhueStreet. (CT Supp. Vol. IV-1, p. 160.) The court admitted Arias’s out-of-court statement to the police as a prior inconsistent statement, on the theory that it was inconsistent with Arias’s prior testimony at the Delaloza trial, which testimony wasread into the record. (RT 14:1910-1911.) //1 175 B. THE ISSUES RAISED HEREIN HAVE BEEN PRESERVED FOR APPEAL; IF THIS COURT FINDS THAT ANY OF THE ISSUES HAVE BEEN FORFEITED BY FAILURE TO ADEQUATELY OBJECT IN THE TRIAL COURT, THEN APPELLANT WASDEPRIVED OF THE STATE AND FEDERAL CONSTITUTIONALRIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL (CAL. CONST., ART.I, §§ 15 & 17; U.S. CONST., 67, 8™ & 14™ AMENDS.) As explained below,the trial court’s admission of Arias’s out-of-court statements purportedly made to Luke violated the state hearsay rule and deprived appellant of a fundamentally fair trial as guaranteed by the state and federal constitutional rights to due process. (Post, §§ IX.D. & IX.F.) Thetrial court’s admission of Arias’s testimonial out-of-court statements to the police and prior testimony at the Delalozatrial violated the state hearsay rule, deprived appellant of the state and federal constitutional rights to confrontation, and deprived appellant of a fundamentally fair trial as guaranteed by the state and federal constitutional rights to due process. (Post, §§ IX.C., IX.D. & IX.E.) Each ofthe issues raised herein have been preserved for appellate review. (Cf. People v. Scott (1978) 21 Cal.3d 284, 290 [objection is sufficient if the record showsthetrial judge understood the issue presented]; Hormel v. Haverling (1941) 312 U.S. 552, 557 [61 S.Ct. 719, 85 L.Ed. 1037] [“Orderly rules of procedure do not require sacrifice of the rules of fundamental justice”’].) 176 Moreover, to the extent constitutional issues are raised in this appeal, they are not waived by inadequate objection. (See People v. Yeoman (2003)31 Cal.4th 93, 117-118, 133; People v. Coddington (2000) 23 Cal.4th 529, 632.) If this Court finds that any of the issues have been forfeited by failure of trial defense counsel to adequately object, then appellant was deprived of the state and federal constitutional right to the effective assistance of counsel (Cal. Const., art. I, §§ 15 & 17; U.S. Const., 6", 8" & 14" Amends.). Under both the Sixth and Fourteenth Amendments to the federal Constitution andarticle I, section 15, of the California Constitution, a criminal defendanthasthe right to the assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 684- 685 [80 L.Ed.2d 674, 104 S.Ct. 2052]; People v. Pope (1979) 23 Cal.3d 412, 422 [discussing both state and federal constitutional rights].) The ultimate purposeofthis right is to protect the defendant’s fundamentalrightto a trial that is both fair in its conduct andreliable in its result. To comply with constitutional standards counsel must perform as would a “reasonably competent”attorney “acting as his diligent conscientious advocate.” (United States v. De Coster (D.C. Cir. 1973) 487 F.2d 1197, 1202; accord, People v. Pope, supra, 23 Cal.3d at p. 423.) In other words, counsel should undertake those actions that a reasonably competent attorney would undertake and before counsel undertakes to act at all he must make a rational and informed 177 decision on strategy and tactics founded on adequate investigation and preparation. (Cf. In re Hall (1981) 30 Cal.3d 408, 426; People v. Frierson (1979) 25 Cal.3d 142, 166.) It is constitutionally required that counsel make “all significant decisions in the exercise of reasonable professional judgment.” (Strickland v. Washington, supra, 466 U.S. at pp. 690-691.) To establish ineffective assistance of counsel, appellant must demonstrate that (1) counsel’s representation was deficient in falling below an objective standard of reasonableness, and (2) counsel’s deficient representation prejudiced appellant, i.e., there is a reasonable probability that the result would have been more favorable to appellant absent counsel’s omission. (Stricklandv. Washington, supra, 466 U.S. at pp. 688, 694.) This standard has been described as “a significant, but something less than 50 percent, likelihood of a more favorable ruling.” (People v. Howard (1987) 190 Cal.App.3d 41, 48.) Appellant recognizes that defense counsel’s actions are often justified on the basis of strategic choice. (People v. Pope, supra, 23 Cal.3d at p. 426.) However,even “defense strategies may besoill-chosen that they may render counsel’s overall representation constitutionally defective.” (United States v. Tucker (9" Cir. 1983) 716 F.2d 576, 586.) Defense strategy and tactics which lawyersof ordinary training and skill in the criminal law would not consider competent deny a criminal defendant the effective assistance of counsel, if some other action would havebetter protected a defendant and was 178 reasonably foreseeable as such beforetrial. [Beasley v. United States (6" Cir. 1974) 491 F.2d 687, 696, cited with approval in United States v. Tucker, supra, 716 F.2d at p. 586.] If the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.” (People v. Pope, supra, 23 Cal.3d at p. 426 [emphasis added]; People v. Majors (1998) 18 Cal.4th 385, 403 [“the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission”].) Here, there could be no satisfactory explanation orrational strategic reason for counsel’s failure to explicitly raise each of the objections identified above because counsel raised several objections to admission of Arias’s prior testimony and out-of-court statements (RT 12:1532-1533, 14:1806, 1910), thereby revealing counsel’s intent and purpose to exclude the prior testimony and out-of-court statements. Underthese circumstances, any failure to preserve these issues for appeal would amountto the ineffective assistance of counsel. (See People v. Lewis (1990) 50 Cal.3d 262, 282 [this Court considers otherwise forfeited “claim on the merits to forestall an effectiveness of counsel contention”]; People v. Stratton (1998) 205 Cal.App.3d 87, 93.) 179 Defense counsel’s deficient representation prejudiced appellant because admission of Arias’s prior testimony and out-of-court statements strongly and directly linked appellant to the assault with a firearm on Arias (count 3) and to the killings of Molina and Murillo (counts 4 & 5, respectively). (See post, § IX.G.) Reversal of appellant’s convictions in counts 3, 4 and 5 thus is warranted on the ground appellant was denied the state and federal constitutional rights to effective assistance of counsel. Cc. THE ADMISSION OF ARIAS’S TESTIMONIAL OUT-OF-COURT STATEMENTS MADE DURINGA POLICE INTERVIEW AND HIS PRIOR TESTIMONY AT THE DELALOZA TRIAL DEPRIVED APPELLANT OF THE CONSTITUTIONAL RIGHT TO CONFRONTATION(CAL. CONST., ART.I, §§ 7, 15 & 17; U.S. CONST., 5™, 6™, 8™ & 14™ AMENDS.) The Confrontation Clause of the Sixth Amendment mandatesthat “[1]n all criminal prosecutions, the accused shall enjoy the right . .. to be confronted with the witnesses against him.” (U.S. Const., 6" Amend.) A defendant’s right to confront witnesses whotestify against him with searing and comprehensive cross-examination is one of the fundamental hallmarksof our criminaljustice system. (Marylandv. Craig (1990) 497 U.S. 836, 846 [110 S.Ct. 3157, 111 L.Ed.2d 666].) “‘[T]he right of confrontation and cross-examination is an essential and fundamental requirementfor the kind of fair trial which is this country’s constitutional goal. Indeed, .. . to deprive an accused ofthe right to cross-examine the witnesses against him is a denial of the Fourteenth 180 Amendment’s guarantee of due process of law.’ [Citation.]” (People v. Brown (2003) 31 Cal.4th 518, 538; Cal. Const., art. I, §§ 7, 15 & 17; U.S. Const., 5", 6", 8 & 14" Amends.) In Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177], the United States Supreme Court interpreted the clause to prohibit the admission of out-of-court testimonial statements of a witness who does not appearat trial unless the witness is unavailable and the defendant had a prior opportunity for cross-examination. (/d. at pp. 53-54.) Crawford departed from the approach endorsed by Ohio v. Roberts (1980) 448 U.S. 56, 66, which conditioned the admissibility of hearsay evidence on whetherit fell under a “firmly rooted hearsay exception” or demonstrated reliability by showing “particularized guarantees of trustworthiness.” The Court rejected “[t]he framework [as] so unpredictable that it fails to provide meaningful protection from even core confrontation violations.” (Crawford v. Washington, supra, 541 U.S. at p. 63.) “Admitting statements deemedreliable by a judgeis fundamentally at odds with the right of confrontation.” (/d. at p. 61.) Crawford set out to determine the original meaning of the provision as intendedbyits framers. Using a historical lens, the high court ultimately found that “the principal evil at which the Confrontation Clause was directed was the civil-law modeof criminal procedure, and particularly its use of ex parte 181 examinations as evidence against the accused.” (Crawford v. Washington, supra, 541 US. at p. 50 [italics omitted].) The straight-forward requirements for admissibility of testimonial hearsay set forth in Crawford — unavailability and prior opportunity to cross examine — “reflect more accurately the original understanding of the [Confrontation] Clause.” (/d. at p. 60.) “[T]he Clause’s ultimate goal is to ensure reliability of evidence . . . but that reliability [must] be assessed in a particular manner: by testing in the crucible of cross-examination.” (Ud. at p. 61.) The hallmark of the new standard under Crawfordis that it applies only to testimonial statements because such statements cause the declarant to be a witness within the meaning of the Confrontation Clause. (Crawford v. Washington, supra, 541 U.S. at p.51.) Therefore, the first step in any Confrontation Clause analysis is to determine whetherthe out-of-court statement at issue is testimonial. Crawford tendered a few examples of the “core class of eee ‘testimonial’ statements,” including extrajudicial statements “‘contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, confessions,’” or “‘similar pretrial statements that declarants would reasonably expect to be used prosecutorially,’” but chose not to carve out an explicit definition. (/d. at pp. 51-52.) 182 Twoyears later in Davis v. Washington (2006) 547 U.S. 813 the Court further defined “testimonial.” In the context of statements made to law enforcement, the Court held that “[s]tatements are nontestimonial when madein the course of police interrogation under circumstances objectively indicating that the primary purposeof the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevantto later criminal prosecution.” (/d. at p. 822.) Thus, the Court looked to the circumstances surrounding the statement’s conception to determine whether they implicated the right to confrontation. The Court reasoned that a statement describing contemporaneous events as they were actually happeningis nontestimonial because the declarant’s primary purposeis not to prove a fact relevant to a past crime, but rather to assist law enforcement in an ongoing emergency. (/d. at p. 827.) In contrast, a statement “solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to 60699 convict) the perpetrator”is sufficiently akin to testimony,i.e., “‘”[a] solemn declaration or affirmation made for the purposeof establishing or proving some fact,”’” to warrant Sixth Amendmentscrutiny. (/d. at p. 826.) 183 Arias’s prior testimonyat the Delalozatrial, which was admitted for the truth of the matter asserted (RT 12:1532-1533, 14:1840-1907; CT 12:3362),is testimonial under Crawford becauseit is “prior testimony.” (Crawford v. Washington, supra, 541 U.S. at pp. 51-52.) Arias’s out-of-court statements to the police, which were admitted for the truth of the matter asserted (RT 10:1181- 1182, 14:1912-1917), are testimonial under Davis v. Washington because the statements were made under circumstances objectively indicating that the primary purposeof the interrogation was to establish or prove past events potentially relevant to later criminal prosecution(i.e., the statements were made during a formal police interview at the police station). (Davis v. Washington, supra, 547 U.S. at p. 822; see Crawford v. Washington, supra, 541 U.S. at p. 53, fn.4 [a “recorded statement, knowingly given in response to structured police questioning, qualifies {as a testimonial statement} under any conceivable definition.”].) Appellant was not a party to the Delaloza trial where Arias’s former testimony wasgiven, and he did not otherwise have the opportunity to cross- examine Arias. (RT 12:1532-1533.) Accordingly, appellant was deniedthe state and federal constitutional rights to confrontation (Cal. Const., art. [, §§ 7,15 & 17; U.S. Const., 6", 8" & 14" Amends.) whenthe trial court admitted Arias’s prior testimony and out-of-court statements to the police because appellant was 184 given no prior opportunity to cross-examine Arias. (Cf. Crawford v. Washington, supra, 541 U.S. at pp. 53-54.) D. THE ADMISSIONOF ARIAS’S OUT-OF-COURT STATEMENTS AND PRIOR TESTIMONY DEPRIVED APPELLANT OF THE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR AND RELIABLE JURY TRIAL (CAL. CONST., ART.I, §§ 7, 15 & 17; U.S. CONST., 5™, 6™, 8™ & 14™ AMENDS.) Thetrial court’s admission of Arias’s out-of-court statements to Luke and to the police, and the admission of Arias’s prior testimonyin the Delalozatrial, deprived appellant of the due process right to a fundamentally fair trial because the statements and testimony violated state evidentiary rules against admission of hearsay, violated the Confrontation Clause, and rendered the trial fundamentally unfair. (Cal. Const., art. I, §§ 7, 15 & 17; U.S. Const., 5", 6", 8" & 14" Amends.) “(T]he right of confrontation and cross-examination is an essential and fundamental requirement for the kind offair trial which is this country’s constitutional goal. Indeed, .. . to deprive an accused ofthe right to cross- examine the witnesses against him is a denial of the Fourteenth Amendment’s guarantee of due process of law.” (Pointer v. Texas (1965) 380 U.S. 400, 405 [13 L.Ed.2d 923, 85 S.Ct. 1065]; see People v. Brown (2003) 31 Cal.4th 518, 538.) The deprivation of appellant’s state court rights (here, the statutory rules on admission of hearsay), as set forth above,also givesrise to a violation of 185 appellant’s right to due process under the Fourteenth Amendmentto the federal Constitution. (Cf. Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [100 S.Ct. 2227, 65 L.Ed.2d 175] [arbitrary deprivation of a state-created liberty interest violates due process]; Hewitt v. Helms (1983) 459 U.S. 460, 466 [103 S.Ct. 864, 74 L.Ed.2d 675] [liberty interests protected by the Due Process Clause arise from two sources, the Due Process Clause itself and the laws of the States]; Walkerv. Deeds (9" Cir. 1995) 50 F.3d 670, 673 [sentencing court’s failure to comply with state statute requiring a finding that habitual offender status is “just and proper” violated due process]; Fetterly v. Paskett (9" Cir. 1993) 997 F.2d 1295, 1300 [“The failure of a state to abide by its own statutory commands may implicate a liberty interest protected by the Fourteenth Amendmentagainst arbitrary deprivation by a state.”]; Ballardv. Estelle (9" Cir. 1991) 937 F.2d 453, 456.) Moreover,the state court’s erroneous application of state law (here, the statutory rules on admission of hearsay) rendered appellant’s trial fundamentally unfair, and thus denied appellant due process under the federal Constitution. (Estelle v. McGuire (1991) 502 U.S. 62, 72 [116 L.Ed.2d 385, 112 S.Ct. 475]; Donnelly v. DeChristoforo, supra, 416 U.S. at p. 643; Ortiz v. Stewart (9" Cir. 1998) 149 F.3d 923, 934.) Further, even correct applications of state law by state courts may violate the Due Process Clause: 186 While adherence to state evidentiary rules suggests that the trial was conductedin a procedurally fair manner,it is certainly possible to havea fair trial even whenstate standardsare violated; conversely, state procedural rules and evidentiary rules may countenance processesthat do not comport with fundamental fairness. The issue .. . is whether the state proceedingssatisfied due process. [Jammal v. Van de Kamp (9" Cir. 1991) 926 F.2d 918, 919] State court procedural or evidentiary rulings can violate federal law “either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process.” (Walters v. Maass (9" Cir. 1995) 45 F.3d 1355, 1357.) As the United States Supreme Court stated many decadesago: Guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experiencein the common-lawtradition, to some extent embodiedin the Constitution, has crystallized into rules of evidence consistent with that standard. Theserulesare historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property. [Brinegar v. United States (1949) 338 U.S. 160, 174 [93 L.Ed.2d 1879, 69 S.Ct. 1602].] The hearsay statements at issue here recounted in graphic detail a purported assault with a firearm on Arias (count 3), and the statements provided details about appellant that the prosecutor used to convincethe jury that appellant perpetrated the killing of Molina and Murillo (counts 4 & 5, respectively). (RT 10:1181-1182.) 187 Luketestified that when Arias arrived back at Luke’s house, Arias stated that “he almostgot killed....” (RT 10:1181.) When asked to clarify, Luke testified, “He [Arias] said that Richard Penunuri had pulled out a gun andputit to his head.” (RT 10:1182.) As explained in Argument IX.F., post, these statements were not properly admitted for any nonhearsay purpose, and because they were madeuponreflection the statements did not qualify under the spontaneous declaration exception to the hearsay rule. (Post,§ IX.F; People v. Poggi (1988) 45 Cal.3d 306, 318.) In his tape-recorded statementto the police, Arias stated that appellant, who was wearing a black jacket with a hood, pointed a gun at him. (CT Supp. Vol. IV-1, pp. 160-161.) These details of an encounter between appellant and Arias, where appellant purportedly pointed a gun at Arias an hour beforethe double homicide, were not provided by any other witness. Moreover, Arias’s statement to the police corroborated his statement to Luke, and provided information about appellant’s clothing that was used to identify appellant as the gunmanthat killed Molina and Murillo. (Post, § IX.G.) The erroneous admission of Arias’s hearsay statements thus deprived appellant of the due process right to a fundamentally fair trial by lowering the prosecution’s burden of proof on counts 3, 4 and 5 and denying appellant the 188 right to a trial based on competent evidence and proof beyond a reasonable doubt. (Cf. Jackson v. Virginia, supra, 443 U.S. at pp. 317-320.) E. ARIAS’S PRIOR TESTIMONYIN THE DELALOZA TRIAL AND HIS OUT- OF-COURT STATEMENTSTO THE POLICE WERE NOT PROPERLY OFFERED FOR ANY NONHEARSAY PURPOSE Hearsay is “evidence of a statement that was made other than by a witness while testifying at the hearing andthat is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) The hearsay rule presumes hearsay statements are inadmissible because they are not made underoath, are not subject to cross-examination, and the jury does not have the opportunity to view the declarant’s demeanoras the statement is made. (People v. Duarte (2000) 24 Cal.4th 603, 610; People v. Ortiz (1995) 38 Cal.App.4th 377, 387 [hearsay statements are inadmissible “whenthey are offered to prove the truth of the matter asserted”].) Accordingly, “[u]nless it falls within an exception to the general rule, hearsay is not admissible.” (People v. Duarte, supra, 24 Cal.4th atp. 610.) After finding that Arias’s was an unavailable witness, the trial court admitted Arias’s prior testimony and his testimonial out-of-court statementsto the police on the grounds that his prior testimony was sworn testimonyandthat his out-of-court statements to the police were prior inconsistent statements. (RT 1:192-193, 12:1532-1533, 1535-1538, 14:1806, 1910-1911.) 189 Admission of both the prior testimony and the out-of-court statements to the police violated the hearsay rule because they were statements made other than by a witness while testifying at appellant’s trial and were offered to prove the truth of the matter stated.”? (Cf. Evid. Code, § 1200, subd. (a); People v. Lewis (2008) 43 Cal.4th 415, 497-498.) No exception to the hearsay rule applies. With respect to prior sworn testimony, Evidence Codesection 1291 provides, in relevantpart, that “[e]vidence of former testimonyis not made inadmissible by the hearsayrule if the declarant is unavailable as a witness,” and “Tt]he party against whom the formertestimony is offered wasa party to the action or proceeding in whichthe testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he hasat the hearing.” (Evid. Code, § 1291, subd. (a)(2).) Evidence Codesection 1291 is inapplicable here because appellant was not a party to the Delaloza trial where the testimony was given and he did not havethe right and opportunity to cross-examine Arias. (RT 12:1532-1533.) The only exception to the hearsay rule mentioned by the trial court in support of its ruling was the exception for prior inconsistent statements. (RT *3 Although admission of evidence over a hearsay objection is normally reviewed for an abuse of discretion (People v. Martinez (2000) 22 Cal.4th 106, 120), because the admission of Arias’s statements and prior testimony implicate the constitutional right to confrontation, the trial court’s ruling is independently reviewed. (People v. Seijas (2005) 36 Cal.4th 291, 304; also see Crawford v. Washington, supra, 541 U.S. at p. 61.) 190 14:1910-1911.) Evidence Codesection 1235 provides: “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statementis inconsistent with his testimony at the hearing and is offered in compliance with Section 770.” Prior inconsistent statements are admissible underthis provision to prove their substance as well as to impeachthe declarant. (People v. Hawthorne (1992) 4 Cal.4th 43, 55, fn. 4.) Evidence Code section 770 provides: “Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witnessthatis inconsistent with any part of his testimony at the hearing shall be excluded unless: (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or (b) The witness has not been excused from giving further testimonyin the action.” Pursuant to sections 1235 and 770, a witness’s prior statement is admissible whereit is inconsistent with that person’s present testimony and heorsheis given an opportunity to explain or deny the prior statement. (Evid. Code, §§ 770, subd. (a), 1235; Peoplev. Coffman and Marlow (2004) 34 Cal.4th 1, 78.) Here, the prerequisites for admissibility of Arias’s prior statements are not met. First, under section 770, subdivision (a), Arias was not presentat the hearing, and thus duringtrial the defense did not have the opportunity to have Arias “explain or... deny the statement[s].” (Evid. Code, § 770, subd.(a).) 191 Second, undersection 770, subdivision (b), Arias was excused from giving any testimony in the action because the court had found Arias unavailable. Accordingly, the statements do not meet the statutory requirements for prior inconsistent statements. F. ARIAS’S OUT-OF-COURT STATEMENTSTO LUKE BISSONNETTE WERE NOT PROPERLY OFFERED FOR ANY NONHEARSAY PURPOSE In Crawford v. Washington, supra, 541 U.S. 36, the United States Supreme Court “recognized that if the statement in issue is nontestimonial, the rules of evidence, including hearsay rules, apply. (Ud. at p. 68.) Crawfordstated: ‘Where nontestimonial hearsayis at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their developmentof hearsay law ....” (Ibid..) Thus, state courts may consider ‘reliability factors beyond prior opportunity for cross-examination whenthe hearsay statementat issue was not testimonial. [Citation.]’ (Ud. at p. 57 [124 S.Ct. at p. 1368].)” (People v. Cervantes (2004) 118 Cal.App.4th 162, 173.) Thus,if the statements at issue in this case were nontestimonial, the reviewing court considers whether they were properly admitted consistent with the hearsay rules of evidence. (/bid.) Hearsayis “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) The hearsay rule presumes hearsay statements are inadmissible because they are not made underoath,are not subject 192 to cross-examination, and the jury does not have the opportunity to view the declarant’s demeanoras the statement is made. (People v. Duarte, supra, 24 Cal.4th at p. 610; People v. Ortiz, supra, 38 Cal.App.4th at p. 387 [hearsay statements are inadmissible “when they are offered to prove the truth of the matter asserted”].) Accordingly, “[u]nless it falls within an exception to the generalrule, hearsay is not admissible.” (People v. Duarte, supra, 24 Cal.4th at p. 610.) Admission of the out-of-court statements violated the hearsay rule because they were statements madeother than by a witness while testifying at appellant’s trial and were offered to provethe truth of the matter stated. (Cf. Evid. Code, § 1200, subd. (a); People v. Lewis, supra, 43 Cal.4th at pp. 497-498.) No exception to the hearsay rule applies. Thetrial court admitted Arias’s out-of-court statements to Luke over defense hearsay objection underthe “excited or spontaneous utterance” exception to the hearsay rule.”* (RT 10:1181; see RT 10:1182.) Evidence Code section 1240 provides: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [{] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and []] (b) Was made a Admission of evidence overa hearsay objection is reviewed for an abuse of discretion. (People v. Martinez, supra, 22 Cal.4th at p. 120.) 193 spontaneously while the declarant was underthe stress of excitement caused by such perception.” ““To render [statements] admissible [under the spontaneousdeclaration exception] it is required that (1) there must be some occurrencestartling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, 1.e., while the nervous excitement may be supposed still to dominate and the reflective powersto be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence precedingit.’” (People v. Poggi, supra, 45 Cal.3d at p. 318, citing Showalter v. Western Pacific R.R. Co. (1940) 16 Cal.2d 460, 468.) Here, Arias’s out-of-court statements to Luke were not spontaneousbut, instead, were made uponreflection. Luketestified that after seeing appellant on Hornell Street he ran to the house at 15171 Goodhue Street, where he met Arias on the back patio. (RT 10:1167-1172.) At least twenty minutes elapsed between the time that Arias saw Luke on Hornell Street and then saw him again on the back patio on GoodhueStreet, according to Arias’s statement to the police. (CT Supp. Vol. IV-1, pp. 160.) When Lukefirst arrived there, however, he saw his sister Laura speaking with Arias. (RT 10:1167.) Luketestified on direct examination, in part: 194 Q: And when you ran to GoodhueStreet and actually arrived on the property, what happenedat that point? A: I went throughthe side gate to the side of the house. Andthen when I approachedto the patio in the Goodhue House, J seen my sister and Carlos [Arias] talking, and then I seen where Bryon[sic] and Mikewerestill sleeping. [RT 10:1167 (emphasis added).] Lukethen testified that his sister Laura, Arias, and he stayed on the patio for about twenty minutes before going inside the house. (RT 10:1176-1177, 1180.) Luketestified that Arias looked “[e]xhausted from running. Really tired. Still breathing heavy.” (RT 10:1180.) Sometime during that 20-minute period of time Arias stated that he “almost got killed” that night because “Richard Penunuri had pulled out a gun andputit to his head.” (RT 10:1181-1182.) Thetrial court’s finding that Arias’s statement qualified as a spontaneous declaration is not supported by substantial evidence. Instead of being a spontaneous statement madeat the scene of the event, Arias made the statement sometimeafter leaving the scene of the event on Hornell Street and arriving at the back patio of the house on Goodhue Street twenty minutes later. (CT Supp. Vol. IV-1, pp. 160.) Luke testified that when he arrived at the back patio of the house on GoodhueStreet Arias was already there speaking with Luke’s sister, Laura. (RT 10:1167, 1180.) Luke, Arias and Laura were on the backpatio for an additional twenty minutes, andit is unclear from the record precisely when 195 during that second 20-minutesperiod of time the statement was made. (RT 10:1176-1177, 1180-1182.) The evidence thus reveals that the statement was made after Arias hadleft the area where the event occurred, after he had reached a place of safety at a new location where other people were present, and after he was seen speaking with another person(i.e. Laura). Under these circumstances, and notwithstanding that Arias wasstill breathing heavily, Arias’s statements were made when hehad the opportunity to reflect. The statements were thus the product of “processing information in a deliberative manner.” (Cf. People v. Gutierrez (2000) 78 Cal.App.4th 170, 181.) Accordingly, admission of the statements was an abuse of discretion because there is no substantial evidence to support the implied finding”* that the statements were admissible as spontaneous declarations under Evidence Code section 1240. /// *5 “A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute.” (Evid. Code, § 402, subd. (c); see People v. Pinholster (1992) 1 Cal.4th 865, 935.) 196 G. THE JURY’S CONSIDERATION OF ARIAS’S OUT-OF-COURT STATEMENTSAND PRIOR TESTIMONY REQUIRES REVERSAL OF APPELLANT’S CONVICTIONS IN COUNTS3, 4 AND 5 BECAUSE THE PROSECUTION WILL BE UNABLE TO PROVE BEYOND A REASONABLE DOUBTTHATTHE EVIDENCEDID NOT CONTRIBUTE TO THE JUDGMENT The admission of hearsay statements require reversal for state law errorif there is a reasonable probability of a result more favorable to the defendantin the absence ofthe error. (Cf. People v. Watson (1959) 46 Cal.2d 818, 836 [reversal of conviction only if there is a reasonable probability of a result more favorable to the defendant in the absence ofthe error]; People v. Duarte, supra, 24 Cal.4th at pp. 618-619 [Watson standard applicable to state law error].) Under Watson, a reasonable probability “does not mean morelikely than not, but merely a reasonable chance, more than an abstract possibility. [Citations.]” (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715 [emphasisin original].) Thus, prejudice must be found under Watson whenever the defendant can “‘undermine confidence’”in the result achievedat trial. (/bid.) In applying the Watsontest, it is important to note that an evenly balanced case is one which the defendantis entitled to win. Indeed, Watsonitself so provides: “But the fact that there exists at least such an equal balance of reasonable probabilities necessarily meansthat the court is of the opinion ‘thatit is reasonably probable that a result more favorable to the appealing party would 197 299have been reachedin the absence of the error.’” (People v. Watson, supra, 46 Cal.2d at p. 837.) The Confrontation Clause violations identified above,as well as state trial error giving rise to the deprivation of a federal constitutional right (here the rights to due process and confrontation), are evaluated under Chapman harmlesserror analysis. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824]; see People v. Sengpadychith (2001) 26 Cal.4th 316, 326 [Chapman asks whetherthe prosecution has “prove[d] beyond a reasonable doubt that the error... did not contribute to” the verdict].) Under the Chapmantest, the People bear the burden to establish “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” (Chapman v. California, supra, 386 U.S. at p. 24; see also Delaware v. Van Arsdall (1986) 475 U.S. 673, 681 [106 S.Ct. 1431, 89 L.Ed.2d 674].) The appropriate inquiry is “not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279 [124 L.Ed.2d 182, 113 S.Ct. 2078]; People v. Sakarias (2000) 22 Cal.4th 596, 625 [““We mayaffirm the jury’s verdicts despite the error if, but only if, it appears beyond a reasonable doubt that the error did not contribute to the particular verdict at issue.”’]). 198 Reversal is warranted because under either standardthe error arising from Arias’s out-of-court statement and prior testimony — recounting an assault on him with a firearm by appellant only an hourpriorto the killing of Molina and Murillo, and directly linking appellant to the killing of Molina and Murillo — cannotbe said to be harmless. (People v. Watson, supra, 46 Cal.2d 818, 836; Chapmanv. California, supra, 386 U.S. 18, 24.) Assault with a firearm, as charged in count 3, requires a finding, supported by substantial evidence, that appellant pointed a loaded firearm at Arias. (Cf. People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3 [“A long line of California decisions holds that an assault is not committed by a person’s merely pointing an (unloaded) gun in a threatening mannerat another person”’].) The prosecution adduced evidence that appellant pointed a firearm at Arias, but only through the out-of-court statements and prior testimony of Arias. (CT Supp. Vol. IV-1, pp. 160-163 [People’s Exh. 74]; ante, Statement of Facts, §§ A.2. & A.3.) The only other eyewitness to the Hornell Street incident was Luke, but Lukeleft the area prior to the purported assault on Arias, and thus Luke did not testify to an assault on Arias. (RT 9:1133-1138, 10:1156-1157.) Luke did not observe appellant in possession of a gun. (RT 9:1111-1138, 10:1156- 1157.) Accordingly, Arias’s out-of-court statements and prior testimony directly 199 contributed to the verdict on count 3. (See also ante, § VII. [insufficient evidence to sustain the verdict on count 3].) First degree murder, as charged in counts 4 and 5 (Molina and Murillo, respectively), requires a finding, supported by substantial evidence, that appellant either directly perpetrated the murderor is vicariously responsible for the murder. (People v. Matlock, supra, 51 Cal.2d at p. 685; Taylor v. Superior Court, supra, 3 Cal.3d at pp. 582-583.) The prosecution proceeded on the theory that appellant was the direct perpetrator of the murders of Molina and Murillo, not that he had aided and abetted another person in the commission of the offenses. (RT 22:3411-3412.) Through Arias’s out-of-court statements and prior testimony, the prosecution adduced evidencedirectly linking appellant to the killings of Molina and Murillo. On Hornell Street, approximately one hour before the double homicide, Arias identified a person by the name of “Dozer”(1.e., appellant) as the person who chased Luke and then pointed a gun at him. (CT Supp. Vol. IV-1, pp. 160-163 [People’s Exh. 74]; RT 10:1181-1182, 14:1855-1856.) Arias identified the gunman as being chubby and wearinga large black jacket with a hood. (CT Supp. Vol. IV-1, pp. 160-163; RT 14:1870-1875, 1879-1880.) Finally, approximately an hour later when Arias wasinside the Goodhue Street residence, Arias heard gunshots. (CT Supp. Vol. [V-1, pp. 171.) He 200 looked outside the bedroom window and saw someone running. (CT Supp. Vol. IV-1, pp. 171-172.) Arias identified the person as wearing the same jacket with hood as the Hornell Street gunman was wearing. (CT Supp. Vol. IV-1, pp. 160- 161, 172.) Accordingly, the prosecution will be unable to prove beyond a reasonable doubt that Arias’s out-of-court statements and prior testimonydid not contribute to the verdicts on counts 4 and 5 because Arias’s statements and prior testimony directly linked appellant to the double homicide. (See also ante, § I. [insufficient evidenceto sustain the verdicts on counts 4 and 5].) Properly understood, the Chapmanstandard for constitutional error makes it very difficult for the prosecution to demonstrate that the error was harmless. To understand what the Chapmantest truly means, it is instructive to review the facts in Chapman. Although the facts were not fully recited by the Court, they can be foundin the antecedent opinion of this Court in People v. Teale (1965) 63 Cal.2d 178. Early in the morning on October 18, 1962, Chapman, Teale and Adcox were seen outside the bar where Adcox was employed as a bartender. Later that morning, Adcox’ body was found in a remote area. He had been shot in the head three times. Adcox waskilled with .22 caliber bullets. Chapman had purchased a .22 caliber weaponsix days earlier. In close vicinity to the body,the police found a check which had been signed by Chapman. Blood foundin the defendants’ car was the sametype as that of Adcox. Hairs matching those of 201 Adcox were found in the car along with fibers from his shoes. The government also presented that Teale stated that he and Chapmanhad robbedandkilled Adcox. Chapman gavea false statement to the police that she was in San Francisco at the time of the killing. The statement was proven false by the fact that Chapmanhad registered at a Woodland motel shortly after Adcox waskilled. Attrial, neither defendanttestified. The prosecutor repeatedly argued to the jury the silence of the defendants could be used against them. Onthis record, the Court found reversible error, stating that absent the constitutionally forbidden comments, honest, fair- minded jurors might very well have broughtin not-guilty verdicts. Underthese circumstances,it is completely impossible for us to say that the State has demonstrated, beyond a reasonable doubt, that the prosecutor’s comments andthetrial judge’s instruction did not contribute to petitioners’ convictions. [Chapman v. California, supra, 386 U.S. at p. 26.] The reversal of the convictions when viewedin light of the strength of the government’s case (which included a confession, evidence of opportunity to commit the crime, incriminating forensic evidence, and evidence of consciousnessof guilt), leads to the inescapable conclusion the high court intended that it would be very difficult for the government to showthat a federal constitutional error was harmless. Chapman contemplates an inquiry into the impact which the particular error has had on the instant jury. This is true regardless of the weight of the evidence because Chapman 202 instructs the reviewing court to consider not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand. ... Harmless-error review looks, we have said, to the basis on which “the jury actually rested its verdict.” [Citation.] The inquiry, in other words, is not whether,in a trial that occurred withoutthe error, a guilty verdict would surely have been rendered, but whetherthe guilty verdict actually rendered in this trial was surely unattributable to the error. [Sullivan v. Louisiana, supra, 508 U.S. at p. 279.] Asthe foregoing quotation reveals, the relative strength or weakness of the government’s evidence doesnot necessarily render the error harmless. To the contrary, if the government has committed a fundamental constitutional error bearing a substantial impact, then reversal is compelled. This is so sinceit is the government’s burden to show the guilty verdict “was surely unattributableto the error.” (Id. at p. 279; accord People v. Quartermain (1997) 16 Cal.4th 600, 621.) Accordingly, regardless of the strength or weaknessof the prosecution’s case, a particular error may require reversalin light of its powerto influence the jury. (United States v. Harrison (9™ Cir. 1994) 34 F.3d 886, 892 [review for harmless error requires not only an evaluation of the remaining incriminating evidence in the record but also “the most perceptive reflections as to the probabilities of the effect of error on a reasonabletrier of fact”].) This sentiment also was held by Justice Harlan: Finally, if I were persuaded that the admission of the gun was‘harmless error,’ I would vote to affirm, and if I were persuadedthat it was arguably harmless error, I would vote to 203 remand the case for state consideration of the point. But the question cannot be whether, in the view of this Court, the defendant actually committed the crimes charged, so that the error was ‘harmless’ in the sense that petitioner got what he deserved. The question is whether the error was suchthat it cannot be said that petitioner’s guilt was adjudicated on the basis of constitutionally admissible evidence, which means,in this case, whetherthe properly admissible evidence was such that the improper admission of the gun could not have affected the result. [Bumper v. North Carolina (1968) 391 U.S. 543, 553 (conc. opn. of Harlan,J.).] Chapmanandit progenythus require a close and careful assessmentof the actual impact which anerror has had on the jury’s deliberative process. The appellate court must be ever mindful the government bears a heavy burden of persuasion in showing the error did not affect the jury. In this regard, the United States Supreme Court has madethe difficulty of the government’s task quite clear: the guilty verdict must have been “surely unattributable to the error.” (Sullivan v. Louisiana, supra, 508 U.S. at p. 279 (emphasis added).) The prejudicial effect of the error was exacerbated by the prosecution’s closing argumentto the jury. In connection with count 3 (assault with a firearm on Arias), the prosecutor argued,in part: .... Carlos Arias was in this car, and he’s the one that actually told the Sheriff's Department — whichis in his testimony from the Delaloza trial — that Dozer was the one that approached him and pulled out the gun and pointed it at him and that’s why he ran himself. What has happenedat that point? 204 Dozer, Richard Penunuri has committed the crime of assault with a firearm because he placed Carlos Arias in apprehension of being shot. [RT 22:3399 (emphasis added).] In connection with counts 4 and 5 (first degree murder of Molina and Murillo), the prosecutor argued,in part: What happened at GoodhueStreet? Well, we know for a fact that before Richard Penunuri even appeared in the white Cadillac, by virtue of our aerial diagram, People’s 24, before Mr. — the white Cadillac appears andinitially parks south of the Goodhue Street location, we know that Luke Bissonnette and Carlos Arias had already run from Hornell Street to GoodhueStreet, because they’re trying to avoid Dozer that night. And they flee on foot and eventually meet in the backyard of GoodhueStreet. And this is where they comeinto contact with Michael Murillo and Bryon [sic] Molina and Luke’s sister, Laura Bissonnette. Andit’s the early morning hours now.It’s dark outside. And, matter offact, it was in this patio area where Carlos reaffirmed to Luke — and it cameinto evidence in this case what hadjust happenedto him — that Dozer had pulled a gun on him. Andthis is, again, Carlos Arias before he was even thinking about becoming a witness or a victim in a criminal court case, he’s telling Luke at the time it happened whatexactly happened to him. Carlos being a victim ofthe assault with a firearm at the hands ofDozer, and they’re trying to avoid this man that night. [RT 3404-3405 (emphasis added).] [{] Weknow [from Arias’s statements and prior testimony] he pulled the weapon out on Hornell Street, so he was angryat that time. [RT 22:3419.] [9] ... Carlos Arias, whose testimony wasread to you, also said that it was Dozer leaving the house [on GoodhueStreet]. [RT 22:3432.] 205 In closing rebuttal argument, the prosecutor argued,in part: Evidently Mr. Bernstein [i.e., trial defense counsel] conceded the Hornell Street confrontation when he got up here and told you that his client pointed the gun at the head of Carlos Arias at Hornell Street. And this is, of course, after Luke had already run away. This is important because again it keeps that weaponin possession of Dozer throughout the chain of events which happenedthat particular night. [RT 24:3687.] [4] Rememberon Hornell Street Dozer was looking for Carlos and Luke. Dozer produceshis gun at Carlos. And that’s why these boysflee. These two boys, Carlos and Luke, werepretty agile young men. They were able to jump fences and escape that particular attack. Dozer knew that and he was awareof that. So look at the way they planned the GoodhueStreet hit when they went to look for Carlos and Lukethat night a few blocks away. [RT 24:3699.] In connection with a prosecutor’s closing argumentto the jury, our courts have recognized whatlogic dictates — 1.e., the prosecutor’s reliance in closing argument on erroneously admitted evidence is a strong indication of prejudice. (See e.g., People v. Guzman (1988) 45 Cal.3d 915, 963 [finding no Boyd error but noting it was significant that “the prosecution made noeffort to capitalize on the testimony.”]; People v. Roder (1983) 33 Cal.3d 491, 505 [error not harmless under Chapmanbecause,in part, “the prosecutor relied on the [erroneous] presumption in his closing argument”]; People v. Martinez (1986) 188 Cal.App.3d 19, 26 [error not harmless under Chapmanbased,in part, on 206 prosecutor’s closing argument]; People v. Frazier (2001) 89 Cal.App.4th 30, 39 (“reasonable doubt [under Chapman]is reinforced here by the prosecutor’s use of the propensity instruction in closing argument”]; People v. Younger (2000) 84 Cal.App.4th 1360, 1384 [“Our conclusion that there is such reasonable doubtis reinforced by the prosecutor’suse ofthe instruction in her closing arguments.”]; People v. James (2000) 81 Cal.App.4th 1343, 1364, fn. 10 [closing argument cannotcureerrorin instruction but may exacerbate it]; People v. Brady (1987) 190 Cal.App.3d 124, 138 [argumentofthe district attorney, if anything, compoundedthe defect’); People v. Rhodes (2005) 129 Cal.App.4th 1339, 1347-1348 [convictions reversed based on instructional error, in part, because “the district attorney’s closing argument exacerbated the court’s instructional error.”]; Buzgheia v. Leasco Sierra Grove (1997) 60 Cal.App.4th 374, 396 [effect of counsel’s argument exacerbated instructional error]; Depetris v. Kuykendall (9" Cir. 2001) 239 F.3d 1057, 1063 [prosecutor’s reliance on error in closing argumentis indicative of prejudice].) The fact that the prosecutor used the out-of-court statements and prior testimony in explicitly urging the jury to return a conviction on counts 3, 4 and 5 is particularly telling because it reveals that the prosecution cannot prove beyond a reasonable doubt that the out-of-court statements and prior testimony did not contribute to the verdicts. This is so because Chapmanrequires an analysis of 207 the impactof the error on appellant’s jury; the appropriate inquiry is “not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial wassurely unattributable to the error.” (Sullivan v. Louisiana, supra, 508 U.S. at p. 279 [emphasis added].) As argued by the prosecution, Arias’s out-of-court statements and prior testimony — whether considered individually or cumulatively — were material evidence used by the prosecution in support of the verdicts. (RT 22:3399, 3404-3405, 3419, 3432, 24:3687.) Finally, the record reveals that both the trial judge and the jury considered Arias to be an essential prosecution witness. When considering the prosecution’s motion to admit Arias’s out-of-court statements and prior testimony,thetrial court explicitly stated that Arias was “an essential witness... .” (RT 12:1537.) The jury too considered Arias to be an essential witness because during guilt phase deliberations the jury requested readback of Arias’s prior testimonyin the Delaloza trial. (RT 25:3802-3803; CT 12:3332.) The jury foreperson sent the following note to the judge: Would like the Carlos Arias testimony from the De La Loza [sic] trial read back.” [CT 12:332.] On Tuesday, December 12, 2000, Arias’s entire prior testimony in the Delaloza trial was read back to the jury. (RT 25:3808-3809.) Later that same week,the jury returned guilty verdicts on counts 3, 4 and 5. (CT 12:3452-3466.) 208 A request for readbackoftrial testimony, as here, is an indication that the case was Close. (Cf. Weiner v. Fleischman (1991) 54 Cal.3d 476, 490 [when considering the prejudicial nature of the error, “we consider whether the jury asked for a rereading of the erroneousinstruction or of related evidence”; People v. Williams (1971) 22 Cal.App.3d 34, 38-40 [request for read back ofcritical testimony]; People v. Pearch (1991) 229 Cal.App.3d 1282, 1295 [request for review of evidence, such as read back of testimony,is an indicator that the case wasclose and anyerrora tipperof the scales].) Accordingly, the prosecution will be unable to prove beyond a reasonable doubt that the guilty verdicts in counts 3, 4 and 5 were surely unattributable to the error in the admission of any of Arias’s out-of-court statements and/or prior testimony. (Cf. Sullivan v. Louisiana, supra, 508 U.S. at p. 279.) Appellant’s convictions in counts 3, 4 and 5 must be reversed. /// 209 X. THE TRIAL COURT?’S ADMISSION OF TESTIMONIAL OUT-OF- COURT STATEMENTSOF NONTESTIFYING WITNESS ALEJANDRO DELALOZA MADEDURING POLICE INTERROGATION — IMPLICATING APPELLANTIN THE RALPHS PARKING LOT INCIDENT AND THE DOUBLE HOMICIDE OF MOLINA AND MURILLO — REQUIRES REVERSAL OF APPELLANT’S CONVICTIONSIN COUNTS1, 2,4 AND 5 FOR A VIOLATION OF STATE EVIDENTIARY RULES AND THE STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE PROCESS, EFFECTIVE ASSISTANCE OF COUNSEL, AND A FAIR AND RELIABLE JURY TRIAL (CAL. CONST., ART.I, §§ 7,15 & 17; U.S. CONST., 5™, 6", 87" & 147? AMENDS.) A. INTRODUCTION AND PROCEDURAL BACKGROUND The prosecutor attempted to call Alejandro Delaloza as a witness during its case-in-chief, but Delaloza refused to testify and the court, based thereon, found him to be unavailable. (RT 12:1425, 1428-1430; CT 12:3280-3281.) The prosecutor then movedto play an audiotape of Delaloza’s interrogation by the Los Angeles County Sheriff’s Departmentrelating to the double homicide on GoodhueStreet (counts 4 & 5), which interrogation occurred at the Whittier Police Department on October 24, 1997, a few hours after Delaloza’s arrest that day in connection with the Ralphs parking lot incident. (RT 12:1427; CT 12:3280-3281 [People’s Exh. 37 [audiotape]; CT Supp. IV:109-142 [People’s Exh. 38 [transcript].) The prosecution sought admission of the audiotape of Delaloza’s interrogation on the groundthat it was “a statement against his penal interests.” (RT 12:1427.) 210 Trial defense counsel objected to admission of the audiotape (and the transcript thereof) on the grounds of hearsay and that the statements were exculpatory (and thus not against his penal interest). (RT 12:1432-1433.) Defense counselfurther stated that if Delaloza actually testified, then counsel would have the opportunity to “cross-examine him....” (RT 12:1434.) Appellant joined in the subsequent objection by codefendant Tapia’s defense counsel based on “lack of confrontation... .” (RT 12:1440.) Thetrial court overruled the defense objections, ruling that Delaloza’s statements were inculpatory and thus admissible. (RT 12:1436, 1440.) The audiotape of Delaloza’s entire interrogation was playedto the jury. At the same time each ofthe jurors was given a personal copy ofthe transcript of the audiotape. (RT 12:1435, 1444; People’s Exhs. 37 [audiotape] & 38 [transcript].) In the audiotape, Delaloza admitted he was a memberof Eastside Whittier Cole Street gang. As to the double homicide, Delaloza stated he and appellant went to the house on GoodhueStreet to talk to Monique Martinez. When they arrived, Delaloza parked around the corner, and appellant wentto the house. While Delaloza wassitting in the car he heard gunshots and saw appellant running. Hethought appellant was being shot at because when he saw appellant running he could still hear shots being fired. (RT 12:1443-1444; CT 12:3280- 211 3281 [People’s Exh. 37 [audiotape]; CT Supp. IV:109-142 [People’s Exh. 38 [transcript].) Shortly after the audiotape was played, appellant renewedhis objection to admission of the statement on the ground of a violation of his “confrontation rights.” (RT 12:1459-1460.) The motion was denied. (RT 12:1461.) Later during the prosecution’s case-in-chief, the prosecutor moved to call Detective Mary Hansonto testify about statements Delaloza made to her during an interrogation relating to the Ralphs parking lot incident (counts 1 & 2). (RT 13:1740, 1742.) The interrogation occurred at the Whittier Police Department on October 24, 1997, shortly after Delaloza’s arrest that day but a few hoursprior to the interrogation by the Los Angeles County Sheriff’s Department described above. (RT 13:1742, 1747.) Trial defense counsel objected to Hanson’s testimony recounting Delaloza’s statements to her on groundsofa violation of the hearsay rule and Aranda-Bruton.*> (RT 13:1742.) Counsel argued that Delaloza’s statements were exculpatory, and thus not against his penal interest, and that admission of °6 People v. Aranda (1965) 63 Cal.2d 518, superseded by constitutional amendmentas stated by People v. Fletcher (1996) 13 Cal.4th 451, 465 [Proposition 8 abrogated Aranda to the extent it excludes more evidence than does Bruton]; Bruton v. United States (1968) 391 U.S. 123 [88 S.Ct. 1620, 20 L.Ed.2d 476]. 212 Delaloza’s statements would deny appellant the opportunity to cross-examine Delaloza. (RT 13:1743.) Thetrial court overruled the defense objections, stating only that Delaloza’s statements were admissible because he wasan unavailable witness. (RT 13:1743-1744.) Detective Hansontestified that in the afternoon on October 24, 1997, she interviewed Delaloza about his involvementin the robbery at the Ralphs parking lot. (RT 13:1746-1747.) After initially denying involvement, Delaloza stated that he and three friends went to the Ralphs parking lot so one of them could use the pay telephone. While there, they got into a fistfight with a group of three people. During the fight Delaloza went overto assist one ofhis friends that was being badly beaten; he punchedthe person in the face, and whenhedid so the knife that was clippedto his belt fell off and skidded across the pavement. (RT 13:1747-1750.) Delaloza stated that he retrieved the knife and went back to the car. He then saw oneofthe other three people retrieve a baseball bat out of the trunk. He stayed in his car as his friends chased after the other group of people. Delaloza described oneofhis friends as “a big guy,” but refused to give any names. (RT 13:1749.) After the three people they were fighting ran towardsthe intersection 213 of La Puebla and Whittier, his friends returned to the vehicle and theyleft the area. (RT 13:1747-1750.) Hansontestified that Delaloza first denied taking any property, but then stated that they had picked up a bag containing some clothing and CDs. Delaloza stated that his friends may have divided the property, but that there possibly were some items from the bag at his home. (RT 13:1750-1753.) Before the close of evidence, appellant renewed his motion for mistrial based on the admission of Delaloza’s statements as a violation of the right of confrontation, citing Lilly v. Virginia (1999) 527 U.S. 116, and,alternatively, movedthat the statements be stricken and the jury admonishedto disregard them. (RT 21:3199-3209, 3288-3290.) The motion was denied. (RT 21:3209, 3290.) As explained below,the trial court’s admission of Delaloza’s out-of-court statements made duringpolice interrogation at the Whittier Police Department violated the state hearsay rule and deprived appellant of the state and federal constitutional rights of confrontation and due process (the right to a fundamentally fair trial). (Post, §§ X.C., X.D. & X.E.) To the extent that some and/orall of these issues were forfeited by defense counsel’s failure to make timely and specific objections on the groundsset forth herein, appellant was deprived of the state and federal constitutional right to the effective assistance of counsel. (Post, § X.B.) 214 B. THE ISSUES RAISED HEREIN HAVE BEEN PRESERVED FOR APPEAL; IF THIS COURT FINDS THAT ANY OF THE ISSUES HAVE BEEN FORFEITED BY FAILURE TO ADEQUATELY OBJECT IN THE TRIAL COURT, THEN APPELLANT WAS DEPRIVED OF THE STATE AND FEDERAL CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL (CAL. CONST., ART. I, §§ 15 & 17; U.S. CONST., 67, 8™ & 14° AMENDS.) As explained above in section X.A., ante, trial defense counsel objected to the admission of Delaloza’s tape-recorded statements to the Los Angeles County Sheriff’?s Departmentrelating to the double homicide on GoodhueStreet (counts 4 & 5) on the groundsofa violation of the hearsay rule and confrontation, and on the ground of a denial of cross-examination. (RT 12:1434, 1440, 1449-1461, 21:3288.) Defense counsel also objected to Detective Hanson’s testimony recounting Delaloza’s statements to her on groundsofa violation of the hearsay rule and Aranda-Bruton, and a denial of the opportunity to cross-examine Delaloza. (RT 13:1742-1743.) Finally, defense counsel also cited the United States Supreme Court’s decision in Lilly v. Virginia, supra, 527 U.S. 116, thereby further raising the Sixth Amendmentconfrontation issue. (RT 21:3199-3209, 3288-3290.) Eachofthe issues raised herein have been preserved for appellate review. (Cf. People v. Scott, supra, 21 Cal.3d at p. 290 [objection is sufficient if the record showsthetrial judge understood the issue presented]; Hormelv. Haverling, supra, 312 U.S. at p. 557 [“Orderly rules of procedure do not require 215 sacrifice of the rules of fundamentaljustice”]; People v. Williams, supra, 9 Cal.App.3d at p. 570.) Moreover, to the extent constitutional issues are raised in this appeal, they are not waived by inadequate objection. (See People v. Yeoman, supra, 31 Cal.4th at pp. 117-118, 133; People v. Coddington, supra, 23 Cal.4th at p. 632.) If this Court finds that any of the issues have been forfeited by failure of trial defense counsel to adequately object, then appellant was deprived of the state and federal constitutional right to the effective assistance of counsel (Cal. ~ Const., art. I, §§ 15 & 17; U.S. Const., 6", 8" & 14" Amends.). Incorporating herein by reference section IX.B., ante, defense counsel’s failure to timely make each of the objections identified herein deprived appellant of the constitutional right to effective assistance of counsel ( Cal. Const., art. I, §§ 15 & 17; U.S. Const., 6", 8 & 14" Amends.; Strickland v. Washington, supra, 466 U.S. at pp. 684- 685; People v. Pope, supra, 23 Cal.3d at p. 422) because a timely and specific objection is necessary to preserve the claims. (Evid. Code, § 353; People v. Morris, supra, 53 Cal.3d at p. 206.) Although defense counsel’s actions are often justified on the basis of strategic choice (People v. Pope, supra, 23 Cal.3d at p. 426), here there could be no rational strategic reason for counsel’s failure to explicitly raise each of the objections identified herein because counsel did raise some objections to 216 admission of Delaloza’s out-of-court statements (RT 12:1434, 1440, 17:1743), thereby revealing counsel’s intent to exclude the out-of-court statements. (Cf. People v. Pope, supra, 23 Cal.3d at p. 426 [“an appellate court will reject the claim of ineffective assistance ... unless there simply could be nosatisfactory explanation”]; People v. Majors, supra, 18 Cal.4th at p. 403 [“the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission”].) Under these circumstances, any failure to preserve these issues for appeal would amountto the ineffective assistance of counsel. (See Peoplev. Lewis, supra, 50 Cal.3d at p. 282 [this Court considers otherwise forfeited “claim on the merits to forestall an effectiveness of counsel contention” ]; People v. Stratton, supra, 205 Cal.App.3d at p. 93.) Defense counsel’s deficient representation prejudiced appellant because admission of Delaloza’s out-of-court statements strongly and directly linked appellant to the robbery of Kreisher and Cordero (counts 1 & 2, respectively) and to the killing of Molina and Murillo (counts 4 & 5, respectively). (See post, § X.F.) Reversal of appellant’s convictions in counts 1, 2, 4 and 5 thusis warranted on the ground appellant was denied the state and federal constitutional rights to effective assistance of counsel. /T/ 217 Cc, THE ADMISSION OF DELALOZA’S TESTIMONIAL OUT-OF-COURT STATEMENTS MADEDURING POLICE INTERROGATION DEPRIVED APPELLANT OF THE CONSTITUTIONAL RIGHT TO CONFRONTATION (CAL. CONST., ART.I, §§ 7, 15 & 17; U.S. CONST., 5™, 6™, 8™ & 14™ AMENDS.) In Crawford v. Washington, supra, 541 U.S. 36, the United States Supreme Court held that the admission of testimonial hearsay in a criminaltrialis a violation of the confrontation clause unless the witness is unavailable attrial and the defendant had a prior opportunity for cross-examination. (/d. at p. 59.) Crawford declined to define the term “testimonial,” but gave examples of testimonial statements. Crawford listed as testimonial, amongother things, “statements taken by police officers in the course of interrogations... .” (/d. at p. 52.) Both sets of out-of-court statements made by Delaloza — 1.e., the statements made to Detective Hanson relating to the Ralphs parking lot incident (counts 1 & 2) and the tape-recorded statements made to detectives from the Los Angeles County Sheriff’s Departmentrelating to the double homicide on GoodhueStreet (counts 4 & 5) — were statements taken by police officers in the course of interrogationsat the Whittier Police Department. (RT 13:1742, 1747; CT Supp. IV:109-110.) Accordingly, both sets of out-of-court statements, which were admitted at trial for the truth of the matter asserted (ante, § X.A.), were testimonial statements. (Cf. Crawford v. Washington, supra, 541 U.S. at pp. 52- 66.) 218 Delaloza did nottestify at trial and appellant did not have the opportunity to cross-examine him. (RT 12:1434, 1440.) Appellant thus was deniedthe state and federal constitutional rights to confrontation (Cal. Const., art. I, §§ 7, 15 & 17; U.S. Const., 6, 8" & 14" Amends.) whenthetrial court admitted Delaloza’s out-of-court statements to the police because appellant was given no prior opportunity to cross-examine Delaloza. (Cf. Crawford v. Washington, supra, 541 US. at pp. 53-54.) D. THE ADMISSION OF DELALOZA’S OUT-OF-COURT STATEMENTS DEPRIVED APPELLANT OF THE CONSTITUTIONAL RIGHT TO DUE PROCESS AND A FAIR AND RELIABLE JURYTRIAL (CAL. CONST., ART.I, §§ 7, 15 & 17; U.S. CONST., 5™, 67, 87 & 147" AMENDS.) Thetrial court’s admission of Delaloza’s out-of-court statements to the police deprived appellant of the due processright to a fundamentally fair trial because the statements violated state evidentiary rules against admission of hearsay, violated the Confrontation Clause, and rendered the trial fundamentally unfair. (Cal. Const., art. I, §§ 7, 15 & 17; U.S. Const., 5", 6", 8" & 14" Amends..) Appellant incorporates by reference the legal authorities and arguments set forth in section IX.D., ante, as though fully set forth herein. (Cf. Hicks v. Oklahoma, supra, 447 U.S. at p. 346 [arbitrary deprivation of a state-created liberty interest violates due process]; Hewitt v. Helms, supra, 459 U.S. at p. 466 [liberty interests protected by the Due Process Clause arise from two sources, the 219 Due Process Clause itself and the laws of the States]; Pointer v. Texas, supra, 380 U.S. at p. 405; People v. Brown, supra, 31 Cal.4th at p. 538; Estelle v. McGuire, supra, 502 U.S. at p. 72 [state law errors that rendera trial fundamentally unfair violate the Due Process Clause]; Donnelly v. DeChristoforo, supra, 416 U.S. at p. 643.) Thehearsay statementsat issue here strongly and directly linked appellant to the robbery of Kreisher and Cordero (counts | & 2, respectively) and to the killing of Molina and Murillo (counts 4 & 5, respectively). (See post, § X.F.) The erroneous admission of Delaloza’s hearsay statements thus deprived appellant of the due process right to a fundamentally fair trial by lowering the prosecution’s burden of proof on counts 1, 2, 4 and 5 and denying appellant the right to a trial based on competent evidence and proof beyond a reasonable doubt. (Cf. Jackson v. Virginia, supra, 443 U.S. at pp. 317-320.) E. DELALOZA’S OUT-OF-COURT STATEMENTSTO THE POLICE WERE NOT PROPERLY OFFERED FOR ANY NONHEARSAY PURPOSE As explained above in section X.A., ante, hearsay is “evidence of a statement that was madeother than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) Hearsay statements are inadmissible unless they fall within an exception to the general rule. (People v. Duarte, supra, 24 Cal.4th at p. 610.) 220 After finding that Delaloza’s was an unavailable witness, the trial court admitted Delaloza’s out-of-court statements to the police on the ground that his statement were against his penal interest. (RT 12:1431-1436, 1440.) Admission of the out-of-court statements to the police violated the hearsay rule because the statements did not qualify as a declaration against penalinterest and the statements did not fall within a firmly rooted exception to the hearsay rule because they lacked sufficient trustworthiness.”’ (See Evid. Code, § 1230; Lee v. Illinois (1986) 476 U.S. 530, 541 [90 L.Ed.2d 514, 106 S.Ct. 2056]; Lilly v. Virginia, supra, 527 U.S. at pp. 133-134 [plurality opn. of Stevens, J.].) No exception to the hearsay rule applies. Evidence Codesection 1230 sets forth the declaration against interest exception to the hearsayrule as follows, “Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, wasso far contrary to the declarant’s pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminalliability, or so far tended to render invalid a claim by him against another, or created such a risk of making 7 Although admission of evidence over a hearsay objection is normally reviewedfor an abuseof discretion (People v. Martinez, supra, 22 Cal.4th at p. 120), because the admission of Delaloza’s statements and prior testimony implicate the constitutional right to confrontation, the trial court’s ruling is independently reviewed. (People v. Seijas, supra, 36 Cal.4th at p. 304; also see Crawford v. Washington, supra, 541 US.at p. 61.) 221 him an object of hatred, ridicule, or social disgrace in the community, that a reasonable manin his position would not have madethe statement unless he believed it to be true.” With respect to the penal interest exception, the proponent of the evidence “must show that the declarant is unavailable, that the declaration was against the declarant’s penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.” A court may not, applying this hearsay exception, find a declarant’s statement sufficiently reliable for admission “solely because it incorporates an admission of criminal culpability.” As the high court reasoned in interpreting the analogous exception to the federal hearsay rule, “[t]he fact that a person is making a broadly self-inculpatory confession does not make more credible the confession’s non-self-inculpatory nature. One of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive becauseofits self-inculpatory nature.” Whether a statementis self-inculpatory or not can only be determined by viewing the statement in context. [§] In view of these concerns, this court “long ago determined that “the hearsay exception should not apply to collateral assertions within declarations against penal interest.” .... [W]e have declared [Evidence Code] section 1230's exception to the hearsayrule “inapplicable to evidence of any statement or portion of a statement not itself specifically disserving to the interests of the declarant.” [People v. Lawley (2002) 27 Cal.4th 102, 153 (citations omitted; emphasis in original). ] Delaloza’s out-of-court statements made during police interrogation do not qualify as a statement against penalinterest under Evidence Code section 1230 because the statements were exculpatory. In the taped statementrelating to the double homicide, Delaloza entirely denied culpability for the killing of Molina and/or Murillo (counts 4 & 5, respectively), and deflected blame for the killings 222 by asserting that appellant was running away from the Goodhue Street residence as he heard the gunshots being fired. (CT 12:3280-3281 [People’s Exh. 37 [audiotape]; CT Supp. IV:109-142 [People’s Exh. 38 [transcript].) In the statements to Detective Hanson relating to the robbery at Ralphs parking lot, Delaloza described a mutual altercation between a group of people (RT 13:1746-1753), and then stated that after the other people left the area some friends may have divided the property that was left behind (RT 13:1750-1753). Delaloza deflected blame for the robbery of Kreisher and Cordero (counts 1 & 2, respectively) as his statement to Detective Hanson described a non-forcible taking of abandoned property. (Cf. People v. Duarte, supra, 24 Cal.4th at pp. 610-611.) Thus, the statements were not inculpatory. In In re Sakarias (2005) 35 Cal.4th 140, for example, in connection with this Court’s review a referee’s report on a claim of prosecutorial misconduct that in the separate trials of codefendants the prosecutor presented factual theories inconsistent, prosecutor Steve Ipsen testified at the referee hearing that “he would have liked to introduce Sakarias’s confession, which implicated Waidla equally, in Waidla’s trial, but [he did not do so because he] assumed it would be subject to a successful objection.” (/d. at p. 154.) Prosecutor Ipsen testified, in part: “My understanding of the law at the time andstill today,is that when I’m prosecuting Mr. Waidla and charging him with murder, I can’t use the statement of his accomplice against him.” Attrial before a judge he knew to be highly experienced in criminal 223 law, “[i]f I had tried to get in evidence, which everyone knowsis inadmissible and is wrong, I’d look like an idiot to say I'd like to offer the codefendant’s statement.” [/bid.] Thereferee, accepting the prosecutor’s statement, found that the Sakarias’s confession would have been inadmissible under People v. Aranda, supra, 63 Cal.2d 518 and Bruton v. United States, supra, 391 U.S. 123. Un re Sakarias, supra, 35 Cal.4th at p. 154.) This Court then held that the prosecutor “could have reasonably assumedthat mostor all of Sakarias’s confession would be inadmissible in Waidla’s trial” because only the “specifically disserving” portion of a declaration against penal interest is admissible. (/d. at pp. 154-155.) The Court stated: Though the Aranda/Bruton rule of exclusion applies only to statements ofjointly tried codefendants (People v. Brown (2003) 31 Cal.4th 518, 537), Ipsen could have reasonably assumedthat most or all of Sakarias’s confession would be inadmissible in Waidla’s trial. Under California’s hearsay exception for declarations against penal interest (Evid. Code, § 1230), admissibility is limited to the “‘specifically disserving’” portions of the statement. (People v. Duarte (2000) 24 Cal.4th 603, 612; People v. Leach (1975) 15 Cal.3d 419, 441.) Thus, Sakarias’s statements that Waidla had initiated the attack on Viivi Piirisild, struck Viivi with the hatchet as she pleaded for him to stop, called for Sakarias to assist, and later directed him to strike Viivi with the hatchet in the bedroom (see Sakarias, supra, 22 Cal.4th at p. 613) could well have been held inadmissible as attempts to deflect culpability awayfrom the declarant. (See People v. Duarte, supra, at pp. 612-613; see also id. at p. 626 (conc. opn. of Baxter, J.) [6th Amend. confrontation clause “may most often prohibit the use against an accused of directly incriminating statements against him that were madeby a nontestifying accomplice while in police 999 224 custody”].) [Jn re Sakarias, supra, 35 Cal.4th at pp. 154-155 (emphasis added). | Moreover, statements of a nontestifying accomplice typically lack such trustworthiness and are especially suspect “‘[d]ue to [the accomplice’s] strong motivation to implicate the defendant and to exonerate himself....’” (Lee v. Illinois, supra, 476 U.S. ap. 541 [citation omitted]; see also Lilly v. Virginia, supra, 527 U.S. at pp. 133-134 (plurality opn. of Stevens, J.) [confession by a nontestifying accomplice that inculpates the defendant does notfall within a firmly rooted exception to the hearsay rule]; People v. Schmaus (2003) 109 Cal.App.4th 846, 856-857.) There is a “basic understanding that when one person accuses another of a crime under circumstances in which the declarant stands to gain by inculpating another, the accusation is presumptively suspect and must be subjected to the scrutiny of cross-examination.” (Leev.Illinois, supra, 476 US. at p. 541.) Underthetotality of the circumstances, Delaloza’s statements lack sufficient reliability and trustworthiness, and thus do notfall within a firmly rooted exception to the hearsay rule, because they were made during police interrogation, they largely exonerated Delaloza himself, and they implicated appellant in both the robbery of Kreisher and Cordero (counts 1 & 2, respectively) and the killing of Molina and/or Murillo (counts 4 & 5, respectively). (Cf. Lee v. Illinois, supra, 476 U.S. ap. 541 [citation omitted]; see 225 also Lilly v. Virginia, supra, 527 U.S. at pp. 133-134 (plurality opn. of Stevens, J.).)8 F, THE JURY’S CONSIDERATION OF DELALOZA’S OUT-OF-COURT STATEMENTS REQUIRES REVERSAL OF APPELLANT’S CONVICTIONSIN COUNTS1, 2, 4 AND 5 BECAUSE THE PROSECUTION WILL BE UNABLE TO PROVE BEYOND A REASONABLE DOUBT THATTHE EVIDENCEDID NOT CONTRIBUTE TO THE JUDGMENT Although hearsay statements requires reversal for state law error under People v. Watson, supra, 46 Cal.2d at p. 836, the Confrontation Clause violations identified above, as well as state trial error giving rise to the deprivation of a federal constitutional right (here the rights to due process and confrontation), are evaluated under Chapman harmlesserror analysis. (Chapmanv. California, supra, 386 U.S. at p. 24; Sullivan v. Louisiana, supra, 508 U.S. at p. 279.) Chapman andit progeny require a close and careful assessmentofthe actual impact which anerror has had on the jury’s deliberative process. The appellate court must be ever mindful the governmentbears a heavy burden of persuasion in showing the error did not affect the jury. In this regard, the United States Supreme Court has madethe difficulty of the government’s task quite clear: the guilty verdict must have been “surely unattributable to the error.” (Sullivan v. Louisiana, supra, 508 U.S. at p. 279 (emphasis added).) 8 On appeal, de novo review is conducted to determine whether the trustworthiness test has been satisfied. (Lilly v. Virginia, supra, 527 U.S. at pp. 136-137 [plurality opn. of Stevens, J.].) 226 In connection with counts | and 2 (robbery of Kreisher and Cordero, respectively), appellant was severely prejudiced by admission of Detective Hanson’s testimony recounting statements made by Delaloza’s during his interrogation at the Whittier Police Department. Delaloza’s statements to Detective Hansonreferred to his friends being engaged in an altercation in the Ralphs parking lot, one of which hereferred to as “a big guy.” (RT 13:1749.) As the prosecutor acknowledged when seeking admission of the statement, the reference to “a big guy” implicated appellant in the robberies. (RT 13:1742.) The prosecutor argued, in part: [Delaloza]} [m]ade admissions to Detective Mary Hanson that he was,in fact, involved in the Whittier robbery and he actually used a knife and that his friend, who he described as a big guy, was the one who confronted the guy that eventually ran and gotthe bat. Statements to that effect which implicate Penunuri in the Whittier robbery. [RT 13:1742 (emphasis added). ] The description provided by Delaloza served to corroborate the unreliable identification of appellant by eyewitnesses Kreisher (RT 8:887-889, 9:1090- 1091) and Cordero (9:974-985, 988-989), and thus directly contributed to the verdict on counts 1 and 2. Kreisher’s identification of appellant was unreliable because whenfirst shown a photographic array by Detective Hansonheidentified someoneelse, not appellant, but subsequently changed his mind and instead identified appellant. (RT 9:1090-1091.) 227 Cordero’s identification of appellant also was unreliable because he described appellant as being “about 175 to 180 pounds” (RT 9:988-989), whereas appellant wasin fact a substantially larger man, weighing 250 pounds (RT 9:1067-1068, 19:2819; CT 13:3633; CT Supp. Vol. IV-7, p. 1519; People’s Exh. 21). Cordero’s testimony also was impeached with the following evidence: 1) he lied at the preliminary hearing in this case (RT 9:1005-1008, 1020-1022); 2) he only learned of appellant’s name the following day when he returned to Ralphs and spoke with an employee (RT 9:1013-1014); 3) he used to associate with members of the Pagans gang in Whittier (RT 9:997-998); and 4) he suffered prior felony convictions for forgery and attempted strong-arm robbery (RT 9:996-998). In connection with counts 4 and 5 (first degree murder of Molina and Murillo, respectively), appellant was severely prejudiced by admission of Delaloza’s taped interrogation. First degree murder requires a finding, supported by substantial evidence, that appellant either directly perpetrated the murderoris vicariously responsible for the murder. (People v. Matlock, supra, 51 Cal.2d at p. 685; Taylor v. Superior Court, supra, 3 Cal.3d at pp. 582-583.) The prosecution proceeded onthe theory that appellant was the direct perpetrator of the murders of Molina and Murillo, not that he had aided and abetted another person in the commission of the offenses. (RT 22:3411-3412.) In his taped interrogation, Delaloza placed appellant at the scene of the killings at the precise time that the 228 gunshots were being fired. (RT 12:1443-1444; CT 12:3280-3281 [People’s Exh. 37 [audiotape]; CT Supp. IV:109-142 [People’s Exh. 38 [transcript].) Delaloza stated,”’ in pertinent part as shownin the transcript of the taped statement: D:? Okay so in your own words... explain... because we’re now on tape... which... what happened. Okay... Take your time... take your time. I drove up to... where one of my homiesusedtastay at... I drove up there ta go talk ta his girlfriend... to ask questions about em... an we went an I stopped... an one of... one of my other homeboysgot outta the car... Uh huh. He... he got out... my home boy... my, home boy gotout... he went... he went inside to go talk to em... J heard gun shots... so I started up the car... an 1... I... took offcause I didn’t know... ifhe was getting shot or not... jumped in the car an we left... J took him home... an I didn’t know he didn’t come out with a gun or nothing... he didn’t leave with a gun... so... if... if there is a gun... L.. Lwould’n... I would’n... know what ya know what the murder weaponis cause... I did not see him had I seen him... I wouldn’t a let him goin there... And did... your homeboy didn’t you mention that you'd... left out uh... a... a... at uh... there at that address on Goodhew?... What’s his 29 30 31 Grammatical errors in original. Deputysheriff. Alejandro Delaloza, aka Hondo Delaloza. 229 name?... The... the person that went... to that residence?... An then came back after you heard the gun shots? What I heard (unint) getting shot at my home boy Dozer he was getting shot at... that’s what I thoughtso I took off. Okay... so it... was it just you... an Dozer that were in the car? Yeah. What kinda car do you drive? I drive a Cadillac Coupe DeVille. Whatcoloris it? White. [CT Supp. [V:111-112.] [9] We’re gonna show you a photograph... of an individual... who we knowas... Dozer... to go... whose true nameis Richard... Penu... nuri... Is this the same individual that you know as... Dozer? Yeah that’s my home boy Dozerright there. Okay... [{] Also knownas Richard... Uh my homeboy I thought he was getting shot at that’s why L... left... wh... when I heard the gun shots so left an... Richard... He jus came... he jus came running out like he was shotat. Okay... this individual is known as what (unint)? Uh... Richard Penunuri... Spell that? 230 [H]: Uh... last name of P-E-N-U-N-U-R-I first name of Richard and on this photograph here it says... Richard Penunuri... the third. [CT Supp. IV:113 (emphasis added).] Delaloza then identified himself and appellant as members of the Cole Street gang. (CT Supp. IV:114.) Delaloza also stated that he (Delaloza) did not “know he[i.e., appellant] was gonna go in an[d] dothat [i.e., shoot somebody] .. ..” (CT Supp. [V:119.) Delaloza stated,” in pertinent part as shownin the transcript of the taped statement: D: How many guns shots did you hear? [4] A lotta-gun shots? H: Yeah, D: Andthen... you saw... Dozer... H: Uh huh. D: Runout... towards the car? H: Yeah... he ran out... D: Towards the car? H: I didn’t know whatthe fool happened, what happened (unint)... he jus jamed... he... he... D: What'd he say to you? H: He said lets go man (unint)right there... cause there’s been people goin there before... that... that... that want... that wanna get us... an look for us right there... so... so I jus... oh my god they musta (unint) us I’m not taking you home... 32 Grammaticalerrors in original. 231 D: Were you upset with him? H: Not... really cause I didn’t know what was goin onat the time. D: You mentioned earlier that you were upset with him. H: Yeah I was upset with em because... cause somethingthat happenedpriorto that. D: Were you upset with him because... uh... he wentinside that house? H: No cause I asked em... I... asked em... I was (unint) after Ifound out what... after Ifound out what happened, an you guys tell me... but... but... cause I didn’t know he was gonna go in an dothat... but... [9] D: When did he... when he well got in the car you were mad at him weren't you? H: Yeah... cause I didn’t know what happened... D: And were you mad at him becausehe... H: I was mad becausehe... cause he... cause he... he... cause I didn’t know... I... I don’t know if he... he provoked a fight in there or what an they shot at him an I alwaystell em ya know don’t provoke no fights with nobody... so that’s why I was ya know... I’m always mad when I... when I see someone ya know running... an I hear gun shots ya knowlike that... gets you little more mad. D: Did you ask him... ifhe shot anybody? H: Nah... | don’t think he did I... like I said he didn’t have a gun... whenheleft the car he didn’t have a gun I didn’t see no gun on em an when he came back he wasn’t running with no gun. [CT Supp. IV:118-120 (emphasis added). ] Delaloza’s statements directly and unequivocally implicated appellant in the shooting that resulted in the death of Molina and Murillo (counts 4 & 5, 232 respectively). Accordingly, the prosecution will be unable to prove beyond a reasonable doubt that Delaloza’s out-of-court statements did not contribute to the verdicts on counts 4 and 5 because Delaloza’s statements directly linked appellant to the double homicide. This was a close case as shownbythe unreliable identifications and impeachmentof prosecution witnessesrelating to counts 1 and 2 (robbery of Kreisher and Cordero, respectively) (ante, Guilt Phase —- The Defense Case, § B) and as shown bythe lack of substantial evidence to support appellant’s convictions in counts 4 and 5 (murder of Molina and Murillo, respectively) (ante, § IT.). The powerfully incriminating nature of Delaloza’s out-of-court statements also is revealed in the fact that the jury was told that Delaloza wastried for the murders of Molina and Murillo before a separate jury, and that he was convicted of those murders by a jury. (RT 12:1442.) Thetrial court instructed the jury, in part: This is what oursituation is relative to the testimony ofthis witness, Delaloza. Mr. Delaloza was charged with the double murderthat occurred in October of 1997 and wastried in another departmentof the superior court and was found guilty and has been sentenced in that matter. That case is now up on appeal. We don’t know what the jury decidedin that case as to reason, whether they convicted him asa principal, as an 233 accomplice, as an aider and abettor. But at least, for our purposes, he would be an accomplice. [RT 12:1442.] This case is thus analogousto the situation involving admission of an out-of-court confession of one defendant that incriminates not only that defendant but another defendantjointly charged. In that situation, involving the Aranda-Bruton rule, the United States Supreme Court has held what common sense dictates —i.e., that “jurors cannot be expected to ignore one defendant’s confession that is ‘powerfully incriminating’ as to a second defendant when determiningthe latter’s guilt....” (Bruton v. United States, supra, 391 U.S. at pp. 126-137; People v. Brown (2003) 31 Cal.4th 518, 537.) A jury’s belief that a defendant may have confessed eviscerates the presumption of innocence. (See Arizonav. Fulminante (1991) 499 U.S. 279, 311... [confession may be “ devastating to a defendant”] (Rehnquist, C.J. conc.).) “If the jury believes that a defendant has admitted the crime, it doubtless will be temptedto rest its decision on that evidence alone, without careful consideration of the other evidence in the case.” (/d. at p. 313, 111 S.Ct. 1246 (Kennedy,J. conc.) “Incriminating statements from defendants own tongue are most persuasive evidenceofhis guilt....” (People v. Matteson (1964) 61 Cal.2d 466, 470... .) Indeed, the condemning powerofa confession is so strong that even a non-testifying co-defendant’s statement that implicates the defendant must be sanitized to remove references to the defendant in order to avoid the co-defendant’s statementfrom spilling over onto the defendant. (Bruton v. U.S. (1968) 391 U.S. 123,....) Our legal system requires sanitization ofa co-defendant’s statement because courts accept thatjurors cannot be expected to wipe from their minds knowledge that a co-defendant has confessed even when a trial court instructs them to do so..... [People v. Naverrette, supra, 181 Cal.App.4th at pp. 834-835 (emphasis added).] 234 Moreover, the significance of Delaloza’s taped interrogation was highlighted whenthetrial court permitted each juror to maintain a personal copy of the transcript of the interrogation during the length of the trial. When the audiotape of Delaloza’s interrogation was played to the jury (People’s Exh. 37), each juror was given a personal copy ofthe transcript of the audiotape (People’s Exh. 38), which the court subsequently permitted the jurors to keep with their notebooks during the remainderofthe trial. (RT 12:1435, 1444.) The prosecution will be unable to prove beyond a reasonable doubt that the guilty verdicts in counts 1, 2, 4 and 5 were surely unattributable to the error in admitting Delaloza’s testimonial out-of-court statements made during police interrogation. (Cf. Sullivan v. Louisiana, supra, 508 U.S. at p. 279.) Appellant’s convictions in counts 1, 2, 4 and 5 must be reversed. /// 235 XI. THE TRIAL COURT PREJUDICIALLY ERRED BY FAILING TO INSTRUCT THE JURY ON THE RULES RELATING TO ACCOMPLICE TESTIMONY WITH RESPECT TO THE TESTIMONIAL STATEMENTS OF ALEJANDRO DELALOZA, THEREBY LOWERING THE PROSECUTION’S BURDEN TO PROVE EACH ELEMENTOF THE OFFENSES CHARGEDIN COUNTS1, 2, 4 AND 5 WITH COMPETENT EVIDENCE BEYOND A REASONABLE DOUBT, AND DEPRIVING APPELLANT OF THE CONSTITUTIONAL RIGHTSTO TRIAL BY JURY AND DUE PROCESS(CAL. CONST., ART.I, §§ 7, 15, 16 & 17; U.S. CONST. 57, 6, 87" & 147" AMENDS.) A. INTRODUCTION AND PROCEDURAL BACKGROUND In a separate jury trial that concluded priorto the start of appellant’s trial, Alejandro Delaloza was convicted of, amongother things, robbery of Shawn Kreisher and Randy Cordero (Pen. Code, § 211) and the first degree murders of Michael Murillo and Brian Molina (Pen. Code, §§ 187, subd. (a), 189). (CT Supp. VI, pp. 1172-1184.) In appellant’s trial, the trial court admitted an audiotape of Delaloza’s interrogation by the Los Angeles County Sheriff’s Departmentrelating to the double homicide on Goodhue Street (counts 4 & 5), which interrogation occurred at the Whittier Police Department on October 24, 1997, a few hours after Delaloza’s arrest that day in connection with the Ralphs parking lot incident. (RT 12:1427; CT 12:3280-3281 [People’s Exh. 37 [audiotape]; CT Supp. IV:109-142 [People’s Exh. 38 [transcript].) 236 Thetrial court also admitted Detective Mary Hanson’s testimony about statements Delaloza made to her during an interrogation relating to the Ralphs parking lot incident (counts 1 & 2), which interrogation occurred at the Whittier Police Department on October 24, 1997, shortly after Delaloza’s arrest that day but a few hoursprior to the interrogation by the Los Angeles County Sheriff's Departmentdescribed above. (RT 13:1740, 1742, 1747.) Whenthetrial court instructed the jury following argument of counsel, the court omitted any instruction on accomplice testimonyrelating to Delaloza, either in connection with counts | and 2 (the Ralphs parking lot robberies) or counts 4 and 5 (the murders of Molina and Murillo, respectively). (RT 24:3729-3794; CT 12:3342-3435.) Thetrial court did instruct on accomplice testimonyrelating to Jesus Marin — instructing that “[i]f the crime of conspiracy to commit murderin the murder of Jaime Castillo was committed by anyone, the witness Jesus Marin was an accomplice as a matter of law” (24:3759) —~ but these instructions were expressly limited to “a person [like Marin] who is subject to prosecution for the identical offense charged in count[s] 6 and 7 [relating to Castillo] against the defendants ontrial by reason of aiding and abetting or being a memberof a criminal conspiracy.” (RT 24:3757.) Delaloza was not subject to prosecution for any offense relating to Castillo. (RT 12:1477; CT Supp. VI, pp. 1172-1184.) 237 Immediately before the audiotape of Delaloza’s interrogation was played to the jury, the court commented to the jury: This is what our situation is relative to the testimonyofthis witness, Delaloza. Mr. Delaloza was charged with the double murderthat occurred in October of 1997 and wastried in another department of the superior court and was found guilty and has been sentenced in that matter. That case is now up on appeal. We don’t know what the jury decided in that case as to reason, whether they convicted him asa principal, as an accomplice, as an aider and abettor. But at least, for our purposes, he would be an accomplice. Whenan accomplicetestifies, whether by live testimony or by testimony in writing, that testimony must be corroborated. It doesn’t require evidence that’s beyond a reasonable doubtto corroborate. The corroboration can be evidence thatis only slight. But there has to be somecorroboration of an accomplice. Because — on the theory that an accomplice’s testimony is inherently improbable or inherently improbable from his standpoint — I shouldn’t say improbable. I should say untrustworthy — because of the fact that he has his own axe to grind by testifying in the matter and, therefore, his testimony must be corroborated by other evidence. You’ll be instructed fully on this matter. I anticipate there will be another witness who has been referred to in this trial who has been granted immunity in this case, and he will testify, and the same rules will apply to him. Because, obviously, it will appear from his testimony that he was an accomplice — an accomplice and an aider and abettor, or whatever. That’s for the jury to decide what the position of each of these parties were. 238 Butat this time the court is going to allow the tape to be played. Andit’s up to the jury to weigh this evidence with all other evidence to give it what weight the jury feels it’s entitled to. [RT 12:1442-1443.] However, the court never again instructed the jury on the rules relating to accomplice testimony with respect to the testimonial statements of Alejandro Delaloza. Although thetrial court gave accomplice instructions in connection with Marin, those instructions were expressly limited to Marin and the Castillo murder. (RT 24:3757, 3759.) Wheninstructing the jury at the close of the evidence, the court erroneously omitted the requisite accomplice instructions in connection with Delaloza, both in connection with his status in connection with the Ralphs parking lot robberies of Kreisher and Cordero (counts 1 & 2, respectively) and in connection with his status in connection with the murders of Molina and Murillo (counts 4 & 5, respectively). (Cf. RT 24:3729-3794.) The packet of written jury instructions taken into the jury deliberation room also omitted the requisite accomplice instructions in connection with Delaloza. (CT 12:3342-3435.) Moreover, the court’s comments to the jury immediately prior to playing the audiotape of Delaloza’s interrogation did not cure the error. The court initially stated Delaloza was an accomplice in connection with counts 4 and 5, but then abandonedthat position, stating, “That’s for the jury to decide what the position of each of these parties were.” (RT 12:1443.) The court’s comments 239 failed to instruct that Delaloza was an accomplice as a matter of law in connection with counts 1, 2, 4 and 5 (CALJIC No. 3.16). The court’s comments also omitted the requirementthat the testimony of an accomplice be viewed with “care and caution” (CALJIC No. 3.18). (RT 12:1442-1443.) The court omitted any mention of counts | and 2, and the requirement that Delaloza is an accomplice as a matter of law in connection with his testimonial statements to Detective Hanson aboutthe Ralphs parking lot robberies. Finally, the court stated, “You’ll be instructed fully on this matter.” (RT 12:1442.) Yet, when the court instructed on accomplice testimony, the court stated, “An accomplice is a person whois subject to prosecution for the identical offense charged in count[s] 6 and 7 against the defendants ontrial by reason of aiding and abetting or being a memberof a criminal conspiracy.” (RT 24:3757 [emphasis added].) This instruction excluded Delaloza as an accomplice because Delaloza’s testimonial statements related only to counts 1, 2, 4 and 5, not to counts 6 and 7. The instructional error was compoundedby the followinginstruction, which permitted the jury to base its verdict solely on Delaloza’s testimony: You should give the uncorroborated testimony of a single witness whatever weight you think it deserves. Testimony by one witness which you believe concerning any fact whose testimony about thatfact does not require corroboration is sufficientfor the proofof thatfact. You should carefully review 240 all the evidence upon whichthe proof of the fact depends. [RT 24:3746.] If the trial court had properly instructed the jury on the rules applying to Delaloza’s testimony,then it is reasonably probable that the jury would have found his testimonial statements implicating appellant in the Ralphsparking lot robberies (counts 1 & 2) and the murder of Molina and Murillo (counts 4 & 5, respectively) too unreliable to support a verdict on proof beyond a reasonable doubt.*? Absent Delaloza’s testimonial statements,it is reasonably probable that the jury would have acquitted appellant of the offenses charged in counts 1, 2, 4 and 5. B. THE TRIAL COURTIS REQUIRED TO CORRECTLY INSTRUCT THE JURY SUA SPONTE ON THE GENERAL PRINCIPLES OF LAW RELEVANT TO THE ISSUES RAISED BY THE EVIDENCE, AND AN ERRORIN FAILING TO DO SO IS REVIEWED ON APPEAL DESPITE DEFENSE COUNSEL’S ACTIONS The issue is properly raised on appeal despite the fact that trial defense counsel did not object to the trial court’s instructions on accomplice testimony. (RT 24:3729-3794.) In every criminal case, even absent a request, the trial court must instruct on generalprinciples of law relevant to the issues raised by the evidence. (Pen. 8 An accomplice is inherently untrustworthy because, among other things, he or she maytry to shift blame to the defendantin an effort to minimize his or her own culpability. (Cf. People v. Tobias (2001) 25 Cal.4th 327, 331, People v. Coffey (1911) 161 Cal.433, 438.) 241 Code, § 1259; People v. Breverman (1998) 19 Cal.4th 142, 154; People v. Wickersham (1982) 32 Cal.3d 307, 323, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200-201.) Thetrial court has a sua sponte duty to correctly instruct the jury, andits instructions and comments to the jury are properly reviewed on appeal without objection below. (Pen. Code, § 1259;People v. Brown (2003) 31 Cal.4th 518, 539; People v. Roehler (1985) 167 Cal.App.3d 353, 394-395 [“Appellate courts review the instructions to a jury regardless of objection because to do otherwise would reducelitigation to a hypertechnical game of somesort.”].) The sua sponte obligation to correctly instruct “reflect[s] concern both for the rights of persons accused of crimes and for the overall administration of justice.” (People v. Wickersham, supra, 32 Cal.3d at p. 324; People v. Carpenter (1997) 15 Cal.4th 312, 380-381 [defendant may challenge on appeal the preponderance of the evidence standard for other crimes evidence without objection]; People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1291 [court may review lying in wait murderinstruction without objection attrial].) *4 Penal Code section 1259 providesin part: “The appellate court may also review any instruction given, refused or modified, even though no objection was madethereto in the lowercourt, if the substantial rights of the defendant were affected thereby.” 242 C. THE TRIAL COURT WAS REQUIRED TO SUA SPONTE INSTRUCT THE JURY THAT DELALOZA WAS AN ACCOMPLICE AS A MATTER OF LAW IN CONNECTION WITH COUNTS1, 2, 4 AND 5 (CALJIC NO. 3.16), THAT HIS TESTIMONIAL STATEMENTSMUSTBE CORROBORATED(CALJIC NO. 3.11), AND THAT HIS TESTIMONIAL STATEMENTSMUSTBE VIEWED WITH “CARE AND CAUTION” (CALJIC NO. 3.18) This Court has long held that it is the duty ofthe trial court to give, onits own motion, instructions on the pertinent principles of law regarding accomplice testimony wheneverthe testimony given uponthetrial is sufficient to warrant the conclusion uponthe part of the jury that a witness implicating a defendant was an accomplice .... [People v. Bevins (1960) 54 Cal.2d 71, 76, quoting from People v. Warren (1940) 16 Cal.2d 103, 118.] An accomplice is one whois “liable to prosecution for the identical offense charged against the defendant ....” (Pen. Code, § 1111.) “Whether a person is an accomplice is a question of fact for the jury unless the facts and the inferences to be drawn therefrom are undisputed.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 103.) The Legislature has deemed accomplice testimony so untrustworthythatit falls within the category of evidencethatis insufficient as a matter of law to support a conviction. (People v. Najera (2008) 43 Cal.4th 1132, 1137.) The distrust with which accomplice testimonyis viewed finds its roots in English commonlaw. (People v. Tobias, supra, 25 Cal.4th at p. 331.) The rationale 243 generally stated is that an accomplice whotestifies against a defendant does so either to obtain favor from the prosecutor or with the motive to place the responsibility for the crime on the defendant by minimizing any involvementthe witness may have had in the crime. (/bid.) This rationale explains the long-standing requirement that when the prosecution calls an accomplice to testify, the jury must be informed that the testimony should be viewed with distrust. (People v. Guiuan (1998) 18 Cal.4th 558, 565.) Accordingly, Judicial Council-of California Criminal Jury Instructions, former CALJIC Nos. 3.11, 3.12, 3.13, and 3.18, inform the jury that the testimony of an accomplice testifying for the prosecution must be corroborated and should be viewed with caution. (Cf. People v. Zapien (1993) 4 Cal.4th 929, 982.) There can be no dispute that Delaloza — whose testimonial statements made during custodial interrogation implicated him in the Ralphs parking lot robberies of Kreisher and Cordero (counts | & 2, respectively) and the murders of Molina and Murillo (counts 4 & 5, respectively), and who was convicted as a principal of those identical charges in a jury trial that concludedpriorto the start of appellant’s trial - was an accomplice to the robberies and murders as a matter of law. (Cf. People v. Lewis (2001) 26 Cal.4th 334, 368-369 [accomplice 1s person liable to prosecution for the identical offense charged against the defendant and who hasguilty knowledge and intent with regard to the crime].) 244 Moreover, although Delaloza did nottestify attrial, the trial court admitted his testimonial statements for the truth of the matter asserted, and as a substitute for trial testimony, instructing the jury that the statements should be considered with equal weightas the testimony ofa trial witness. (RT 24:3742; CT 12:3362.) The court instructed, in part: Testimony given by a witness at a prior proceeding who was unavailable at this trial has been read to you from the reporter’s transcript of that proceeding. You must considerthat testimonyas if it had been given before you in this trial. [RT 24:3742.] Accordingly, Delaloza’s statements were the functional equivalentoftrial testimony and, as such, were subject to instruction on the rules regarding accomplice testimony. Wheninstructing the jury following the close of evidence,the trial court entirely failed to instruct the jury with respect to accomplice testimonyrelating to the testimonial statements made by Delaloza. Instead, the court only instructed on accomplice testimony in connection with Marin’s testimony about the Castillo homicide. (RT 24:3759-3760.) Specifically, the court did not instruct, as was required, that Delaloza was an accomplice as a matter of law (CALJIC No. 3.16), it did not instruct, as was required, that Delaloza’s testimonial statements must be corroborated (CALJIC No. 3.11), and it did not instruct, as was required, that Delaloza’s testimonial 245 statements must be viewed with care and caution (CALJIC No. 3.18). (Cf. People v. Najera, supra, 43 Cal.4th at p. 1137 [because accomplice testimonyis insufficient to support a conviction, the jury must be instructed to ensure it does not rely solely on accomplice testimony]; People v. Tobias, supra, 25 Cal.4th at p. 331 [if there is sufficient evidence to find a witness was an accompliceto the crime, the trial court has a sua sponte obligation to instruct the jury appropriately]; People v. Santo (1954) 43 Cal.2d 319, 326]; People v. Zapien, supra, 4 Cal.4th at p. 982; People v. Williams (1988) 45 Cal.3d 1268, 1313- 1314.) Asnoted in the introductory section above, prior to playing the audiotape of Delaloza’s interrogation the court commentedto the jury about Delaloza’s statements. (RT 12:1442-1443.) Yet, as explained above, these comments could not substitute for correct instructions on accomplice testimony because 1) the court’s comments failed to instruct that Delaloza was an accomplice as a matter of law in connection with counts 1, 2, 4 and 5 (CALJIC No. 3.16), 2) the court’s comments erroneously permitted the jury to determine — by some unspecified means — “what the position of each of these parties were” (RT 12:1443) (i.e., whether or not Delaloza was an accomplice), 3) the court’s commentsfailed to instruct that Delaloza’s statements must be corroborated (CALJIC No. 3.11; Pen. Code, § 1111), and 246 4) the court’s commentsfailed to instruct that Delaloza’s statements must viewed with “care and caution” (CALJIC No. 3.18). Moreover, the court’s instructions on accomplice testimonyat the conclusion of the presentation of evidence explicitly limited the definition of “accomplice” to “a person whois subject to prosecution for the identical offense charged in count[s] 6 and7...[,]” thereby excluding Delaloza from the definition of an “accomplice” because Delaloza was never subject to prosecution for the identical offenses charged in counts 6 and 7. (RT 24:3757 [emphasis added]; cf. People v. Carey (2007) 41 Cal.4th 109, 130 [court assumes jurors followed instructions].) D. THE INSTRUCTIONAL ERROR DENIED APPELLANT THE CONSTITUTIONAL RIGHTS OF JURY TRIAL AND DUE PROCESS, AND RESULTEDIN PREJUDICIAL ERROR REQUIRING REVERSAL OF APPELLANT’S CONVICTIONSIN COUNTS1, 2, 4 AND 5, BECAUSE THE DETERMINATION OF APPELLANT’S GUILT WAS BASED MATERIALLY ON DELALOZA’S TESTIMONIAL STATEMENTS Applying state law, this Court has held that error in failing to give accomplice instructions warrants reversalif it is reasonably probable the outcome would have been more favorable to the defendant absent the error. (People v. Lawley (2002) 27 Cal.4th 102, 161; People v. Lewis, supra, 26 Cal.4th at p. 371.) The purpose of the cautionary admonition for accomplice testimonyis to advise the jury that because an accomplice “maytailor the truth to his or her own self-serving mold,” the jury should not “accept the words of an accomplice at 247 face value, with any presumption of truthfulness and candor, or upon the same standard as that applied to other witnesses.” (People v. Gordon (1973) 10 Cal.3d 460, 471, disapproved on anotherpoint in People v. Ward (2005) 36 Cal.4th 186, 212.) Error arising from the failure to include the cautionary admonition may be harmlessif the jury was apprised of this requirement through other means. (Cf. People v. Lewis, supra, 26 Cal.4th at p. 371.) In view of the important nature of Delaloza’s testimonial statements in this case in relation to counts 1, 2, 4 and 5, the court’s failure to instruct the jury on accomplice testimony as to Delaloza resulted in a violation of federal due process. (Cf. United States v. Bernard (9" Cir. 1980) 625 F.2d 854, 857-858; see also Yates v. Evatt (1991) 500 U.S. 391, 403-404 [111 S.Ct. 1884, 114 L.Ed.2d 432] [an instructional error may be found to be harmless where it is shown beyond a reasonable doubtthat the error was “unimportantin relation to everything else the jury considered on the issue in question, as revealed in the record”); United States v. Miller (9" Cir. 1976) 546 F2d 320, 324 [conviction reversed: trial judge, in responding to the jury’s request to rehear the instructions on credibility of witnesses, omitted a crucial instruction on distrust of accomplice testimony]; Hicks v. Oklahoma, supra, 447 U.S. at p. 346 [arbitrary deprivation of a state-created liberty interest violates due process]; Hewitt v. Helms, supra, 459 US.at p. 466 [liberty interests protected by the Due Process Clausearise 248 from two sources, the Due Process Clause itself and the laws ofthe States]; Fetterly v. Paskett, supra, 997 F.2d at p. 1300 [“Thefailure of a state to abide by its own statutory commands may implicate a liberty interest protected by the Fourteenth Amendmentagainstarbitrary deprivation by a state.”].) Evenif the trial court’s instructions on accomplice testimony are viewed as ambiguous(i.e., because the courtinitially indicated that Delaloza was an accomplice), there is a reasonable likelihood that the jurors applied the instructions in a way that lessened the prosecution’s burden of proof on counts 1, 2, 4 and 5 (and thus violated federal due process) because 1) the court abandoned its initial statement about Delaloza being an accomplice (RT 12:1443), 2) the court instructed on accomplice testimony with reference to Marin only, and with reference to charges for which Delaloza had no criminal culpability (RT 24:3742, 3759-3760), and 3) the court instructed that the verdict could be based on the testimony of a single witness(i.e., Delaloza) (RT 24:3746). (Cf. Boydev. California (1990) 494 U.S. 370, 381-381 [110 S.Ct. 1190, 108 L.Ed.2d 316]; Calderon v. Coleman (1998) 525 U.S. 141, 145-146 [119 S.Ct. 500, 142 L.Ed.2d 521] [“reasonable likelihood” test applies to determine whether ambiguous instruction caused constitutionalerror].) Moreover, wherethetrial court fails to instruct the jury to make a factual determination necessary for guilt — as here with respect to the factual 249 determinations necessary for proper consideration of Delaloza’s testimony as an accomplice — the error results in a deprivation of both due process and the Sixth Amendmentright to jury trial. (Cf. In re Winship (1970) 397 U.S. 358, 364 [90 S.Ct. 1068, 25 L.Ed.2d 368]; People v. Tewksbury (1976) 15 Cal.3d 953, 967 [accomplice “testimony has been legislatively determined neverto be sufficiently trustworthy to establish guilt beyond a reasonable doubt unless corroborated’’].) The standard of prejudice for the deprivation of a federal constitutional right, as here, is the Chapman harmlesserror analysis, which requires reversal of appellant’s convictions unless the error was harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 U.S. at p. 24; see People v. Sengpadychith, supra, 26 Cal.4th at p. 326 [Chapman asks whetherthe prosecution has “prove[d] beyond a reasonable doubtthat the error .. . did not contribute to” the verdict].) Underthis test, the appropriate inquiry is “not whether,in a trial that occurred withoutthe error, a guilty verdict would surely have been rendered, but whetherthe guilty verdict actually rendered in this trial was surely unattributable to the error.” (Sullivan v. Louisiana, supra, 508 U.S. at p. 279; People v. Sakarias, supra, 22 Cal.4th at p. 625 [“We may affirm the jury’s verdicts despite the error if, but only if, it appears beyond a reasonable doubtthat the error did not contribute to the particular verdict at issue.”]). 250 Delaloza’s testimonial statements were not sufficiently corroborated. (Cf. People v. Cook (2006) 39 Cal.4th 566, 601 [failure to instruct regarding accomplice corroboration requirement harmless when there is ample evidence of corroboration].) The corroborating evidence must tend to connect the defendant with an element of the crime in such a wayasto satisfy the jury that the accompliceis telling the truth; however, the evidence maybeslight, entirely circumstantial, and entitled to little consideration when standing alone. (People v. Zapien, supra, 4 Cal.4th at p. 982; People v. Lewis, supra, 26 Cal.4th at p. 370.) In connection with the Ralphs parking lot robberies (counts 1 & 2), the testimony of prosecution witnesses Kreisher and Cordero does not provide sufficient corroboration of Delaloza’s statements identifying appellant. Kreisher’s identification of appellant was suspect because whenfirst shown a photographic array by Detective Hansonheidentified someoneelse, not appellant, but subsequently changed his mind and instead identified appellant. (RT 9:1090-1091.) Cordero’s identification of appellant was suspect too because he described appellant as being “about 175 to 180 pounds” (RT 9:988-989), whereas appellant was in fact a substantially larger man, weighing 250 pounds. (RT 19:2819; People’s Exh. 21.) Cordero’s testimony also was impeached with evidencethat he lied at the preliminary hearing in this case (RT 9:1005-1008, 251 1020-1022), that he only learned of appellant’s name the following day when he returned to Ralphs and spoke with an employee (RT 9:1013-1014), and that he suffered prior felony convictions for forgery and attempted strong-arm robbery, and used to associate with membersof the Pagans gang in Whittier (RT 9:996- 998). Accordingly, the evidence lacks sufficient corroboration because it does not connect appellant with an element of the crime in such a wayasto suggest that Delaloza wastelling the truth. In connection with the murders of Molina and Murillo (counts 4 & 5, respectively), and as explained in sectionII., ante, the evidenceis insufficient as a matter of law to sustain the requisite finding that appellant was a principal in the commission of either offense. Moreover, the testimony of prosecution witnesses Luke Bissonnette, Roxanne Bissonnette, Walker, and Holder does not providesufficient corroboration of Delaloza’s statements about appellant running from the GoodhueStreet houseat the time of the shooting. Luke’s testimony was unreliable. He consumed drugsearlier that day that would have impaired his ability to accurately observe the events. (RT 10:1232-1233, 1237-1238.) He acknowledged that he did not see the gunman’s face, but only looked out ofthe windowafter the shots were fired and saw a person for a couple of secondsin the distance from behind. (RT 10:1059-1066.) He admitted that it was too dark to 252 tell what the person was wearing,and thus he could not identify the person, although he assumed it was appellant because he had seen him an hourearlier on Hornell Street. (RT 10:1059-1066.) Dr. Kathy Pezdak, Ph.D., testified that Luke could not have accurately identified someone under the circumstances described by him (i.e., in the dark, at a distance, and from behind), but explained the phenomenon whereanerroneousidentification occurs when the witness has an expectation of seeing a particular person. (RT 19:2850-2852, 2856, 2872.) Roxanne Bissonnette’s testimony identified appellant earlier that morning — well before the shooting — and thus does not provide corroboration of Delaloza’s statements about appellant running from the GoodhueStreet houseat the time of the shooting. (RT 11:1336-1341.) The testimony of the two neighbors, Walker and Holder, identified Delaloza’s white Cadillac at the scene, but since they did not identify the gunmantheir statements too fail to provide sufficient corroboration of Delaloza’s statements about appellant running from the GoodhueStreet houseat the time of the shooting. (RT 10:1309-1312, 1317-1319, 13:1599-1601.) Accordingly, the evidence lacks sufficient corroboration because it does not connect appellant with an element of the crime in such a way as to suggest that Delaloza wastelling the truth. Further, Delaloza’s testimonial statements were very important to the prosecutor in securing convictions against appellant, especially on the Molina and 253 Murillo murder charges (counts 4 & 5), as the prosecutor repeatedly emphasized Delaloza’s statements during closing summation. (RT 22:3403-3404, 22:3420, 22:3432, 22:3434, 24:3695; see Yates v. Evatt, supra, 500 U.S. at pp. 403-404 [an instructional error may be found to be harmless where it is shown beyond a reasonable doubtthat the error was “unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record”J.) The prosecutor argued, in pertinent part: He [i.e., Delaloza] was the person who had custody and controlofthe vehicle that night. He was probably the driver that night. And he wasthe one-- it was his car. / mean, so he’s the one elected to be the driver that night. Andthis helps support why Hondo[i.e., Delaloza] eventually was convictedfor the Goodhue Street murders in a separate case as an accomplice, as an aider and abettor to Richard Penunuri, under that law. Rememberthatlittle example on our aiding and abetting instruction. If you’re even the getaway driver and you’re assisting someone in committing a crime, you becomejust as liable as though you personally commit the crime yourself. Hondo’s the driver ofthe Cadillac; he’s the getaway man; he’s the wheel man, as we callit. And that makes him an accomplicefor these subsequent crimes that Mr. Penunuri performed. [RT 22:3403-3404 (emphasis added).] The prosecutor also argued, in pertinentpart: And at that point in time Richard [Penunuri] — well, look, what wehaveis that point in time -- we look at our exhibits -- Hondo[i.e., Delaloza] didn’t park in the driveway of Goodhue Street. And we know there was adequate space for him to park in 254 the driveway, because we havethe photographs. There was only one car in the drivewaythat night. And yet they park around the block and in a spot just adjacent to Matt Walker’s location. Now, why, ifyou’re just going to visit your home boys [as Delaloza told the police in his taped statement], would you parkin such a fashion awayfrom the residence? The reason the vehicle parked at that location, on ouraerial diagram,is because these guys were up to no good. Thisis additional evidence to establish that Richard Penunuri had started to formulate thoughts as to what he’s going to do oncehe gets there and oncehefinds the targets that he’s seeking: because of their conduct. [RT 22:3420 (emphasis added). ] The prosecutor also argued, in pertinent part: But Carlos Arias, whose testimony wasread to you,also said that it was Dozerleaving the house. And we’re getting perspectives from a lot of people. Coupled with the fact that we know that Dozer wasthe only guy armed that night from the Ralph’s parking lot in Whittier to Hornell Street, he wasstill armed with a firearm, the only person ever identified, and now suddenly we’re supposedto believe that the person whodid the killing on Goodhue Street was someone other than Dozer? That was also wearing a big, heavy-type jacket? Could have been Hondo? Could have been Alejandro Delaloza? Notlikely, because Alejandro Delaloza, through his statement, said that he parked near the GoodhueStreet house, Dozer’s the one that got out of the car; Dozer’s the one that went into the backyard; that’s when he heard gunfire, and all ofa sudden Dozer appears. He did not see Dozer with a gun, but Dozer gets back inside the car, andthey flee. That's pretty much what Alejandro Delaloza had to say. [RT 22:3432 (emphasis added). ] 255 The prosecutoralso argued,in pertinentpart: See, Hondotold law enforcement — and maybe he was stupid when he did so. And he’s suffering the consequences as a result as we speak. But he told them what they wereup to that night. .... [RT 22:3434 (emphasis added).] Finally, the prosecutor argued in rebuttal, in pertinentpart: The black jacket at Hondo’s house. Sure a black jacket was found, but it in no way comparesto the black jacket that was described by the witnesses that Richard Penunuri was wearing that particular night. The big, heavy thing. The black jacket that was found at Hondo’s house, we don’t even know who ownsthat jacket or if Hondo even woreit. Ifyou look at Hondo’s own statement to law enforcement when he implicated Penunuri in that crime [involving the murder of Molina and Murillo — counts 4 and 5], he was describing the clothing he was wearing that night as simply being a sweatshirt, not a jacket of any kind. [RT 24:3695 (emphasis added). ] Notwithstanding the prosecutor’s argument, the defense presented substantial evidence pointing to appellant’s innocence and suggestingthat Delaloza wasthe likely perpetrator of the Molina and Murillo homicides. Delaloza was wearing clothing similar to that of the shadowy figure seen by Luke Bissonnette. (RT 9:988-989, 11:1361-1367; 19:2878-2880.) Ammunition found at Delaloza’s house matchedballistics evidence from the crime scene. (RT 13:1692-1695.) The duffle bag taken during the robbery at the Ralphs market was found at Delaloza’s house. (RT 9:985-987, 9:1054-1065, 13:1586-1587.) A black jacket and two sweatshirts, one with a hood, were found at Delaloza’s 256 house, but the prosecution never tested these items for gunshot residue. (RT 19:2873-2878.) The jacket found in appellant’s house tested negative for gunshot residue. (RT 19:2832-2833.) Justice Kennard, in a concurring opinion in People v. Guiuan, supra, 18 Cal.4th at pp. 571-575, explained why jurors should view accomplice testimony with skepticism. Accomplicesare rarely persons of integrity whose veracity is above suspicion. An accomplice’s participation in the charged offenseisitself evidence of bad moral character. Further, special caution is warranted when considering accomplice testimony because an accomplice’s first hand knowledge of the details allows for the construction of plausible falsehoods not easily disproved. An accomplice can easily manipulate the details of the events surrounding the crime without blatant discrepancies. (/bid.) There can be no showingthat the jurors understood that they should view Delaloza’s testimonial statements with caution. Although the jury wasinstructed that in evaluating a witness’s credibility it could consider a numberof factors (RT 23:3601-3602, 24:3754-3755; CT 12:3362-3363, 3381-3382), because Delaloza did nottestify at appellant’s trial the jury was not able to assess his demeanor — a matter relevant to assessing credibility. (Evid. Code, § 780; Jn re Bolden (2009) 46 Cal.4th 216, 224 [observation of “demeanoroftestifying witnesses .. . [gives one] an advantage in assessing their credibility ....”]; 257 People v. Dykes (2009) 46 Cal.4th 731, 768 [demeanoris relevant to credibility of statements]; Rice v. Collins (2006) 546 U.S. 333, 343 [126 S.Ct. 969, 163 L.Ed.2d 824] (Breyer, J., concurring.) [“factors that underlie credibility: demeanor, context, and atmosphere.”].) Delaloza also was not subject to cross-examination, and thus when assessing the reliability of Delaloza’s testimonial statements the jury was deprived of material information typically developed through cross-examination, including whether Delaloza was influenced bybias or prejudice or a personal interest in how the case is decided, whether Delaloza had been convicted of a felony, and whether Delaloza deliberately lied concerning the case. (Cf. Crawford v. Washington, supra, 541 U.S. at p. 61 [The Confrontation Clause commandsthat reliability be assessed in a particular manner: by testing in the crucible of cross-examination].) The Sixth Amendment’s Confrontation Clause ensures the right of criminal defendants to explore the “possible biases, prejudices, or ulterior motives of the witness as they mayrelate directly to issues or personalities in the case at hand.” (Davis v. Alaska (1974) 415 U.S. 308, 316 [94 S.Ct. 1105, 39 L.Ed.2d 347]; see also Delaware v. Van Arsdall, supra, 475 U.S. at p. 678.) Thus, the United States Supreme Court has recognized that “exposure of a witness’ motivation in testifying is a proper and important function of the 258 constitutionally protected right of cross-examination.” (Davis v. Alaska, supra, 415 US. at pp. 316-317.) The sameis true underarticle 1, section 15 of the California Constitution. (/n re Anthony P. (1985) 167 Cal.App.3d 502, 513.) The United States Supreme Court has observed that the “[d]ischarge of the jury’s responsibility for drawing appropriate conclusions from the testimony depend[s] on discharge of the judge’s responsibility to give the jury the required guidancebya lucid statementofthe relevant legal criteria.” (Bollenbachv. United States (1946) 326 U.S. 607, 612 [66 S.Ct. 402, 90 L.Ed.350] [involving a court’s erroneous charge to the jury in answerto a jury’s question].) Noris the outcometo beleft to the discerning eye of the reviewing court. “In view of the place of importancethattrial by jury has in our Bill of Rights, it is not to be supposed that Congress intendedto substitute the belief of appellate judges in the guilt of an accused, however, justifiably engendered by the dead record,for ascertainment of guilt by a jury under appropriate judicial guidance, however cumbersomethat process maybe.” (id. at p. 615.) A jury... is not an unguided missile free accordingto its own muse to do as it pleases. To accomplish its constitutionally-mandated purpose, a jury must be properly instructed as to the relevant law andasto its function in the fact-finding process, and it must assiduously follow these instructions. [McDowell v. Calderon (9" Cir. 1997) 130 F.3d 833, 836.] 259 Here, the prosecution will be unable to prove beyond a reasonable doubt that the trial court’s failure to properly instruct the jury did not contribute to the verdict. The prosecutor’s repeated reliance during closing summation on Delaloza’s statements reveals that the verdicts were heavily influenced by Delaloza’s statements implicating appellant. (RT 22:3403-3404, 22:3420, 22:3432, 22:3434, 24:3695; see Yates v. Evatt, supra, 500 US. at pp. 403-404 [an instructional error may be found to be harmless whereit is shown beyond a reasonable doubt that the error was “unimportantin relation to everything else the jury considered on the issue in question, as revealed in the record”].) It cannot be said, therefore, that the omission of the accomplice instructionsas to Delaloza did not contribute to the guilty verdicts. (Cf. Sullivan v. Louisiana, supra, 508 U.S. at p. 279.) Appellant’s convictions in counts 1, 2, 4 and 5 must be reversed for instructional error. //1 260 XII. REVERSAL OF APPELLANT’S CONVICTIONSIS REQUIRED BECAUSE THE TRIAL JUDGE’S REMARKSIN THE PRESENCE OF THE JURY — VOUCHING FOR THE TRUTH OF THE PROSECUTION’S EVIDENCE AND INTERPRETING THE EVIDENCE IN A MANNER FAVORABLE TO THE PROSECUTION - DENIED APPELLANT THE RIGHTSTO A FAIR TRIAL AND AN IMPARTIAL JURY (CAL. CONST., ART.I, §§ 7, 15, 16 & 17; U.S. CONST., 5™, 67", 87 & 14™ AMENDS.) A. INTRODUCTION AND PROCEDURAL BACKGROUND Compoundingtheerror identified in the previous argument wherethetrial judge failed to instruct the jury to view Delaloza’s testimony with caution (ante, § XI.), as explained below,the trial judge remarked in the presence ofthe jury that he believed that Delaloza was the getawaydriver in connection with the Molina and Murillo homicides, thereby suggesting that appellant was the shooter. (RT 12:1433-1435.) Outside the presenceof the jury, prosecutor Camachocalled Alejandro Delaloza as a witnessin his case-in-chief. Delaloza was in lockup, having been separately tried, convicted, and sentenced for, among other things, the Ralphs parking lot robberies of Kreisher and Cordero andthe first-degree murders of Molina and Murillo. (RT 12:1425.) As the trial judge explained, Mr. Camachohascalled Mr. Delaloza to the stand. Mr. Delaloza has previously been convicted in this case, as you all know,and has been sentenced. He hasno privilege; however, he is adamant that he will not come into the courtroom. 261 He will not. And if he is brought into the courtroom forcibly, he will not testify. Now, that’s his position. . Rather than have somesort of a circus in front of the jury, ‘ what I was going to suggest is that I could simply bring him into the court, order him to testify, and, if he refuses to testify, then simply say, all right, he’s in contempt; as long as he is in contempt, he will lose any good time credits that he has. [RT 12:1425-1426.] After a discussion of the fact that Delaloza’s attorney was not present, and had not been notified of the hearing, and the fact that his appeal was pending and thus he had a valid privilege against self-incrimination (12:1426-1428, 1430, 1442), the judge examined Delaloza about whether he would agreeto testify. (RT 12:1428-1430.) Delaloza said he would refuse to testify based on “his right to remain silent.” (RT 12:1429.) Delaloza also stated he would refuse even to be sworn as a witness. (RT 12:1429.) The judge then called the jury into the courtroom and,in anticipation of the playing of the audiotape of Delaloza’s interrogation by the Los Angeles County Sheriff’s Departmentrelating to the double homicide on GoodhueStreet (counts 4 & 5), told the jury that Delaloza had been broughtinto the courtroom in custody and had refused to be sworn as a witness. (RT 12:1431.) The judge told the jury: Ladies and gentlemen,I’m sorry for this delay in the proceedings, but what was involved here wasa witness whois in custody wasto be brought into the court to testify. And that witness was unwilling to even comeinto the court, and, once he cameinto the court, he refusedto testify or to be sworn or to have any part in 262 the proceedings. The nameofthat witness was Mr. Delaloza. He has been referred to as Hondo in these proceedings. [RT 12:1431 (emphasis added). ] The judge then invited commentby counsel on the issue of Delaloza’s refusal to testify and the playing of the audiotape of his interrogation stating, “Counsel, did you have anything further on the subject?” (RT 12:1431.) Defense counsel stated he did have something further, but inquired, “Do you want me to have this discussion with the court in front of the jury or at the side bar?” (RT 12:1431.) The judge refused counsel’s suggestion for a side bar conference outside the presenceof the jury and instructed counsel to make his comments in the presence of the jury, stating, “You can state your position right now.” (RT 12:1431.) Defense counsel explained that Delaloza’s statements made during interrogation were inadmissible because they were not againsthis penal interest as the statements shifted blame to appellant and disavowed personal responsibility. (RT 12:1432-1433.) Defense counsel also explained that he would makean offer of proof “in open court or at side bar” that “Hondo [Delaloza], in fact, is the shooter... .” (RT 12:1433.) The judge invited comments bythe prosecutor, also in the presence of the jury. (RT 12:1433.) The prosecutorstated: Your honor, thus far the People’s case has pointed to three individuals occupying that white Cadillac at the time of fleeing the 263 Goodhue Scene. Wehave three individuals accounted for based upon the witnesses that we’ve presented thus far. Mr. Penunuri, being occupant number1, observed leaving the Goodhue property running acrossthe street; two additional persons observed immediately after the shooting entering the Cadillac to drive toward Mr. Penunuri’s position. That being, circumstantially, Jaime Castillo and Alejandro Delaloza. What [defense counsel] Mr. Bernstein is forgetting to mention is the fact that the keys to the white Cadillac were foundin Mr. Delaloza’s property the following day, meaning that he’s the individual who had control over that Cadillac that night, him being the driver -[.] [RT 12:1433 (emphasis added). ] The judge, vouching for the prosecutor’s statement about Delaloza being the driver of the Cadillac on the night of the murders of Molina and Murillo, and implicitly suggesting that appellant was the shooter, replied, “J think that’s inherent in his statement that he made [to the police].” (RT 12:1433 [emphasis added].) The prosecutor immediately agreed stating, “Absolutely. Given the fact that the circumstantial evidenceis that he [i.e., Delaloza] was the wheel man,in other words, the getaway driver from the double murder scene, certainly imposes criminalliability upon him.” (RT 12:1434.) The judge then engaged the attorneys in the following colloquy, which also wasin the presence the jury: The Court: All right. That’s enough, J think,at this point. Mr. Camacho: Very well. 264 The Court: Mr. Bernstein: The Court: Mr. Bernstein: The Court: Mr. Bernstein, if this witness were called to the stand and hadwillingly testified, I would not stop him in his testimony ifhe testified exactly as he’s testified in this statement. I would have a chance to cross-examine him, under those circumstances. Well, you’d have -- that’s right. You’d have a chanceto cross-examine him, but — The position of the law is, is that because the statementis judicially found to be inherently trustworthy because of the circumstances, in effect, an admission: I did it, something of that nature, declaration against penalinterest, the cross-examination is not necessary because the statementis so inherently truthful. In this case the statement is exculpatory. It’s I didn’t do it; I didn’t have anything to do with it. No. Wait. Wait. Don’t go that far: I didn’t have anything to do with it. That doesn’t make sense. He was there. He was the driver of the car. He admits that. So — All right. I’ve heard all that I need to hear on the record at this point. [RT 12:1434-1435 (emphasis added).] The prosecutor marked for identification the audiotape of Delaloza’s interrogation anda transcript of the interrogation, and requested permission to distribute copies of the transcript to the jurors that each juror could have a personal copy and read along while the tape was played, which permission was subsequently granted. (RT 12:1435, 1443.) However, prior to the tape being played, the judge stated, in the presence ofthe jury: Based on the cursory reading ofthis [transcript], I disagree with Mr. Bernstein’s position that this is an exculpatory statement. There are admissionsin this statementthat he actually droveto the 265 location; that he drove awayfrom the location and, therefore, was part and parcel ofwhat was going on [in connection with the double homicide], it could be contended. Whetheror not the statement is exculpatory or incriminating I think is a question of fact to be determined bythe jury. So the objection to the tape and the transcriptionis overruled. [RT 12:1436 (emphasis added).] The judge held a side bar conference (RT 12:1437-1441), and then told the jury, in part: This is what our situation is relative to the testimony ofthis witness, Delaloza. Mr. Delaloza was charged with the double murderthat occurred in October of 1997 and wastried in another department of the superior court and was found guilty and has been sentenced in that matter. That case is now up on appeal. We don’t know whatthe jury decidedin that case as to reason, whether they convicted him as a principal, as an accomplice, as an aider and abettor. But at least, for our purposes, he would be an accomplice. [4] Butat this time the court is going to allow the tape to be played. And it’s up to the jury to weigh this evidence with all other evidence to give it what weightthe jury feels it’s entitled to. So would you passout the copies of the transcript, please. [RT 12:1442-1443 (emphasis added).] The audiotape of Delaloza’s interrogation wasplayed to the jury, and a transcript of the interrogation was providedto each juror to read along while the tape was being played. (RT 12:1443-1444; People’s Exhs. 37 & 38.) Thereafter, 266 the judge permitted the jurors to keep their copies of the transcript with them in court stating, “The jurors may keep their copies of the transcript with your notebooks. Don’t take them home with you. Whenyouleave here, leave the transcript with your notebooks.” (RT 12:1444.) B. THE EXCUSABLE FAILURE OF TRIAL DEFENSE COUNSEL TO OBJECT TO THE JUDICIAL MISCONDUCT AND, ALTERNATIVELY, INEFFECTIVE ASSISTANCE OF COUNSELIN FAILING TO RAISE TIMELY AND SPECIFIC OBJECTIONS TO EACH INSTANCE OF MISCONDUCTAS DESCRIBED BELOW, WARRANTS REVERSAL OF APPELLANT’S CONVICTIONS FOR A VIOLATION OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL(CAL. CONST., ART.I, §§ 7, 15 & 17; U.S. CONST., 57, 6™, 8™ & 147 AMENDS.) Trial defense counsel did not object to the proceedings identified above or to the trial court’s comments to the jury. (RT 12:1425-1444.) Appellant recognizes that as “a general rule, judicial misconduct claims are not preserved for appellate review if no objections were made on those groundsattrial. (People v. Sturm (2006) 37 Cal.4th 1218, 1237.) “However, a defendant’s failure to object does not preclude review ‘when an objection and an admonition could not cure the prejudice caused by’ such misconduct, or when objecting would be futile.” (/bid., citing People v. Terry (1970) 2 Cal.3d 362, 398.) Anyattempt to object should be excused because the record reveals that the judge made a determinedeffort to engage counsel — in the presence of the jury — in a discussion on the admissibility of the audiotape of Delaloza’s 267 interrogation. Immediately after Delaloza refused to be sworn as a witness, the judge convened the jury, apologized to them for the delay, and stated that Delaloza “was unwilling to even comeinto the court, and, once he cameinto the court, he refused to testify or to be sworn or to have anypart in the proceedings.” (RT 12:1431.) The court then invited commentby counsel, also in the presence of the jury. (RT 12:1431.) When defense counsel stated he did have something further to discuss, the court mandated that he makehis statement in the presence of the jury. The court told counsel, in the presence of the jury, “You canstate your position right now.” (RT 12:1431.) After defense counselstated his position, the court engaged the prosecutor and defense counselin further discussions in the presenceof the jury, wherein the judge made objectionable comments, as set forth herein, vouching for the truth of the prosecution’s evidence and interpreting the evidence for the jury in a mannerfavorable to the prosecution. (RT 12:1433-1443.) In view of the judge’s insistence that the matter be discussed in the presence of the jury, it would be unfair to require defense counsel to choose between provoking the judge into making further negative statements (by objecting to “judicial misconduct”in the presence of the jury) and therefore poisoning the jury against his client or, alternatively, giving up his client’s ability to argue misconducton appeal. (Cf. People v. Sturm, supra, 37 Cal.4th at p. 268 1237.) Accordingly, the failure to object should not preclude review because the record reveals that any attempt by counselto object to the court’s procedure and comments “would have been futile and counterproductive to his client.” (/bid., citing People v. Hill, supra, 17 Cal.4th at p. 821.) Alternatively, and incorporating herein by reference section IX.B., ante,if this Court finds that defense counsel forfeited the issue by failing to timely make each of the objections identified herein, then appellant was deprived of the constitutional right to effective assistance of counsel (Cal. Const., art. 1, §§ 7, 15 & 17: U.S. Const., 5", 6", 8" & 14° Amends.; Strickland v. Washington, supra, 466 U.S. at pp. 684- 685; People v. Pope, supra, 23 Cal.3d at p. 422) because generally judicial misconductclaims are not preserved for appellate review if no objections were made onthose groundsattrial. (People v. Sturm, supra, 37 Cal.4th at p. 1237.) Although defense counsel’s actions are often justified on the basis of strategic choice (People v. Pope, supra, 23 Cal.3d at p. 426), here there could be no rational strategic reason for counsel’s failure to explicitly raise each of the objections identified herein because the judge’s procedure and comments to the jury were objectionable, prejudicial judicial misconduct underestablished law. (Cf. Ibid. [“an appellate court will reject the claim of ineffective assistance ... unless there simply could be nosatisfactory explanation”’].) 269 Defense counsel’s deficient representation prejudiced appellant because, as explained below, the judicial misconduct described rendered appellant’s trial fundamentally unfair. Reversal of appellant’s convictions thus is warranted on the ground appellant was denied the state and federal constitutional rights to effective assistance of counsel. Cc. THE TRIAL JUDGE ENGAGEDIN PREJUDICIAL MISCONDUCT BY HOLDING AN EVIDENCE CODESECTION 402 HEARING IN THE PRESENCEOF THE JURY, BY VOUCHING FOR THE TRUTH OF THE PROSECUTION’S EVIDENCE, BY INTERPRETING THE EVIDENCE FOR THE JURY IN A MANNER FAVORABLETO THE PROSECUTION (AND THUS USURPING THE JURY’S ESSENTIAL FACT-FINDING FUNCTION), AND BY CREATING THE IMPRESSION THAT HE WAS ALLYING HIMSELF WITH THE PROSECUTION, THEREBY REQUIRING REVERSAL OF APPELLANT’S CONVICTIONS FOR A DENIAL OF THE RIGHTSTO A FAIR TRIAL AND AN IMPARTIAL JURY (CAL. CONST., ART.I, §§ 7, 15, 16 & 17; U.S. CONST., 5™, 6™, 8™ & 14™ AMENDS.) Every criminal defendants has a fundamentalright to a fair trial and an impartial jury. (Cal. Const., art. I, §§ 7, 15, 16 & 17; U.S. Const., 5", 6", 8" & 14" Amends.) Due process requires judgesto protect the defendant’s right to a fair and impartial trial by conducting the proceedings without bias. (Bracy v. Gramley (1997) 520 U.S. 899, 904-905 [the floor established by the Due Process Clause requiresa fair trial in a fair tribunal before an unbiased judge].) An accused’s Sixth Amendmentright to an impartial jury hinges on the trial judge’s fairness. To this end, the California Code of Judicial Ethics requires judgesto treat all parties with patience and courtesy, and perform their duties without bias. (Cal. Code Jud. Ethics, canon 3B(4) & (5).) Jurors expect no less, 270 and “rely with great confidence on the fairness of judges, and upon the correctness of their views expressed duringtrials.” (People v. Sturm, supra, 37 Cal.4th at p. 1233.) Because judges can easily influence the decisions of jurors, the court must avoid “even the appearance”of favoring the prosecution or the defense. (United States v. Sheldon (5" Cir. 1976) 544 F.2d 213, 218.) Consequently, whentrial is by jury, a “fair trial in a fair tribunal” requires the judge to refrain from conductthat can prejudice the jury. (Cf. Turnerv. Louisiana (1965) 379 U.S. 466, 472-473 [85 S.Ct. 546, 13 L.Ed.2d 424]; In re Murchison (1955) 349 U.S. 133, 136 [75 S.Ct. 623, 99 L.Ed. 942].) The Sixth Amendment encompassesadditional guarantees implicit in the nature oftrial by an impartial jury; namely that the jury’s verdict be based uponthe evidence adducedattrial, uninfluenced by extrajudicial evidence or communicationsor by improper association with the witnesses, parties, counsel or other persons. (Turner v. Louisiana, supra, 379 U.S. at pp. 472-473 .. .; People v. Tidwell (1970) 3 Cal.3d 62, 74....) “In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the ‘evidence developed’ against a defendant shall come from the witness stand in a public courtroom wherethereis full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel.” [People v. Sanders (1988) 203 Cal.App.3d 1510, 1513, citing Turnerv. Louisiana, supra, 379 U.S. at pp. 472-473.] The judge’s comments “must be accurate, temperate, nonargumentative, and scrupulouslyfair.” (Jd. at p. 1232.) It may not “create the impression thatit is allying itself with the prosecution.” (Jd. at p. 1233.) “Trial judges ‘should be exceedingly discreet in what they say and doin the presence ofa jury lest they 271 seem to lean toward orlend their influence to one side or the other.’” (/d.at p. 1237.) In Sturm, “the trial judge’s conduct ... constituted misconduct” because “in the presenceof the jury ... he ... conveyed the impression that he favored the prosecution.” (/d. at p. 1238; cf. United States v. Young (1985) 470 U.S. 1, 18-19 [105 S.Ct. 1038, 84 L.Ed.2d 1] [prosecutorial vouching “carries with it the imprimatur of the Government and may inducethe jury to trust the Government’s judgmentrather than its own view of the evidence.”].) It is not just the appearanceof bias expressed in the presence of the jury that is a problem, however. A judge makes manyrulings out of the presence of the jury, rulings often deferred to if within the court’s discretion. “Due Process clearly requires” that those rulings be made by “a judge with no actual bias against” the defendant (Bracy v. Gramley (1997) 520 U.S. 899, 905) — 1.e., one whois “impartial and disinterested” (Marshall v. Jerrico, Inc. (1980) 446 U.S. 238, 242 [100 S.Ct. 1610, 64 L.Ed.2d 182]).*° “This requirementof neutrality ... safeguards [one of] the two central concerns of procedural due process, the prevention of unjustified or mistaken 39 Accord, Rose v. Clark (1986) 478 U.S. 570, 577 [106 S.Ct. 3101, 92 L.Ed.2d 460] [“The State of course must providea trial before an impartial judge’’]; People v. Kipp (2001) 26 Cal.4th 1100, 1140 [“Under the due process clause of the federal Constitution, [a] defendantis entitled to an impartialtrial judge”]; Cooper v. Superior Court In and For Los Angeles County (1961) 55 Cal.2d 291, 301 [“The judge’s function as presiding officer is preeminently to act impartially”].) 272 deprivations....” It is the cornerstone of the “guarantee that life, liberty, or property will not be taken on the basis of an erroneousor distorted conception of the facts or the law....” (Marshall v. Jerrico, Inc., supra, 446 U.S. at p. 242.) “Without th[at] ... basic protection ..., a criminal trial cannotreliably serveits function as a vehicle for determination of guilt or innocence.... Adjudication by [a] biased judge ... necessarily render[s] a trial fundamentally unfair.” (Rosev. Clark (1986) 478 U.S. 570, 577-578.) In an initial hearing outside the presenceof the jury, the judge foundthat Delaloza was an unavailable witness and granted the prosecution’s request to play an audiotapeofhis interrogation by police. (RT 12:1430-1431.) Then, in the presenceof the jury, the judge committed misconduct by commenting to the jury that Delaloza had been broughtinto the courtroom outside their presence and refused totestify and/or take part in the proceedings. (RT 12:1431.) The judgestated, in part, “I’m sorry for this delay in the proceedings, but what was involved here was a witness who is in custody wasto be broughtinto the courtto testify. And that witness was unwilling to even come into the court, and, once he cameinto the court, he refusedto testify or to be sworn or to have anypart in the proceedings. The name ofthat witness was Mr. Delaloza. He has been referred to as Hondoin these proceedings.” (RT 12:1431.) This comment encouragedthe jury to speculate as to the reason that 273 Delaloza refused to participate, leaving to their imagination that Delaloza had something to hide, or that he was fearful for his safety, perhaps because of some untold threats by appellant. The judge then elicited comments by counsel, telling defense counsel, “You can state your position right now.” (RT 12:1431.) By engaging defense counsel in an Evidence Codesection 402”° hearing in the presenceofthe jury, and then ultimately discussing the evidence and overruling defense counsel’s objections in the presence of the jury (RT 1431-1444), the judge created the strong impression that he wasallying himself with the prosecution. The judge also created the strong impression that Delaloza’s statements to the police, which the jury was aboutto hear, contained damaging admissions. And, as more fully explained below,the procedure reasonably suggested to the jury the truth of Delaloza’s statements to the police. The judgeandthe jury then heard argument from the prosecutor on the admissibility of Delaloza’s statements to the police. (RT 12:1433.) The prosecutor concludedbycriticizing defense counsel for “forgetting to mention” that the “keys to the white Cadillac were found in Mr. Delaloza’s property the following day, meaning that he’s the individual who had control overthat Cadillac that night, him being the driver- - [.]” (RT 12:1433.) 36 Section 402 provides,in part, that hearings on the admissibility of evidence are held “out of the presence or hearing of the jury... .” 274 Seizing on the prosecutor’s interpretation of the evidence that Delaloza wasthe driver of the Cadillac, the judge replied, “I think that’s inherent in his statement that he made[to the police].” (RT 12:1433.) This was an improper comment on the evidence becauseit supported and vouched for the prosecution’s theory that Delaloza wasthe driver of the vehicle in connection with the double homicide (and thus, by implication, that appellant was the gunman). (Cf. People v. Coddington, supra, 23 Cal.4th at pp. 615-616 [finding a reasonable likelihood that a juror might have inferred from the court’s comments that the court had vouchedfor the witness’s credibility].) The comment was improperin a more general sense, moreover, because by supporting the prosecution’s argumenton the evidence the comment revealed to the jury that the judge wasallying himself with the prosecution. (Cf. People v. Cole (1952) 113 Cal.App.2d 253, 261 [“jurors are eager to find and quick to follow any supposedhint of the judge as to how they should decide the case”].) The commentalso was improper because Delaloza’s statement to the police had not yet been admitted into evidence, and thus the court was commenting onfacts not in evidence. (People v. Hill, supra, 17 Cal.4th at pp. 827-828 [improperto argue facts not in evidence].) Although the statement would soon be heard bythe jury, the judge’s comments had the impropereffect of shaping the jury’s view of the evidencein favor of the prosecution even before that evidence was presented. 275 Immediately after the court’s commentthat inherent in the statement was the fact that Delaloza wasthe driver of the Cadillac, the prosecutor affirmed the judge, stating, “Absolutely. ... He was the wheel man, in other words,the getaway driver from the double murder scene... .” (RT 12:1434.) Lest anything beleft to the jury’s own determination, the judge stated, “Mr. Bernstein, if this witness were called to the stand and had willingly testified, I would not stop him in his testimonyif he testified exactly as he’s testified in this statement. [{] That doesn’t make sense [Mr. Bernstein]. He was there. He was the driver of the car. He admits that. ....” (RT 12:1434-1435 [emphasis added].) These comments again implicitly suggest that appellant (i.e., the other person) was the shooter. A California trial court may comment onthe evidence, including the credibility of witnesses, so long as its remarks are accurate, temperate, and “scrupulously fair.” .... Of course, the court may not expressits views on the ultimate issue of guilt or innocenceor otherwise “usurp the jury’s exclusive function as the arbiter of questions of fact and the credibility of witnesses.” [People v. Melton (1988) 44 Cal.3d 713, 735 [citations omitted). ] The judge’s commentabout not stopping Delaloza from giving live testimony consistent with the statement to the police improperly favored the prosecution by signaling to the jury the court’s approval of Delaloza’s statement. The comment, “He was there. He wasthe driver of the car. He admits that” (RT 12:1435), is an improper commenton the evidence favoring the prosecution and 276 usurping the jury’s fact-finding function. (People v. Coddington, supra, 23 Cal.4th at pp. 615-616.) Moreover, in view of the fact that the jury had not yet even heard the audiotape of Delaloza’s interrogation, the force of the judge’s comments was compoundedbythe jury’s inability to analyze those comments in context. Finally, the commentthat defense counsel’s argument “doesn’t make sense” (RT 12:1434) suggests both the judge’s view of the evidence favoring the prosecution and reveals to the jury that the judge wasallying himself with the prosecution. (Cf. People v. Cole, supra, 113 Cal.App.2d at p. 261 [“jurors are eager to find and quick to follow any supposed hint of the judge as to how they should decide the case’’].) Priorto the tape being played, the judge reaffirmedto the jury his view of the evidence, and his disagreement on defense counsel’s theory of the evidence, stating, in part, “Based on the cursory reading of this [transcript], I disagree with Mr. Bernstein’s position that this is an exculpatory statement. There are admissionsin this statement that he actually drove to the location; that he drove away from the location and, therefore, was part and parcel of what was going on [in connection with the double homicide], it could be contended.” (RT 12:1436.) As with the statements in the preceding paragraph, the judge committed misconduct by 1) commenting on the evidence in a mannerfavorable to the prosecution, 2) creating the impression that he wasallying himself with the 277 prosecution, 3) conveying that impression that he felt that Delaloza’s statements to the police were in fact true, and thus usurping the essential fact-finding function of the jury. Moments before the audiotape wasplayed, the judge told the jury that Delaloza was previously tried by a jury for the “double murder”at issue in this case, was convicted by the jury, was sentenced, and has a pending appealin the case. (RT 12:1442-1443.) These comments were improper. (People v. Young (1978) 85 Cal.App.3d 594, 601-602 [improper to inform jury of disposition of accomplice’s case]; cf. People v. Malone (1988) 47 Cal.3d 1, 53-54; Hudsonv. North Carolina (1960) 363 U.S. 697, 702-703 [80 S.Ct 1314, 4 L.Ed.2d 934] [the guilty plea of a codefendant cannotbe used as substantive evidenceto prove the guilt of a defendant]; People v. Leonard (1983) 34 Cal.3d 183, 188-189.) Asthis Court stated in Leonard whenreversing the defendant’s convictions for prejudicial error in admission of a coarrestee’s guilty plea: The prejudicial effect of Johnson’s guilty plea, however,is clearly substantial and far outweighs any probative value the evidence might have [as a declaration against penal interest]. That some time after the robbery defendant was stopped and arrested with another man whothen pleaded guilty to the commission of a robbery earlier in the evening invites an inference ofguilt by association -- particularly when muchofthe prosecution testimony at trial was illustrated with diagrams that referred to the assailants as “L” and “J.” [/d. at p. 188 (emphasis added).] 278 “Uponthe trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused.” (Glasser v. United States (1942) 315 U.S. 60, 71 [62 S.Ct. 457, 86 L.Ed. 680].) Defendants, consequently, especially defendants facing death — have a right under the Due Process Clause to a ... judge whotakesseriously his responsibility to conduct fair proceedings, a judge wholooksoutfor the rights of even the most undeserving defendants. [Bracy v. Schomig (7™ Cir. 2002) 286 F.3d 406, 419 (en banc).] It appears that the trial judge held the extraordinary — and highly inappropriate — Evidence Codesection 402 hearing described abovein the presence of the jury because he was upset at Delaloza for what the judge may have perceived as Delaloza’s conductin flaunting the judicial system by refusing to take the witness stand and even be sworn as a witness. (RT 12:1425-1429.) The judge’s frustration with Delaloza became evident even before he was examined by the court on the issue whether he wouldtestify in this case. Outside the presence of the jury, when the prosecutor announced that Delaloza wasthe next witness, the prosecutor stated that Delaloza’s attorney was notpresent, although she had beentold to be present.*’ (RT 12:1425.) The judge immediately responded that Delaloza had no “privilege” and thus they would proceed without his attorney. (RT 12:1425.) The judge wasincorrect as Delaloza did have a privilege against self-incrimination as his appeal was 7 Subsequently, the prosecutor and court acknowledged that Delaloza’s attorney was nevertold of the hearing. (RT 12:1428.) 279 pending.*® The judge then noted that Delaloza was refusing to comeinto the courtroom,but that the judge would have him forcibly brought forth and would order him to testify. If he refused to testify, the judge stated he would hold him in contempt, which would cause Delaloza to lose good timecredits against his sentence. (RT 12:1425-1427.) Ultimately, the judge examined Delaloza from somewhereinside the courtroom, without Delaloza’s attorney being present, and Delaloza refused to take the witness stand (RT 12:1428-1430), which the judge told Delaloza was a “right you don’t have.” (RT 12:1429.) Nonetheless, the judge hasto rise to the level demanded by the Constitution no matter how any party or witness acts. Evenif it is “contemptuous conduct by a party or attorney that ... provoke[s] a trial judge”, if the upshotis that “he cannot ‘hold the balance nice, clear, and true betweenthe state and the accused’ [citation]”, then he may not preside. (Taylor v. Hayes (1974) 418 US. 488, 501 [94 S.Ct. 2697, 41 L.Ed.2d 897] [reversing where judge became “embroiled in a running controversy with petitioner”].) Although the record reveals that the judge’s misconduct mayhave arisen because he wasfrustrated 38 A criminal defendant mayassert the right against self-incrimination until such time as there can be no further adverse consequencesfrom testifying, which is, at a minimum,after he is sentenced andeither the time for appeal from the conviction hasrunorhis timely appeal is resolved. (People v. Fonseca (1995) 36 Cal.App.4th 631, 633; In re Courtney S. (1982) 130 Cal.App.3d 567, 573; see also People v. Lopez (1999) 71 Cal.App.4th 1550, 1554; In re Robert E. (2000) 77 Cal.App.4th 557, 560.) 280 with Delaloza’s conduct, the record showsthat appellant and trial defense counsel wererespectful to the judgeat all times. (RT 12:1425-1444.) The above actions bythe trial court require reversal of appellant’s convictions for a denial ofthe rights to a fair jury trial and due process. (Cal. Const., art. I, §§ 7, 15 & 17; U.S. Const., 5", 6", 8" & 14 Amends.) The standard of prejudice for the deprivation of a federal constitutional right, as here, is the Chapman harmlesserror analysis, which requires reversal of appellant’s convictions unless the error was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24; see People v. Sturm, supra, 37 Cal.4th at pp. 1244 [assessing judicial misconduct].) Under this test, the appropriate inquiry is “not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” (Sullivan v. Louisiana, supra, 508 U.S. at p. 279; People v. Sakarias (2000) 22 Cal.4th 596, 625 [“We may affirm the jury’s verdicts despite the errorif, but only if, it appears beyond a reasonable doubt that the error did not contribute to the particular verdict at issue.”’].) Unquestionably,“the[trial] judge has a duty to be impartial, courteous and patient .. . and its violation maybeso seriousas to constitute reversible error.” (5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) § 2891, p. 3530; see 281 People v. Burnett (1993) 12 Cal.App.4th 469, 475.) “A judge’s comments are evaluated ‘on a case-by-case basis, noting whether the peculiar content and circumstancesof the court’s remarks deprived the accused ofhis right to trial by jury.’ [Citation.] ‘The propriety and prejudicial effect of a particular comment are judged both by its content and by the circumstances in which it was made.’” (People v. Sanders (1995) 11 Cal.4th 475, 531-532 [citations omitted].) As explained above,instead of merely having the prosecutor present the audiotape of Delaloza’s interrogation, the judge engagedin prejudicial misconduct by repeatedly making inappropriate commentsto the jury on events that occurred in court but outside their presence, conducting a hearing on the admissibility of evidence in the presence of the jury, improperly commenting on the evidence, and creating the impression that he wasallying himself with the prosecution. (Cf. People v. Sturm, supra, 37 Cal.4th at pp. 1243-1244 [reversing death judgment based on the cumulative effect trial court’s improper comments].) The judge’s comments vouched for Delaloza’s statements to the police, which statements formed a material part of the prosecution’s evidence on the double homicide, which then provided the purported motive for appellant to conspire to kill Castillo. (Ante, Statement of Facts, §§ A.3. & A.4.) In his taped interrogation, Delaloza identified himself as the driver of the Cadillac, and he placed appellant at the scene ofthe killings at the precise time that the gunshots 282 were being fired. (RT 12:1443-1444; CT 12:3280-3281 [People’s Exh. 37 [audiotape]; CT Supp. IV:109-142 [People’s Exh. 38 [transcript].) He identified appellant as wearing a large “black ... parka type jacket.” (CT Supp. IV:133.) Moreover, Delaloza shifted the blame to appellant, stating he was unaware whetherappellant had a gun, he was unaware there would be a shooting, and whenappellant came running backto the Cadillac (at the time of the shooting) Delaloza was upset with appellant about the shooting. (CT Supp. IV:109-126.) Moreover, Delaloza provided a motive to harm Luke(one of the purported targets of the double homicide): Luke used to hangout with appellant and Delaloza, but then stopped doing so after he (Luke) stole something from one of Delaloza’s “buddies” while that person wasin jail, and thus Luke wasafraid that Delaloza was “gonna go beat em up or something... .” (CT Supp. IV:127.) In People v. Mahoney (1927) 201 Cal. 618, in the context of a prosecution for involuntary manslaughter based upon a charge that defendantbuilt a grandstand negligently or unlawfully, which collapsed and killed a person, the trial judge made numerous remarks, disparaged a defense expert witnessin the jury’s presence, and questioned defense witnesses in a manner that demonstrated a clear bias for the prosecution. (/d. at pp. 621-623.) For example,thetrial judge remarked, “‘Now, that question .. . you knowis not a proper question. I am willing to allow lot for ignorance, but some questions pass the bounds,and that 283 999is one of them.’” (/d. at p. 624.) The judge also commentedthat counsel’s objection was “idiotic” and had not “a scintilla of sense.” (Ud. at p. 625.) Finding reversible error in the unfairness of the judge, this Court held: When,asin this case, the trial court persists in making discourteous and disparaging remarks to a defendant’s counsel and witnesses and utters frequent comment from which the jury may plainly perceive that the testimony of the witnessesis not believed by the judge, and in other waysdiscredits the cause of the defense, it has transcended so far beyondthe pale of judicial fairness as to render a newtrial necessary. .... The fact that a record shows a defendantto be guilty of a crime does not necessarily determine that there has been no miscarriage of justice. In this case the defendant did not havethe fair trial guaranteed to him by law and the constitution. [/d. at p. 627.] Asthe appellate court in People v. Zammora (1944) 66 Cal.App.2d 166, recognized,“jurors watch courts closely, and place great reliance on whata trial judge says and does. They are quick to perceive a leaning of the court. Every remark droppedby the judge, every act done by him during the progress of the trial is the subject ofcomment and conclusion by the jurors, and invariably they will arrive at a conclusion based thereon as to what the court thinks about the case.” (Id. at p. 210 [emphasis added].) The repeated instances of judicial misconduct in the presence of the jury conveyedto the jury a distinct partiality in favor of the prosecution and in the truth of Delaloza’s statements to the police. That partiality may have influenced the jury to return a verdict in favor of the prosecution whena fair trial might have 284 yielded either a defense verdict or a hung jury. In view of the cumulative effect of the judicial misconduct, the prosecution will be unable to prove beyond a reasonable doubtthat the guilty verdicts actually renderedin this trial were surely unattributable to the error. (Cf. Sullivan v. Louisiana, supra, 508 U.S. at p. 279; People v. Sturm, supra, 37 Cal.4th at pp. 1243-1244; see generally, Taylorv. Kentucky, supra, 436 U.S. at p. 487, and fn. 15.) Appellant’s convictions must therefore be reversed. //] 285 XIII. THE TRIAL COURT’S INSTRUCTIONS TO THE GUILT-PHASE JURY IN THE LANGUAGEOF CALJIC NO. 17.41.1 —- THE DISAPPROVED “JUROR SNITCH” INSTRUCTION — REQUIRES REVERSAL OF APPELLANT’S CONVICTIONS FOR A DENIAL OF THE FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESSAND A FAIR AND RELIABLE JURY TRIAL (U.S. CONST., 57%, 6™, 8" & 147" AMENDS.) Thetrial court instructed the jury in the language of CALJIC No. 17.41.1,°° the disapproved juror snitch instruction requiring jurors to report each other for perceived misconduct during deliberations. (RT 24:3733; CT 12:3347.) Thetrial court admonished the jurors as follows: The integrity of a trial requires that jurors at all times during deliberations conduct themselves as required by these instructions; accordingly, should it occur that a juror refuses to deliberate or expresses an intention to disregard the law or decide the case based on penalty or punishmentin this phase of the case or any other improperbasis, it’s the obligation of the other jurors to immediately advise the court of that situation. [RT 23:3733.] This Court reviewed CALJIC No. 17.41.1 and found that it did not violate a defendant’s Sixth Amendmentrightto a jury trial because the constitutional right does not require “absolute and impenetrable secrecy for jury deliberations in the face of an allegation of juror misconduct,” or “constitute[] an absolute bar to %° At the time of appellant’s trial, CALJIC NO. 17.41.1 provided: “Theintegrity of a trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occurthat any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on [penalty or punishment, or] any [other] improperbasis, it is the obligation of the other jurors to immediately advise the Court of the situation.” 286 jury instructions that might induce jurors to reveal some elementoftheir deliberations.” (People v. Engelman (2002) 28 Cal.4th 436, 443.) Nonetheless, this Court exercised its supervisory powerand directed that CALJIC No. 17.41.1 not be given in future trials due to the potential to lead membersofthe jury to “shed the secrecy of deliberations” and to “draw the court unnecessarily into delicate and potentially coercive exploration of the subject matter of deliberations.” (/d. at p. 447.) Thetrial court’s instruction to the jury during voir dire deprived appellant of his rights to a jury trial and due process by chilling jury deliberations because the instruction invadesthe secrecy of jury deliberations and chills free and open debate, especially by jurors who hold a minority view. Private and secret deliberations are essential features of the jury trial guaranteed by the Sixth Amendment. (United States v. Brown (D.C. Cir. 1987) 823 F.2d 591, 596.) The instruction here pointedly told each jurorthat s/he is not guaranteed privacy or secrecy. At any time, the deliberations might be interrupted and a fellow juror mayrepeat his/her wordsto the judge and allege some impropriety, real or imagined, which the fellow juror believed occurred in the jury room. The jurors are not only threatened with exposure, they are also left to wonder what consequenceswill follow exposure. This uncertainty will likely cause jurors to forego independence of mind, conceal concerns they may have about the state’s 287 evidence, and hurry toward consensus. In short, the instruction assures the jurors that their words mightbe used against them, and that candorin the jury room might be punished. The instruction, therefore, chills speech and free discourse in a forum where “free and uninhibited discourse” is most needed. (Attridge v. Cencorp. (2™Cir. 1987) 836 F.2d 113, 116.) The instruction virtually assures “the destruction ofall frankness and freedom of discussion”in the jury room. (McDonald v. Pless (1915) 238 U.S. 264, 268.) United States v. Thomas (2™ Cir. 1997) 116 F.3d 606is an exegesis on the importanceofjury secrecy and freedom of speech in the jury room. There, a juror, unsolicited by any instruction, told the judge that another juror had expressed an intention to disregard the law read to them. The judge interviewed the jurors singly in chambers, and then discharged the accused juror. The defendants were convicted. On appeal, they complained aboutthe discharge of the juror, and the court reversed the convictions. Although the court agreed that a juror who intendsto disregard or “nullify” applicable law is subject to dismissal, it decided that the possibility of jury nullification is a “lesser evil” than “broad-ranging judicial inquisitions into the thought processes ofjurors.” (/d. at p. 623.) The Thomascourt stated the generalrule that: No one- including the judge presidingat trial - has a “right to know”how a jury,or any individual juror has deliberated or how a decision was reachedbya jury or juror. The secrecy of 288 deliberations is the cornerstone of the modern Anglo-American jury system. [/d. at p. 618.] Moreover,“Juror privacy is a prerequisite of free debate, without which the decision-making process would be crippled.” (United States v. Symington (9" Cir. 1999) 195 F.3d 1080, 1086 (citation omitted).) Free jury discourse is so important that, as a matter of policy, post-verdict inquiry into the deliberative processis highly disfavored. (Cf., e.g., United States v. Marques (9"Cir. 1979) 600 F.2d 742, 747.) The Supreme Courtof the United States has recognized that the jury retains the powerto render a not-guilty verdict even where acquittal is inconsistent with the law given by the court. (Cf. Dunn v. United States (1932) 284 U.S. 390, 393-394.) The court also noted that when a jury renders a verdict at odds with what the court would haverendered,it is usually because the jurors are serving the very purpose for which they were called to serve. (Duncanv. Louisiana (1968) 391 U.S. 145, 157 [88 S.Ct. 1444, 20 L.Ed.2d 491].) Indeed, “the jury’s fundamental function is not only to guard againstofficial departures from the rules of law, but on proper occasions themselves to depart from unjust rules or their application.” (Kadish & Kadish, Discretion to Disobey: A Study of Lawful Departures from Legal Rules, p. 53 (1973).) Accordingly, the chilling effect that the instruction necessarily had on jury deliberations — stifling free expression during the deliberative process — deprived 289 appellant of his federal constitutional rights to due process and a fair andreliable jury trial (U.S. Const., 5", 6", 8" & 14" Amends.), thereby warranting reversal of his convictions. /// 290 XIV. THE CUMULATIVEEFFECT OF THE GUILT PHASE ERRORS REQUIRES REVERSAL OF APPELLANT?’S CONVICTIONS FOR A DENIAL OF THE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR AND RELIABLE JURY TRIAL (CAL. CONST., ART.I, §§ 7, 15, 16 & 17; U.S. CONST., 5™, 67%, 87" & 14™" AMENDS.) Appellant’s convictions should be reversed due to the cumulative prejudice caused by numerouserrors, separately identified in ArgumentsII through XIII, inclusive, ante, which operated together, and in any combination of two or more, to deny appellant the due process right to a fundamentally fair and reliable trial. “The Supreme Courthasclearly established that the combined effect of multiple trial court errors violates due process whereit renders the resulting criminaltrial fundamentally unfair.” (Parle v. Runnels (9" Cir. 2007) 505 F.3d 922, 927, citing Chambers v. Mississippi (1973) 410 U.S. 284, 298, 302-303 [93 S.Ct. 1038, 35 L.Ed.2d 297] [combined effect of individual errors “denied [Chambers] a trial in accord with traditional and fundamental standards of due process” and “deprived Chambersofa fair trial”]; see Montana v. Egelhoff (1996) 518 U.S. 37, 53 [116 S.Ct. 2013, 135 L.Ed.2d 361] [Chambers held that “erroneous evidentiary rulings can, in combination,rise to the level of a due process violation”]; Taylor v. Kentucky (1978) 436 U.S. 478, 487, fn.15 [“{T}he cumulative effect of the potentially damaging circumstances of this case violated the due process guarantee of fundamental fairness... .”].) 291 “TA] series of trial errors, though independently harmless, may in some circumstancesrise by accretion to the level of reversible and prejudicial error. [Citations.].” (People v. Hill (1998) 17 Cal.4th 800, 844.) Thus, even in a case with strong governmentevidence, reversal is appropriate when “the sheer number of... legal errors raises the strong possibility the aggregate prejudicial effect of such errors wasgreater than the sum of the prejudice of each error standing alone.” (/d. at p. 845; see also Gerlaugh v. Stewart (9" Cir. 1997) 129 F.3d 1027, 1043; United States v. Wallace (9" Cir. 1988) 848 F.2d 1464, 1475-1476.) In a close case which turns on the credibility of witnesses, as here, anything which tendsto discredit the defense witnesses in the eyes of the jury or to bolster the story told by the prosecution witness, “requires close scrutiny when determining the prejudicial nature of any error.” (People v. Briggs (1962) 58 Cal.2d 385, 404; see also United States v. Carroll (6" Cir. 1994) 26 F.3d 1380, 1384 [curative instruction not sufficient where conflicting testimony wasvirtually the only evidence]; United States v. Simtob (9" Cir. 1990) 901 F.2d 799, 806 [improper vouchingfor a key witness’ credibility by the prosecutor in a close case]; People v. Taylor, supra, 180 Cal.App.3d at p. 626 [error requires reversal in “close case where credibility was the key issue”’].) In a close case... any error of a substantial nature may require a reversal and any doubtas to its prejudicial character should be resolved in favor of the appellant. [People v. Von Villas (1992) 11 Cal.App.4th 175, 249.] 292 When caseis close, a small degree oferror in the lower court should, on appeal, be considered enoughto have influenced the jury to wrongfully convict the appellant. (People v. Wagner (1975) 13 Cal.3d 612, 621; People v. Collins (1968) 68 Cal.2d 319, 332.) “Where a trial court commits an evidentiary error, the error is not necessarily rendered harmless by the fact there was other, cumulative evidence properly admitted.” (Parle v. Runnels, supra, 505 F.3d at p. 928; see (1973), Krulewitch v. United States (1949) 336 U.S. 440, 444-445 [69 S.Ct. 716, 93 L.Ed. 790] [holding that, in a close case, erroneously admitted evidence — even if cumulative of other evidence — can “tip[ ] the scales” against the defendant]; Hawkins v. United States (1954) 358 U.S. 74, 80 [concluding that erroneously admitted evidence, “though in part cumulative,” may have “tip[ped] the scales against petitioner on theclose andvital issue of his [state of mind]”].) Here,there is a substantial record of serious errors that cumulatively violated appellant’s due processrights under Chambers v. Mississippi, supra, 410 U.S. 284. Against the backdrop of woefully insufficient evidence to sustain appellants convictions in counts 4, 5, 6 and 7, and thetrue findings on the witness-killing and multiple-murder special circumstances (Arguments II through VI, inclusive, ante), the jury heard the inadmissible testimony Detective Levsen that appellant was acting underthe jurisdiction of the Mexican Mafia, that he 293 showed allegiance to the Mexican Mafia, and that he paid taxes to the Mexican Mafia. (Ante, § VIL.) What ensued wasa trial of hearsay and innuendo, built upon a foundation of prejudicial, inadmissible evidence, including the erroneous admission out-of- court statements and prior testimony of nontestifying witness Carlos Arias (ante, § IX.) and the erroneous admission of testimonial out-of-court statements of nontestifying witness Alejandro Delaloza (ante, § X.). The erroneous admission of testimonial out-of-court statements of nontestifying witness Delaloza was compoundedbythetrial judge’s prejudicial failure to instruct the jury to view Delaloza’s testimony with care and caution. (Ante, § XI.) These errors were further compoundedbythetrial judge’s remarks in the presenceof the jury that he believed that Delaloza was the getaway driver in connection with the Molina and Murillo homicides (counts 4 & 5), thereby suggesting that appellant was the shooter, and thus depriving appellant of the due process right to fundamentally fair trial. (Ante, § XII.) In view of the substantial record of the cumulative errors described above, the prosecution cannot prove beyond a reasonable doubtthat there is no “reasonable possibility that [the combination and cumulative impact of the guilt phaseerrors in this case] might have contributed to [appellant’s] conviction.” 294 (Chapmanv. California, supra, 386 U.S. at p. 24.) Appellant’s convictions should be reversed. /// 295 PENALTY PHASE AND SENTENCING XV. APPELLANT’S EXCLUSION FROM TRIAL DURING THE PENALTY PHASE CLOSING ARGUMENTS PURPORTEDLY RELATING TO CODEFENDANT CASTRO, WHICH INCLUDED ARGUMENTBY THE PROSECUTOR AND COUNSEL FOR CODEFENDANT CASTRO IMPLICATING APPELLANT, AND APPELLANT’S EXCLUSION DURING THETRIAL COURT’S INSTRUCTIONS TO THE JURY PURPORTEDLY RELATING TO CODEFENDANT CASTRO, ALL OF WHICH OCCURRED DURING PENALTY PHASE DELIBERATIONS -— A CRITICAL STAGE OF THE CRIMINAL PROCEEDINGS- VIOLATED STATE STATUTORY RULES AND THE STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE PROCESS, JURY TRIAL, AND A RELIABLE PENALTY DETERMINATION(CAL. CONST., ART.I, §§ 7, 15 & 17; U.S. CONST., 5™67, 87! & 1477 AMENDS.), THEREBY REQUIRING REVERSAL OF THE DEATH JUDGMENT A. INTRODUCTION AND PROCEDURAL BACKGROUND Appellant and codefendant Castro received a joint penalty trial through close of evidence. (CT 12:3487-3492.) After the close of evidence on Thursday, December21, 2000, in the presence of counsel and both defendants, the court declared a recess until the following Tuesday, December 26", for closing arguments of counsel and jury instructions. (RT 29:4425-4426.) Whenthe joint trial resumed on Tuesday morning, counsel and appellant were present, but due to an administrative problem codefendant Castro was not present. (RT 30:4429.) Instead of delaying the proceedings, the court told the jury that they would proceed as to appellant only, and that when codefendant Castro arrived they would “proceed with his portion ofthe trial.” (RT 30:4430.) 296 In the presence of appellant and counsel forall parties, the prosecutor and appellant’s defense counsel gave closing arguments, and the court instructed the jury. (RT 30:4431-4469.) The jury began deliberating penalty as to appellantat 10:53 a.m. on Tuesday, December 26". (RT 30:4469.) Shortly after the jury began deliberating, and outside the presence of the jury, the court stated, in part: Oh,for the record, what I propose to do since Mr. Castro has nowreturned, or has been brought to court and is now present, and is ready to go, is to have him comein at 1:30, and then have the argument as to him, and Mr. Penunuri will not be present unless, of course, there’s a question or a verdict as to Mr. Penunuri. Mr. Bernstein [i.e., appellant’s trial defense counsel], you are certainly welcometo stay at the counsel table as Mr. Corona [i.e., codefendant Castro’s trial defense counsel] was present during your argument. But I don’t propose to have yourclient present during the Castro argument. [RT 30:4470.] Appellant’s trial defense counsel responded, “Thank you, your honor.” (RT 30:4470.) The court never informed appellant of his right to personal presence, nor did appellant makean oral or written waiverofhis right to personal presence. (RT 30:4470-4472.) In the afternoon, outside of appellant’s presence but in the presence of his counsel, the court interrupted the jury’s deliberations, stating: Weare interrupting your deliberations to hear the arguments of counsel as to Mr. Castro. Mr. Castro was not presentthis morning because of some administrative difficulties, but he’s now before the court with his counsel. 297 And Mr. Camacho, you may addressthe jury on your position as to penalty with Mr. Castro only. Except as is necessary in your argument, with no further references made to Mr. Penunuri. [RT 30:4472.] In appellant’s absence, but in the presenceofall other parties and counsel, the prosecutor and codefendant Castro’s defense counsel gave closing arguments, and the court instructed the jury. (RT 30:4472-4510; CT 12:3505.) At 3:05 p.m., the jury retired for further deliberations as to appellant, and to start deliberations as to codefendant Castro. (RT 30:4510.) The following day, December 27",at 12:10 p.m., the jury returned simultaneousverdicts of death for appellant andlife for Castro. (RT 30:4511-4514: CT 13:3541, 3543-3544.) As explained below,the prosecution will be unable to prove that the error in excluding appellant from these proceedings was harmless beyond a reasonable doubt because the prosecutor and Castro’s defense counsel repeatedly made inculpatory statements about appellant, and appellant’s absence reasonably showeda lack of interest in the proceedingsat a critical stage, suggesting that as between the two defendants appellant should receive the harsher sentence. B. STANDARD OF REVIEW The “independentor de novo standard of review [applies] to a trial court’s exclusion of a criminal defendant from . . . trial proceedings ... .” (Peoplev. Virgil (2011) 51 Cal.4th 1210, 1235.) 298 C. APPELLANT WAS DENIED THE STATE AND FEDERAL CONSTITUTIONAL RIGHTS, AND THE STATE STATUTORY RIGHT, TO BE PRESENTAT ALL CRITICAL STAGES OF THE CRIMINAL PROCEEDINGS A defendant has a fundamentalright to be present at every stage of the trial. (/linois v. Allen (1970) 397 U.S. 337, 338 [90 S.Ct. 1057, 25 L.Ed.2d 353].) The right of presence derives from the Confrontation Clause of the Sixth Amendmentand the Due Process Clausesof the Fifth and Fourteenth Amendments. (United States v. Gagnon (1985) (per curiam) 470 U.S. 522, 526 [105 S.Ct. 1482, 84 L.Ed.2d 486].) The Sixth Amendmentto the United States Constitution guarantees to every criminal defendantthe right to be confronted with the witnesses against him. From this, the Supreme Court has inferred a right of physical presence in the courtroom. (Lewis v. United States (1892) 146 U.S. 370.) The constitutional right extendsto all phases of a criminaltrial proper (Pointer v. Texas (1965) 380 U.S. 400), particularly when evidence is adduced. (United States v. Gagnon, supra, 470 U.S. 522.) Indeed, “[o]ne of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom at every stageofhistrial.” (/Ilinois v. Allen, supra, 397 U.S. at p. 338; accord United States v. Gagnon, supra, 470 U.S. at p. 526; see also Lewis v. United States, supra, 146 U.S. at p. 372 [“A leading principle that pervades the entire 299 law of criminal procedureis that, after indictment, nothing shall be done in the absence of the prisoner’’].) Moreover,“[t]he presence of a defendantis a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” (United States v. Gagnon, supra, 470 U.S. at p. 526 (internal quotation omitted); see United States v. McCoy (7" Cir. 1993) 8 F.3d 495, 497.) | The fundamentalright of every defendantto be presentatthetrial proceedingsalso is guaranteed by our California Constitution. (People v. (Sergio) Ochoa (2001) 26 Cal.4th 398, 433-434; Cal. Const. art. I, §§ 7, 15 & 17.) A statutory right to be present is created in Penal Codesection 997, subdivision (b)(1), which provides that “the accused shall be present... during those portions of the trial when evidenceis taken before the trier of fact. . . [and] at all other proceedings unless heor she shall, with leave of court, execute in open court, a written waiver ofhis or her right to be personally present... .” Furthermore, section 1043, subdivision (a), recites in part that “[e]xcept as otherwise providedin this section, the defendant in a felony case shall be personally presentat thetrial.” Further, in view of the heightened verdict reliability requirement in the penalty phase of a capitaltrial, appellant’s exclusion from the trial proceedings 300 identified above deprived him ofthe constitutional rights to a reliable penalty determination. (See Beck v. Alabama, supra, 447 U.S. at pp. 627-646; see also Kyles v. Whitley, supra, 514 U.S. at p. 422; Burger v. Kemp, supra, 483 U.S. atp. - 785; Gilmore v. Taylor, supra, 508 U.S. at p. 342; Cal. Const., art. I, §§ 7,15 & 17; U.S. Const., 5", 6", 8" & 14" Amends.) The oral proceedings identified above occurred during trial — a critical stage of the criminal proceedings. (Herring v. New York (1975) 422 U.S. 853, 857-858 [95 S.Ct. 2550, 45 L.Ed.2d 593] [closing argumentis a critical stage of the proceedings]; People v. Wright (1990) 52 Cal.3d 367, 402; People v. Dagnino (1978) 80 Cal.App.3d 981, 985-988 [jury instruction is a critical stage of the proceedings].) The proceedings took place in appellant’s absence and, as discussed below, with no valid waiver of appellant’s right to personal presence, and thus violated his constitutional and statutory rights to be personally presentat all critical stages of the proceedings. (Cal. Const., art. I, §§ 7, 15 & 17; U.S. Const., 5 6, 8 & 14” Amends.; Pen. Code, §§ 977, subd. (b), 1043, 1138.) D. APPELLANT DID NOT WAIVE THE RIGHT TO PERSONAL PRESENCE AT TRIAL Although defense counsel did not object when the court stated that appellant would not be “present during the Castro argument” (RT 30:4470), the trial court never informed appellant of his right to personal presence. (RT 301 30:4470-4472.) Thetrial court never obtained either an oral or written waiver from appellant of the right to be personally present during counsels’ arguments to the jury and duringthe trial court’s instructions to the jury. (RT 30:4470-4472.) In addition to the requirement of a written waiver (People v. Johnson (1993) 6 Cal.4th 1, 18; Pen. Code, § 977, subd. (b)(1)), the constitution requires that the waiver of a capital defendant’s right to be present during trial must be knowing andintelligent. (People v. Robertson (1989) 48 Cal.3d 18, 60-61.) A trial court’s failure to even inform a defendant of his right to personal presence, as here, necessarily precludes a finding on appeal that the defendant knowingly and intelligently waived that right. (Cf. Moran v. Burbine (1986) 475 U.S. 412, 421 [106 S.Ct. 1135, 89 L.Ed.2d 410] [a waiver is knowing andintelligentif it is “made with a full awarenessof both the nature of the right being abandoned and the consequencesof the decision to abandonit.”’].) Nor can waiver be inferred from appellant’s silence. The high court has never discerned an implied waiver or forfeiture of a fundamental constitutional right from mere silence. Our courts “indulge in every reasonable presumption against waiver” (Aetna Ins. Co. v. Kennedy (1937) 301 U.S. 389, 393 [57 S.Ct. 809, 81 L.Ed. 1177]) and thus have refused to infer waiver of fundamental constitutional rights from inaction. (Barker v. Wingo (1972) 407 U.S. 514, 525-526 [presuming waiverof a fundamental constitutional right from inactionis 302 impermissible]; Camley v. Cochran (1962) 369 U.S. 506, 516 [82 S.Ct. 884, 8 L.Ed.2d 70 ["Presuming waiver [of Sixth Amendmentrights] from a silent record is impermissible."].) Accordingly, appellant did not waive the right to personal presence during the trial proceedings, including the right to be personally present during counsels’ arguments to the jury and duringthetrial court’s instructionsto the jury. E. REVERSAL OF THE DEATH JUDGMENTIS REQUIRED BECAUSE THE PROSECUTION WILL BE UNABLE TO PROVE THAT THE ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT The violation of appellant’s right to be presentatall critical stages of the criminal proceedings, including proceedingsrelating to penalty, amounting to federal constitutional error, requires reversal of the death judgment unlessit can be demonstrated that the error is harmless beyond a reasonable doubt. (People v. Robertson, supra, 48 Cal.3d at p. 62; see Chapmanv. California, supra, 386 U.S. at pp. 20-21.) State law error at the penalty phase of a capital case requires reversal whenthere is a “reasonable(i.e., realistic) possibility” the error affected the verdict (People v. Brown (1988) 46 Cal.3d 432, 447-448), whichis “‘the same, in substance andeffect,’ as the harmless-beyond-a-reasonable-doubt standard of Chapmanv. California, supra, 386 U.S. at p.24....” (People v. Cowan (2010) 50 Cal.4th 401, 491.) 303 The prosecution will be unable to prove that the exclusion of appellant from the trial proceedings identified above in the afternoon of December 26, 2000 was harmless beyond a reasonable doubt. The proceedings occurred during the midst of penalty phase deliberations, a critical stage of the criminal proceedings. (People v. Rubalcava (1988) 200 Cal.App.3d 295, 299 [jury deliberationis a critical stage of criminal proceedings].) Moreover,although the focus of the closing argument waspurportedly on the penalty as to Castro only (RT 30:4472), the prosecution’s theory was that Castro killed Castillo at the behest of appellant in order to silence Castillo, a purported witness to the double homicide of Murillo and Molina. (Ante, Statement of Facts, § A.4.) Accordingly, the prosecutor’s closing argumentas to Castro necessarily implicated appellant. The prosecutor began his argumentbytelling the jury that a witness killing (of which both appellant and Castro stood convicted) is among the most “horrific styles of murders that you see... .” (RT 30:4473.) The prosecutor then told the jury that Castillo was killed because of the “double homicide” (RT 30:4473) — i.e., the killings of Molina and Murillo for which only appellant, and not Castro, was convicted. The prosecutor argued to the jury that the death penalty was the most severe punishmentbecausethereis still enjoymentin living life in prison — i.e., 304 watching television, etc., which is “something that Michael [Murillo], Bryan [Molina], and even Jaime [Castillo] will never get to enjoy... .” (RT 30:4474.) This argument was more aggravating as to appellant than Castro because only appellant was found guilty of all three murders; Castro was never even charged with the murders of Murillo and Molina. Further, immediately upon makingthis argument, the prosecutor explicitly called for a verdict of death as to appellant. The prosecutor argued,in part: That’s whythe death penalty is really the most severe punishmentof the two choices. That’s why these defendants deserve that because they shouldn’t be treated, like I mentioned before, on the same level as an Arthur Bermudez or an Alejandro Delaloza whoarein life in prison for the rest of their life. But those individuals werenotthe trigger man in these respective cases. We have the defendants whoarein fact the trigger men. The defendants who have a past cominginto this case that also shows why they’re the type ofperson that deserves the death penalty as opposed to life imprisonment without parole. [RT 30:4474-4475 (emphasis added).] The prosecutor then mentioned appellant by name several times, arguing as follows: 1) “Castro... became the person calling the shots after Richard Penunuri was locked up”; 2) the killing of Castillo was “for the benefit of Richard Penunuri in order to protect Richard Penunuri of double murder [of Murillo and Molina”; 3) the killing was “to benefit Dozer”; and, 4) the killing was“to protect another gang member, Richard Penunuri....” (RT 30:4475- 4477.) The prosecutor remindedthe jurors that appellant alone had been “found 305 criminally liable” for the double murder of Murillo and Molina, labeling the murdersas “horrific crimes.” (RT 30:4476.) The prosecutor also argued that death verdicts for both appellant and Castro were warranted despite the fact that the defense showedbabypictures of the two. The prosecutor argued,in part: So the bottom line, ladies and gentlemen,is that I’m sure [Castro’s defense counsel] Mr. Coronais going to get up here and go through in detail, if you will, whatever factors in mitigation he feels that have been produced and provenforhis client. But again, I’m going to even challenge him to point out one, or even combine them all, and explain to you why they outweigh the factors in aggravation in this case as to why Jaime Castillo was killed. And I just don’t think anybodyonthis earth is able to do that. And let alone Mr. Corona. He may show you the baby pictures ofJoe Castro, as was done with Richard Penunuri, and that’s fine, that’s proper procedure in a penalty argument. But the thing is, ladies and gentlemen, we ’re not asking you to put to death a child or toddler or a baby, that type of thing. Because these men, they’re no longer those children. Those children in those photos, like I mentioned before, just shadowsofthe past. They no longer exist. Those individuals no longer exist. Those individuals grew up. Andlike any of us, when we becomean adult you haveto face the consequences of your own decisions and your own actions. And no matter what attempts they have madein this case to minimize their conduct, or perhaps explain it away or justify it, it just cannot be done, no matter whatfactors in mitigation they have produced. They just don’t outweigh what we have in aggravation. That’s, yeah,that ultimate punishment needs to be imposed even ona person named Joe Castro. And understanding Joe Castro is just convicted of one murder, that’s fine. A lot ofdifference from Richard Penunuri convicted of two. Or three, as a matter offact. But the fact is the 306 reason Joe Castro killed Jaime Castillo cannot be forgotten. I mean,it was to protect an individual from being found guilty ofa double murder, and not for some minimal type of case like a drug offense or a theft offense. .... [RT 30:4480-4481 (emphasis added). ] Castro’s trial defense counsel, Amador Corona, also argued in a manner that implicated appellant and encouragedthe jury to further consider the aggravating nature of appellant’s actions, especially when compared to Castro’s conduct. Corona argued that Castillo was not only a potential witnesses to the double homicide, but he was an accomplice to the homicides perpetrated by appellant. (RT 30:4484-4485.) Corona argued,in part, that “not only was Jaime Castillo a witness, but he was also an accomplice to the double murders that Mr. Penunuri and Hondo [Delaloza] have been ontrial for.” (RT 30:4485.) Corona argued that after being arrested for Castillo’s murder, Castro showed compassion and remorse by asking his motherto “light a candle in church for Jaime Castillo” (RT 30:4493) — i.e., something appellant neverdid. Following argumentof counsel, the trial court instructed the jury,initially stating that “these are the jury instructions that apply to Mr. Castro.” (RT 30:4498.) The court then qualified the statement, however,instructing the jury as follows: “And you will as I read these, I’m sure, hear somerepetition. This entire package will be submittedfor your use in your deliberations, which will include instructions applicable as to both defendants. (RT 30:4498 [emphasis added].) 307 The court’s instructions to the jury repeatedly referred to “each defendant” and used the plural “defendants” several times, thereby explicitly referencing appellant. (RT 30:4499-4500, 4509.) For example, the court instructed that the “defendants in this case have been found guilty of murders of the first degree. .. .. Underthe law of this state, you must now determine which of these penalties [death or life] shall be imposed on each defendant.” (RT 30:4499.) The court used the phrase “each defendant” and the plural “defendants” several more times (RT 30:4499-4500), and then continued instructing as to both defendants, stating, “In determining which penalty is to be imposed on each defendant, you should considerall of the evidence which has been received during any partofthe trial of this case, except as you may hereafter be instructed.” (RT 30:4500.) The court continued, “It is now your duty to determine which of two penalties, death or confinement in the state prison forlife without possibility of parole, shall be imposed on each defendant. After having heard all the evidence, and having heard and considered the arguments of counsel, you shall consider, take into account, and be guided bythe applicable factors of aggravating and mitigating circumstances upon which you have been instructed.” (RT 30:4508.) Finally, the court’s concluding instruction made explicit that the court was instructing as to both appellant and Castro. The court stated, “In this case you 308 must decide separately the question of penalty as to each of the defendants. If you cannot agree uponthe penalties to be inflicted upon both defendants, but you do agree on the penalty as to one of them, you must render a verdict on the one to which you do agree. You shall nowretire to deliberate on the penalties.” (RT 30:4509-4510.) Accordingly, in appellant’s absence, and in the midst ofjury deliberations, the court read set of instructions to the jury that were directly applicable to appellant, and which called upon the jury to deliberate and reach a verdict of either death or life as to appellant. (RT 30:4498-4510.) The prosecution will be unable to prove that the error in excluding appellant from these proceedings was harmless beyond a reasonable doubt because both the prosecutor and Castro’s defense counsel repeatedly made inculpatory statements about appellant, the court’s instructions directly related to appellant, and appellant’s absence reasonably showeda lack of interest in the proceedingsat a critical stage, suggesting that as between the two defendants appellant should receive the harsher sentence. Appellant was further prejudiced because his absence from these proceedings denied him the opportunity to participate in critical stages of the trial, which necessarily deprived him of the ability to communicate with his counsel about the substance of the closing arguments of counsel and the court’s 309 instructions to the jury. The proceedings did not involve mundane matters relating to, for example, scheduling, but instead involved argument of counsel advocating a death verdict against appellant and the court’s instructions on the law permitting the jury to return a death verdict. Appellant’s absence during these critical stages of the criminal proceedings also denied him theright to exert a psychological influence upon the jury. In United States v. Canady (2™ Cir. 1997) 126 F.3d 352, for example, in the context of a bench trial where the district court reserved decision on the case and subsequently mailed the verdict to the defendant, the Second Circuit remanded for reading of the verdict in open court in the presence of the defendant. The court held that failure of the district court to announceits verdict in open court violated defendant’s right to be presentat all stages of his criminal proceedings. (Ud. at p. 359.) Significantly, the court also rejected the government’s position that defendant’s presence at the return of the verdict would serve no useful purpose. The court emphasizedthat several courts have pointed to the fact that the defendant’s mere presence exerts a “psychological influence” on the jury and the judge; and that the announcement of the decision to convict or acquit “is neither‘oflittle significance’ nor‘trivial’; it is the focal point of the entire criminaltrial. ... ‘While the benefits of a public trial are frequently intangible, 310 difficult to prove, or a matter of chance, the Framers plainly thought them nonethelessreal’.” (Ud. at p. 364.) Similarly, in Larson v. Tansy (10" Cir. 1990) 911 F.2d 392, 394, the Tenth Circuit held that a defendant’s absence from the delivery of the jury instructions, closing arguments, and the rendition of the verdict, violated his due process rights. The court observed that the defendant’s absence “deprived [him] of his due processright to exert a psychological influence upon the jury, completely aside from any assistance he might have provided to his counsel.” (/d. at p. 396. fn. 5; see also Wade v. United States (D.C. Cir. 1971) 441 F.2d 1046, 1049-1050 [under similar circumstances, finding violation of Fed.R.Crim.P. 43, and recognizing the role played by the defendantin exerting psychological influence overthe jury].) This was a close case on the issue of penalty as evidenced by, among other things, the mitigation evidence which showedthat appellant suffered from chronic methamphetamineuse, which contributed to the conductat issue in this case because chronic methamphetamine can induce violence, paranoia, alienation, hallucinations, and delusions. (Ante, Statement of Facts, § E.1.) Appellant also presented good character evidence (ante, Statement of Facts, § E.2) in support of a life sentence, showing that that appellant’s conduct 311 wasinduced bychronic drug use and that appellant is a good and caring person with redeeming qualities. (Ante, Statement of Facts, § E.2.) Accordingly, the prosecution will be unable to sustain its burden of proving that the error in excluding appellant from these proceedings was harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 U.S. at pp. 20-21; People v. Cowan, supra, 50 Cal.4th at p. 491 [State law error at the penalty phase of a capital case requires reversal whenthere is a “reasonable possibility” the error affected the verdict, which is the same in substance and effect as the federal Chapmanstandard].) Reversal of the death judgmentis required. /// 312 XVI. THE PENALTY INSTRUCTIONS AND THE TRIAL PROCESS — WHEREBY CLOSING ARGUMENTS OF COUNSEL AND JURY INSTRUCTIONS PURPORTEDLY RELATING TO CASTRO WERE GIVEN IN APPELLANT’S ABSENCEANDIN THE MIDST OF PENALTY PHASE DELIBERATIONS — DENIED APPELLANT THE CONSTITUTIONAL RIGHT TO AN INDIVIDUALIZED SENTENCING DETERMINATION(U.S. CONST., 5", 6", 87? & 147" AMENDS.), THEREBY REQUIRING REVERSAL OF THE DEATH JUDGMENT A. INTRODUCTION AND SUMMARY OF ARGUMENT Thetrial court’s instructions andthe trial process, whereby the jury was interrupted in the midst of deliberations on appellant’s sentence to hear further argument urging them to return a verdict of death against appellant and either death or life as to codefendant Castro, deprived appellant of the constitutional right to an individualized sentencing determination guaranteed bythe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution. Thetrial court deprived appellant of an individualized sentencing determination whenit instructed the jury,in part, “So what you decide against one person should not be carried over into the decision of the other person, unless you feelit is appropriate.” (RT 29:4426 [emphasis added]; Peoplev. Lewis (2008) 43 Cal.4th 415, 461.) The instruction impermissibly invited the jurors to comparethe relative culpability of appellant and codefendant Castro 313 whenjointly deciding penalty as to each defendant. (Cf. Lockett v. Ohio (1978) 438 U.S. 586, 605-606 [98 S.Ct. 2954, 57 L.Ed.2d 973] (plur. opn. by Burger, C.J.).) Although the court subsequently instructed the jury to separately decide the penalty as to each defendant (RT 30:4429-4430, 4469, 4509-4510), the subsequentinstructions did not cure the error because the jury was nevertold that the initial instruction was erroneous. Further, the process employed bythetrial court — wherebyclosing arguments of counsel and jury instructions purportedly relating to Castro were given in appellant’s absence andin the midst of penalty phase deliberations (RT 30:4472-4510; CT 12:3505) — prevented the jury from making an individualized sentencing determination. In the midst of deliberations on appellant’s sentence, the jury was summonedinto the courtroom and heard argument1) from the prosecutor urging them to return a verdict of death against appellant and 2) from Castro’s defense counsel implicating appellant and encouraging them consider the aggravating nature of appellant’s actions, especially when comparedto Castro’s conduct. (RT 30:4484-4485, 4493.) Appellant was severely prejudiced by the comparison to codefendant Castro becausetheir relative culpability weighed heavily against appellant. Appellant stood convicted of three death-eligible homicides, whereas 314 codefendant Castro stood convicted of a single homicide, which, according to the prosecution’s theory, was committed at the behest of appellant. B. FACTUAL AND PROCEDURAL BACKGROUND After the close the appellant’s case in mitigation on December21, 2000, but prior to closing arguments,the trial court instructed the jury: Again, you’re reminded as you think aboutit at this time, and I’m urging you again not to decide the case, but you must bear in mind that in order for a decision to be reachedin this case,all 12 jurors must agree. And you mustalso realize that there are two separate people here, and that each of them is entitled to a trial as if he were the only person. So what you decide against one person should not be carried over into the decision of the other person, unless you feel it is appropriate. So — but you must give each one an individualtrial. But that’s — I’ll instruct you more fully on that. The instructions that I’ll give you on Tuesdayare very brief comparedto the almost hundred pagesthat we had before. Be like six or seven pages of instructions. Because these simply deal with this one issue of what the appropriate punishment should be. [RT 29:4425-4426 (emphasis added).] The court declared a recess until the following Tuesday, December 26, 2000. (RT 29:4425.) Whentrial resumed the following Tuesday, codefendant Castro did not appear in court, apparently due to an administrative problem. (RT 30:4429.) The court told the jury that they would proceed as to appellant, and that “each of the defendantsis to be tried as though he were the only defendant. And that your verdict should be rendered against one defendant without regard to what verdicts you rendered as to other defendants.” (RT 30:4429-4430.) 315 The prosecutor and appellant’s defense counsel gavetheir closing argument (RT 30:4431-4460), and the jury wasinstructed,in part, that “you must decide separately the question of penalty as to each defendant.” (RT 30:4469.) Late in the morning on December26, 2000,the jury began deliberating penalty as to appellant only. (RT 30:4469-4470.) In the afternoon, and in appellant’s absence, the court interrupted the jury’s deliberations for further proceedings, which included closing arguments by the prosecutor and Castro’s trial defense counsel and further instructions. (RT 30:4472-4510; CT 12:3505.) The court instructed the jury, in part, that “you must decide separately the question of penalty as to each of the defendants. If you cannot agree uponthe penalties to be inflicted upon both defendants, but you do agree on the penalty as to one of them, you must render a verdict on the one to which you do agree.” (RT 30:4509-4510.) At 3:05 p.m. that afternoon, the jury retired for further deliberations as to appellant andto start deliberations as to codefendant Castro. (RT 30:4510.) At 12:10 p.m. the following day, the jury simultaneously returned verdicts of death for appellant and life for Castro. (RT 30:4511-4514; CT 13:3541, 3543-3544.) //1 316 C. APPELLANT WAS PREJUDICIALLY DEPRIVED OF THE CONSTITUTIONAL RIGHT TO AN INDIVIDUALIZED SENTENCING DETERMINATION For more than 70 years the United States Supreme Court has recognized that the concept of individualized sentencing is central to our system of Justice. In determining sentences, the Supreme Court declared, “justice generally requires ... that there be taken into account the circumstancesof the offense together with the character and propensities of the offender.” (Pennsylvania ex rel. Sullivan v. Ashe (1937) 302 U.S. 51, 55 [58 S.Ct. 59, 82 L.Ed.2d 43].) Andfor decades, the Supreme Court has emphasized that in capital cases individualized sentencing takes on especially weighty significance; indeed,it is constitutionally required. “{I]n capital cases,” the Court declared, “the fundamental respect for humanity underlying the Eighth Amendment. . . requires consideration of the character and record of the individual offender and the circumstancesofthe particular offense as a constitutionally indispensable part of the processofinflicting the penalty of death.” (Woodson v. North Carolina (1976) 428 U.S. 280, 304 [96 S.Ct. 2978, 49 L.Ed.2d 944].) This constitutional requirement is mandated because “the penalty of death is qualitatively different” from any othersentence,id. at p. 305, “unique in its severity and irrevocability.” (Gregg v. Georgia (1976) 428 U.S. 153, 187 [96 S.Ct. 2909, 49 L.Ed.2d 859].) 317 On the basis of these longstanding principles, the Supreme Court held in Lockett v. Ohio, supra, 438 U.S. 586 that a capital defendant hasthe right to an “individualized consideration of mitigating factors” from a sentencing jury. (/d. at p. 606.) “Given that the imposition of death by public authority is so profoundly different from all other penalties,” the Court noted, “we cannot avoid the conclusion that an individualized decision is essential in capital cases. The needfor treating each defendant with that degree of respect due the uniqueness of the individualis far more important than in noncapital cases.” (Id. at p. 605 [emphasis added].) “The nonavailability of corrective or modifying mechanisms with respect to an executed capital sentence underscores the need for individualized consideration as a constitutional requirement in imposing the death sentence.” (/d.) Thus, in Lockett, the Court held that a sentencing jury must give “independent mitigating weight to aspects of the defendant’s character and record and to circumstancesof the offense proffered in mitigation.” (d.) Since Lockett, the Court has consistently reiterated that core principle. (See, e.g., Hitchcockv. Dugger (1987) 481 U.S. 393, 398-399 [107 S.Ct. 1821, 95 L.Ed.2d 347]; Skipper v. South Carolina (1986) 476 U.S. 1, 4 [106 S.Ct. 1669, 90 L.Ed.2d 1]; Eddings v. Oklahoma (1982) 455 U.S. 104, 110-117 [102 S.Ct. 869, 71 L.Ed.2d 1]; see 318 also Johnson v. Texas (1993) 509 U.S. 350, 361 [113 S.Ct. 2658, 125 L.Ed.2d 290] [“[W]e have notaltered [Lockett’s] central requirement.”’].) These cases “firmly established that sentencing juries must be able to give meaningful consideration and effect to all mitigating evidence that might provide a basis for refusing to imposethe death penalty on a particular individual, notwithstanding the severity of his crime or his potential to commit similar offenses in the future.” (Abdul-Kabir v. Quarterman (2007) 550 U.S. 233, 246 [127 S.Ct. 1654, 167 L.Ed.2d 585].) To meet these constitutional imperatives, “it is not enough simply to allow the defendantto present mitigating evidence to the sentencer.” (Penry v. Lynaugh (1989) 492 U.S. 302, 319 [109 S.Ct. 2934, 106 L.Ed.2d 256], abrogated on other grounds by Atkins v. Virginia (2002) 536 U.S. 304 [122 S.Ct. 2242, 153 L.Ed.2d 335].) Rather, “[t]he sentencer must also be able to consider and give effect to that evidence in imposing the sentence.” (/d.) In other words,to protect a capital defendant’s right to an individualized sentencing determination, the jury must be free to make “a reasoned moral response to the defendant’s background, character, and crime.” (Jd.[internal quotation omitted].) Accordingly, a sentencing proceeding will violate the Eighth Amendment whenit is conducted in such a waythat a juror cannot “consider fully” a defendant’s evidence or “give that evidence meaningful, mitigating effect.” (Abdul-Kabir v. Quarterman, supra, 550 U.S. at p. 260.) 319 Applying these longstanding principles, the trial court’s instructions deprived appellant of his right to an individualized sentencing determination. First, the trial court erroneously instructed the jury whenit told them, “So what you decide against one person should not be carried overinto the decision of the other person, unless you feel it is appropriate.” (RT 29:4426 [emphasis added]; People v. Lewis, supra, 43 Cal.4th at p. 461.) The instruction impermissibly invited the jurors to comparethe relative culpability of appellant and codefendant Castro when jointly deciding penalty as to each defendant.*® (Cf. Lockett v. Ohio, supra, 438 U.S. at pp. 605-606.) A comparison ofthe relative culpability between appellant and codefendant Castro weighed heavily against appellant because appellant was convicted of three death-eligible homicides, whereas codefendant Castro was convicted of a single homicide that, according to the prosecution’s theory, was committed at the behest of appellant. Appellant recognizes that the trial court subsequently instructed the jury to separately decide the penalty as to each defendant. (RT 30:4429-4430, 4469, 4509-4510.) This Court has held that such an instruction, which requires the jury to “decide separately the question of the penalty as to each of the defendants[,]” is “adequate to ensure individualized sentencing in joint penalty trials.” (People “0 Thetrial court has a sua sponte duty to correctly instruct the jury, and thus the instructional error is cognizable on appeal despite the lack of an objection bytrial defense counsel. (Pen. Code, § 1259; People v. Breverman, supra, 19 Cal.4th at p. 154.) 320 v. Lewis, supra, 43 Cal.4th at p. 461; People v. Taylor (2001) 26 Cal.4th 1155, 1173-1174.) Yet, neither People v. Lewis, supra, 43 Cal.4th 415 nor Peoplev. Taylor, supra, 26 Cal.4th 1155 involved the specific factual issue presented here —i.e., where thetrial court first “opened the door” and invited the jury to perform a comparative analysis of the penalty as between the two defendants and then nevercorrected the error by telling the jury that the instruction was erroneous. Moreover, in view ofthe court’s initial instruction — 1.e., “what you decide against one person should notbe carried overinto the decision of the other person, unless you feelit is appropriate” (RT 29:4426) — the subsequent instructions to “decide separately the question of penalty as to each defendant” (RT 30:4469, 4509-4510) did not preclude the jury from making a comparative analysis prior to returning separate verdicts as to each defendant. In other words, the jury did not return a joint verdict, and thus to that extent it did “decide separately the question of penalty as to each defendant.” Nonetheless, while rendering separate verdicts against each defendant, the jury was permitted, pursuantthe court’s initial instruction, to make a relative comparison betweenthe defendants,if it felt such a comparison was “appropriate.” (RT 29:4426.) Second, the process employed bythe trial court — whereby closing arguments of counsel and jury instructions purportedly relating to Castro were given in appellant’s absence and in the midst of penalty phase deliberations — 321 prevented the jury from making an individualized sentencing determination. In an extraordinary turn of events, the trial court interrupted the jury as it was deliberating penalty as to appellant and proceeded with the jointtrial, but excluded appellant therefrom. (RT 30:4472-4473.) The prosecutor and counsel for Castro presented penalty-phase arguments to the jury, which although purportedly limited to Castro made repeated references to aggravating facts as to appellant, thereby impeaching the closing argument made byappellant’s trial defense counsel and undermining appellant’s case in mitigation for a life sentence. (RT 30:4472-4510; CT 12:3505.) For example, the prosecutor argued that Castillo was killed at the behest of appellant because of the “double homicide” killings committed by appellant. (RT 30:4473.) In referring to the “double homicide”killings of Murillo and Molina, the prosecutor used the namesofthe victims and recounted the joys of life that Murillo and Molina had been deprived because of appellant’s actions. (RT 30:4474.) Appellant, not Castro, had been convicted of the murders of Murillo and Molina. (RT 25:3834-3836.) The prosecutor then explicitly called upon the jury to return a death verdict against appellant. (RT 30:4474-4475, 4480-4481.) By interrupting the penalty phase deliberations and permitting the prosecutor to argue for a verdict of death against appellant, while under the guise of arguing for a verdict against Castro, 322 the court, by its actions, implicitly encouraged the jury to comparetherelative culpability of each defendant. (See People v. Lucas (1995) 12 Cal.4th 415, 498 [punishment imposed on accomplice bears “no relevanceto the jury’s properly guided function at the penalty phase”], citing People v. Belmontes (1988) 45 Cal.3d 744, 811 and Lockett v. Ohio, supra, 438 U.S. at p. 604 .) Castro’s counsel also argued in a mannerthat implicated appellant and encouragedthe jury to further consider the aggravating nature of appellant’s actions, especially when comparedto Castro’s conduct. (RT 30:4484-4485, 4493.) By permitting counsel to compare and contrast Castro’s conduct with appellant’s conduct, the trial court was again implicitly encouraging the jury to comparetherelative culpability of each defendant. Following argument of counsel, the trial court instructed the jury, cautioning that “these are the jury instructions that apply to Mr. Castro.” (RT 30:4498.) Yet, the instructions repeatedly referred to “each defendant” and used the plural “defendants” several times, thereby explicitly referencing appellant. (RT 30:4499-4500, 4508-4510.) The court concluded by instructing the jury that they “shall now retire to deliberate on the penalties [as to each defendant].” (RT 30:4510.) Despite the initial words of caution, the court by its actions in repeatedly referring to both defendants during the reading of the instructions 323 implicitly encouraged the jury to comparetherelative culpability of each defendant. Moreover,instead of permitting the jury to finish the penalty-phase deliberations as to appellant, which already were in mid-course,the trial court required the jury to continue with those deliberations and at the sametimestart deliberating the penalty as to Castro. (RT 30:4510-4511.) By initially splitting the deliberations, and then subsequently combining the deliberations of the defendants, the court by its actions implicitly encouraged the jury to compare the relative culpability of each defendant. Finally, the jury returned their verdicts against appellant and Castro at the same time, assigning a verdict of death for appellant and life for Castro, suggesting that the jury compared the relative culpability of each defendant and determined that for three murders appellant should die and for one murder Castro should live. (Cf. People v. Letner (2010) 50 Cal.4th 99, 135 [“Moreover,in light of the circumstance that the jury reached a death verdict as to both defendants, we discern evenless of a possibility that the jury improperly assigned culpability based upon one defendant’s attempt to mitigate the seriousness of his own actions by shifting accountability to his codefendant.”].) In view of the substantial disparity in the relative culpability between appellant and Castro, which wasdetrimental to appellant, and in view of the case 324 in mitigation, consisting of evidence that appellant’s conduct was induced by chronic drug addiction and that appellant is a good and caring person with redeeming qualities (ante, Statement of Facts, §§ E.1. & E.2.), the prosecution will be unable to prove that the errors described above — depriving appellant of the constitutional right to an individualized sentencing determination — were harmless beyond a reasonable doubt. (See People v. Robertson, supra, 48 Cal.3d at p. 62 [federal constitutional error requires reversal of the death judgment unless it can be demonstrated that the error is harmless beyond a reasonable doubt]; see Chapmanv. California, supra, 386 U.S. at pp. 20-21; People v. Cowan, supra, 50 Cal.4th at p. 491.) Reversal of the death judgmentis required. /// 325 XVII. THE TESTIMONY OF PROSECUTION PENALTY PHASE WITNESSES JAVIER CASTILLO AND LINDA CASTILLO THAT APPELLANT SHOULD BE SENTENCED TO DEATH VIOLATEDSTATE EVIDENTIARY RULES AND THE STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS, EFFECTIVE ASSISTANCE OF COUNSEL, AND A RELIABLE PENALTY DETERMINATION (CAL. CONST., ART.I, §§ 7, 15 & 17; U.S. CONST., 5767, 87! & 14™ AMENDS.), THEREBY REQUIRING REVERSAL OF THE DEATH JUDGMENT A. INTRODUCTION, PROCEDURAL BACKGROUND AND SUMMARYOF ARGUMENT During the prosecution’s penalty phase case-in-chief, the trial court held a hearing outside the presence ofthe jury in whichit ruled that the prosecutor was permitted to elicit opinions of victims’ family membersas to the appropriate sentence, including the opinion that appellant should be sentenced to death. (RT 26:3905-3907.) The hearing arose after the prosecutor posed the following question on direct examination to John Molina (Brian Molina’s father): “And in your own mind, and in your heart, what do you feel is the appropriate penaltyfor this jury to impose upon Richard Penunuri? ....” (RT 26:3904 [emphasis added].) Molina responded, “That’s not for me to say.” (RT 26:3904.) After Molina was excused, and outside the presence of the jury,trial defense counsel objected to the prosecutor’s attempt to elicit opinions of victims’ 326 family membersthat appellant should be sentenced to death. (RT 26:3905-3906.) Defense counselstated, in part: I was disturbed by [prosecutor] Mr. Camacho askingthis witness, Mr. Molina, as to, you know, what he wants to have done with Mr. Penunurias far as life or death is concerned. And I was going to object, and I didn’t because that I (sic) just sensed Mr. Molina was going to do the right thing. The difficulty is that he’s asking a question that asks for vengeance. When someonesays, you know,I want revenge, I want vengeance, whatever,it’s a question that asks for improper — [RT 26:3905.] The court asked the prosecutor for a reply, to which the prosecutor responded,in part, “.. . I think it’s well within my right to get an impression from these witnesses as to what they think the appropriate penalty would be,if they’re willing to answer that question.” (RT 26:3905.) The court ultimately agreed with the prosecutor, ruling as follows: If I were to sustain your position I would have to preclude you from asking any of the defense witnesses why they feellife should be spared. So if someonesays I feel the appropriate penalty is death, then the follow-up question is why do you feel that way. Andif he says, revenge, why then obviously that’s an inappropriate answer. I think it could be held against that witness. But I think the jury would hold it against them. So, I think you haveto be careful in phrasing your questions, but I do think he’s entitled to ask what their opinion is, so objection is overruled. [RT 26:3906- 3907.] Thereafter, the prosecutorelicited testimony from Javier Castillo and Linda Castillo (Jaime Castillo’s father and stepmother, respectively) that appellant should be sentenced to death. (RT 27:3984, 3990) Apparently in view 327 of the court’s ruling permitting John Molina’s testimonyas to the appropriate sentence for appellant, trial defense counsel did not renew the objection. (RT 27:3984, 3900.) On direct examination, the prosecutor asked Javier Castillo, “Other than what you havetold us today, is there anything else that you feel that this jury should know in evaluating a penalty for the killer of your son Jaime Castillo?” (RT 27:3984.) Javier Castillo responded: I have no objection on the [death] penalty that they are seeking. 1 don’t have no[sic] objection at all. I don’t believe -- / believe that these individuals are especially Mr. Penunuri, he becamevery influential when he wasin the jail house and being such [sic] influential, he gave the order to kill my son. And I don’t think he should be given that same opportunity [forlife imprisonment] to do the same thing again. .... [RT 27:3984 (emphasis added). ] The prosecutor then elicited testimony from Linda Castillo that appellant should be sentenced to death. Linda Castillo testified on direct examination, in part: lam for the death penalty. I want these people to be killed in [sic] lethal injection. Butit’s a shamethat the penalty takes so long and the system lets these people take advantage of the time they have. So, to me, it does not matter. If you guys get the penalty, it’s good. Butit’s a shame that the system takes so long to be able to kill these people. They might be in for life, anyway.” [RT 27:3990 [emphasis added. ] As explained below,it is improper for the victim’s family to express their opinion regarding the proper verdict. (Booth v. Maryland (1987) 482 U.S. 496, 328 508-509, overruled in part by Payne v. Tennessee (1991) 501 U.S. 808, 825 [111 S.Ct. 2597, 115 L.Ed.2d 720]; People v. Smith (2003) 30 Cal.4th 581, 622.) The testimony of Javier Castillo and Linda Castillo that appellant should be sentenced to death violated Penal Codesection 190.3, factor (a) and deprived appellant of the state and federal constitutional rights to due process anda reliable penalty determination (Cal. Const., art. I, §§ 7, 15 & 17; U.S. Const., 5", 6", 8" & 14" Amends.). To the extent that trial defense counsel’s objection to testimony about the appropriate sentence wasinsufficient to preserve the claimsraised herein, appellant was deprivedofthe state and federal constitutional right to effective assistance of counsel (Cal. Const., art. I, §§ 7, 15 & 17; U.S. Const., 5", 6", 8" & 14° Amends.). The testimony of Javier Castillo and Linda Castillo that appellant should be sentenced to death was prejudicial because the witnessestestified to the ultimate issue in the case — i.e. whether appellant should be sentenced to death. The testimony encouraged the jurors to substitute their own opinionsfor those of the victims — i.e., those who suffered the most from the crimes. The prosecution thus will be unable to carry its burden of proving beyond a reasonable doubt that the error in admitting the opinion testimony of Javier Castillo and Linda Castillo was harmless beyond a reasonable doubt, thereby requiring reversal of the death judgment. 329 B. THE ISSUES RAISED HEREIN HAVE BEEN PRESERVED FOR APPEAL; IF THIS COURT FINDS THAT ANYOF THE ISSUES HAVE BEEN FORFEITED BY FAILURE TO ADEQUATELY OBJECT IN THE TRIAL COURT, THEN APPELLANT WAS DEPRIVED OF THE STATE AND FEDERAL CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL(CAL. CONST., ART.I, §§ 15 & 17; U.S. CONST., 6", 8™ & 14™ AMENDS.) Each of the issues raised herein have been preserved for appellate review because it is not necessary “to renew an objection already overruled in the same trial... .” (People v. Clark (1990) 50 Cal.3d 583, 623.) This Court has long held that “Twhere a party has once formally taken exception to a certain line or character of evidence,he is not required to renew the objection at each recurrencethereafter of the objectionable matter arising at each examination of other witnesses; and his silence will not debar him from having the exception reviewed.” [People v. Antick (1975) 15 Cal.3d 79, 95, citing Green v. Southern Pac. Co. (1898) 122 Cal. 563, 565.] Moreover, no further objection was required to preserve the issues for appellate review because regardless of the nature and scopeof the possible objections,the trial court made an affirmative ruling permitting the prosecutorto elicit opinions of victims’ family membersas to the appropriate sentence, including the opinion that appellant should be sentenced to death. (RT 26:3905- 3907.) The record thus showsthat the trial judge understood the issue presented. (Cf. People v. Cowan, supra, 50 Cal.4th at p. 485 [“When defendant objected to Turner’s testimony on the ground that it ‘goes beyondthe victim impact,’ he used 330 a well-recognized term commonly understood as referring to the United States Supreme Court’s Eighth and Fourteenth Amendmentjurisprudence regarding the permissible scope of victim testimonyat the penalty phase of a capital case”]; People v. Scott, supra, 21 Cal.3d at p. 290 [objection is sufficient if the record showsthetrial judge understood the issue presented]; Hormel v. Haverling, supra, 312 U.S. at p. 557 [“Orderly rules of procedure do not require sacrifice of the rules of fundamental justice”}.) If this Court finds that any of the issues have been forfeited by failure of trial defense counsel to adequately object, then appellant was deprived of the state and federal constitutional right to the effective assistance of counsel (Cal. Const., art. I, §§ 15 & 17; U.S. Const., 6", 8" & 14Amends.). Incorporating herein by reference section IX.B., ante, defense counsel’s failure to timely make each of the objections identified herein deprived appellant of the constitutional right to effective assistance of counsel (Cal. Const., art. I, §§ 15 & 17; U.S. Const., 6", 8" & 14" Amends.; Strickland v. Washington, supra, 466 U.S. at pp. 684-685; People v. Pope, supra, 23 Cal.3d at p. 422) because a timely and specific objection is necessary to preserve the claims. (Evid. Code,§ 353; People v. Morris, supra, 53 Cal.3d at p. 206.) Although defense counsel’s actions are often justified on the basis of strategic choice (People v. Pope, supra, 23 Cal.3d at p. 426), here there could be 331 no rational strategic reason for counsel’s failure to timely and explicitly raise each of the objections identified herein because defense counsel objected when the prosecutorfirst tried to elicit an opinion from John Molinaasto the appropriate sentence (RT 26:3904-3907), thereby revealing counsel’s intent to exclude testimony of victims’ family members as to the appropriate sentence. (Cf. People v. Pope, supra, 23 Cal.3d at p. 426 [“an appellate court will reject the claim of ineffective assistance ... unless there simply could be nosatisfactory explanation”]; People v. Majors, supra, 18 Cal.4th at p. 403 [“the record must affirmatively disclose the lack ofa rational tactical purpose for the challenged act or omission”].) Under these circumstances, any failure to preserve these issues for appeal would amountto the ineffective assistance of counsel. (See People v. Lewis, supra, 50 Cal.3d at p. 282 [this Court considers otherwise forfeited “claim on the merits to forestall an effectiveness of counsel contention”]; People v. Stratton, supra, 205 Cal.App.3d at p. 93.) Defense counsel’s deficient representation prejudiced appellant because admission ofthe testimony of Javier Castillo and Linda Castillo that appellant should be sentenced to death deprived appellant of the right to a fundamentally fair and reliable penalty determination. (See post, § XVII.C.) Accordingly, reversal of the death judgmentis warranted on the ground appellant was denied the state and federal constitutional rights to effective assistance of counsel. 332 C. THE TESTIMONYOF PROSECUTION PENALTY PHASE WITNESSES JAVIER CASTILLO AND LINDA CASTILLO THAT APPELLANT SHOULD BE SENTENCED TO DEATH PREJUDICIALLY VIOLATED STATE EVIDENTIARY RULES AND THE STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A RELIABLE PENALTY DETERMINATION, REQUIRING REVERSAL OF THE DEATH JUDGMENT The United States Supreme Court has long held that it is improperfor the victim’s family to express their opinion regarding the proper verdict, and such testimonyviolates a defendant’s constitutional rights to due process anda reliable penalty determination. (Booth v. Maryland, supra, 482 U.S. at pp. 508-509, overruled in part by Payne v. Tennessee, supra, 501 U.S. at p. 825 [111 S.Ct. 2597, 115 L.Ed.2d 720]; U.S. Const., 5", 8" & 14" Amends.) Although Booth was overruled in part, the high courtleft intact its holding that “the admission of a victim’s family members’ characterizations and opinions aboutthe crime, the defendant, and the appropriate sentence violates the Eighth Amendment.” (Payne v. Tennessee, supra, 501 US.at p. 830,fn. 2.) This Court has held that “[i]t is clear that the prosecution may notelicit the views of a victim or victim’s family as to the proper punishment.” (People v. Smith, supra, 30 Cal.4th at p. 622 [italics in original].) “The views of a crime victim . . . regarding the proper punishment has no bearing on the defendant’s character or record or any circumstanceofthe offense.” (/bid.; Skipper v. South Carolina, supra, 476 U.S. at p. 4.) 333 Victim-impact testimony as to the proper punishmentviolates Penal Code section 190.3, factor (a) and deprives a defendant of the constitutional rights to due process and a reliable penalty determination where, as here,it is “so unduly prejudicial” that it renders the trial “fundamentally unfair.” (Payne v. Tennessee, supra, 501 U.S. at p. 825; see People v. Burney (2009) 47 Cal.4th 203, 258; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1056-1057; People v. Pollock (2004) 32 Cal.4th 1153, 1180 [victim-impact evidence may “not include characterizations or opinions about the crime, the defendant, or the appropriate punishment, by the victims’ family membersor friends, and such testimonyis not permitted.”]; Cal. Const., art. I, §§ 7, 15 & 17; U.S. Const., 5", 6", 8" & 14" Amends.; see People v. Cowan, supra, 50 Cal.4th at p. 484 [applying the Chapmanfederal harmless error standard when determining whether inadmissible victim-impact testimony requires reversal of the death judgment].) Admission of the testimony of key victim-impact witnesses Javier Castillo and Linda Castillo that appellant should be sentenced to death rendered appellant’s penalty trial fundamentally unfair, and cannot be proven by the prosecution to be harmless beyond a reasonable doubt. Javier Castillo testified that he was Jaime Castillo’s father. (RT 27:3982.) Whenthe prosecution asked about the “penalty for the killer of your son” (RT 27:3984), he testified that he had no objection to the death penalty, especially as 334 to appellant because appellant “becamevery influential when he wasin thejail house and being such[sic] influential, he gave the order to kill my son.” (RT 27:3984.) Javier Castillo further testified that appellant “should [not] be given that same opportunity to do the same thing again.” (RT 27:3984.) AsJavier Castillo’s testimony explicitly suggested, a sentence of life in prison would give appellant an “opportunity to do the same thing again” (RT 27:3984) — i.e., order the killing of a person by someone outside prison. A sentence to death would deny appellant that opportunity. Javier Castillo’s testimony prejudicially suggested appellant’s future dangerousness by highlighting that if sentenced to life in prison appellant would be a continuing threat to society. (Cf. People v. Murtishaw (1981) 29 Cal.3d 733, 767-768 [holding that because a jury may place undue emphasis on the opinion that a capital defendant poses a dangerin prison, and because predictions of future violent conduct are unreliable and frequently erroneous, the People maynot offer such evidenceat the penalty phaseofthetrial].) Javier Castillo’s testimony that appellant should be sentenced to death was testimonyas to the ultimate issue in the case, which reasonably encouragedthe jurors to substitute his opinion for their own opinions. (Cf. People v. Brown (1981) 116 Cal.App.3d 820, 828 [‘‘to receiveit {i.e., testimony on the ultimate issue} would tend to suggest that the judge and jury may shift responsibility for 335 decision to the witnesses’”]; People v. Arguello (1966) 244 Cal.App.2d 413, 417- 419, cert. den.,386 U.S. 968, 18 L.Ed.2d 121, 87 S.Ct. 1052.) Linda Castillo testified that she was Jaime Castillo’s stepmother. (RT 27:3986.) When the prosecution asked what she “would like to say to this jury to help them evaluate the punishment for Jaime’s killer” (RT 27:3990), she testified, “I am for the death penalty. J want these people to be killed in [sic] lethal injection.” (RT 27:3990 [emphasis added].) This wasstrong, direct testimony that Linda Castillo would not be satisfied unless the jury returned a sentence of death. The testimony reinforced to the jury that Jaime Castillo’s father and stepmother both desired a death sentence for appellant and felt that such a sentence would be appropriate in this case. Linda Castillo’s testimonyalso reinforced Javier Castillo’s testimony that a death sentence was “especially [appropriate] as to appellant” because appellant “gave the order to kill my son.” (RT 27:3984.) The jury’s verdict of death for appellant and life for codefendant Castro (i.e., the one that actually shot and killed Castillo) is consistent with the jury having followed Javier Castillo’s recommendation that death wasespecially appropriate for appellant. The jury in a capital case is charged with making the weighty determination whether“the aggravating circumstancesare so substantial in comparison with the mitigating circumstances that it warrants death instead of 336 life without parole.” (People v. Tate (2010) 49 Cal.4th 635, 706; CALJIC No. 8.88; CT 13:3529-3540.) The opinions of the victim’s family that death is the appropriate penalty can play no part in that determination. (Booth v. Maryland, supra, 482 U.S. at pp. 508-509, overruled in part by Payne v. Tennessee, supra, 501 U.S. at p. 825; People v. Smith, supra, 30 Cal.4th at p. 622.) Yet, with the testimony of Javier Castillo and Linda Castillo, the jury was repeatedly encouragedto return a death verdict for appellant based on the opinionsof the victims’ family, rendering the penalty trial fundamentally unfair. This was a close case on the issue of penalty as evidenced by, among other things, the mitigation evidence which showedthat appellant suffered from chronic methamphetamine use, which contributed to the conductat issue in this case because chronic methamphetamine can induce violence, paranoia, alienation, hallucinations, and delusions. (Ante, Statement of Facts, § E.1.) Appellant also presented good character evidence, which included the testimony of several witnesses. (Ante, Statement of Facts, § E.2.) Their testimony supported of a life sentence because it showed that appellant’s conduct was induced by chronic drug addiction and that appellant is a good and caring person with redeeming qualities. (Ante, Statement of Facts, § E.2.) Reversal of the death judgmentis required because the prosecution will be unable to prove beyond a reasonable doubtthat the erroneous admission of the 337 testimony of Javier Castillo and Linda Castillo about the family’s desire for the death penalty was harmless beyond a reasonable doubt. (See People v. Robertson, supra, 48 Cal.3d at p. 62 [federal constitutional error requires reversal of the death judgment unless it can be demonstrated that the error is harmless beyond a reasonable doubt]; see Chapman v. California, supra, 386 U.S. at pp. 20-21; People v. Cowan, supra, 50 Cal.4th at p. 491.) //1 338 XVIII. ADMISSION OF EVIDENCE IN AGGRAVATION OF A PURPORTED ASSAULT WITHA FIREARM ON JASON UZEL REQUIRES REVERSAL OF THE DEATH JUDGMENTFORA VIOLATION OF APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A RELIABLE PENALTY DETERMINATION (CAL. CONST., ART.I, §§ 7, 15 & 17; U.S. CONST., 57, 6, 87" & 1478 AMENDS.) BECAUSE THE EVIDENCE IS WOEFULLY INSUFFICIENT TO SUSTAIN A FINDING THAT APPELLANT PERPETRATED THE ASSAULT A. INTRODUCTION AND PROCEDURAL BACKGROUND The prosecution introduced evidence in aggravation that on May 20, 1997 someone committed an assault with a firearm on R.J. Uzel (Pen. Code, § 245, subd. (a)(2)) by shooting him in the leg and chest as he wasseated in his vehicle. (Ante, Statement of Facts, § D.1.) The evidence consisted of the eyewitness testimony of R.J. Uzel, Debra Recio, and Abraham Van Rood. The prosecution also introduced evidence that the gunmanfled the scene in a vehicle registered to one Diana Hara, whose address is the same as that which appears on codefendant Bermudez’s driver’s license. (RT 27:4032-4071.) As shownbelow,the evidence is woefully insufficient to sustain a finding that appellant perpetrated the assault. Uzel never identified the assailant. (RT 27:4032-4045.) Recio did not see whofired the shots, although shetestified that a few days after the shooting the speculative “word on the street” was that Dozer from Cole Street was involved. (RT 27:4047-4056.) Van Rood saw a “young 339 man”firing the shots, but was unable to identify the shooter. He saw the shooter departing the scene in a vehicle that was subsequently identified as being registered to Hara at the same addressed used by codefendant Bermudez. (RT 27:4057-4071.) ~ Admission of this entirely speculative evidence that appellant perpetrated an the assault with a firearm on Uzel — the only prior criminal conduct introduced in aggravation in support ofa death verdict — denied appellant due process and a reliable penalty determination, thereby requiring reversal of the death judgment. (Post, § XVIII.C.) B. THE EVIDENCE IS WOEFULLY INSUFFICIENT TO SUSTAIN A FINDING THAT APPELLANT PERPETRATED AN ASSAULT WITH A FIREARM ON UZEL Faced with a challenge to the sufficiency of the evidence, the issue is whetherthere is “substantial evidence — that is, evidence which is reasonable, credible, and ofsolid value — such that a reasonabletrier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson, supra, 26 Cal.3d at p. 578 [emphasis added]; People v. Samuel, supra, 29 Cal.3d at p. 505 [evidence relied upon mustbe “reasonable in nature, credible and of solid value”’].) The requisite qualitative nature of the evidence is that which is sufficient to permit the trier of fact to reach a “subjective state of near certitude of the guilt 340 of the accused... .” (Jackson v. Virginia, supra, 443 U.S. at p. 315.) “Evidence which merely raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises the 999 possibility, and this is not a sufficient basis for an inference of fact.’” (People v. Reyes, supra, 12 Cal.3d at p. 500, citing People v. Redmond, supra, 71 Cal.2d at p. 755.) Nor can substantial evidence be based on speculation. (People v. Morris, supra, 46 Cal.3d at p. 21.) Uzel testified that while using a pay telephonein front of the McDonald’s restaurant in South Whittier in the evening on May 20th, someone approached him. (RT 27:4032, 4028-4029.) Uzel was unable to identify the person because it was dark outside. (RT 27:4029.) Uzel testified on direct examination,in part: Q: .... As were you speaking to this individual on the phone,did you notice another vehicle in the area? A. Yeah. Q: And whatwasit about this vehicle which drew yourattention to it? A: Nothingreally,just it passed by in front of me,just pulled in [to the parking lot]. [RT 27:4027.] [{] Q: All right, sir. While you were talking on the telephone, did anyone other than yourfriend approach you? A: Yeah. Q: And whenthis person approached you, can you tell us whether or not you recognized the person? 341 A: No, I didn’t. Q: Wasthis person a male or a female? A: A male. Q: Wasthis person approximately your ageat the time,or older, younger? A: I don’t remember. Q: Wasthere anything significant about the way this person looked which enables you to describe that person for us? A: No. Q: Other than just a male, was this person Caucasian, African-American, Hispanic A: I’m not sure because it was dark. Q: I see. A: Like 8:00 o’clock at night, so I couldn’t really tell. [RT 27:4028- 4029.] Uzeltestified that he did not know the person and had never seen him before. (RT 27:4030.) There was noaltercation at that moment. (RT 27:4030.) Uzel returned to his vehicle, which was being driven by Recio, and entered the front passenger seat. (RT 27:4030-4031.) As the vehicle was leaving the area shots were fired. A bullet came through the window ofthe vehicle, went through Uzel’s leg, and skimmedhis chest. (RT 27:4031-4032.) Uzel did not 342 see the gunman,nor did he see anyoneelse in the immediate area when the shots werefired. (RT 27:4032-4033.) After being shot, Recio drove Uzel directly to the hospital. (RT 27:4033.) Uzeltestified on direct examination, in part: Q: A: Betweenthe time, well, from betweenthe location of the McDonald’s restaurant where you werehit; correct? Yes. And the time you arrived to the Whittier hospital, did you say anything to Debbie [Recio] or your friend in the back [i.e., identified by Recio as Michael Orozco]? No. Just that I was shot. Did you explain to them in any way, shape, or form who had shot you? No. [RT 27:4034.] Uzel was interviewed by two police officers at the hospital, but did not have any information aboutthe identity of the person who shot him. (RT 27:4039, 4042.) Uzeltestified on direct examination,in part: Q: And the reason you didn’t really want to talk to them, as you say,is because you wantedno part of that investigation? No. Because I didn’t know what happened. Being part of an investigation doesn’t matter to me, but I don’t know what happened, Isee. And youcertainly, well, did you at least tell these detectives that you wouldn’t go to court to testify at all against anyone regarding this shooting? 343 A: Well, no. If I don’t know what happened or whodidit or anything at all, why do I need to take my time out of work? [RT 27:4042.] Uzel also testified that he knew appellant from high school, but he never told anyone, including Recio, that appellant had shot him. (RT 27:4044.) Uzel testified that if appellant had shot him, then he would haveidentified appellant as the shooter. (RT 27:4045.) Uzel testified on cross-examination,in part: Q: And whenyou’re being driven from this McDonald’s to the Whittier hospital, you’re pretty upset at getting shot, weren’t you? A: Yeah. Q: And if Mr. Penunuri had shot you, you would have said Richard Penunuri shot me, wouldn’t you? A: Yeah. Q: You didn’t say that, did you. A: No, I didn’t. Q: Okay. And whenthe police cameto the hospital, if Richard Penunuri had shot you you (sic) would have told them,too, wouldn’t you. A: Yes. Q: You didn’t tell the police that either, did? A: No. Q: Whynot? A: Because I didn’t know who shot me. [RT 27:4045.] 344 Debra Reciotestified that she parked Uzel’s vehicle and stayed in the driver’s seat while Uzel was using the pay telephone. A third friend, Michael Orozco, was with them and wasstanding near Uzel when he wasusing the telephone. (RT 27:4047-4053.) Recio did not notice anyone approach Uzel while he was using the telephone. (RT 27:4049.) Recio testified that Uzel and Orozco returned to the vehicle, and then Uzel was shot by an unknownperson. (RT 27:4050.) Recio testified on direct examination, in part: Q: After the two individuals [Uzel and Orozco] had entered thecar, did you remain the driver? Mm-hmm,yes. And at that point in time did something happen to Mr. Uzel? Yeah. He got shot. Whenhe got shot, did you look towards his direction to -- out of concern for your ownorhis safety? Yeah. And when you looked towardshis direction, what did you see? I can’t I just -- I saw him,he waslike leaning on me,and I got put in reverse, and took off. Did you see anyone near the vehicle at the time Jason was shot? No. Or Mr. Uzel wasshot? 345 A: Q: A! No. Where did you take Mr. Uzel? To the hospital. Whittier hospital. [RT 27:4050.] Recio further testified that Uzel never told her that he had been shot by appellant, although there was speculation “on the street” that appellant was responsible for the shooting. (RT 27:4050-4051.) Recio testified on direct examination, in part: Q: From the point you left the parking lot to the point you arrived to the hospital, did Mr. Uzel say anything to you with respectto the identity of the person who shot him? No,he did not. At some point in time did Mr. Uzel confide in you and tell you who it was who had shot him? No, he didn’t. Up to and including this momentin time, has Mr. Uzel ever informed you that Dozer was the person who had shot him? Not him himself, that’s just what was said out on the street. [RT 27:4050-4051.] The prosecution then sought to impeach Recio and Uzel with sworn testimony that Recio gave earlier that afternoon outside the presence ofthe jury in an Evidence Code section 402 hearing. (RT 27:4051.) Recio testified on direct examination,in part: 346 Miss Recio, do you recall being swornin to testify as a witness earlier this afternoon? Yes, I did. Andthis wasoutside the presenceof the jury; correct? Yes, it was. And did you also relay certain information to us during that hearing with respect to what, if anything, Mr. Uzel had told you regarding who had shot him? A couple days after he got out of the hospital, and I said Mike. No, I did not say that. It was R.J. I said a couple days. You asked me a couple days after when he gotout of the hospital if he ever confided in me, and I said it was out on the street that what was said that it was Dozer. I don’t know who Dozerwasor anything. [RT 27:4051.] The following prior testimony of Recio was then read into the record in the presence ofthe jury: Q: A: Did Jason Uzel ever provide you information as to who shot him? Jason? R.J. R.J. Yeah. And whendid that happen? When he came homefrom the hospital. When he came homefrom the hospital wasthat the next day after the shooting? 347 A: I can’t -- it was -- I think it was a couple days. I mean,it happened so long ago, I think he wasin there for a couple days. Q: And whenhe eventually got out of the hospital and told you this information, do you recall exactly what he said? A: Not exactly. I just know thatall, like I said, it happened so long ago, all I remember him it (sic) was Dozer, and he wastrying (sic) they were trying to figure out how they could get back at Cole Street for shooting at them, vice versa. [RT 27:4053-4054 (internal quotation marks omitted). ] On cross-examination, however, Recio madeclear, as she had testified to on direct examination, that the word “on the street” was that Dozer had shot Uzel, but Uzel nevertold her that he had first-hand knowledge ofthe identity of the shooter. Recio testified on cross-examination as follows: Q: Miss Recio, you heard the readback. A: Yes. Q: Okay. So is there an inconsistency in what you’retelling us,oris this consistent with what we just heard, we haveit distorted? A: Well, I just -- when he got out of the hospital, it was out on the street that Dozer, whoever Dozer was, from Cole Street had didit (sic). R.J. did not comestraight out, it was Dozer, which is whoit was, I know whoit was. Q: So basically what he -- what you testified to that’s been read back in court? A: Mm-hmm. Q: Is in effect gossip from the street? A: Yeah. Like I said, what they -- they meaning one gang to another. 348 Q: And you’ve not heard anything from R.J. where he’s telling you whoshot him? A: No. Q: From his ownpersonal knowledge. A: No. [RT 27:4055.] Onredirect examination Reciotestified that shortly after the incident she gave a statement to Detective Rudy Ortega. (RT 27:4056.) Shetestified that she “told him exactly what I told you and everyone else.” (RT 27:4056.) Recio reiterated, “All I can go by is what was said on the street. I don’t know who Dozer was. Who did it. Or nothing. That’s all I know is that’s what was out on the street. If you can buy whatwasouton the street, then what wassaid. I never saw him. I still don’t even know who Dozeris.” (RT 27:4056 [emphasis added].) Abraham Van Roodtestified he saw a young man in vicinity of the McDonald’s parking holding a gun and shooting at a vehicle. After the shooting, the gunmangotinto the passengerside of another vehicle. (RT 27:4058-4063.) The vehicle that the gunman got into was registered to Diana Hara, 8511 Dalewood Avenue, Pico Rivera (RT 27:4070-4071), which is the same address as shown on codefendant Bermudez’s driver’s license (RT 27:4071-4072; People’s Exh.6). 349 The record does not support a solid, credible inference that appellant was the shooter. Uzel testified that he was neverable to identify his assailant. (RT 27:4032-4045.) Uzel’s testimony was consistent with whathe told the police at the hospital shortly after the shooting. (RT 27:4039, 4042.) Recio also was unable to identify the shooter. (RT 27:4047-4056.) She testified that while she wasdriving Uzelto the hospital, and then while at the hospital, Uzel never stated that appellant was involved in the shooting. (RT 27:4050-4051.) However, shetestified that the word “on the street” was that Dozer was involved. (RT 27:4051.) Recio testified for the prosecution on direct examination,in part: Q: Up to and including this momentin time, has Mr. Uzel ever informed you that Dozer was the person who had shot him? A: Not him himself, that’s just what was said out on the street. [RT 27:4051 (emphasis added). ] This is entirely speculative testimony becauseit is based on rumor, not first-hand factual knowledge. (Cf. People v. Daniels (1991) 52 Cal.3d 815, 861- 862 [affirming trial court’s exclusion of testimony of defense witness that was based on rumorand speculation, not personal knowledge].) Although inferences may constitute substantial evidence in support of a judgment, they must be the probable outcome oflogic applied to direct evidence; mere speculative possibilities or conjecture are infirm. (Kuhn v. Department of 350 General Services (1994) 22 Cal.App.4th 1627, 1633; Louis & Diederich, Inc. v. Cambridge European Imports, Inc. (1987) 189 Cal.App.3d 1574, 1584-1585; People v. Berti (1960) 178 Cal.App.2d 872, 876.) “A legal inference cannot flow from the nonexistence ofa fact; it can be drawn only from a fact actually established.” (Eramdjian v. Interstate Bakery Corp. (1957) 153 Cal.App.2d 590, 602; accord, People v. Stein (1979) 94 Cal.App.3d 235, 239.) Disbelieving a witness does notentitle a trier of fact to infer the opposite of the testimony. (People v. Drolet (1973) 30 Cal.App.3d 207, 217; People v. Samarjian (1966) 240 Cal.App.2d 13, 18 [“The People must prevail on their own evidence, not on a vacuum created by rejection of a defense’’].) Even in the readback of Recio’s 402 testimony, which was admitted in an attempt to impeach Uzel’s testimony that he never told Recio that appellant was involved, Recio never stated that Uzel told her that he saw appellantfire the shots. Recio testified that after Uzel returned home from the hospital “all I rememberhim it (sic) was Dozer, and he wastrying (sic) they were trying to figure out how they could get back at Cole Street for shooting at them, vice versa.” (RT 27:4054.) This is consistent with Recio’s testimony on both direct and cross-examination that the word “on the street” was Dozer shot Uzel, but Uzel nevertold her that he had first-hand knowledge of the identity of the 351 shooter, nor did hetell her that appellant was involved in the shooting. (RT 27:4050-4051, 4055.) .... If the existence of an essential fact upon which a party relies is left in doubt or uncertainty, the party upon whom the burdenrests to establish that fact should suffer, and not his adversary. (Patterson v. San Francisco etc. Ry. Co., 147 Cal. 178 [81 P. 531].) A judgment cannot be based on guessesor conjectures. (Puckhaber v. Southern Pac. Co., 132 Cal. 363 [64 P. 480].) (Reese v. Smith (1937) 9 Cal.2d 324, 328.) Accordingly, Recio’s testimony does not supporta solid, credible inference that appellant was the shooter. C. THE JURY’S CONSIDERATION OF THE ASSAULT WITH A FIREARM ON UZEL REQUIRES REVERSAL OF THE DEATH JUDGMENT FORA VIOLATION OF APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A RELIABLE PENALTY DETERMINATION (CAL. CONST., ART.I, §§ 7, 15 & 17; U.S. CONST., 5™, 6", 8™ & 14™ AMENDS.) BECAUSE IT CANNOT BE PROVED BEYOND A REASONABLE DOUBT THAT THE EVIDENCE DID NOT CONTRIBUTETO THE DEATH VERDICT The California statutory schemeallows, in aggravation, consideration of “the presence or absence of other criminal activity by the defendant which involved the use or attempted use of force or violence or which involved the express or implied threat to use force or violence... .” (Pen. Code, § 190.3.) The requisite “criminal activity” must amount to conductthat violates a penal statute. (People v. Boyd (1985) 38 Cal.3d 762, 772.) The jury may not rely on evidence of such uncharged crimesof violence as an aggravating factor unless 352 the crimes are proved beyond a reasonable doubt. (People v. Robertson (1982) 33 Cal.3d 21, 53-54.) A judgment unsupported by substantial evidence denies a defendant due process of law. (Cf. Jackson v. Virginia, supra, 443 U.S. at p. 318; White v. Illinois, supra, 502 U.S. at pp. 363-364 [“Reliability is... a due process concern”]; Donnelly v. DeChristoforo, supra, 416 U.S. at p. 646 [due process “cannot tolerate” convictions based on false evidence]; People v. Bean, supra, 46 Cal.3d at p. 932; Cal. Const., art. I, §§ 7, 15 & 17; U.S. Const., 5", 6", 8" & 14" Amends.) In capital cases it is well recognized that heightened verdict reliability is required at both the guilt and penalty phasesoftrial. (Beck v. Alabama, supra, 447 U.S. at pp. 627-646; see also Kyles v. Whitley, supra, 514 U.S. at p. 422; Burger v. Kemp, supra, 483 U.S. at p. 785; Gilmore v. Taylor, supra, 508 U'S. at p. 342; Cal. Const., art. I, §§ 7, 15 & 17; U.S. Const., 5", 6", 8" & 14" Amends.) The standard of prejudice for the deprivation of a federal constitutional right, as here, is the Chapman harmlesserror analysis, which requires reversal unless the error was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24; see People v. Sengpadychith, supra, 26 Cal.4th at p. 326 [Chapman asks whetherthe prosecution has “prove[d] beyond a reasonable doubtthat the error ... did not contribute to” the verdict].) 353 State law error in admitting or excluding evidence at the penalty phase of a capital trial is reversible if there is a reasonable possibility it affected the verdict. (People v. Lancaster (2007) 41 Cal.4th 50, 94; People v. Jackson (1996) 13 Cal.4th 1164, 1232.) This standard is the same, in substance and effect, as the harmless beyond a reasonable doubt standard of Chapman vy. California, supra, 386 U.S. at p. 24. (People v. Ochoa (1998) 19 Cal.4th 353, 479.) Evidence of an assault with a firearm on Uzel formed a material part of the prosecution’s case in aggravation. (Ante, Statement of Facts, § D.1.) During closing summation, the prosecution urged the jury to return a death verdict based in part on evidence of an assault with a firearm on Uzel. (RT 30:4443-4444,) The prosecutor argued, in part: .... With respect to the other criminal activity that Dozer was involved in? Well, that’s why you heard from Mr. Uzel. That’s why you heard from Debbie Recio. You know,youreally do, even as a prosecutor, you wish that it would have just ended,all his crime spree would have just ended with the guilt phase evidence, butit didn’t in this case. Dozer even two months before the Whittier murders actually tried to kill, injure, and even, well, kill and injure Jason Uzelat that McDonald’s parking lot on May 20th, 1997. That kind of tells you what kind of person Dozer was. Orstill is, for that matter. And the reason he shot Jason Uzel? Because, as Jason Uzel reported to law enforcement, after the crime was committed upon him, that Dozer walked up to him andyelled at him what(sic) he was using the telephone,that this is Whittier. 354 Whatdoesthat tell us from a gangster point of view? That he’s protecting his territory, he is protecting his neighborhood,that he’s telling people who do not belong in this neighborhoodthat they shouldn’t be around. They should not haveinfiltrated his area. That’s what Dozer is. That’s what the motive is behind the shooting of Jason Uzel. Jason was in the wrongplaceat the wrong time. He was in the wrong neighborhood. And Dozerjust didn’t shoot Jason once, he shot him multiple times when he was confined in a car with no visible means ofescape. And fortunately Jason survived his wounds and wasnothit to the point that, you know,his life was in jeopardy. But the bottom line is a person whois capable just out of anger andhate proceededfor a boy being in the wrong neighborhoodto actually walk up to that individual and shoot him multiple times from merely point blank range. Tells you whattype ofcharacter Dozerreally has. And again, this is a significant factor in aggravation, which can not be overcomeby anything in mitigation that we’ve already heard. .... [RT 30:4443-4444 (emphasis added).] Asthe prosecutor pointedly told the jury, the assault with a firearm on Uzel “is a significant factor in aggravation, which can not be overcome by anything in mitigation that we’ve already heard.” (RT 30:4444.) In connection with a prosecutor’s closing argumentto the jury, this Court, and other courts, have recognized what logic dictates — i.e., the prosecutor’s reliance in closing argument on erroneously admitted evidenceis a strong indication of prejudice. (See e.g., People v. Guzman (1988) 45 Cal.3d 915, 963 [finding no Boyderrorbut noting it was significant that “the prosecution made no effort to capitalize on the testimony”); People v. Roder (1983) 33 Cal.3d 491, 505 [error not harmless under Chapmanbecause, in part, “the prosecutorrelied on the 355 [erroneous] presumptionin his closing argument”]; People v. Martinez (1986) 188 Cal.App.3d 19, 26 [error not harmless under Chapman based,in part, on prosecutor’s closing argument]; People v. Frazier (2001) 89 Cal.App.4th 30, 39 [“reasonable doubt [under Chapman] is reinforced here by the prosecutor’s use of the propensity instruction in closing argument”]; People v. Younger (2000) 84 Cal.App.4th 1360, 1384 [“Our conclusion that there is such reasonable doubtis reinforced by the prosecutor’s use of the instruction in her closing arguments.”]; People v. Brady (1987) 190 Cal.App.3d 124, 138 [argument of the district attorney, if anything, compoundedthe defect”]; Depetris v. Kuykendall (9"Cir. 2001) 239 F.3d 1057, 1063 [prosecutor’s reliance on error in closing argumentis indicative of prejudice].) It is thus likely that the jury viewed the evidence as did the prosecutor, and attributed the assault with a firearm on Uzel as a significant factor in aggravation warranting a sentence of death, especially because it was the only instance of prior criminal conduct admitted in aggravation. In view of the fact that the prosecution viewed the assault with a firearm on Uzel as a significant factor in aggravation warranting a sentence of death, and in view ofthe case in mitigation, consisting of evidence that appellant’s conduct was induced by chronic drug addiction and that appellant is a good and caring person with redeeming qualities (ante, Statement of Facts, §§ E.1. & E.2.), the 356 prosecution cannot now prove beyond a reasonable doubt that the evidence of the assault with a firearm on Uzeldid not contribute to the death verdict. (See People v. Robertson, supra, 48 Cal.3d at p. 62 [federal constitutional error requires reversal of the death judgment unless it can be demonstrated that the error is harmless beyond a reasonable doubt]; see Chapman v. California, supra, 386 U.S.at pp. 20-21; Arizona v. Fulminante, supra, 499 U.S. at p. 296; People v. Cowan, supra, 50 Cal.4th at p. 491.) Reversal of the death judgmentis required. /// 357 XIX. IN VIEW OF THE ADMISSION OF PRIOR VIOLENT CRIMES EVIDENCE IN AGGRAVATION, THE TRIAL COURT’S INSTRUCTION THAT THE PROSECUTION BEARS NO BURDEN OF PROOF AT THE PENALTY PHASE, AND THE FAILURE TO DEFINE REASONABLE DOUBT, VIOLATED APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO JURY TRIAL, DUE PROCESS, ANDA RELIABLE PENALTY DETERMINATION(CAL. CONST., ART. I, §§ 7, 15 & 17; U.S. CONST., 5™, 677, 8™ & 14™ AMENDS.), THEREBY REQUIRING REVERSAL OF THE DEATH JUDGMENT A. INTRODUCTION AND PROCEDURAL BACKGROUND The prosecution introduced evidence in aggravation that in 1997 appellant purportedly committed the offense of assault with a firearm on Jason Uzel. (Ante, Statement of Facts, § D.1.) The evidence was admitted pursuant to Penal Codesection 190.3, factor (b), which provides that in determining penalty the trier of fact shall take into account “[t]he presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.” At the conclusion of the penalty phase evidence, but prior to closing argument of counsel, the trial court instructed the jury as follows: “The People do not have a burdenof proofat this stage of the proceeding.” (RT 30:4430.) Following closing argument,the trial court instructed the jury using the 1996 version of CALJIC No. 8.84.1 in pertinent part as follows: You will now be instructed as to all of the law that applies to the penalty phase of thistrial. 358 You must determine whatthe facts are from the evidence received during the entire trial unless you are instructed otherwise. You must accept and follow the law that I shall state to you. Disregardall other instructions given to you in other phasesofthis trial. [RT 30:4462 [emphasis added]; CT 13:3525.] Thetrial court also instructed the jury, as pertinent here, in the language of CALJIC No.8.84, the introductory penalty phase instruction; No. 8.85, the list of aggravating and mitigating factors for the jury’s consideration; No.8.87, requiring proof of other criminal activity beyond a reasonable doubt; No.8.88, the penalty phase concluding instruction; No. 9.00, defining the offense of assault; and No. 9.02, defining the offense of assault with a firearm. (RT 30:4462-4469; CT 13:3526-3540.) Contrary to the recommendation in the Use Note to CALJIC No. 8.84.1, however,the trial court did not instruct the jury with CALJIC No. 2.90, defining reasonable doubt. B. THE TRIAL COURTHASA SUA SPONTE DUTY TO CORRECTLY INSTRUCT THE JURY ON THE PROSECUTION’S BURDEN Thetrial court has a sua sponte duty to correctly instruct the jury, and its instructions and commentsto the jury are properly reviewed on appeal without 359 objection below. (Pen. Code, § 1259;*' People v. Brown (2003) 31 Cal.4th 518, 539.)” C. STANDARD OF REVIEW The standard of review for a claim that a sentencing instruction is ambiguous is “‘whetherthere is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” (Estelle v. McGuire, supra, 502 U.S. at p. 72 quoting Boyde v. California, supra, 494 US. at p. 380.) D. THE TRIAL COURT ERRED BY INSTRUCTING THE PENALTY PHASE JURY THAT THE PROSECUTION BEARS NO BURDEN OF PROOF AND BY OMITTING AN INSTRUCTION DEFINING REASONABLE DOUBT When prior violent crimes evidence is admitted in aggravation under factor (b) of section 190.3, the prosecution bears the burdenof proof, and a juror may not consider the evidence unlessthe juroris satisfied that the prosecution has proven each elementof the prior offense beyond a reason reasonable doubt. (See People v. Boyd (1985) 38 Cal.3d 762, 776-777.) 4 Section 1259 providesin part: “The appellate court may also review any instruction given, refused or modified, even though no objection was madethereto in the lower court, if the substantial rights of the defendant were affected thereby.” 2 Trial defense counsel did not object to the instructions given to the jury. 360 In such a case,as here, the jury must be instructed that the prosecution alone bears the burden of proving the prior offense beyond a reasonable doubt. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 208 [“There is no need to instruct the jury at the penalty phase (1) regarding a burden ofproof, exceptas to section 190.3, factors (b) and (c).. .”]; People v. Jennings (2010) 50 Cal.4th 616, 689 [“{E}xcept for prior violent crimes evidence and prior felony convictions under section 190.3, factors (b) and (c), the court need not instruct regarding a burden ofproof, or instruct that there is no burden of proofat the penalty phase.”’].) Moreover, when prior violent crimes evidence is admitted in aggravation, the trial court errs by failing to define “reasonable doubt” during penalty phase instructions. (People v. Cowan, supra, 50 Cal.4th at p. 494.) “‘{I]fa trial court instructs the jury at the penalty phase notto refer to instructions given at the guilt phase,it later must provide the jury with those instructions applicable to the evaluation of evidence at the penalty phase,’ including CALJIC No. 2.90.” (Ibid., citing People v. Lewis (2008) 43 Cal.4th 415, 535.) //TT1 361 E. REVERSAL OF THE DEATH JUDGMENTIS REQUIRED BECAUSEIT IS REASONABLY LIKELY THAT THE JURY APPLIED THE INSTRUCTIONS IN A WAY THAT DEPRIVED APPELLANT OF A PROPERLY GUIDED, INDIVIDUALIZED SENTENCING HEARING; MOREOVER, THE PROSECUTION WILL BE UNABLE TO PROVE THAT THE INSTRUCTIONAL ERRORS WERE HARMLESS BEYOND A REASONABLE DOUBT Although the court instructed with CALJIC No. 8.87, requiring proof of other criminal activity beyond a reasonable doubt (CT 13:3531-3533), the court’s overriding instruction was unequivocal: “The People do not have a burden of proofat this stage of the proceeding.” (RT 30:4430.) Considering the court’s explicit and unequivocalinstruction that the prosecution bore no burden of proof at the penalty phase ofthe trial, combined with the court’s failure to define reasonable doubt, appellant was deprived of a properly guided, individualized sentencing hearing. In a capital case, the court must clearly and explicitly instruct the jury about prior violent crimes evidence and the prosecution’s burden of proof. “The jury must receive clear instructions which .. . ‘guide[] and focus[] the jury’s objective consideration of the particularized circumstancesof the individual offense and the individual offender.’” (Spivey v Zant (5" Cir. 1981) 661 F. 2d 464, 471, quoting Jurek v Texas (1976) 428 U.S. 262, 274 [96 S.Ct. 2950, 49 L.Ed.2d 929], cert. denied, 458 U.S. 111 (1982).) Moreover, whenthetrial court fails to instruct the jury to make a necessary factual determination — as here with respect to prior violent crimes 362 evidence admitted in aggravation underfactor (b) of section 190.3 — the error results in a deprivation of both due process and the Sixth Amendmentright to jury trial. (Cf. In re Winship (1970) 397 U.S. 358, 364 [90 S.Ct. 1068, 25 L.Ed.2d 368]; U.S. Const. 5", 6", & 14" Amends.) Prejudicial error at the penalty phase of a capital case results in a deprivation of the right to a reliable penalty determination. (Cf. Woodson v. North Carolina, supra, 428 U.S. at p. 304; Zant v. Stephens (1983) 462 U.S. 862, 879 [103 S.Ct. 2733, 77 L.Ed.2d 235]; Payne v. Tennessee, supra, 501 US. at p. 825-830; U.S. Const. 8" & 14" Amends.) The standard of prejudice for the deprivation of a federal constitutional right is the Chapman harmlesserror analysis, which requires reversal of appellant’s convictions unless the error was harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 U.S. at p. 24; see People v. Sengpadychith, supra, 26 Cal.4th at p. 326 [Chapman asks whetherthe prosecution has “prove[d] beyond a reasonable doubtthat the error ... did not contribute to” the verdict].) State law error at the penalty phase of a capital case requires reversal whenthere is a “reasonable(i.e., realistic) possibility” the error affected the verdict (People v. Brown, supra, 46 Cal.3d at pp. 447-448), which is “‘the same, in substance andeffect,’ as the harmless-beyond-a-reasonable-doubt standard of 363 Chapmanv. California, supra, 386 U.S. at p.24....” (People v. Cowan, supra, 50 Cal.4th at p. 491.) The prosecution will be unable to prove that the instructional errors were harmless beyond a reasonable doubt because 1) the prior violent crimes evidence relating to the assault with a firearm on Uzel wasthe only prior criminal conduct admitted in aggravation and 2) there is substantial evidence that the prosecution failed to prove the offense of assault with a firearm beyond a reasonable doubt. (Ante, § XVIII [insufficient evidence that appellant perpetrated an assault with a firearm on Uzel].) Preliminarily, the instant case is distinguishable from People v. Cowan, supra, 50 Cal.4th 401, finding harmlesserrorin the trial court’s failure to redefine “reasonable doubt” during penalty phase instructions because the jurors had been given the appropriate instruction during the guilt phase. (/d. at p. 494.) Although appellant’s jury was instructed with CALJIC. No. 2.90 (defining reasonable doubt) during the guilt phase (RT 24:3752-3753; CT 12:3379), here, in contrast to People v. Cowan, supra,the trial court explicitly instructed the jury that “/t/he People do not have a burden ofproof at this stage of the proceeding.” (RT 30:4430 [emphasis added].) 364 The only prior criminal conduct admitted in aggravation was a purported assault with a firearm on Uzel, committed in May 1997, which the prosecution failed to prove with solid, credible evidence. (RT 27:4022-2024.) As shownabove,and as explained in Argument XVIILB, ante, the evidence was woefully insufficient to prove beyond a reasonable doubtthat appellant perpetrated an assault with a firearm upon Uzel. (Ante, § XVIILB; cf. People v. Samuel, supra, 29 Cal.3d at p. 505 [evidence relied upon mustbe “reasonable in nature, credible and of solid value”].) Asexplained in Argument XVIILC,ante, the evidence of an assault with a firearm on Uzel formed a material part of the prosecution’s case in aggravation. (Ante, § XVIII.C.) As the prosecutor pointedly told the jury, the assault with a firearm on Uzel“is a significantfactor in aggravation ....” (RT 30:4444 [emphasis added].) It is thus likely that the jury viewed the evidence as did the prosecutor, and attributed the assault with a firearm on Uzelas a significant factor in aggravation warranting a sentence of death, especially because it was the only instance of prior criminal conduct. (Cf. Yates v. Evatt, supra, 500 U.S. at pp. 403-404 [an instructional error may be found to be harmless whereit is shown beyond a reasonable doubt that the error was “unimportant in relation to everything else the jury consideredon the issue in question, as revealed in the record”]; People v. 365 James (2000) 81 Cal.App.4th 1343, 1364, fn. 10 [closing argument cannot cure error in instruction but may exacerbateit]; People v. Rhodes (2005) 129 Cal.App.4th 1339, 1347-1348 [convictions reversed based on instructionalerror, in part, because “the district attorney’s closing argument exacerbated the court’s instructionalerror.”]; Buzgheia v. Leasco Sierra Grove (1997) 60 Cal.App.4th 374, 396 [effect of counsel’s argument exacerbated instructional error].) Juror comprehensionof the sentencing instruction 1s a federal constitutional guarantee. (See Boyde v. California, supra, 494 U.S. at p. 380.) If the jury had been properly instructed on the prosecution’s burden ofproof, then it is reasonably likely that the jurors would have found that the prosecution had not carried its burden of proof on the issue whether appellant committed the offense of assault with a firearm on Uzel, thereby requiring reversal of the death judgment. (Cf. Estelle v. McGuire, supra, 502 US. at p. 72.) In view ofthe fact that the instructional errors deprived appellant of a fair trial on the issue whether the prosecution had proven beyond a reasonable doubt the prior violent crimes evidencerelating to the assault with a firearm on Uzel, and in view ofthe case in mitigation, consisting of evidence that appellant’s conduct was induced by chronic drug addiction andthat appellant is a good and caring person with redeeming qualities (ante, Statement of Facts, §§ E.1. & E.2.), the prosecution will be unable to prove beyond a reasonable doubt that the 366 instructional errors did not contribute to the verdict. (Cf. Sullivan v. Louisiana, supra, 508 U.S. at p. 279; see People v. Robertson, supra, 48 Cal.3d at p. 62 [federal constitutional error requires reversal of the death judgment unless it can be demonstrated that the error is harmless beyond a reasonable doubt]; see Chapmanv. California, supra, 386 U.S. at pp. 20-21; People v. Cowan, supra, 50 Cal.4th at p. 491.) Reversal of the death judgmentis required. /// 367 XX. CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT?’S TRIAL, VIOLATES THE FEDERAL CONSTITUTION(U.S. CONST., 5™, 67", 87" & 147 AMENDS.) Manyfeatures of California’s capital sentencing scheme,alone orin combination with each other, violate the United States Constitution. Because challenges to most of these features have been rejected by this Court, appellant presents these arguments here in an abbreviated fashion sufficient to alert the Court to the nature of each claim andits federal constitutional grounds, and to provide a basis for the Court’s reconsideration of each claim in the context of California’s entire death penalty system. To date the Court has considered each of the defects identified below in isolation, without considering their cumulative impact or addressing the functioning of California’s capital sentencing scheme as a whole. This analytic approachis constitutionally defective. As the high court hasstated, “[t]he constitutionality of a State’s death penalty system turns on review of that system in context.” (Kansas v. Marsh (2006) 548 U.S. 163, 179, fn. 6.)” See also, 8 In Marsh,the high court considered Kansas’s requirement that death be imposed if a jury deemed the aggravating and mitigating circumstances to be in equipoise and on that basis concluded beyond a reasonable doubtthat the mitigating circumstances did not outweigh the aggravating circumstances. This was acceptable, in light of the overall structure of “the Kansas capital sentencing system,” which,as the court noted, “ is dominated by the presumptionthatlife imprisonmentis the appropriate sentence for a capital conviction.” (548 US. at 368 Pulley v. Harris (1984) 465 U.S. 37, 51 [104 S.Ct. 871, 79 L.Ed.2d 29] [while comparative proportionality review is not an essential component of every constitutional capital sentencing scheme,a capital sentencing scheme may be so lacking in other checks onarbitrariness that it would not pass constitutional muster without such review]. Whenviewed as a whole, California’s sentencing schemeis so broadin its definitions of whois eligible for death and so lacking in procedural safeguards that it fails to provide a meaningfulorreliable basis for selecting the relatively few offenders subjected to capital punishment. Further, a particular procedural safeguard’s absence, while perhaps not constitutionally fatal in the contextof sentencing schemesthat are narroweror have other safeguarding mechanisms, mayrender California’s scheme unconstitutional in that it is a mechanism that might otherwise have enabled California’s sentencing schemeto achieve a constitutionally acceptable level of reliability. California’s death penalty statute sweeps virtually every murderer intoits grasp. It then allows any conceivable circumstance of a crime — even circumstances squarely opposed to each other(e.g., the fact that the victim was young versusthe fact that the victim was old, the fact that the victim was killed at homeversusthe fact that the victim was killed outside the home) — to justify the p. 178.) 369 imposition of the death penalty. Judicial interpretations have placed the entire burden of narrowingthe class of first degree murderers to those most deserving of death on Penal Code § 190.2, the “special circumstances” section of the statute — but that section was specifically passed for the purpose of making every murderereligible for the death penalty. There are no safeguardsin California during the penalty phase that would enhancethereliability of the trial’s outcome. Instead, factual prerequisites to the imposition of the death penalty are found by jurors whoare not instructed on any burden of proof, and who may not agree with each otherat all. Paradoxically, the fact that “death is different” has been stood on its head to mean that procedural protections taken for grantedin trials for lesser criminal offenses are suspended whenthe question is a finding that is foundational to the imposition of death. Theresult is truly a “wanton and freakish” system that randomly chooses among the thousands of murderers in California a few victims of the ultimate sanction. A. APPELLANT’S DEATH PENALTYIS INVALID BECAUSE PENAL CODE § 190.2 IS IMPERMISSIBLY BROAD To avoid the Eighth Amendment’s proscription against cruel and unusual punishment, a death penalty law must provide a “meaningful basis for distinguishing the few cases in which the death penalty is imposed from the manycases in whichitis not. (Citations omitted.)” (People v. Edelbacher (1989) 47 Cal.3d 983, 1023.) 370 In order to meet this constitutional mandate, the states must genuinely narrow,byrational and objective criteria, the class of murderers eligible for the death penalty. According to this Court, the requisite narrowing in California is accomplishedby the “special circumstances”set out in section 190.2. (People v Bacigalupo (1993) 6 Cal.4th 857, 868.) The 1978 death penalty law cameinto being, however, not to narrow those eligible for the death penalty but to make a// murdererseligible. (See 1978 Voter’s Pamphlet, p. 34, “Arguments in Favor of Proposition 7.”) This initiative statute was enacted into law as Proposition 7 by its proponents on November7, 1978. At the time of the offense charged against appellant the statute contained twenty-six special circumstances” purporting to narrow the categoryoffirst degree murders to those murders most deserving of the death penalty. These special circumstances are so numerousandso broad in definition as to encompass nearly every first-degree murder, per the drafters’ declared intent. In California, almost all felony-murders are now special circumstance cases, and felony-murdercases include accidental and unforeseeable deaths, as well as acts committed in a panic or under the dominion of a mental breakdown, or acts committed by others. (People v. Dillon (1984) 34 Cal.3d 441.) Section “4 This figure does not include the “heinous, atrocious, or cruel” special circumstance declared invalid in People v. Superior Court (Engert) (1982) 31 Cal.3d 797. The numberof special circumstances has continuedto grow andis nowthirty-three. 371 190.2's reach has been extendedto virtually all intentional murders bythis Court’s construction of the lying-in-wait special circumstance, which the Court has construed so broadly as to encompassvirtually all such murders. (Cf. People v. Hillhouse (2002) 27 Cal.4th 469, 500-501, 512-515.) These categories are joined by so manyother categories of special-circumstance murderthat the statute now comescloseto achievingits goal of making every murderereligible for death. The high court has madeit clear that the narrowing function, as opposed to the selection function, is to be accomplished bythe legislature. The electorate in California and the drafters of the Briggs Initiative threw down a challenge to the courts by seeking to make every murderereligible for the death penalty. This Court should accept that challenge, review the death penaltyscheme currently in effect, and strike it down asso all-inclusive as to guarantee the arbitrary imposition of the death penalty in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and prevailing international law.** (See Section E. of this Argument, post). “5 In a habeaspetition to be filed after the completion of appellate briefing, appellant intends to present empirical evidence confirming that section 190.2 as applied, as one would expect givenits text, fails to genuinely narrow the class of personseligible for the death penalty. Further, in his habeaspetition, appellant intends to present empirical evidence demonstrating that, as applied, California’s capital sentencing scheme culls so overbroada poolofstatutorily death-eligible defendants that an even smaller percentage of the statutorily death- eligible are sentenced to death than wasthe case underthe capital sentencing 372 B. APPELLANT’S DEATH PENALTYIS INVALID BECAUSE PENAL CODE § 190.3(A) AS APPLIED ALLOWS ARBITRARY AND CAPRICIOUS IMPOSITION OF DEATH IN VIOLATION OF THEFIFTH,SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION Section 190.3(a) violates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution in that it has been applied in such a wanton and freakish mannerthat almostall features of every murder, even features squarely at odds with features deemed supportive of death sentences in other cases, have been characterized by prosecutors as “aggravating” within the statute’s meaning. Factor(a), listed in section 190.3, directs the jury to consider in aggravation the “circumstances of the crime.” This Court has never applied a limiting construction to factor (a) other than to agree that an aggravating factor based on the “circumstancesof the crime” must be somefact beyond the elements of the crime itself.*° The Court has allowed extraordinary expansions of factor (a), approving reliance uponit to support aggravating factors based upon schemes condemned in Furman v. Georgia (1972) 408 U.S. 238 [92 S.Ct. 2726, 33 L.Ed.2d 346], and thus that California’s sentencing scheme permits an even greater risk of arbitrariness than those schemesand,like those schemes,1s unconstitutional. “6 People v. Dyer (1988) 45 Cal.3d 26, 78; People v. Adcox (1988) 47 Cal.3d 207, 270; see also CALJIC No. 8.88 (2006), par.3. 373 the defendant’s having sought to conceal evidence three weeksafter the crime,”’ 48 or threatened witnessesafter his arrest,”’ oror having had a “hatred of religion, disposed of the victim’s body in a mannerthat precludedits recovery.” It also is the basis for admitting evidence under the rubric of “victim impact”that is no more than an inflammatory presentation by the victim’s relatives of the prosecution’s theory of how the crime was committed. (Cf., e.g., Peoplev. Robinson (2005) 37 Cal.4th 592, 644-652, 656-657.) Relevant “victims”include “the victim’s friends, coworkers, and the community” (People v. Ervine (2009) 47 Cal.4th 745, 858), the harm they describe may properly “encompass[] the spectrum of humanresponses”(ibid.), and such evidence may dominatethe penalty proceedings (People v. Dykes (2009) 46 Cal.4th 731, 782-783). The purpose of section 190.3 is to inform the jury of what factors it should consider in assessing the appropriate penalty. Although factor (a) has survived a facial Eighth Amendmentchallenge (Tuilaepa v. California (1994) 512 U.S. 967 [114 S.Ct. 2630, 129 L.Ed.2d 750]), it has been used in waysso arbitrary and “7 People v. Walker (1988) 47 Cal.3d 605, 639, fn. 10, cert. den., 494 U.S. 1038 (1990). 48 People v. Nicolaus (1991) 54 Cal.3d 551, 581-582, cert. den., 112 S.Ct. 3040 (1992). ”° People v. Hardy (1992) 2 Cal.4th 86, 204, cert. den., 113 S.Ct. 498. °° People v. Bittaker (1989) 48 Cal.3d 1046, 1110, fn. 35, cert. den. 496 U.S. 931 (1990). 374 contradictory as to violate both the federal guarantee of due process of law and the Eighth Amendment. Prosecutors throughout California have argued that the jury could weigh in aggravation almost every conceivable circumstance of the crime, even those that, from case to case, reflect starkly opposite circumstances. (Tuilaepa, supra, 512 U.S. at pp. 986-990, dis. opn. of Blackmun,J.) Factor (a) is used to embrace facts which are inevitably present in every homicide. (/bid.) As a consequence, from case to case, prosecutors have been permitted to turn entirely opposite facts — or facts that are inevitable variations of every homicide — into aggravating factors which the jury is urged to weigh on death’s side ofthe scale. In practice, section 190.3's broad “circumstances of the crime” provision licenses indiscriminate imposition of the death penalty upon no basis other than “that a particular set of facts surrounding a murder, . .. were enough in themselves, and without some narrowingprinciples to apply to those facts, to warrantthe imposition of the death penalty.” (Maynard v. Cartwright (1988) 486 U.S. 356, 363 [108 S.Ct. 1853, 100 L.Ed.2d 372] [discussing the holding in Godfrey v. Georgia (1980) 446 U.S. 420].) Viewing section 190.3 in context of how it is actually used, one sees that every fact without exception that is part of a murder can be an “aggravating circumstance,” thus emptying that term of any 375 meaning, and allowing arbitrary and capricious death sentences, in violation of the federal constitution. Cc. CALIFORNIA’S DEATH PENALTY STATUTE CONTAINS NO SAFEGUARDS TO AVOID ARBITRARY AND CAPRICIOUS SENTENCING AND DEPRIVES DEFENDANTSOF THE RIGHT TOA JURY DETERMINATION OF EACH FACTUAL PREREQUISITE TO A SENTENCE OF DEATH; IT THEREFORE VIOLATES THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION As shownabove, California’s death penalty statute does nothing to narrow the pool of murderers to those most deserving of death in either its “special circumstances” section (Pen. Code, § 190.2) or in its sentencing guidelines (Pen. Code, § 190.3). Section 190.3(a) allows prosecutors to argue that every feature of a crime that can be articulated is an acceptable aggravating circumstance, even features that are mutually exclusive. Furthermore,there are none of the safeguards commonto other death penalty sentencing schemes to guard against the arbitrary imposition of death. Juries do not have to make written findings or achieve unanimity as to aggravating circumstances. They do not have to find beyond a reasonable doubt that aggravating circumstances are proved, that they outweigh the mitigating circumstances,or that death is the appropriate penalty. In fact, except as to the existence of other criminal activity and prior convictions,juries are not instructed on any burden of proofat all. Not only is inter-case proportionality review not required; it is not permitted. Underthe rationale that a decision to impose death 376 is “moral” and “normative,” the fundamental components of reasoned decision- making that apply to all other parts of the law have been banished from the entire process of making the most consequential decision a juror can make ~ whether or not to condemn fellow human to death. 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 JURY DETERMINATION BEYOND A REASONABLE DOUBT OF ALL FACTS ESSENTIAL TO THE IMPOSITION OF A DEATH PENALTY WAS THEREBY VIOLATED Exceptas to prior criminality, appellant’s jury wasnottold that it had to find any aggravating factor true beyond a reasonable doubt. The jurors were not told that they neededto agreeat all on the presence of any particular aggravating factor, or that they had to find beyond a reasonable doubt that aggravating factors outweighed mitigating factors before determining whetheror not to impose a death sentence. All this was consistent with this Court’s previous interpretations of California’s statute. In People v. Fairbank (1997) 16 Cal.4th 1223, 1255, this Court said that “neither the federal nor the state Constitution requires the jury to agree unanimously as to aggravating factors, or to find beyond a reasonable doubt that aggravating factors exist, [or] that they outweigh mitigating factors...” But this pronouncementhas been squarely rejected by the decisions in Apprendiv. 377 New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435], Ringv. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 553], Blakely v. Washington (2004) 542 U.S. 296 [542 S.Ct. 296, 159 L.Ed.2d 403], and Cunningham v. California (2007) 459 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856]. In Apprendi, the high court held that a state may not impose a sentence greater than that authorized by the jury’s simple verdict of guilt unless the facts supporting an increased sentence (other than a prior conviction) are also submitted to the jury and proved beyond a reasonable doubt. (/d. at p. 478.) In Ring, the high court struck down Arizona’s death penalty scheme, which authorized a judge sitting without a jury to sentence a defendantto death if there wasat least one aggravating circumstance and no mitigating circumstances sufficiently substantial to call for leniency. (Id. at p. 593.) The court acknowledgedthat in a prior case reviewing Arizona’s capital sentencing law (Walton v. Arizona (1990) 497 U.S. 639 [110 S.Ct. 3047, 111 L.Ed.2d 511)) it had held that aggravating factors were sentencing considerations guiding the choice between life and death, and not elements of the offense. (/d. at p. 598.) The court foundthat in light of Apprendi, Walton no longer controlled. Any factual finding which increases the possible penalty is the functional equivalent of an elementof the offense, regardless of when it must be found or what 378 nomenclature is attached; the Sixth and Fourteenth Amendments require thatit be found by a jury beyond a reasonable doubt. In Blakely, the high court considered the effect of Apprendi and Ring ina case wherethe sentencing judge was allowed to impose an “exceptional” sentence outside the normal range uponthe finding of “substantial and compelling reasons.” (Blakely v. Washington, supra, 542 U.S. at p. 299.) The state of Washingtonset forth illustrative factors that included both aggravating and mitigating circumstances; one of the former was whether the defendant’s conduct manifested “deliberate cruelty” to the victim. (/bid.) The high court ruled that this procedure wasinvalid because it did not comply with the right to a jury trial. (Ud. at p. 313.) In reaching this holding, the high court stated that the governing rule since Apprendiis that other than a prior conviction, any fact that increases the penalty for a crime beyondthe statutory maximum must be submitted to the jury and found beyond a reasonable doubt; “the relevant ‘statutory maximum’ is not the maximum sentence a judge may imposeafter finding additional facts, but the maximum he may imposewithout any additional findings.” (/d. at 304; italics in original.) This line of authority has been consistently reaffirmed by the high court. In United States v. Booker (2005) 543 U.S. 220 [543 S.Ct. 220, 160 L.Ed.2d 379 621], the nine justices split into different majorities. Justice Stevens, writing for a 5-4 majority, found that the United States Sentencing Guidelines were unconstitutional because they set mandatory sentences based on judicial findings made by a preponderanceof the evidence. Bookerreiterates the Sixth Amendmentrequirementthat “[a]ny fact (other than a prior conviction) whichis necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” (United States v. Booker, supra, 543 USS. at 244.) In Cunningham,the high court rejected this Court’s interpretation of Apprendi, and found that California’s Determinate Sentencing Law (“DSL”) requires a jury finding beyond a reasonable doubt of any fact used to enhance a sentence above the middle range spelled-out by the legislature. (Cunningham v. California, supra, Section III.) In so doing,it explicitly rejected the reasoning used by this Court to find that Apprendi and Ring have no application to the penalty phase of a capitaltrial. a. IN THE WAKEOF APPRENDI, RING, BLAKELY, AND CUNNINGHAM, ANY JURY FINDING NECESSARY TO THE IMPOSITION OF DEATH MUST BE FOUND TRUE BEYOND A REASONABLE DOUBT California law as interpreted by this Court does not require that a reasonable doubt standard be used during any part of the penalty phase of a 380 defendant’s trial, except as to proof of prior criminality relied upon as an aggravating circumstance — and evenin that context the required finding need not be unanimous. (People v. Fairbank, supra; see also People v. Hawthorne (1992) 4 Cal.4th 43, 79 [penalty phase determinations are “moral and . . . not factual,” and therefore not “susceptible to a burden-of-proof quantification”].) California statutory law andjury instructions, however, do require fact- finding before the decision to impose death or a lesser sentence is finally made. As a prerequisite to the imposition of the death penalty, section 190.3 requires the “trier of fact” to find that at least one aggravating factor exists and that such aggravating factor (or factors) substantially outweigh any andall mitigating factors.°' As set forth in California’s “principal sentencing instruction” (People v. Farnam (2002) 28 Cal.4th 107, 177), which was read to appellant’s jury (RT 50:5915-5916), “an aggravating factor is any fact, condition or event attending the commission ofa crime which increasesits guilt or enormity, or addsto its injurious consequences which is above and beyondthe elements of the crime itself.” (CALJIC No. 8.88; emphasis added.) | This Court has acknowledged that fact-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 determination about the penalty appropriate for the particular defendant. ...” (People v. Brown (1988) 46 Cal.3d 432, 448.) 381 Thus, before the process of weighing 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 determinationsare essential prerequisites to death-eligibility, but do not mean that death is the inevitable verdict; the jury canstill reject death as the appropriate punishment notwithstanding these factual findings.” This Court has repeatedly sought to reject the applicability of Apprendi and Ring by comparing the capital sentencing process in California to “a sentencing court’s traditionally discretionary decision to impose one prison sentencerather than another.” (People v. Demetroulias (2006) 39 Cal.4th 1, 41; 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 punishmentcontingent on the finding of a fact, that fact — no matter how theState labels it — must be foundby a jury beyond a reasonable doubt.’” (/d. at p. 460) 3 This Court has held that despite the “shall impose” language of section 190.3, even if the jurors determine that aggravating factors outweigh mitigating factors, they maystill impose a sentence of life in prison. (People v. Allen (1986) 42 Cal.3d 1222, 1276-1277; People v. Brown (BrownI) (1985) 40 Cal.3d 512, 541.) 382 People v. Dickey (2005) 35 Cal.4th 884, 930; People v. Snow (2003) 30 Cal.4th 43, 126, fn. 32; People v. Prieto (2003) 30 Cal.4th 226, 275.) It has applied precisely the same analysis to fend off Apprendi and Blakely in non-capital cases. In People v. Black (2005) 35 Cal.4th 1238, 1254, this Court held that notwithstanding Apprendi, Blakely, and Booker, a defendant has no constitutional right to a jury finding as to the facts relied on by the 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 Cunninghamtheprinciple that any fact which exposed a defendant to a greater potential sentence must be found bya 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. (Id. pp. 6-7.) That was the end of the matter: Black's “4 Cunningham cited with approval Justice Kennard’s language in concurrence anddissent in Black (“Nothing in the high court’s majority opinions in Apprendi, Blakely, and Booker suggests that the constitutionality of a state’s sentencing schemeturns on whether, in the words of the majority here,it involves the type of factfinding ‘that traditionally has been performed bya judge.’” (Black, 35 Cal.4th at 1253; Cunningham, supra, at p.8.) 383 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, p. 13.) Cunningham then examined this Court’s extensive development of why an interpretation of the DSL that allowed continued judge-based finding of fact and sentencing was reasonable, and concluded that “it is comforting, but beside the point, that California’s system requires judge-determined DSL sentences to be reasonable.” (/d. at p. 14.) 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 some facts essential to punishmentare reserved for determination by the judge, we havesaid, 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.4th, 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. 13.] In the wake of Cunningham, it is crystal-clear that in determining whether or not Ring and Apprendi apply to the penalty phase of a capital case, the sole relevant question is whetheror not there is a requirement that any factual findings be made before a death penalty can be imposed. 384 In its effort to resist the directions of Apprendi, this Court held that since the maximum penalty for one convicted of first degree murder with a special circumstanceis death (see section 190.2(a)), Apprendi does not apply. (People v. Anderson (2001) 25 Cal.4th 543, 589.) After Ring, this Court repeated the same analysis: “Because any finding of aggravating factors during the penalty phase does not ‘increase the penalty for a crime beyondthe prescribed statutory maximum’ (citation omitted), Ring imposes no newconstitutional requirements on California’s penalty phase proceedings.” (People v. Prieto, supra, 30 Cal.4th at p. 263.) This holding is simply wrong. As section 190, subd. (a)”° indicates, the maximum penalty for any first degree murder conviction is death. The top of three rungs is obviously the maximum sentence that can be imposed pursuant to the DSL, but Cunningham recognized that the middle rung was the most severe penalty that could be imposed by the sentencing judge without further factual findings: “In sum, California’s DSL,and the rules governing its application, direct the sentencing court to start with the middle term, and to movefrom that term only whenthe courtitself finds and places on the record facts — whether * Section 190, subd. (a) provides as follows: “Every person guilty of murderin the first degree shall be punished by death, imprisonmentin the state prison for life without the possibility of parole, or imprisonmentin the state prison for a term of 25 yearsto life.” 385 related to the offense or the offender — beyond the elements of the charged offense.” (Cunningham, supra, at p. 6.) Arizona advancedprecisely the same argument in Ring. It pointed out that a finding of first degree murderin Arizona,like a finding of one or morespecial circumstancesin California, leads to only two sentencing options: death orlife imprisonment, and Ring was therefore sentenced within the range of punishment authorized by the jury’s verdict. The U.S. Supreme Court squarely rejectedit: This argument overlooks Apprendi’s instruction that “the relevant inquiry is one not of form, but of effect.” 530 U.S., at 494, 120 S.Ct. 2348. In effect, “the required finding [of an aggravated circumstance] expose[d] [Ring] to a greater punishment than that authorized by the jury’s guilty verdict.” Ibid.; see 200 Ariz., at 279, 25 P.3d, at 1151. [Ring, 124 S.Ct. at 2431.] Just as when a defendant is convicted of first degree murderin 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 sense.” (Ring, supra, 530 U.S. at 604.) Section 190, subd. (a) provides that the punishmentfor first degree murderis 25 yearstolife, 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 LWOPnordeath 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 386 the aggravating circumstances substantially outweigh the mitigating circumstances. (Section 190.3; CALJIC No. 8.88 (7th ed., 2003).) “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.” (Ring, 530 U.S. at 604.) In Blakely,the high court madeit clear that, as Justice Breyer complained in dissent, “a jury must find, not only the facts that make up the crime of which the offenderis charged, but also all (punishment-increasing) facts about the way in which the offender carried out that crime.” (/d., 542 U.S. at p. 328 [emphasis in original].) The issue of the Sixth Amendment’s applicability hinges on whetherasa 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 phaseto be found unanimously and beyond a reasonable doubt violates the United States Constitution. /// 387 b. WHETHER AGGRAVATING FACTORS OUTWEIGH MITIGATING FACTORSIS A FACTUAL QUESTION THAT MUST BE RESOLVED BEYOND A REASONABLE DOUBT A California jury must first decide whether any aggravating circumstances, as defined by section 190.3 and the standard penalty phase instructions, exist in the case before it. If so, the jury then weighs any such factors against the proffered mitigation. A determination that 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 murder, and is therefore subject to the protections of the Sixth Amendment. (Cf. State v. Ring, supra, 65 P.3d 915, 943; accord, State v. Whitfield (Mo. 2003) 107 S.W.3d 253; State v. Ring (Az. 2003) 65 P.3d 915; Woldt v. People (Colo. 2003) 64 P.3d 256; Johnsonv. State (Nev. 2002) 59 P.3d 450.°°) No greater interest is ever at stake than in the penalty phase of a capital case. (Mongev. California (1998) 524 U.S. 721, 732 [118 S.Ct. 2246, 141 °6 See also Stevenson, The Ultimate Authority on the Ultimate Punishment: The Requisite Role of the 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 circumstance is present but also to whether aggravating circumstances substantially outweigh mitigating circumstances, since both findings are essential predicates for a sentence of death). 388 L.Ed.2d 615] [“the death penalty is unique in its severity andits finality”].)°’ As the high court stated in Ring, supra, 122 S.Ct. at pp. 2432, 2443: Capital defendants, no less than non-capital defendants, we conclude,are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment. ... The right to 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. 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 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 as to their significance, but as to their accuracy. This Court’s refusal to accept the applicability of Ring to the eligibility components of California’s penalty phase violates the Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution. *7 In Monge,the high 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 of proof requirement applied to capital sentencing proceedings: “/I]n a capital sentencing proceeding, as in a criminaltrial, ‘the interests of the defendant [are] of such magnitude that .. . they have been protected by standards of proof 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).) 389 2. THE DUE PROCESS AND THE CRUEL AND UNUSUAL PUNISHMENT CLAUSESOF 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 a. FACTUAL DETERMINATIONS The outcome of a judicial proceeding necessarily depends on an appraisal of the facts. “[T]he procedures by whichthe facts of the case are determined assume an importancefully as great as the validity of the substantive rule of law to be applied. And the more important the rights at stake the more important mustbe the procedural safeguards surrounding those rights.” (Speiser v. Randall (1958) 357 U.S. 513, 520-521.) The primary procedural safeguard implanted in the criminalJustice system relative to fact assessmentis the allocation and degree of the burden ofproof. The burdenof proof represents the obligation of a party to establish a particular degreeof belief as to the contention sought to be proved. In criminal cases the burden is rooted in the Due Process Clause of the Fifth and Fourteenth Amendment. (Jn re Winship, supra, 397 U.S. at p. 364.) In capital cases “the sentencing process, as well as thetrial itself, must satisfy the requirements of the Due Process Clause.” (Gardner v. Florida (1977) 430 U.S. 349, 358; see also Presnell v. Georgia (1978) 439 U.S. 14.) Aside from the question of the 390 applicability of the Sixth Amendmentto California’s penalty phase proceedings, the burden of proof for factual determinations during the penalty phase of a capital trial, when life is at stake, must be beyond a reasonable doubt. Thisis required by both the Due Process Clause of the Fourteenth Amendmentand the Eighth Amendment. b. IMPOSITION OF LIFE OR DEATH The requirements of due processrelative to the burden of persuasion generally depend uponthe significance of whatis at stake and the social goal of reducing the 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. 745, 755.) It is impossible to conceive ofan interest more significant than humanlife. Far less valued interests are protected by the requirement of proof beyond a reasonable doubt before they maybe extinguished. (Cf. Winship, supra (adjudication of juvenile delinquency); People v. Feagley (1975) 14 Cal.3d 338 (commitment as mentally disordered sex offender); People v. Burnick (1975) 14 Cal.3d 306 (same); People v. Thomas (1977) 19 Cal.3d 630 (commitment as narcotic addict); Conservatorship ofRoulet (1979) 23 Cal.3d 219 (appointment of conservator).) The decision to take a person’s life must be made undernoless demanding a standard. 391 In Santosky, supra, the United States Supreme Court reasoned: [I]n any given proceeding, the minimum standard ofproof tolerated by the due process requirementreflects not only the weight of the private and public interests affected, but also a societal judgment about how therisk of error should be distributed between the litigants... . When the State brings a criminal action to deny a defendantliberty or life, ... “the interests of the defendant are of such magnitudethat historically and without any explicit constitutional requirementthey have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment.” [Citation omitted.] The stringency of the “beyond a reasonable doubt” standard bespeaksthe ‘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.” [455 U.S. at p. 755.] 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 of proof beyond a reasonable doubt can be effective in reducing this risk of error, since that standard has long provenits worth as “a prime instrument for reducing the risk of convictionsresting on factual error.” (Winship, supra, 397 US. at p. 363.) Adoption of a reasonable doubt standard would not deprive the State of the powerto impose capital punishment; it would merely serve to maximize “reliability in the determination that death is the appropriate punishmentin a specific case.” (Woodson, supra, 428 U.S. at p. 305.) Theonly risk of error 392 suffered by the State underthe stricter burden of persuasion would be the possibility that a defendant, otherwise deserving of being put to death, would instead be confined in prison forthe rest of his life without possibility of parole. In Monge, the high court expressly applied the Santosky rationale for the beyond-a-reasonable-doubt burden of proof requirement to capital sentencing proceedings: “/I]n a capital sentencing proceeding, as in a criminaltrial, ‘the interests of the defendant [are] of such magnitude that. . . they have been protected by standards of proof 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 forits decision true, but that death is the appropriate sentence. 3. CALIFORNIA LAW VIOLATESTHE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION BY FAILING TO REQUIRE THAT THE JURY BASE ANY DEATH SENTENCEON 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 393 Eighth Amendmentrights to meaningful appellate review. (California v. Brown, supra, 479 U.S. at p. 543; Gregg v. Georgia, supra, 428 U.S. at p. 195.) Especially given that California juries have total discretion without any guidance on howto 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.” (Cf. Townsendv. 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 scheme unconstitutional. (People v. Fauber (1992) 2 Cal.4th 792, 859; People v. Rogers (2006) 39 Cal.4th 826, 893.) Ironically, such findings are otherwise considered by this Court to be an element of due process so fundamentalthat they are even required at parole suitability hearings. A convicted prisoner whobelieves that he or she was improperly denied parole must proceedvia a petition for writ of habeas corpus andis required to allege with particularity the circumstances constituting the State’s wrongful conduct and show prejudice flowing from that conduct. Un re Sturm (1974) 11 Cal.3d 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 wasarbitrarily denied can make necessary allegations with 394 the requisite specificity unless he has some knowledgeof the reasonstherefor.” (id., 11 Cal.3d at p. 267.)°* The sameanalysis applies to the far graver decision to put someoneto death. In a non-capital case, the sentencer is required by California law tostate on the record the reasons for the sentence choice. (Section 1170, subd. (c).) Capital defendants are entitled to more rigorous protections than those afforded non-capital defendants. (Harmelin v. Michigan, supra, 501 U.S. at p. 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 (9" Cir. 1990) 897 F.2d 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 reasonsfor the penalty chosen. Written findings are essential for a meaningful review of the sentence imposed. (Cf. Mills v. Maryland (1988) 486 U.S. 367, 383, fn. 15.) Even where the decision to impose death is “normative” (People v. Demetrulias (2006) 39 8 A determination of parole suitability shares many characteristics with the decision of whether 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.) 395 Cal.4th 1, 41-42) and “moral” (People v. Hawthorne, supra, 4 Cal.4th at p. 79), its basis can be, and should be,articulated. The importance of written findings is recognized throughout this country; post-Furmanstate 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 compensate for the unreliability inevitably produced by the failure to require an articulation of the reasons for imposing death. (Cf. Kansas v. Marsh, supra [statute treating a jury’s finding that aggravation and mitigation are in equipoise as 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 Amendmentbutalso the rightto trial by jury guaranteed by the Sixth Amendment. 396 4, CALIFORNIA’S DEATH PENALTY STATUTE AS INTERPRETED BY THE CALIFORNIA SUPREME COURT FORBIDS INTER-CASE PROPORTIONALITY REVIEW, THEREBY GUARANTEEING 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 sentencing is comparative proportionality review — a procedural safeguard this Court has eschewed. In Pulley v. Harris, supra, 465 U.S. at p. 51 (emphasis added), the high court, while declining to hold that comparative proportionality review is an essential component of every constitutional capital sentencing scheme,noted the possibility that “there could be a capital sentencing schemeso /dcking in other checks on arbitrariness that it would not pass constitutional muster without comparative proportionality review.” California’s 1978 death penalty statute, as drafted and as construed bythis Court and applied in fact, has become just 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. (Harris, 465 U.S. at p. 52, fn. 14.) That numberhas continuedto grow,and 397 expansive judicial interpretations of section 190.2's lying-in-wait special circumstance have madefirst degree murders that can not be charged witha “special circumstance”a rarity. As wehaveseen,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 schemesstruck down in Furman v. Georgia, supra. (See Section A of this Argument, ante.) The statute lacks numerousother procedural safeguards commonlyutilized in other capital sentencing Jurisdictions (see Section C, ante), and the statute’s principal penalty phase sentencing factor has itself proved to be an invitation to arbitrary and capricious sentencing (see Section B, ante). Viewing the lack of comparative proportionality review in the context of the entire California sentencing scheme (see Kansas vy. 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 betweenthis and other similar cases regarding the relative proportionality of the sentence imposed,i.e., inter-case proportionality review. (See People v. Fierro, supra, | Cal.4th at p. 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 on similarly situated defendantsis strictly the creation of this Court. (Cf., e.g., People v. Marshall 398 (1990) 50 Cal.3d 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 RELYIN THE PENALTY PHASE ON UNADJUDICATED CRIMINALACTIVITY; FURTHER, EVEN IF IT WERE CONSTITUTIONALLY PERMISSIBLE FOR THE PROSECUTORTO DO SO, SUCH ALLEGED CRIMINAL ACTIVITY COULD NOT CONSTITUTIONALLY SERVE AS A FACTORIN AGGRAVATION UNLESS FOUND TO BE TRUE BEYOND A REASONABLE DOUBT BY A UNANIMOUS JURY Any use of unadjudicated criminal activity by the jury as an aggravating circumstance undersection 190.3, factor (b), violates due process and the Fifth, Sixth, Eighth, and Fourteenth Amendments, rendering a death sentence unreliable. (Cf., e.g., Johnson v. Mississippi (1988) 486 U.S. 578 [108 S.Ct. 1981, 100 L.Ed.2d 575]; State v. Bobo (Tenn. 1987) 727 S.W.2d 945.) Here, the prosecution presented extensive evidence that appellant committed an assault with a firearm on Uzel. (Ante, Statement of Facts, § D.1.) Moreover, a considerable portion of the prosecution’s closing argument was devoted to arguingthis alleged offense. (RT 30:4443-4444,) The U.S. Supreme Court’s recent decisions in United States v. Booker, supra, Blakely v. Washington, supra, Ring v. Arizona, supra, and Apprendiv. New Jersey, supra, confirm that under the Due Process Clause of the Fourteenth Amendmentand the jurytrial 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, even if it were constitutionally 399 permissible to rely upon alleged unadjudicated criminalactivity 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 was not instructed on the need for such a unanimousfinding; nor is such an instruction generally provided for under California’s sentencing scheme. 6. THE USE OF RESTRICTIVE ADJECTIVESIN THE LIST OF POTENTIAL MITIGATING FACTORS IMPERMISSIBLY ACTED AS BARRIERS TO CONSIDERATION OF MITIGATION BY APPELLANT’S JURY The inclusionin the list of potential mitigating factors of such adjectives as “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, supra, 438 U.S. 586; RT 30:4463-4464, 4501 [jury instructions].) 7. THE FAILURE TO INSTRUCT THAT STATUTORYMITIGATING FACTORS WERE RELEVANT SOLELYAS POTENTIAL MITIGATORS PRECLUDEDA 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 Gj) — were relevant solely as possible mitigators (People v. Hamilton (1989) 48 Cal.3d 1142, 1184; People v. Edelbacher (1989) 47 Cal.3d 983, 1034). The jury, however, wasleft free to concludethat a “not” answeras to any of these “whether or not” sentencing 400 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, supra, 428 U.S. at p. 304; Zant v. Stephens, supra, 462 USS. at p. 879.) Further, the jury wasalso left free to aggravate a sentence upon the basis of an affirmative answerto one of these questions, and thus, to convert mitigating evidence (for example, evidence establishing a defendant’s mental illness 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 meant to 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 uponthe basis of nonexistent or irrational aggravating factors. (People v. Kraft, supra, 23 Cal.4th at pp. 1078-1079, 99 Cal.Rptr.2d 1, 5 P.3d 68; see People v. Memro (1995) 11 Cal.4th 786, 886-887, 47 Cal.Rptr.2d 219, 905 P.2d 1305.) Indeed, “no reasonablejuror could be misled by the language ofsection 190.3 concerningthe relative aggravating or mitigating nature of the various factors.” (People v. Arias, supra, 401 13 Cal.4th at p. 188, 51 Cal.Rptr.2d 770, 913 P.2d 980.) [People v. Morrison (2004) 34 Cal.4th 698, 730 (emphasis added). ] This assertion is demonstrably false. Within the Morrison caseitself there lies evidence to the contrary. Thetrial judge mistakenly believed that section 190.3, factors (e) and (j) constituted aggravation instead of mitigation. (/d., 32 Cal.4th at pp. 727-729.) This Court recognized that the trial court so erred, but found the error to be harmless. (/bid.) 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. (Cf., e.g., People v. Montiel (1994) 5 Cal.4th 877, 944-945; People v. Carpenter (1997) 15 Cal.4th 312, 423-424.)” Thevery 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 except upon the basis of statutory aggravating factors (People v. Boyd (1985) 38 Cal.3d 765, 772-775) — and thereby violated appellant’s Fourteenth 8 See also People v. Cruz (2008) 44 Cal.4th 636, 681-682 [noting appellant’s claim that “a portion of one juror’s notes, made part of the augmented clerk’s transcript on appeal, reflects that the juror did ‘aggravate [ ] his sentence uponthe basis of what were, as a matter of state law, mitigating factors, and did so believing that the State — as represented by thetrial court [through the giving of CALJIC No. 8.85] — had identified them as potentially aggravating factors supporting a sentence of death’”; no ruling on merits of claim because the notes “cannot serve to impeachthe jury’s verdict”]. 402 Amendmentright to due process. (Cf. Hicks v. Oklahoma (1980) 447 U.S. 343; Fetterly v. Paskett (9" Cir. 1993) 997 F.2d 1295, 1300 (holding that Idaho law specifying mannerin which aggravating and mitigating circumstancesare to be weighedcreated a liberty interest protected under the Due Process Clause ofthe Fourteenth Amendment); and Campbell v. Blodgett (9" Cir. 1993) 997 F.2d 512, 522 [same analysis applied to state of Washington]. The likelihood that the jury in appellant’s case would have been misled as to the potential significance of the “whether or not” sentencing factors was heightened by the prosecutor’s misleading and erroneous statements during penalty phase closing argument, which highlighted the absence in appellant’s case of most of these factors. (RT 30:4431-4449.) It is thus likely that appellant’s jury aggravated his sentence uponthe basis of what 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 made it 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 403 because of differing 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 imposed fairly, and with reasonable consistency, or not at all.” (Eddings, supra, 455 U.S. at p. 112.) Whether a capital sentence is to be imposed cannot be permitted to vary from case to case according to different juries’ understandings of how manyfactors on a statutory list the law permits them to weigh on death’s side ofthe scale. D. THE CALIFORNIA SENTENCING SCHEMEVIOLATES THE EQUAL PROTECTION CLAUSE OF THE FEDERAL CONSTITUTION BY DENYING PROCEDURAL SAFEGUARDSTO CAPITAL DEFENDANTS WHICH ARE AFFORDED TO NON-CAPITAL DEFENDANTS Asnoted in the preceding arguments, the high court has repeatedly directed that a greater degree of reliability is required when deathis to be imposed andthat courts must be vigilant to ensure procedural fairness and accuracy in fact-finding. (Cf., e.g., Monge v. California, supra, 524 U.S. at pp. 731-732.) Despite this directive California’s death penalty scheme provides significantly fewer procedural protections for persons facing a death sentence than are afforded persons charged with non-capital crimes. This differential treatment violates the constitutional guarantee of equal protection of the laws. Equal protection analysis begins with identifying the interest at stake. “Personal liberty is a fundamental interest, second onlyto life itself, as an interest 404 protected under both the California and the United States Constitutions.” (People v. Olivas (1976) 17 Cal.3d 236, 251.) Ifthe interest is “fundamental,” then courts have “adopted anattitude of active andcritical analysis, subjecting the classification to strict scrutiny.” (Westbrook v. Milahy (1970) 2 Cal.3d 765, 784- 785.) A state may not create a classification scheme which affects a fundamental interest without showingthat it has a compelling interest which justifies the classification and that the distinctions drawn are necessary to further that purpose. (People v. Olivas, supra; Skinner v. Oklahoma (1942) 316 U.S. 535, 541.) The State cannot meetthis burden. Equal protection guarantees apply with greater force, the scrutiny of the challenged classification is morestrict, and any purportedjustification by the State of the discrepant treatment is even more compelling becausethe interest at stake is not simplyliberty, butlife itself. In Prieto,” as in Snow,®' this Court analogized the process of determining whether to impose death to a sentencing court’s traditionally discretionary °° “As explainedearlier, the penalty phase determination in California is normative, not factual. Jt is therefore analogous to a sentencing court’s traditionally discretionary decision to impose one prison sentence rather than another.” (Prieto, supra, 30 Cal.4th at p. 275; emphasis added.) 6! “The final step in California capital sentencing is a free weighing of all the factors relating to the defendant’s culpability, comparable to a sentencing court's traditionally discretionary decision to, for example, impose one prison sentence rather than another.” (Snow, supra, 30 Cal.4th at p. 126, fn. 3; emphasis added.) 405 decision to imposeoneprison sentence rather than another. (Cf. also, People v. Demetrulias, supra, 39 Cal.4th at p. 41.) Howeverapt or inapt the analogy, California is in the unique position of giving persons sentenced to death significantly fewer procedural protections than a person being sentencedto prison for receiving stolen property, or possessing cocaine. An enhancingallegation in a California non-capital case must be found true unanimously, and beyond a reasonable doubt. (See, e.g., sections 1158, 1158a.) When a California judge makes a sentencing choice in a non-capital case, the court’s “reasons ... must be stated orally on the record.” California Rules of Court, rule 4.42(e). The cited rule wentinto effect on Jan. 1, 2008, when a new discretionary DSL schemereplaced the one at issue in Cunningham, supra. The pre-2008 version of Rule 4.42(e), for example, also required the court to give “a concise statement of the ultimate facts which the court deemed to constitute circumstancesin aggravation or mitigation justifying the term selected.” Further, this Court has concededthat, from 2004 (when Blakely was decided) until Jan. 1, 2008, when the DSL scheme was madediscretionary), the Sixth Amendment-- pursuant to Cunningham — requiredthat, in non-capital cases, findings of aggravating circumstances supporting imposition of the upper term be made beyond a reasonable doubt by a unanimous jury. (Cf. Jn re Gomez (2009) 45 Cal.4th 650.) Moreover, both Blakely and Ring applied Apprendito 406 statutes in existence before Apprendi wasdecided (2000). At the very least, Apprendiis applicable to cases not yet final at the time it was decided. In a capital sentencing context, however, there is no burden of proof except as to other-crime aggravators, and the jurors need not agree on whatfacts are true, or important, or what aggravating circumstances apply. (See Sections C.1-C.2, ante.) And unlike proceedings in most states where death is a sentencing option, or in which persons are sentenced for non-capital crimesin California, no reasons for a death sentence need be provided. (See Section C.3, ante.) These discrepancies are skewed against persons subject to lossoflife; they violate equal protection of the laws.” (Bush v. Gore (2000) 531 U.S. 98, 121 S.Ct. 525, 530.) To provide greater protection to non-capital defendants than to capital defendants violates the due process, equal protection, and cruel and unusual punishmentclauses of the Eighth and Fourteenth Amendments. (Cf., e.g., Mills 62 Although Ring hinged on the court’s reading of the Sixth Amendment, its ruling directly addressed the question of comparative procedural protections: “Capital defendants, no less than non-capital defendants, we conclude, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment. ... The rightto trial by jury guaranteed by the Sixth Amendment would be senselessly diminishedifit encompassed the factfinding necessary to increase a defendant’s sentence by two years, but not the factfinding necessary to put him to death.” (Ring, supra, 536 USS. at p. 609.) 407 v. Maryland, supra, 486 U.S. at p. 374; Myers v. Ylst, supra, 897 F.2d at p. 421; Ring v. Arizona, supra.) E. CALIFORNIA’S USE OF THE DEATH PENALTY AS A REGULAR FORM OF PUNISHMENT FALLS SHORT OF INTERNATIONAL NORMSOF HUMANITY AND DECENCY AND VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS; IMPOSITION OF THE DEATH PENALTY NOW VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION The United States stands as one of a small numberofnations that regularly uses the death penalty as a form of punishment. (Soering v. United Kingdom: Whether the Continued Use of the 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 opposedtoits use as regular punishment — is particularly uniform in the nations of Western Europe. (Cf., e.g., Stanford v. Kentucky (1989) 492 U.S. 361, 389 [dis. opn. of Brennan, J.]; Thompson v. Oklahoma,supra, 487 US.at p. 830 [plur. opn. of Stevens, J.].) Indeed, as of January 1, 2010, the only countries in the world that have not abolished the death penalty in law or fact are in Asia and Africa — with the exception of the United States. (Amnesty International, “Death Sentences and Executions, 2009 — “Appendix I: Abolitionist and Retentionist Countries as of 31 December 2009" (publ. March 1, 2010) (foundat www.amnesty.org). 408 Although this country is not bound by the laws of any other sovereignty in its administration of our criminal justice system, it has relied from its beginning on the customsand practices of 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 had established amongthe civilized nations 999of 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.]; Hilton v. Guyot, supra, 159 U.S. at p. 227; Martin v. Waddell’s Lessee (1842) 41 U.S. [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, supra, 536 U.S. at p. 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 arguendo capital punishmentitself is not contrary to international norms of human decency,its use as regular punishment for 409 substantial numbers of crimes — as opposedto extraordinary punishment for - extraordinary crimes — is. Nations in the Western world no longer accept it. The Eighth Amendmentdoesnot permit jurisdictions in this nation to lag so far behind. (Cf. Atkins v. Virginia, supra, 536 U.S. at p. 316.) Furthermore, inasmuchasthe law of nations now recognizes the impropriety of capital punishmentas regular punishment,it is unconstitutional in this country inasmuch as international law is a part of our law. (Hilton v. Guyot (1895) 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-murdersor 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 mentalillness or developmental disabilities. (Cf. Ford v. Wainwright (1986) 477 U.S. 399 [106 S.Ct. 2595, 91 L.Ed.2d 335]; Atkins v. Virginia, supra.) 8 See Kozinski and Gallagher, Death: The Ultimate Run-On Sentence, 46 Case W. Res. L.Rev. 1, 30 (1995). 410 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. // 1 41] XXI. THE ERRORSIN THIS CASE IN BOTH THE GUILT AND PENALTY PHASESOFTRIAL, INDIVIDUALLY AND CUMULATIVELY, OR IN ANY COMBINATION THEREOF, REQUIRE REVERSAL OF THE DEATH JUDGMENTFORA VIOLATIONOF THE STATE AND FEDERAL CONSTITUTION (CAL. CONST., ART.I, §§ 7,15 & 17; U.S. CONST., 5™, 6™, 879 & 14™" AMENDS.) The death judgment must be evaluated in light of the cumulative effect of the multiple errors occurring at both the guilt and penalty phasesofhistrial. (Taylor v. Kentucky, supra, 436 U.S. 478, 487, fn. 15; People v. Hill, supra, 17 Cal.4th 800, 844-845; Phillips v. Woodford, supra, 267 F.3d 966,985, citing Mak v. Blodgett, supra, 970 F.2d 614, 622.) “The Supreme Court has clearly established that the combinedeffect of multiple trial court errors violates due process where it renders the resulting criminaltrial fundamentally unfair.” (Parle v. Runnels, supra, 505 F.3d at p. 927, citing Chambers v. Mississippi, supra, 410 U.S. at pp. 298, 302-303 [combined effect of individual errors “denied [Chambers] a trial in accord with traditional and fundamental standards of due process” and “deprived Chambers of a fair trial”]; see also Montana v. Egelhoff, supra, 518 U.S. at p. 53[stating that Chambersheld that “erroneous evidentiary rulings can, in combination,rise to the level of a due process violation”); Taylor v. Kentucky, supra, 436 US.at p. 487, fn.15 [“{T}he cumulative effect of the potentially damaging circumstances of this case violated the due process guarantee of fundamental fairness ... .”].) 412 The death judgment must be evaluated in light of the cumulative error occurring at both the guilt and penalty phasesoftrial. (See People v. Hayes (1990) 52 Cal.3d 577, 644.) This Court has recognized that evidence that may otherwise not have affected the guilt determination can have a prejudicial impact on the penalty trial. (See People v. Hamilton (1963) 60 Cal.2d 105, 136-137; see also People v. Brown (1988) 46 Cal.3d 432,466 [error occurring at the guilt phase requires reversal of the penalty determination if there is a reasonable possibility that the jury would have rendereda different verdict absent the error]; In re Marquez (1992) 1 Cal.4th 584,605,609 [an error may be harmlessat the guilt phase but prejudicial at the penalty phase].) Here, there is a substantial record of serious errors that individually and cumulatively, or in any combination, violated appellant’s due processrights under Chambers v. Mississippi, supra, 410 U.S. 284 and require reversal of the death judgment. The numerousandsubstantial errors identified abovein the jury selection and guilt phasesofthetrial, as set forth in Arguments I through XII, inclusive, including the cumulative effect of the errors in the guilt phaseoftrial (Argument XIV), which arguments are incorporated herein by reference, deprived appellant of a fair and reliable penalty determination. (Cf. Woodsonv. North Carolina, supra, 428 U.S. at p. 304; Zant v. Stephens (1983) 462 U.S. 862, 879 [103 S.Ct. 2733, 77 L.Ed.2d 235]; Payne v. Tennessee, supra, 501 U.S. at p. 413 825-830; Cal. Const., art. I, §§ 7, 15 & 17; U.S. Const. 5", 6", 8" & 14" Amends.) The penalty phase jury instructions and the trial process — whereby closing arguments of counsel and jury instructions purportedly relating to codefendant Castro were given in appellant’s absence and in the midst of penalty phase deliberations — prevented the jury from making an individualized sentencing determination guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, thereby requiring reversal of the death judgment. (Ante, § XVI.) Appellant was excluded from trial during the penalty phase closing arguments purportedly relating to codefendant Castro, which included argument by the prosecutor and counsel for codefendant Castro implicating appellant, a critical stage of the criminal proceedings (Cal. Const., art. I, §§ 7,15 & 17; US. Const., 5”, 6", 8" & 14" Amends.). (Ante, § XV.) The testimony of prosecution penalty phase witnesses Javier Castillo and Linda Castillo that appellant should be sentenced to death violated state evidentiary rules and the state and federal constitutional rights to due process, effective assistance of counsel, and a reliable penalty determination (Cal. Const., art. I, §§ 7, 15 & 17; U.S. Const., 5", 6", 8" & 14 Amends.), thereby requiring reversal of the death judgment. (Ante, § XVII.) 414 Admission of evidencein aggravation of a purported assault with a firearm on Jason Uzel requires reversal of the death judgmentfor a violation of appellant’s state and federal constitutional rights to due process and a reliable penalty determination (Cal. Const., art. I, §§ 7, 15 & 17; U.S. Const., 5", 6", 8" & 14" Amends.) because the evidence is woefully insufficient to sustain a finding that appellant perpetrated the assault. (Ante, § XVIII.) The error in admitting evidence in aggravation of a purported assault with a firearm on Jason Uzel where,as here, the evidence was insufficient as a matter of law to sustain a finding that appellant perpetrated the assault, was compounded by the trial court’s instruction that the prosecution bears no burden of proofat the penalty phase, and the failure to define reasonable doubt, which violated appellant’s state and federal constitutionalrights to jury trial, due process, and a reliable penalty determination (Cal. Const., art. I, §§ 7, 15 & 17; U.S. Const., 5 6", 8" & 14" Amends.), thereby requiring reversal of the death judgment. (Ante, § XIX.) Thus, even if the Court were to hold that not one of the errors was prejudicial byitself, the cumulative effect of these errors sufficiently undermines confidence in the integrity of the penalty proceedings in this case. These numerousconstitutional violations compounded oneanother, and created a pervasive pattern of unfairness that violated appellant’s Fifth, Sixth, Eighth and 415 Fourteenth Amendmentrights by resulting in a penalty trial that was fundamentally flawed and a death sentence that is unreliable. As shownabove, this was a close case on the issue of penalty as evidenced by, among other things, the mitigation evidence which showedthat appellant suffered from chronic methamphetamineuse, which contributed to the conduct at issue in this case because chronic methamphetamine can induce violence, paranoia, alienation, hallucinations, and delusions. (Ante, Statement of Facts, § E.1.) Appellant also presented good character evidence, which includedthe testimony of several witnesses. (Ante, Statement of Facts, § E.2.) Their testimony supportedofa life sentence because it showed that appellant’s conduct was induced by chronic drug addiction and that appellant is a good and caring person with redeeming qualities. (Ante, Statement of Facts, § E.2.) It simply cannot be said that the combined effect of the errors detailed above had “no effect” on at least one of the jurors who determined that appellant should die by execution. (Cf. Caldwell v. Mississippi (1985) 472 U.S. 320, 341 [105 S.Ct. 2633, 86 L.Ed.2d 231].) Appellant’s death sentence must be reversed due to the cumulative effect of the numerouserrors in this case. /// 416 CONCLUSION For the reasonsset forth above, appellant Richard Penunuri respectfully requests reversal of his convictions and the judgmentof death. Respectfully submitted, Stephen M. Lathrop Attorney for Defendant and Appellant RICHARD PENUNURI CERTIFICATE OF COMPLIANCE(CRC8.630(b)(1)(A)) I hereby certify under penalty of perjury under the lawsof the State of California that there are 101,912 wordsin this brief. Respectfully submitted, Dated: /¢ -2/- By: .ao Stephen M7Lathrop Attorney for Defendant and Appellant RICHARD PENUNURI 417 PROOF OF SERVICE STATE OF CALIFORNIA ] |ss. COUNTY OF LOS ANGELES | I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business addressis 904 Silver Spur Road #430, Rolling Hills Estates, CA 90274. On November21, 2011, I served the following document(s) described as APPELLANT’S OPENING BRIEF onthe interested party(ies) in this action by placing _ the original or _X_a true copy thereof enclosed, in (a) sealed envelope(s), addressed as follows: Sarah Farhat Mike Lasher Deputy Attorney General California Appellate Project 300 South Spring St., Ste 1702 101 SecondStreet, Suite 600 Los Angeles, CA 90013 San Francisco, CA 94105-3647 Los Angeles Superior Court Office of the District Attorney Pomona Courthouse South 400 Civic Center Plaza, #201 400 Civic Center Plaza Pomona, California 91766 Pomona, California 91766 Richard Penunuri Barry O. Bernstein P.O. Box T-06637 3727 W. Magnolia Blvd, #767 San Quentin, CA 94974 Burbank, CA 91505 [Trial Defense Counsel] I am readily familiar with the firm's practice for collection and processing of correspondenceand other materials for mailing with the United States Postal Service. On this date, I sealed the envelope(s) containing the above materials and placed the envelope(s) for collection and mailing on this date at the address above following our office's ordinary business practices. The envelope(s) will be deposited with the United States Postal Service on this date, in the ordinary course of business. I declare under penalty of perjury underthe laws of the State of California that the aboveis true and correct and that this Proof of Service was executed on November21, 2011, at Rolling Hills Estates, California. Stephen M. Lathro eS Printed Name Signature