PEOPLE v. PENUNURI

Appellant’s Reply Brief

Cal.November 12, 2014

SUPREME COURT COPY No. 8095076 IN THE SUPREME COURT OF CALIFORNIA THE PEOPLE, Plaintiff and Respondent, V. RICHARD PENUNURI, Defendant and Appellant. LOS ANGELES COUNTY SUPERIOR COURT Superior Court Case No. BA189633 SUPREME COURT FILED NOV 12 2014 Frank A. McGuire Clerk ON AUTOMATIC APPEAL Deputy FROM A JUDGMENT AND SENTENCE OF DEATH Superior Court of California, County of Los Angeles The Honorable Robert W. Armstrong, Judge Presiding APPELLANT’S REPLY BRIEF Stephen M.Lathrop (Cal. Bar No. 126813) Certified Appellate Law Specialist State Bar of Cal. Board of Legal Specialization 904 Silver Spur Rd. #430, Rolling Hills Est., CA 90274 Email: stephen.lathrop@cox.net Tel. (310) 237-1000, ext. 3; Fax (310) 237-1010 Attorney for Defendant and Appellant RICHARD PENUNURI ‘DEATH PENALTY TOPICAL INDEX INTRODUCTION . .. 0.eeetenn ete enene 1 ARGUMENT..... 0.0.0...ceceeee een enn eens 3 JURY SELECTION... 0.00.0.enn nees 3 I. THE DISMISSAL FOR CAUSE OF PROSPECTIVE JUROR STEVEN METCALF REQUIRES REVERSAL OF THE DEATH JUDGMENT BECAUSE HE COULD FAIRLY AND IMPARTIALLY RETURN A VERDICT FOR EITHER LIFE OR DEATH...eettnn teen ene ens 3 GUILT PHASE. ..... 00...eecttenes 9 Il. HI. IV. THE EVIDENCEIS INSUFFICIENT TO SUSTAIN A FINDING THAT APPELLANT WASA PRINCIPAL IN THE MURDERS OF BRIAN MOLINA AND MICHAEL MURILLO, REQUIRING REVERSAL OF COUNTS4 AND 5, RESPECTIVELY. ........... 9 THE EVIDENCEIS INSUFFICIENT TO SUSTAIN FINDINGS THAT APPELLANT AGREED OR CONSPIRED TO MURDER JAIME CASTILLO AND THAT HE HAD THE SPECIFIC INTENT TO KILL CASTILLO, REQUIRING REVERSAL OF COUNT6 (CONSPIRACY TO COMMIT MURDER)............. 16 THE EVIDENCEIS INSUFFICIENT TO SUSTAIN FINDINGS THAT APPELLANT EITHER PERPETRATED THE KILLING OF JAIME CASTILLO, AIDED AND ABETTED THEKILLING, OR ENTERED INTO A CONSPIRATORIAL AGREEMENT TO KILL, REQUIRING REVERSAL OF COUNT 7 (MURDER)....... 22 THE TRUE FINDING ON THE WITNESS-KILLING SPECIAL CIRCUMSTANCE MUSTBESET ASIDE FOR INSUFFICIENT EVIDENCE, THEREBY RENDERING THE DEATH JUDGMENT UNCONSTITUTIONAL......... 0.0.0.0 ee eee. 26 VI. VIL. VIII. IX. A. THE TRUE FINDING ON THE WITNESS-KILLING SPECIAL CIRCUMSTANCE MUSTBESET ASIDE FOR INSUFFICIENT EVIDENCE....... 0c cece cece eee ee eet ee ee een beeen eae 26 B. THE INVALID WITNESS-KILLING SPECIAL CIRCUMSTANCE RENDERS APPELLANT’S SENTENCE UNCONSTITUTIONAL........ 28 THE EVIDENCEIS INSUFFICIENT TO SUSTAIN THE TRUE FINDING ON THE MULTIPLE-MURDER SPECIAL CIRCUMSTANCE, REQUIRING REVERSAL OF THE DEATH JUDGMENT...20. 33 THE EVIDENCEIS INSUFFICIENT TO SUSTAIN APPELLANT’S CONVICTION FOR ASSAULT WITH A FIREARM ON CARLOSARIAS, REQUIRING REVERSAL OF COUNT 3...ceenent eens 36 THE TRIAL COURT PREJUDICIALLY ERRED BY DENYING THE MOTION FOR MISTRIAL AFTER THE PROSECUTOR ELICITED INADMISSIBLE TESTIMONY THAT APPELLANT WAS ACTING UNDER THE JURISDICTION OF THE MEXICAN MAFIA, THAT HE SHOWED ALLEGIANCE TO THE MEXICAN MAFIA, AND THATHE PAID TAXES TO THE MEXICAN MAFIA, REQUIRING REVERSAL OF APPELLANT’S CONVICTIONS... 0.0... c ece ees 40 ARIAS’S OUT-OF-COURT STATEMENTS AND PRIOR TESTIMONY-THE VAST MAJORITY OF WHICH RESPONDENT AGREES WERE ERRONEOUSLY ADMITTED INTO EVIDENCE-REQUIRE REVERSAL OF APPELLANT’S CONVICTIONS ON COUNTS3, 4 AND 5 BECAUSE THE STATEMENTS AND PRIOR TESTIMONY PREJUDICIALLY IMPLICATED APPELLANT IN THE ASSAULT ON ARIAS AND THE MURDER OF MOLINA AND MURILLO............. 51 A, APPELLANT HAS NOT FORFEITED THE CONFRONTATION CLAUSE CLAIM MADEIN CONNECTION WITH ARIAS’S TAPE- RECORDED STATEMENTSTO THE POLICE; ALTERNATIVELY, THE FAILURE TO RAISE THE CONFRONTATION CLAUSE OBJECTION RENDEREDINEFFECTIVE ASSISTANCE OF COUNSEL... 51 -ii- XI. XM, B. ARIAS’S STATEMENTSTO LUKE BISSONNETTE WERE NOT ADMISSIBLE AS SPONTANEOUSSTATEMENTS. ..........-+005 56 C. RESPONDENT AGREES THAT ADMISSION OF ARIAS’S TESTIMONIAL OUT-OF-COURT STATEMENTS MADETO THE POLICE AND ADMISSION OF HIS PRIOR TESTIMONY AT THE DELALOZA TRIAL VIOLATED APPELLANT ’S CONSTITUTIONAL RIGHT TO CONFRONTATION... 0... cee ee ee ee teens 59 D. RESPONDENT AGREESTHATARIAS’S PRIOR TESTIMONYAT THE DELALOZA TRIAL AND HIS OUT-OF-COURT STATEMENTS TO THE POLICE WERE NOT PROPERLY OFFERED FOR ANY NONHEARSAYPURPOSE... 0... 0.0 cece cece ee ee eee es 60 E. THE JURY’S CONSIDERATION OF ARIAS’S OUT-OF-COURT STATEMENTS AND PRIOR TESTIMONY REQUIRE REVERSAL OF APPELLANT’S CONVICTIONS ON COUNTS3,4 AND5........... 61 ALEJANDRO DELALOZA’S STATEMENTS TO THE POLICE—WHICH RESPONDENT AGREES WERE ERRONEOUSLY ADMITTED INTO EVIDENCE-REQUIRE REVERSAL OF APPELLANT’S CONVICTIONS ON COUNTS 1, 2,4 AND 5 BECAUSE THE STATEMENTS PREJUDICIALLY IMPLICATED APPELLANTIN THE RALPHS PARKING LOT INCIDENT AND THE MURDER OF MOLINA AND MURILLO. .... 0.0.0.0... eee ee eee 68 IN CONNECTION WITH ALEJANDRO DELALOZA’S STATEMENTS, THE TRIAL COURT PREJUDICIALLY ERRED BY FAILING TO INSTRUCT THE JURY ON THE RULES RELATING TO ACCOMPLICE TESTIMONY, THEREBY LOWERING THE PROSECUTION’S BURDEN OF PROOF AND REQUIRING REVERSAL OF COUNTS1, 2,4 AND5...... 73 THE 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-REQUIRES REVERSAL OF APPELLANT’S CONVICTIONS... 00...eeeene 83 -iii- AIil. A. THE FORFEITURE RULE DOES NOT APPLY BECAUSE THE JUDICIAL MISCONDUCT AROSE DURING A FORCED 402 HEARINGIN THE PRESENCEOF THE JURY, PLACING DEFENSE COUNSELIN AN UNTENABLEPOSITION AND RELIEVING HIM OF A DUTY TO OBJECT. 0...ceete eee et eens 83 B. RESPONDENTIMPLICITLY CONCEDES THAT DEFENSE COUNSEL’S FAILURE TO OBJECT RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL. ........ 00 cece eee eee eens 85 C. THE JUDGE ENGAGEDIN PREJUDICIAL MISCONDUCT BY HOLDING THE 402 HEARINGIN THE PRESENCEOF THE JURY, BY VOUCHING FOR THE TRUTH OF THE PROSECUTION’S EVIDENCE, BY INTERPRETING THE EVIDENCE FOR THE JURYIN 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... 0.0.0.0 e cece eee neues 85 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... 0...ceeeeee 95 XIV. THE CUMULATIVE EFFECT OF THE GUILT PHASE ERRORS REQUIRES REVERSAL OF APPELLANT’S CONVICTIONS. .... 97 PENALTY PHASE AND SENTENCING.......0.0.0. 0.0... .00.00004 100 XV. APPELLANT’S EXCLUSION FROM THE PENALTY PHASE CLOSING ARGUMENTS PURPORTEDLY RELATING TO CODEFENDANT CASTRO-WHICH INCLUDED ARGUMENT BY THE PROSECUTOR AND COUNSEL FOR CODEFENDANT CASTRO IMPLICATING APPELLANT—AND APPELLANT’S EXCLUSION DURING THE TRIAL COURT’S INSTRUCTIONS RELATING THERETO, REQUIRE REVERSAL OF THE DEATH JUDGMENT................... 100 A. INTRODUCTION... . 0... ccc cc et ee et eee teens 100 -iv- B. RESPONDENT’S WAIVER ARGUMENTFAILS BECAUSE THE RECORD DOES NOT SUPPORT A KNOWING AND INTELLIGENT WAVIER OF APPELLANT’S RIGHT TO PERSONAL PRESENCE AT TRIAL... eee ee ee ee ee eee eee e eee evene 101 C. REVERSAL OF THE DEATH VERDICT IS REQUIRED BECAUSE APPELLANT WAS PREJUDICIALLY DENIED THE RIGHT TO BE PRESENT AT CRITICAL STAGESOF HIS JOINT TRIAL WITH CODEFENDANTCASTRO. 2.0... cee cc eee eee tenes 105 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 ABSENCE ANDIN THE MIDST OF PENALTY PHASE DELIBERATIONS— DENIED APPELLANT THE CONSTITUTIONAL RIGHT TO AN INDIVIDUALIZED SENTENCING DETERMINATION, REQUIRING REVERSAL OF THE DEATH JUDGMENT........ 109 XVII. THE TESTIMONY OF PROSECUTION WITNESSES JAVIER CASTILLO AND LINDA CASTILLO THAT APPELLANT SHOULD BE SENTENCED TO DEATH REQUIRES REVERSAL OF THE DEATH JUDGMENT................... 114 A. INTRODUCTION... 0... ccc eee eee eee eee een anes 114 B. THE FORFEITURE RULE SHOULD NOT APPLY HERE BECAUSE THE TRIAL COURT OVERRULED DEFENSE COUNSEL’S OBJECTION TO THIS LINE OF QUESTIONING. ...........-..-- 114 C. RESPONDENT DOES NOT ADDRESSTHE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM........0.00ceceeceeveucs 115 D. THE TESTIMONYOF JAVIER CASTILLO AND LINDA CASTILLO THAT APPELLANT SHOULD BE SENTENCED TO DEATH REQUIRES REVERSAL OF THE DEATH JUDGMENT............. 116 XVIII.ADMISSION OF EVIDENCE IN AGGRAVATION OF A XIX. XX. XXI. CONCLUSION ... 002.eectnnn eens PURPORTED ASSAULT WITH A FIREARM ON JASON UZEL REQUIRES REVERSAL OF THE DEATH JUDGMENT BECAUSETHE EVIDENCEIS WOEFULLY INSUFFICIENT TO SUSTAIN A FINDING THAT APPELLANT PERPETRATED THE ASSAULT...0cceeens IN VIEW OF THE ADMISSION OF PRIOR VIOLENT CRIMES EVIDENCE IN AGGRAVATION, THE TRIAL COURT’S INSTRUCTION THAT THE PROSECUTION HAD NO BURDEN OF PROOF AT THE PENALTY PHASE REQUIRES REVERSAL OF THE DEATH JUDGMENT. ............ pve ee- CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION... 2.0...cetenes THE ERRORSIN BOTH THE GUILT AND PENALTY PHASES OF TRIAL, INDIVIDUALLY AND CUMULATIVELY,OR IN ANY COMBINATION THEREOF, REQUIRE REVERSAL OF THE DEATH JUDGMENT. ... 20.0...eceee 119 124 126 128 131 CERTIFICATE OF COMPLIANCE... 0.0...eee 131 /// -vi- TABLE OF AUTHORITIES Page(s) Federal Cases Beck v. Alabama (1980) AAT US. 625. occttn n teen eet e neces 9 Booth v. Maryland (1987) 482 US. 496. occcnet nent n ene n ees 116, 117 Bracy v. Gramley (1997) 520 U.S. 899.occent ene e nent teen nee 91 Brown v. Sanders (2006) 546 US. 212.cettenent ene nenes passim Bruton v. United States (1968) B91 US. 123,ccccence eter tne n tenes 71 Caldwell v. Mississippi (1985) 472 US. 320.occene tenet net nees 128, 130 Carter v. Kentucky (1981) ASO US. 288.ceceteen ttn e nnn enens 110 Chambersv. Mississippi (1973) AIOUS. 284.ccceect eee e teens 98, 129 Chapmanv. California (1967) 386 US. 18.cccnee tenet een ene ees passim Darden v. Wainwright (1986) ATT US. 168. 1cccence nent e een en enes 47 Davis v. Washington (2006) S47 USS. 813.eeee ncn tenn ene nene 59, 60 Delaware v. Van Arsdall (1986) ATS US. 673. oocectteen een een eens 62, 64, 69 -Vii- Depetris v. Kuykendall (9th Cir. 2001) 239 F.3d 1057. 0.cetteete eens 66, 123 Donnelly v. DeChristoforo (1974) 416 USS. 637.o tene n een etn eee ees 97 Douglas v. Alabama (1965) 380 U.S. 415.ceeene eee e eee eens 115 Dunnv. United States (1932) 284 U.S. 390.eeeteen eee e eens 96 Estelle v. McGuire (1991) 502 US. 62. 0.eeeeteens 113 Ford v. Wainwright (1986) ATT US. 399,oeeee e eee e tenn ene ees 9 Gamachev. California (2010) 562 U.S. __ [131 S.Ct. 591, S93}...eee 62 Gardnerv. Florida (1977) 430 U.S. 349. ootenetteen ens 9 Greer v. Miller (1987) 483 U.S. 756.0eeeeee en eee nes 97 Herring v. New York (1975) 422 USS. 853. ooeeeeee eee’ 105 Horningv. District ofColumbia (1920) 254 US. 135. ooeeeete tne de eee eee 96 In re Murchison (1955) 349 US. 133. 2.cenent e ee eee ees 91 Jackson v. Denno (1974) 378 U.S. 368. 0.ceeeet ee eee eee ae 94 -Vili- Jackson v. Virginia (1979) 443 US. 307.cence nnn teen en nees 15, 21, 25, 39 Lockett v. Ohio (1978) A438 US. 586.teenene e ne neeaes 109, 111 Lockhart v. McCree (1986) 476 US. 162.ceeee nent etn e ene nee 6 Moran v. Burbine (1986) ATS US. 412.Lccee teen ene e teen ne enens 102 Nederv. United States (1999) S2T USL Lteenene n ent n eee e nnn 62 Ohio v. Roberts (1980) HM48 US. S56...ceceee eet eet n nee e teens 53 Payne v. Tennessee (1991) SOLUS. 808. 2.cccnteen een nenes 116, 117 Riggins v. Nevada (1992) S04 U.S. 127.ceeene e ene ene nn eens 108 Rosemondv. United States (2014) 572 U.S. [134 S.Ct. 1240, 1248]...eee23 Ross v. Oklahoma (1988) A8T US. 81. oocecenee ener ene t nee e ne ne eens 8 Sandstrom v. Montana(1979) 442 US. 510.occeee tne e nen n ene nnes 110 Strickland v. Washington (1984) 466 US. 668. 2.cecetence teen enna 85,115 Sullivan v. Louisiana (1993) S08 U.S. 275.0ccen tne eee ees 67, 72, 82, 94, 99 -1X- Turner v. Louisiana (1965) 379 USS. 466. oonentnent eee ees 91 United States v. Olano (1993) 507 USS. 725. ooeeeeee teen eee 101 United States v. Sacerio (5th Cir. 1992) 952 F.2d 860. 2...ceeeet tee ee nent ees 28 United States v. Thomas (2nd Cir. 1997) L116 F.3d 606. 2...tente eee tenes 96 Uttecht v. Brown (2007) oo OO 7 Wainwright v. Witt (1985) 469 US. 412. octeteen eens 5 White v. Illinois (1992) 502 U.S. 346. 0.eeeee ete eens 53 Witherspoonv. Illinois (1968) 391 US. 510. ceent tenes 6,7 Woodsonv. North Carolina (1976) 428 U.S. 280. 2.cettenee enna 9,111 Yates v. Evatt (1991) 500 ULS. 391. oocettette eee ees 81, 125 State Cases Alvarado v. Superior Court (2000) 23 Cal.4th 1121. 0...ceeeee teens 46 Eramdjian v. Interstate Bakery Corp. (1957) 153 Cal.App.2d 590... 0.0... 0ceeeeee 25, 38 In re Gustavo M. (1989) 214 Cal.App.3d 1485.0... 0... ccceee teen teens 11 In re Horton (1991) 54 Cal.3d 82.0...ccceee nett eee n ete nenes 103 In re Sheena K. (2007) 40 Cal4th 875. 00ccceee eee ene teen eens 101 Jameson vy. Tully (1918) 178 Cal. 380...cecen eee e ene ne teens 93 Kuhn vy. Department ofGeneral Services (1994) 22 Cal.App.4th 1627. 2... eete nen enn 12, 25 Louis & Diederich, Inc. v. Cambridge European Imports, Inc. (1987) 189 Cal.App.3d 1574... 0...ccccence nen ene 12, 25 Miller v. Superior Court (2002) 101 Cal.App.4th 728. 00...neee e een n nee 78 People People v. Johnson (1980) 26 Cal.3d 557...0.eeenet teen nent e ene 1] People v. Abbaszadeh (2003) 106 Cal.App.4th 642. 0...eeenee e eee ens 84 People v. Albertson (1944) 23 Cal.2d 550... 0.ceeeee eee n ete e ete n nes 47 People v. Allen (1978) 77 Cal.App.3d 924... 00. cccceeenn enn eet e tenes 49 People v. Alvarez (2002) 27 Cal.4th 1161. 0.ceceeee eens 111, 117 People v. Anderson (1968) 70 Cal2d 15...ceteen teen eee nes 10 People v. Banks (1970) 2 Cal.3d 127...ettne nen ee eet eens 89 -Xi- People v. Benavides (2005) 35 Cal.4th 69. 0...cettette e tenes 117 People v. Berti (1960) 178 Cal.App.2d 872... 00. ccceeenes 12, 25 People v. Bonin (1988) 46 Cal.3d 659...eeettteee ee 43 People v. Bonner (2000) 80 Cal.App.4th 759. 0.ceeeeposes 28 People v. Bouzas (1991) 53 Cal.3d 467.0... 0 ccceeeeee ene e nee passim People v. Bradford (1997) 15 Cal.4th 1229. 0...eeee eens 106 People v. Brown (2003) 31 Cal4th 518.0...ceeeen eee 58 People v. Bryant, Smith & Wheeler (August 25, 2014, S049596) —_Cal.4th — [Slip Opn. p. 39]...eee 103 People v. Castaneda (2011) 51 Cal.4th 1292. 0...eeeee nee ees 28 People v. Chiu (June 2, 2014, $202724) —Cal4thceenets 23 People v. Coffman and Marlow (2004) 34 Cal.4th lo...ette eee eens 74, 75 People v. Conner (1983) 34 Cal.3d 141...0.cetteteenies 14, 38 People v. Cooks (1983) 141 Cal.App.3d 224... 0.0... cecene tee eens 20 -Xil- People v. Cortez (1998) 18 Cal.4th 1223. 0...ceeeect ee eaes 16, 17, 19, 20 People v. Cowan (2010) 50 Cal.4th 401. 0.ccceen tent neneee 116, 118, 124 People v. Cox (1991) 53 Cal.3d 618.0...eeneee n een e eee ne neas 111 People v. Cox (1999) 20 Cal.4th 9362. 00.ceette ence eee ne nes 48 People v. Cudjo (1993) 6 Cal.4th 585.0eeeee teen teen en tenes 56 People v. Dagnino (1978) 80 Cal.App.3d 981.0... ccc cece ence teen ene nens 105 People v. Daniels (1991) 52 Cal.3d 815.00... eececenee eet e tenet ee nees 121 People v. Diaz (1951) 105 CalApp.2d 690..... 0... ccc cece nee enn n ence tenes 115 People v. Elwood (1988) 199 Cal.App.3d 1365... 0...teen tenet nees 11 People v. Engelman (2002) 28 Cal.4th 436... 0.0eeeeee eee teen eens 95 People v. Ervin (2000) 22 Cal.4th 48. 0...ceete e nnn eet e eens 109 People v. Fain (1983) 34 Cal.3d 350... 0.ectet eee te teen teen enees 36 People v. Farmer (1989) AT Cal.3d 888.0... 0.0ccceee teen ene en eees 57 -xill- People v. Fonseca (1995) 36 Cal.App.4th 631. 0.0... cccceette nes 88, 89 People v. Fosselman (1983) 33 Cal.3d 572...00.tnenett ene 56, 122 People v. Frazier (2001) 89 Cal.App.4th 30. 0...ceteee eee 122 People v. Frierson (1985) 39 Cal.3d 803.0... 0...teen eee ene e eee 104 People v. Guiton (1993) 4A Cal.4th 1116. 0.0...ccceee te ene eee 76 People v. Gutierrez (2000) 78 Cal.App.4th 170. 2... 0.0ceeee eens 58 People v. Guzman (1988) 45 Cal.3d 915.0...ceeee nent eens 66 People v. Hall (1927) 87 Cal.App. 634......0. 0.0 ccc teen ete ene teenies 36, 37 People v. Hamilton (1989) 48 Cal.3d 1142.0...cceet eeeen teen e eens 84 People v. Harris (2013) 57 Cal.4th 804. 2...eeeeee een eens 52 People v. Heard (2003) 31 Cal.4th 946. 0...eeeee een enna 8, 58 People v. Hill (1992) 3 Cal.4th 959.octeeeeee 2 People v. Hill (1998) 17 Cal.4th 800. 0...eennee nee nnn eee 84 -XiV- People v. Holloway (2004) 33 Cal.4th 96. 0...ccceen nee e eee n eens 46 People v. Jackson (2014) 58 Cal.4th 724.occcee een n net n ene neaes 62 People v. Johnson (1993) 6Cal4th Lov.ceeeee nen eee eee eenes 102, 105 People v. Johnson (2004) 121 Cal.App.4th 1409. 0...ccccette ene e nes 55 People v. Jones (2003) 29 Cal.4th 1229.cnettent en en enes 106 People v. Jurado (2006) 38 Cal.4th 72...cecetenets 16, 19, 20, 28 People v. Kitchens (1956) 46 Cal.2d 260... 0...ceeter en ene n enn ene 54 People v. Lanphear (1984) 36 Cal.3d 163.0... 0.ceceteen e nent nee 108 People v. Ledesma (2006) 39 Cal.4th 641. 0.ccccence teen eee e eee 29, 34 People v. Leonard (2007) 40 Cal.4th 1370. 2...ceceent n ene nnas 108 People v. Lewis (2006) 39 Cal4th 970. 2.ccccette nee teen eens 52 People v. Lewis (2008) 43 Cal.4th 415...ceeneee enes 61, 109, 124 People v. Lopez (1999) 71 Cal.App.4th 1550. 0...ceceeee nent e nes 88 -xV- People v. Majors (1998) 18 Cal.4th 385. 0...ceeeen enn eens 55 People v. Marquez (2000) 78 Cal.App.4th 1302. 2.0...cceee eee es 13, 14 People v. Marshall (1997) 13 Cal.4th 799. 0...ceeetteet 33, 47 People v. Martinez (1986) 188 Cal.App.3d 19... 0... ceceeen eee ene eens 122 People v. Martinez (2009) 47 Cal.4th 399. 0...neeen een eae 6 People v. Mayfield (1997) 14 Cal.4th 668. 0.0.0... ccceect e teen eens 91, 103 People v. Miranda (1987) 44 Cal.3d 57... 0ceeeeen ene eens 77 People v. Morante (1999) 20 Cal.4th 403. 0...cecteees 20, 48 People v. Mower (2002) 28 Cal.4th 457. 0.ceeeteeens 62, 96 People v. Naverrette (2010) 181 Cal.App.4th 828. 0... 0...ceceeeeee 49 People v. Osband (1996) 13 Cal.4th 622.0... 0.eetee eee eens 46 People v. Ozuna (1963) 213 Cal.App.2d 338.0... 0.0.00 ccc cee teen eee ened 49 People v. Parrish (1948) 87 Cal.App.2d 853... 0... cece eee eee ene enna 28 -XVI- People v. Perry (2006) 38 Cal.4th 302...ccccnet cent eee eneaes 106 People v. Pitts (1990) 223 Cal.App.3d 606...... 0... ec cece cnc e nett ene e ten eees 84 People v. Pope (1979) 23 Cal.3d 412...eeeteen eee e enn eaes 55 People v. Raley (1992) 2 Cal.4th 870. 0...ccceect e nett een e een eees 57 People v. Redmond (1969) 71 Cal.2d 745...eecnet te teen eee en enna 11 People v. Reyes (1974) 12 Cal.3d 486...ceceteen tenn eaes 11, 12, 15 People v. Rich (1988) AS Cal.3d 1036.0... 0.0 eecceet ent n eee eee nes 43, 44 People v. Robertson (1989) 48 Cal.3d 18.0... ccc eee eee nes 64, 102, 106, 107, 113 People v. Roder (1983) 33 Cal.3d 491...ceeeee eee tenn etn eenes 66 People v. Rodriguez (1999) 20 Cal.4th Lo.ccceee net n ee tee ene eee 36 People v. Rubalcava (1988) 200 Cal.App.3d 295... 0... cccee cette teen ee neee 105 People v. Saffold (2005) 127 Cal.App.4th 979. 0.ccccnt eee e nett nee n en eas 54 People v. Sakarias (2000) 22 Cal.4th 596. 2...ccccent e nee e nen ences 67 -XVIi- People v. Sam (1969) 71 Cal.2d 194... 0.0cette en ete e ene 93 People v. Samarjian (1966) 240 Cal.App.2d 13... 0... 0.eeeeen eens 39 People v. Santos (2007) 147 Cal.App.4th 965. 00... 0.eeteens 103, 106 People v. Schiers (1971) 19 Cal.App.3d 102... 2... cccccceeceeeeveveveeevevenveeeslees, 49 People v. Schmeck (2005) 37 Cal.4th 240. 00...ceete ee beeen ees 126 People v. Scott (1978) 21 Cal.3d 284... 0...eeeee tenes 93 People v. Simon (2001) 25 Cal.4th 1082.00...ceeeee nee 101 People v. Sisavath (2004) 118 Cal.App.4th 1396. 2.0...cette 54 People v. Smithey (1999) 20 Cal.4th 936.0... 0. ccc cece eet tee een eens 48,95 People v. Song (2004) 124 Cal.App.4th 973. 0...ceeeee ene 54 People v. Stanley (1995) 10 Cal.4th 764. 00... cccccc ete e nnn ene ees 25 People v. Stein (1979) 94 Cal.App.3d 235.0... 0...eeetee ee eens 25, 39 People v. Stewart (2004) 33 Cal.4th 425. tenet eee eee 4,5, 7,47 -XVIil- People v. Sturm (2006) 37 Cal.4th 1218...centnen enes 84, 94, 99 People v. Swain (1996) 12 Cal.4th 593.ceeeee n tne enn eens 19 People v. Tatge (1963) 219 Cal.App.2d 430.... 0... ccc eee enn e teen nen 25 People v. Taylor (2001) 26 Cal.4th 1155.ceceteen eee n eee ens 111 People v. Thomas (2005) 130 Cal.App.4th 1202. 0...cccence teen nee 54 People v. Turner (1990) 50 Cal.3d 668... 0...centeeen ene n tenes 54, 93 People v. Virgil (2011) 51 Cal.4th 1210. .eeeence enn neas 103 People v. Williams (1997) 16 Cal.4th 635. 0...cetteener e ete ee nnn 80 People v. Woodberty (1970) 10 Cal.App.3d 695... 0.0... ccc cece eee ent e net e tne neaes 45 People v. Wright (1990) 52 Cal.3d 367...0.eteeee eben eee t nnn 105 People v. Younger (2000) 84 CalApp.4th 1360. 0.0...eeeteen ene eens 123 People v. Zemavasky (1942) 20 Cal.2d 56... 0.ceeene ete etn e ene 115 Reese v. Smith (1937) 9 Cal.2d 324...cettenent eee ne nens 25, 39 -X1X- Weiner v. Fleischman (1991) 54 Cal.3d 476.0... 0.cceeeen tenets 64 Statutes, Constitutions and Rules CALJIC No. 3.10... 0.eeeeet ete eens 77 CALJIC No. 3.11...cectent tte e eee nes 77 CALJIC No. 3.12... 0. cett ene nee eee ene 77 CALJIC No. 3.13.0... 0ceecttenet nent e eens 77 CALSIC No. 3.18.0... 0. ccceeeen ete en eens 74 CALJIC No. 8.88.0... 0.0 ccceetnent nett eens 129 CALJIC No. 17.41.11...cecee eee nna 95, 96 Evid. Code, § 310, subd. (a)... 0.0ceceee tees 89 Evid. Code, § 312... 0.0 cteneen teen eens 91 Evid. Code, § 1200, subd. (a)........ 0.0 cece teen eee 61 Evid. Code, § 1230... 0... ccceee ene eee nents 68 Pen. Code, § 187, subd. (a)... 0...eee73 Pen. Code, § 190.2, subd. (a)(3).... 0...ceetenes 34 Pen. Code, § 190.3, subd. (a)..... 0.0... cece eee pron 29, 31 Pen. Code, § 211...ceeee eee eee teens 73 Pen. Code, § 245, subd. (a)(2). 20...cee36, 119 Pen. Code, § 977, subd. (bD)(1). 0...ceeeee ene 102, 104 Pen. Code, § 1111...cceee 74, 75, 77 -XX- Pen. Code, § 1259...ccc teen ene tee e een e teens 95 U.S. Const. 5th, 6th, 8th & 14th Amends...........0..0.......00 cee ae passim /// -XXi- No. S095076 IN THE SUPREME COURTOF 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 REPLY BRIEF INTRODUCTION Appellant Richard Penunuri respectfully submits this reply to respondent’s brief. Appellant replies to contentions by respondentthat necessitate an answer in order to present the issues fully to this Court. Appellant does not reply to argumentsthat are adequately addressed in his opening brief. The absence of a reply to any particular argument, sub-argumentor allegation made by respondent, or of a reassertion of any particular point made in the openingbrief, does not constitute a concession, abandonmentor waiverofthe point by appellant (see People v. Hill (1992) 3 Cal.4th 959, 995, fn. 3), but reflects his view that the issue has been adequately presented andthe positions of the parties fully joined. //1 ARGUMENT JURY SELECTION I THE DISMISSAL FOR CAUSE OF PROSPECTIVE JUROR STEVEN METCALF REQUIRES REVERSAL OF THE DEATH JUDGMENT BECAUSE HE COULD FAIRLY AND IMPARTIALLY RETURN A VERDICT FOR EITHER LIFE OR DEATH. Appellant explained in his opening brief that Prospective Juror Steven Metcalf stated that he could follow the law, he could return a verdict of death in an appropriate case, and his personal viewsof capital punishment, including religious beliefs, would not prevent or substantially impair his ability to return a verdict of death. (Appellant’s Opening Brief (“AOB”) 65-90.) Respondentagrees that counsel’s failure to object to Metcalf’s removal did not forfeit the claim. (Respondent’s Brief (“RB”) 28; People v. Cleveland (2004) 32 11 Cal.4th 704, 734-735.) Respondent argues that substantial evidence supports the trial court’s implicit finding that Metcalf could not fairly consider the death penalty as a sentencing option. (RB 24-32.) Respondentis mistaken. Metcalf’s written responses to the questionnaire, and his responses during voir dire, reveal that he could fairly and impartially decide the case and return a verdict for either life or death. (CT 8:2169-2184; RT 7:713-752.) Metcalf stated in the questionnaire that his view of the death penalty was “in flux—away from its use” (CT 8:2181), and that over the past decade he was “[I]Jess likely to be in favor” of the death penalty. (CT 8:2182.) But Metcalf affirmed he would fairly apply the law and would not automatically vote for life in prison. (CT 8:2181.) During voir dire, Metcalf equivocated, stating he “should probably” be included in the group of people that could not return a verdict of death. (RT 7:722.) But moments later when asked for a show of hands from anyone unable to apply the law and return either a verdict of death and/or life, Metcalf did not raise his hand, implicitly affirming he could fairly apply the law and return a verdict of death in an appropriate case. (RT 7:721-723.) Metcalf’s single equivocal response during voir dire, as noted in the preceding paragraph, does not provide substantial evidence of impairment because both before and after that response he continued to affirm that he could fairly apply the law andreturn a verdict of death. (CT 8:2169-2184; RT 7:713-752.) The movingparty bears “the burden of demonstratingto the trial court that the [Witt] standard [is] satisfied as to each of the challenged jurors.” (Peoplev. Stewart (2004) 33 Cal.4th 425, 445.) “As with any othertrial situation where an adversary wishes to exclude a juror becauseofbias, . . . it is the adversary 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 (1985) 469 U.S. 412, 423.) To the extent that Metcalf’s single equivocal response during voir dire suggested a need for individual voir dire and/or further questioning of him,the prosecutor’s failure to engage Metcalf in voir dire showsthat the prosecution failed to meet its burden of demonstrating to thetrial court that the Witt standard wassatisfied. (See People v. Stewart, supra, 33 Cal.4th at p. 445 [moving party bears the burden of demonstrating to the trial court that the Witt standard is satisfied as to each of the challenged jurors]; Wainwright v. Witt, supra, 469 US. at p. 423.) Respondent argues substantial evidence supportsthe trial court’s removal order because “Metcalf clearly expressed strong beliefs against the death penalty.” (RB 29.) Respondent is mistaken. Although Metcalf’s personal view of the death penalty was“in flux—away from its use” (CT 8:2181), he consistently expressed an ability to follow the court’s instructions on capital punishment and apply the law, regardless of his personal views. (CT 8:2180-2182.) In fact, when asked whether he “entertain[ed] such a conscientious opinion concerning the death penalty that you would automatically in every case vote for a verdictoflife imprisonment without the possibility of parole and under no circumstances vote for a verdict of death?,” Metcalf responded, “I don’t think so.” (CT 8:2181.) Respondent’s emphasis on Metcalf’s personal views of the death penalty is misplaced because Metcalf repeatedly stated he would fairly apply the law and impose a sentence of death in an appropriate case, demonstrating a willingness to temporarily set aside his own beliefs in deference to the rule of law. Metcalf was not firmly opposed to the death penalty (CT 8:2181-2182), but even if he had been that alone would not have been a basis to exclude him from appellant’s jury. (People v. Martinez (2009) 47 Cal.4th 399, 427.) It is important to rememberthat not all who oppose the _ death penalty are subject to removalfor causein capital cases; those whofirmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as theystate clearly that the are willing to temporarily set aside their own beliefs in deferenceto the rule of law. (Lockhart v. McCree (1986) 476 U.S. 162, 176, italics added.) In effect, when those opposed to capital punishment are excluded from the venire, the state “crosse[s] the line of neutrality” and “produce[s] a jury uncommonly willing to condemn a manto die,” thereby violating the Sixth and Fourteenth Amendments. (Witherspoonv.Illinois (1968) 391 U.S. 510, 520- 521.) “[A] sentence of death cannotbecarried out if the jury imposing or recommending it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples againstits infliction.” (/d. at p. 522 [fn. omitted].) Asthe high 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 whofavorsit, can makethe discretionary judgment entrusted to him bythe State,” .. . [it follows that] “a sentence of death cannotbe carried outif the jury that imposed or recommendedit was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty.” (Uttecht v. Brown (2007) 551 U.S.1, 6, citing Witherspoonv.Illinois, supra, 391 US. at pp. 522-523, fn. 21.) Respondentalso points to the deference owed tothe trial court’s implicit Ceefinding of substantial impairment, stating that “‘a trial judge who observes and speaks with a prospective juror and hears that person’s responses. . . gleans valuable information that simply does not appear on the record.’” (RB 32, citing People v. Stewart, supra, 33 Cal.4th at p. 451.) Respondent’s argumentis misplaced because here the record showsthat Metcalf could apply the law and return a death verdict in an appropriate case;the trial court also never spoke with Metcalf, entirely failing to question him during voir dire. (See RT 713-752; Uttecht v. Brown, supra, 551 U.S.at p. 19 [“The need to defer to the trial court’s ability to perceive jurors’ demeanor doesnot foreclose the possibility that a reviewing court mayreversethe trial court’s decision where the record discloses no basis for a finding of substantial impairment.”].) Thetrial court exceeded its discretion in excusing Metcalf because his responses to the questionnaire, and his responses during voir dire, do not support reasonable groundsfor a finding of substantial impairment. (Cf. People v. Heard (2003) 31 Cal.4th 946, 966; Ross v. Oklahoma (1988) 487 U.S. 81, 88.) Reversal of the death judgmentis required. //] GUILT PHASE Il. THE EVIDENCEIS INSUFFICIENT TO SUSTAIN A FINDING THAT APPELLANT WASA PRINCIPAL IN THE MURDERS OF BRIAN MOLINA AND MICHAEL MURILLO, REQUIRING REVERSAL OF COUNTS4 AND5, RESPECTIVELY. Appellant explained in his opening brief that his convictions for the first- degree murders of Brian Molina and Michael Murillo (counts 4 and 5, respectively) should be reversed for insufficient evidence that he perpetrated the killings. (AOB 91-106.) Although appellant was in the vicinity of the residence on Hornell Street hours before the murders, the gunman wasneverpositively identified. (AOB 95-106.) The verdicts rested on testimony and circumstances revealing a suspicion that appellant was involvedin the killings, which is insufficient to sustain the verdicts on appeal. (AOB 94-106.) The standard of review for sufficiency of the evidence is applied in a capital case with greater scrutiny, a matter respondent does not dispute. (AOB 93; RB 32-38; see Beck v. Alabama (1980) 447 U.S. 625, 627-646 [recognizing a heightened reliability requirementin the guilt phase of a capital trial]; Gardnerv. Florida (1977) 430 U.S. 349, 357 [death is different, which requires greater scrutiny of capital guilt determinations]; Woodson v. North Carolina (1976) 428 U.S. 280, 305; Ford v. Wainwright (1986) 477 U.S. 399, 411.) Respondentarguesthat there is sufficient evidence of premeditation and deliberation, applying the factors set forth in People v. Anderson (1968) 70 Cal.2d 15. (RB 34-35, 38-39.) Respondent misconstrues appellant’s argument. Appellant asserts there is insufficient evidence identifying him as the gunman whokilled Molina and Murillo, not that the unidentified gunman lacked premeditation and deliberation. (AOB 94-106.) Luke Bissonnette saw appellant earlier on Hornell Street hours before the murders, and so when he heard the gunshots and looked out the windowofthe Goodhue Street residence he thought to himself, “fucking Dozer”(i.e., appellant). (RT 10:1189-1192.) Aside from Luke’s admitted consumption of drugs, impairing his ability to accurately observe the events (RT 10:1232-1233, 1237- 1238), Luke never saw the gunman;he only saw the face of a person running away. (RT 10:1059-1066.) In the two secondsthat he saw the person’s face, Luke could nottell what the person was wearing becauseit was too dark outside. (RT 10:1059-1066.) Luke had seen appellant earlier that night, and thus assumed the person running away wasappellant. (RT 10:1059-1066.) Respondent argues that Luke’s eyewitness identification of appellant constitutes substantial evidence in support of the verdicts because weaknessesin the identification testimony of a witness is to be evaluated by the jury, not the 10 reviewing court. (RB 35, citing Jn re Gustavo M. (1989) 214 Cal.App.3d 1485 and People v. Elwood (1988) 199 Cal.App.3d 1365.) Respondentis mistaken. Although the reviewing court typically resolves conflicts in the evidence or inferences in favor of the People (People v. Johnson (1980) 26 Cal.3d 557, 576), the reviewing court must determine if a reasonabletrier of fact could have found a defendant guilty. (/d. at p. 578). To that end, the reviewing court must discern if the evidenceis “substantial,”i.e., “reasonable, credible, and of solid value.” (bid.) Thecases cited by respondent are inapposite. In Jn re Gustavo M., supra, 214 Cal.App.3d 1485, the victim twice positively identified the defendantattrial as her assailant. (/d. at p. 1496.) In People v. Elwood, supra, 199 Cal.App.3d 1365, in the context of convictions for auto theft, two witnesses identified the defendantas the driver of the stolen vehicles. (/d. at p. 1368, 1372.) Here, Luke’s testimony reveals that he did not positively identify the gunman, but only had a suspicion that appellant was involved, whichis insufficient to sustain the verdicts. (See 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.”], citing People v. Redmond (1969) 71 Cal.2d 745, 755.) The identification made by Luke, suggesting that appellant was the shooter, was thus too unreliable to sustain convictionsfor first degree murderin a ll capital case becauseit fails to meet the substantial evidencetest andit fails to meet the heightened verdict reliability requirementat the guilt phase of a capital trial. The most that can besaid is that Luke suspected that appellant might be the gunman,and thus the jury could not reasonably infer from Luke’s testimonythat appellant perpetrated the killings. Although inferences may constitute substantial evidence in support of a judgment, they must be the probable outcomeoflogic applied to direct evidence; mere speculative possibilities or conjecture are infirm. (Kuhn v. Department of 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.) ... “Evidence which merely raises a strong suspicion ofthe defendant’s guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact.” .... “To justify a criminal conviction,the trier of fact must be reasonably persuaded to a near certainty. The trier must therefore have reasonably rejected all that undermines confidence.” (People v. Reyes, supra, 12 Cal.3d at p. 500, citations omitted.) Respondentarguesthat “there was other evidencelinking appellant to the shooting[,]” including that “appellant was in the neighborhoodat the time of the shootings[,]”” he was seen with Alejandro Delaloza in Delaloza’s white Cadillac earlier that night, and “immediately after hearing the shots that killed Molina and 12 Murillo, neighbors saw two young Hispanic menget into a white Cadillac and drive away.” (RB 36.) But this evidence merely showsthat appellant was with Delaloza earlier that night and that he had some prior connection with Delaloza’s white Cadillac. The evidence does notestablish that appellant was the gunman; nor doesit prove that appellant was one of the young Hispanic men departing the scene of the shooting in the white Cadillac. Respondentargues that “Delaloza’s testimony established that he [Le., appellant] was either running awayatthe time of the shooting or running right after the shots werefired.” (RB 36, citing People v. Marquez (2000) 78 Cal.App.4th 1302, 1305-1307.) Delaloza nevertestified at trial. Instead,his tape-recorded statement to the police was played to the jury (RT 12: 1443-1444: CT Supp. IV:109-142), which respondent now concedesviolated appellant’s constitutional rights. (RB 73 [“Here, Delaloza’s statements were taken during police interrogation and were not subject to cross-examination since he refused to testify, and therefore the admission of his statements wasa violation ofhis[1.e., appellant’s] Sixth Amendmentrights.”’]; see § X, post.) Delaloza stated he was sitting in the car, heard gunshots, and then saw appellant running. (RT 12:1443-1444; CT Supp. IV:109-142.) Delaloza did not see the shooting and he did not identify appellant as the gunman. (RT 12:1443-1444; CT Supp. IV:109-142.) 13 Nor does respondent’s citation to People v. Marquez, supra, 78 Cal.App.4th 1302 assist her. (RB 36.) There, in the context of a robbery at a restaurant, the victim “identified defendant as the robber in a photographic lineup. During thetrial she also positively identified defendant as the robber.” (People v. Marquez, supra, 78 Cal.App.4th at p. 1305.) Here, Delaloza’s statement to the police did not identify appellant as the gunman. (RT 12:1443-1444; CT Supp. IV:109-142.) Respondent arguesthat “substantial evidence supported the jury’s conclusion that appellant had used the 9-millimeter firearm in the killings of Molina and Murillo.” (RB 37.) But respondent confuses Delaloza with appellant. Prosecution firearm examiner Richard Catalanitestified 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 samefirearm (RT 13:1685, 1693-1695), thereby suggesting similar ammunition recovered from Delaloza’s residence wasusedin the shooting. (Cf. People v. Conner (1983) 34 Cal.3d 141, 149 [substantial evidence is evidence that “maintains its credibility and inspires confidence that the ultimate fact it addresses has been justly determined”].) Respondentalso argues the fact that “no gunshot residue particles were found on the jacketin his [i.¢e., appellant’s] residence” does not underminethe 14 sufficiency of the evidence. (RB 37-38.) But in addition to the lack of gunshot residue linking appellant to the shooting, the physical evidence points to Delaloza as the likely perpetrator of the Molina and Murillo homicides, not appellant. Delaloza admitted being at the scene of the shootings. 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 scene. (RT 9:988-989, 11:1361- 1367; 19:2878-2880.) A black jacket and two sweatshirts, both with hoods, were found at Delaloza’s residence. (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.) No gunshotresidue particles were found on the black jacket found in appellant’s residence. (RT 19:2832-2833; People’s Exh. 5.) Yet, with eleven rounds being fired from a 9-millimeter handgun, gunshotresidue would be found on any jacket the shooter was wearing. (RT 19:2840-2841.) Accordingly, there is no solid, credible evidence that appellant was the gunman,thereby requiring reversal of appellant’s convictions on counts 4 and5. (Cf. Jackson vy. Virginia (1979) 443 U.S. 307, 317-320 [a conviction unsupported by substantial evidence denies a defendant due process of law]; Peoplev. Reyes, supra, 12 Cal.3d at p. 500.) //1 15 Il. THE EVIDENCEIS INSUFFICIENT TO SUSTAIN FINDINGS THAT APPELLANT AGREED OR CONSPIRED TO MURDER JAIME CASTILLO AND THAT HE HAD THE SPECIFIC INTENT TO KILL CASTILLO, REQUIRING REVERSAL OF COUNT6 (CONSPIRACY TO COMMIT MURDER). Appellant explained in his opening brief that his conviction for conspiracy to commit murder of Jaime Castillo (count 6) should be reversed becausethere is insufficient evidence to sustain findings that he agreed or conspired to commit murder andthat he had the specific intent to kill Castillo. (AOB 107-120.) The prosecution’s sole theory of conspiracy to commit murder, and the trial court’s instructions thereon, required findings that appellant harbored dual specific intents—i.e., the specific intent to agree or conspire to commit an offense and the specific intent to murder Castillo. (RT 24:3762-3769, 3777-3778; see People v. Cortez (1998) 18 Cal.4th 1223, 1238-1239; People v. Jurado (2006) 38 Cal.4th 72, 120.) The mental state for conspiracy to murderis identical to premeditation and deliberation. (People v. Cortez, supra, 18 Cal.4th at pp. 1238- 1239.) The prosecution’s case rested on the testimony of Jesus Marin, Tracie McGuirk and Carmen Miranda recounting portions of several telephone conversationsinitiated by appellant from county jail. (AOB, pp. 31-39; RT 18:2698-2700, 2711-2723, 2727; People’s Exhs. 80 & 92.) Their testimony 16 reveals that appellant was concerned Castillo might provide some unspecified testimony against him. (RT 15:2033-2034.) But their testimony is woefully insufficient to sustain findings that appellant agreed or conspired to commit murder and that he had the specific intentto kill Castillo. (RT 18:2698-2700, 2711-2723, 2727.) Respondent acknowledgesthat “in in the context of a conspiracy to commit murder,” the prosecution was required to prove appellant harbored dual specific intents-i.e., “the participants must agree to commit that offense and possess the specific intent to kill.” (RB 39, citing People v. Cortez, supra, 18 Cal.4th at p. 1228.) Respondentstates that appellant “instructed Castro and Bermudezto kill Castillo.” (RB 40.) Respondentalso states that appellant ‘then specifically asked fellow gang membersforhelp in killing Castillo.” (RB 41.) But neither statementis immediately followed by citation to the record. Indeed, the recordis devoid of any statement by appellant indicating an intent to kill Castillo. Contrary to respondent’s assertions, there is no statement by appellant instructing and/or specifically asking anyoneto kill Castillo. Instead, respondentpoints to severaljail telephone calls initiated by appellant and referring to Castillo. (RB 40-41.) In one telephonecall, respondentstates that Castro was overheard [by Miranda]stating, “‘Oh. You 17 want us to - you wantus to get rid of him. Yeah. Meand Artie [Bermudez] will get rid of ‘em.’” (RB 40, citing RT 17:2465-2468.) But respondent omits the salient fact that moments later Mirandaclarified her testimony, stating that she had actually heard Castro state, “Oh. He’s gonnatestify against you in your case? Oh. Don’t worry. We’re gonna get rid of him. Me and Artie’s gonnaget rid of him.” (RT 17:2468.) In other words, Miranda only overheard Castro telling appellant they were “gonna get rid of him.” She did not overhear Castro stating that appellant requested that they get rid of him. Nordid 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 encourageda killing or that appellant intended a killing. Asserting that appellant “then specifically asked fellow gang membersfor help in killing Castillo” (RB 41), respondent argues that “Castro and Bermudez approached Tapia,a close friend of Castillo, and demanded that he hadto ‘doit or else they were going to fuck him up,too, so that Freddie had to shut up Jaime.’ They would ‘blast’ Castillo.” (RB 41, citing RT 15:2035-2040.) But appellant wasnotprivy to any discussion aboutblasting, shooting, or killing Castillo. The conversations cited by respondentdid not occur during a telephonecall with appellant. Instead, the conversations occurred at some unspecified time at 18 Marin’s apartment while appellant was in county jail. (RT 15:2035-2052.) Marin testified that Castro and Bermudez-—not appellant—“initiated this plan”to kill Castillo. (RT 15:2035.) Respondentasserts, “not only did appellant demandthat his cohorts get rid of Castillo, there was notthe slightest evidence appellant communicated any rejection or repudiation of the continuing conspiracy.” (RB 42.) Respondentis mistaken. Respondent’s assertion that “appellant demand[ed] that his cohorts get rid of Castillo” is not supported by citation to the record, nor could it be, as the record is devoid of any statement by appellant indicating an intent to kill Castillo. There also is no evidencein the record that the plan to kill Castillo was communicated to appellant. (RT 15:2035-2036.) And thus appellant could not be criminally liable for the actions of those who killed Castillo because appellant never joined in the conspiratorial agreementto kill Castillo. (Cf. People v. Cortez, supra, 18 Cal.4th at pp. 1238-1239 [conviction for conspiracy to commit murder requires that the defendant be one of the participants who harbored the specific intentto kill]; People v. Jurado, supra, 38 Cal.4th at p. 123; People v. Swain (1996) 12 Cal.4th 593, 600.) Respondentnotes, as appellant did in his openingbrief, that the jury did not find true thefirst overt act alleged by the prosecution—1.e., “that on and between January 1, 1998 and January 14, 1998, Richard Penunuri, Joe Castro, 19 Arthur Bermudez, and Alfredo Tapia, discussed a plan to murder Jaime Castillo. ..” (RB 42,italics added; AOB 119.) Appellant was notpart of any discussion of a plan to kill Castillo. (RT 15:2035-2036.) The jury’s refusal to find thefirst overt act true is consistent with an implicit finding that the plan to kill Castillo wasnot discussed with appellant. Finally, respondentasserts, “‘The crime of conspiracy can be committed whetherthe conspirators fully comprehendedits scope, whether they acted together or in separate groups, or whether they used the sameor different means knownor unknownto them.’” (RB 43, citing People v. Cooks (1983) 141 Cal.App.3d 224, 312.) But this general statement of the law does not lessen the requirement for the prosecution to prove that appellant both agreed to commit the offense of murder and harboredthe specific intent to kill Castillo (Cf. Peoplev. Cortez, supra, 18 Cal.4th at pp. 1238-1239; People v. Jurado, supra, 38 Cal.4th at p. 123.) In other words, in the context of a charge of conspiracy to commit murder, as here, the prosecution was required to prove that appellant was a conspirator who fully comprehendedthe scope of the conspiracy. (Cf. People v. Morante (1999) 20 Cal.4th 403, 416 [“[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 ofthat offense’’].) 20 Appellant’s conviction for conspiracy to commit murder of Jaime Castillo (count 6) must be reversed. (Cf. Jackson v. Virginia, supra, 443 U.S.at p. 318; People v. Bean, supra, 46 Cal.3d at p. 932.) /// 21 IV. THE EVIDENCEIS INSUFFICIENT TO SUSTAIN FINDINGS THAT APPELLANT EITHER PERPETRATED THE KILLING OF JAIME CASTILLO, AIDED AND ABETTED THE KILLING, OR ENTERED INTO A CONSPIRATORIAL AGREEMENTTO KILL, REQUIRING REVERSAL OF COUNT7 (MURDER). Appellant explained in his opening brief that the evidenceis insufficient to sustain a finding that appellant either directly perpetrated the killing of Castillo, aided and abetted the killing, or joined in a conspiratorial agreementto kill with the specific intent to kill Castillo. (AOB 121-129.) Respondent acknowledges that appellant was in county jail when Castillo waskilled, and thus did not directly perpetrate the killing. (RB 44-45; RT 9:1065-1067, 22:3439-3440.) Respondent contends that there was sufficient evidence appellant aided and abetted the killing and sufficient evidence of a conspiratorial agreementto kill Castillo. (RB 44.) Asexplained in section III., ante, which is incorporated herein by reference, the evidenceis insufficient as a matter of law to sustain a finding that appellant participated in a conspiracy to murderCastillo (count6). Respondent points to the same evidence regarding a conspiratorial agreementto kill Castillo in support of its argument on aiding and abetting liability. (RB 45-46.) But this same evidence, which is woefully insufficient to prove appellant’s participation in a conspiracy to commit murder(§III., ante), 22 also is insufficient as a matter of law to sustain a finding that appellant aided and abetted the murderof Castillo. Anaider and abettor’s mental state must be at least that required of the direct perpetrator, and thus to sustain a conviction forfirst degree premeditated murder, as here, the evidence must be sufficient to prove that “the defendant aided or encouraged the commission of the murder with knowledge ofthe unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging,or facilitating its commission.” (People v. Chiu (June 2, 2014, S202724) __Cal.4th __[p. 13]; cf. Rosemond v. United States (2014) 572 US. __,__ [134S.Ct. 1240, 1248].) .... An aider and abettor who knowingly and intentionally assists a confederate to kill someone could be found to have acted willfully, deliberately, and with premeditation, having formed his own culpable intent. Such an aider and abettor, then, acts with the mens rea required for first degree murder. (People v. Chiu, supra, __ Cal.4th __[p. 14].) Respondentstates that “appellant alone encouraged Castro and Bermudez to kill Castillo to prevent him from testifying against him attrial.” (RB 45.) But as explained in appellant’s opening brief and in sectionIII, ante, the record 1s devoid of any statement by appellant indicating an intent to kill Castillo. Contrary to respondent’s assertions, there is no statement by appellant encouraging Castro and Bermudezto kill Castillo. (AOB 111-120; § I, ante.) 23 Appellant was concerned that Castillo might testify against him, but he never instructed anyoneto kill Castillo. (See RT 16:2341, 2343-3447; RT 17:2461-2468, 2475, 2496.) McGuirk testified to a conversation in which 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. (AOB 108-120.) Appellant previously asked Castroto talk to Castillo (RT 15:2031), and thus the only reasonable inferenceis that Castro wastelling appellant he would “take care of it” by talking to Castillo, not by killing him. Mirandatestified to a conversation in which she overheard Castrostate, “Oh. He’s gonnatestify against you in your case? Oh. Don’t worry. We’re gonna get rid of him. Me and Artie’s gonna get rid of him.” (RT 17:2468.) 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. Mirandathus did not overhear any statement from whichit could be inferred that appellant encourageda killing. Respondentthen cites the general legal principle that “circumstantial evidence maybesufficient to connect the defendant to a crime and provehis guilt 24 beyond a reasonable doubt... .” (RB 46, citing People v. Stanley (1995) 10 Cal.4th 764, 793.) Unquestionably, circumstantial evidence can be as powerful, if not more powerful, than direct evidence. But inferences, whether circumstantial or direct, may constitute substantial evidence in support of a judgmentonly if they are the probable outcome of logic applied to direct evidence; mere speculative possibilities or conjecture are infirm. (Kuhn v. Department ofGeneral Services, supra, 22 Cal.App.4th at p. 1633; Louis & Diederich, Inc. v. Cambridge European Imports, Inc., supra, 189 Cal.App.3d at pp. 1584-1585; People v. Berti, supra, 178 Cal.App.2d at p. 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.) A doubtful or uncertain fact must inure to the detriment of the party with the burden of proof on the issue. (Reese v. Smith (1937) 9 Cal.2d 324, 328; People v. Tatge (1963) 219 Cal.App.2d 430, 436.) In the absence of evidence that appellant instructed and/or encouragedthe Castillo murder, as here, there can be no reasonable inference that appellant aided and abetted a first degree murder of Castillo. Appellant’s murder conviction on count 7 must be reversed for insufficient evidence. (Cf. Jackson v. Virginia, supra, 443 U.S. at p. 318; People v. Bean, supra, 46 Cal.3dat p. 932.) 25 V. THE TRUE FINDING ON THE WITNESS-KILLING SPECIAL CIRCUMSTANCE MUSTBESET ASIDE FOR INSUFFICIENT EVIDENCE, THEREBY RENDERING THE DEATH JUDGMENT UNCONSTITUTIONAL. A. THE TRUE FINDING ON THE WITNESS-KILLING SPECIAL CIRCUMSTANCEMUSTBE SET ASIDE FOR INSUFFICIENT EVIDENCE. Appellant explained in his openingbrief that the true finding on the witness-killing special circumstance must be set aside because the evidenceis insufficient to sustain a finding that appellant either directly perpetrated the killing, aided and abetted the killing that was perpetrated by codefendantCastro, or joined in a conspiratorial agreementto kill Castillo. (AOB 130-132; see §§ III & IV, ante.) Respondent argues that the evidenceis sufficient because “appellant made several collect calls to Marin’s house in order to speak with Castro and Bermudez. These telephonecalls established that (1) appellant was afraid Castillo would ‘rat him out’ and testify against him; and (2) appellant told Castro and Bermudez to get ‘rid of [Castillo].’” (RB 47-48.) Respondentis mistaken. There is no evidence that Castillo was a witness to the Goodhue double murders, and respondentpoints to none. (See RB 46-50; AOB 19-42 [statementof facts].) Noris there evidence that “appellant told Castro and Bermudez toget ‘rid of [Castillo].’” (RB 48.) Mirandatestified that one week before Castillo was 26 killed she was with Castro and Bermudez whenshe overheard a telephone conversation between appellant and Castro and/or Bermudez, which wasinitiated by appellant from jail; she only heard the Castro-Bermudezside of the conversation, and did not hear appellant. (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 wantusto get rid of him —.” (RT 17:2466.) She then heard Castro say, “Yeah. Me and Artie [Bermudez] will get rid of ‘em.” (RT 17:2466, 2468.) However, whenthe prosecutor asked Miranda to 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. MeandArtie’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 Castrotelling appellant they were “gonnagetrid of him.” She did not overhear Castro stating that appellant requested that they get rid of him. Nordid Mirandatestify to any statement that might have suggested appellant’s response, if any, to Castro’s statement. (See RT 17:2461-2468.) Miranda thus did not overhear any statement from whichit could be inferred that 27 appellant solicited a killing or that appellant intended a killing. The conversation neither suggests, nor gives rise to a reasonable inference of, an agreementto kill or a directive by appellantto kill Castillo. (See People v. Jurado, supra, 38 Cal.4th at p. 123; United States v. Sacerio (5th Cir. 1992) 952 F.2d 860, 862-866; People v. Parrish (1948) 87 Cal.App.2d 853, 855-856; People v. Bonner (2000) 80 Cal.App.4th 759, 764.) B. THE INVALID WITNESS-KILLING SPECIAL CIRCUMSTANCE RENDERS APPELLANT’S SENTENCE UNCONSTITUTIONAL. Appellant further explained in his opening brief that the invalid witness- killing special circumstance renders appellant’s sentence unconstitutional by reason of its 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. (AOB 133-136; see Brown v. Sanders (2006) 546 U.S. 212, 220.) Respondent acknowledges that even where “another special circumstance made the defendanteligible for the death penalty, the defendant maystill have suffered prejudice if the jury’s penalty verdict was influenced by evidence pertaining to the invalid special circumstance that was not otherwise admissible. (RB 49, citing Brown v. Sanders, supra, 546 U.S.at p. 220 and Peoplev. Castaneda (2011) 51 Cal.4th 1292, 1354.) 28 Respondentarguesthat there was no prejudice byvirtue ofthe invalid witness-killing special circumstance because “the evidence that appellant conspired to murder Castillo—was properly considered by the jury as ‘circumstancesofthe crime.’” (RB 50, citing Pen. Code, § 190.3, subd.(a).) Respondent’s argumentis flawed by circular reasoning. The witness-killing special circumstanceis invalid because, in part, the evidenceis insufficient as a matter of law to sustain a finding that appellant conspired to murder Castillo, and thus this very sameinsufficient evidence cannot somehowsupport a finding that the jury properly considered, as an aggravating factor, the murder of Castillo, which murderappellant neither perpetrated, nor aided and abetted, nor conspired to commit. (AOB 107-129 [§§ III & IV]; People v. Ledesma (2006) 39 Cal.4th 641, 726 [The special circumstance requires that the defendant physically aid or commit the act causing death andthat the killing be intentional, deliberate, and premeditated.”].) Respondent’s citation to Brown v. Sanders, supra, 546 U.S. 212 is unavailing. (RB 49.) There, 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. (Ud. at pp. 214, 223-224.) The jury then weigheda list of sentencing factors, including the circumstances of the crime, and sentenced defendantto 29 death. (Jbid.) 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-murder special 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, in part, because the facts and circumstances admissible to establish the “heinous, atrocious, or cruel” murder and burglary-murder special 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 process did 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 aggravating facts bearing upon the “circumstancesof the crime” sentencing factor. They were properly considered whetheror not they bore upon the invalidated eligibility factors. (Brown v. Sanders, supra, 546 U.S.at p. 224.) The striking of two special circumstances in Brown v. Sanders, supra, did not involve findings that the evidence wasinsufficient. Brown v. Sanders, supra, 30 involved only the judge’s determination of the applicability of a legal theory to the facts, not the facts themselves, which were then available to the jury during the penalty phase as bearing uponthe “circumstances of the crime” under Penal Code section 190.3, subdivision (a). (/bid.) Here, the witness-killing special circumstance mustbeset aside because the evidenceis insufficient to sustain a finding that appellant either directly perpetrated the killing, aided and abetted the killing that was perpetrated by codefendant Castro, or joined in a conspiratorial agreementto kill Castillo. (AOB 130-132; see §§ III & IV, ante.) The jury foundtrue 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 judgmentis 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.) Whenthe witness-killing special circumstance is removed from consideration, so too are the facts and circumstances admitted at trial in support 31 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. 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 samefacts and circumstances. (Cf. Brown v. Sanders, supra, 546 U.S.at p. 220.) The witness-killing special circumstance mustbe set aside and the death judgmentreversed. /// 32 VI. THE EVIDENCEIS INSUFFICIENT TO SUSTAIN THE TRUE FINDING ON THE MULTIPLE-MURDER SPECIAL CIRCUMSTANCE, REQUIRING REVERSAL OF THE DEATH JUDGMENT. Appellant explained in his openingbrief that the true finding on the multiple-murder special circumstance mustbe set aside because the evidenceis insufficient to sustain a finding that appellant wasa principal in the commission of murders of either Brian Molina and/or Michael Murillo in counts 4 and5, respectively. (AOB 137-141.) Respondentarguesthat the true finding should be affirmed based on the “finding that appellant committed the murders of Molina and Murillo.” (RB 51.) Respondentincorporates by reference section II of respondent’s brief, making no additional argumentasto the sufficiency of the evidence. (RB 51.) Asexplained in section II, ante, which is incorporated herein by reference, the evidenceis insufficient to sustain a finding that appellant was a principal in the commission of the murders of Molina and Murillo, counts 4 and 5, respectively. With the reversal of appellant’s convictions on counts 4 and 5, there remains no substantial evidence that appellant stands convicted of murder in the first degree and also has been convicted of at least one additional count of murder in the same proceeding. (See People v. Marshall (1997) 13 Cal.4th 799, 852 [the multiple-murder special circumstance requires a finding that appellant 33 has been convicted of murder in the first degree and also has been convicted ofat least one additional count of murder in the same proceeding]; Pen. Code, § 190.2, subd.(a)(3).) Citing Brown v. Sanders, supra, 546 U.S. 212, respondent argues that there was no prejudice here by virtue of the invalid multiple-murderspecial circumstance because “evidence pertaining to the Goodhue murders would be properly considered bythe jury as ‘circumstancesof the crime’ under § 190.3, subdivision (a).” (RB 51.) Respondent’s argumentis flawed by the same circular reasoning identified in the section V.B, ante. The multiple-murder special circumstanceis invalid because, in part, the evidenceis insufficient to sustain a finding that appellant wasa principal in the commission ofeither the murder of Molina or the murder of Murillo, and thus this very same insufficient evidence cannot somehow support a finding that the jury properly considered,as an aggravating factor, the murders of Molina and Murillo, which murders appellant did not perpetrate. (AOB 91-106 [§ II]; People v. Ledesma, supra, 39 Cal.4th at p. 726.) The invalid multiple-murder special circumstance renders appellant’s sentence unconstitutional by reason of its 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 samefacts and 34 circumstances as the invalid sentencingfactor—i.e., the intentional killing of Molina and Murillo, including the penalty phase aggravation evidencerelating to the killings of Molina and Murillo and the victim impact evidence admitted in connection therewith. (AOB 139-142; cf. Brown v. Sanders, supra, 546 U.S.at p. 220.) The multiple-murder special circumstance mustbe set aside and the death judgmentreversed. /// 35 VII. THE EVIDENCEIS INSUFFICIENT TO SUSTAIN APPELLANT’S CONVICTION FOR ASSAULT WITH A FIREARM ON CARLOSARIAS, REQUIRING REVERSAL OF COUNT3. Appellant explained in his opening brief that his conviction on count 3 for assault with a firearm on Carlos Arias (Pen. Code, § 245, subd. (a)(2)) should be reversed for insufficient evidence because pointing a gun at another person, without any attemptto actually fire the handgun or without evidencethatit is loaded, constitutes misdemeanorbrandishing, not assault with a firearm. (AOB 142-151.) ee Respondent acknowledges, as she must, that “‘an assault is not committed by a person’s merely pointing an (unloaded) gun in a threatening mannerat another person.’” (RB 52, citing People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3.) Respondentalso acknowledgesthat a “threat to shoot with an unloaded gunis not an assault, since the defendant lacks the present ability to commit violent injury.” (RB 52,citing People v. Fain (1983) 34 Cal.3d 350, 357,fn. 6.) Respondentargues that sufficient evidence supports a finding that the firearm wasloaded, citing People v. Hall (1927) 87 Cal.App. 634 andasserting, without citation to the record, that the “jury heard evidence that appellant had used the same loaded gun immediately before and after the assault on Arias.” (RB 53.) Respondent is mistaken. The jury never heard any evidencethat the 36 same gun was used by appellant before and/or after the incident involving Arias. (See AOB 7-42[statement of facts]; RB 2-17.) The handgun displayedin the Arias incident, which was only described by Arias as black, was never recovered. (CT Supp. Vol. IV-1, pp. 160- 165.) The handgun previously used in the Ralphsparking lot incident also was never recovered, but was described as a black 9-millimeter gun. (RT 9:980-981, 987- 988.) The handgun subsequently used in the murders of Molina and Murillo was never recovered, but the bullets recovered from the scene werefired from a 9- millimeter firearm (RT 13:1674-1678), and the markings from one of those bullets matched a live round of ammunition found at Delaloza’s residence. (RT 13:1685, 1692-1695.) Accordingly, the jury never heard any evidence that the same gun wasusedboth before and/or after the incident involving Arias. Nordoes respondent’s citation to People v. Hall, supra, 87 Cal.App. 634 support an argumentthat the gun used in the Arias incident was loaded. There, in connection an incident involving an armed robbery of several men, who were forced to hold up their arms, were lined up against a wall, and then were searched, the appellate court held that the “defendant’s acts and the language used by him in the commission of the robbery constituted an admission by conduct, an implied assertion that the gun was loaded.” (dd. at p. 636.) Significant to the court’s decision wasthe fact that this was a robbery in which 37 the victims wererelived of their property at gunpoint. The court stated that robbers “do not usually arm themselves with unloaded guns whenthey go outto commit robberies.” (/d. at pp. 635-636.) In contrast, the Arias incident did not involve either a robbery or an attempted robbery. The evidenceis insufficient to sustain a finding of assault with a firearm on Arias becausethe prosecution failed to adduce substantial evidence that the manner in which the handgun wasused(i.e., pointing it at Arias) waslikely to result in the infliction of serious bodily injury. The prosecution’s evidence showed that despite ample opportunity to fire the handgunorstrike Arias, or attempt to strike him, the gunman did not do so. (AOB 17-18; RB 5-7.) The gunmanalso did not makea verbalthreat to fire the handgun at Arias. (AOB 17- 18; RB 5-7.) The evidence is susceptible of only one inference and conclusion—1.e., the gunman was merely attempting to frighten Arias by displaying the handgun. (See People v. Fain, supra, 34 Cal.3d at p. 357, fn. 6 [an assault is not committed by merely pointing an unloaded gunin a threatening mannerat another person].) Respondent’s argumentthat there is sufficient evidence to show that the handgun wasloadedis a misguided invitation for this Court to make speculative inferences about unfoundedpossibilities. (See Eramdjian v. Interstate Bakery Corp., supra, 153 Cal.App.2d at p. 602 [“A legal inference cannot flow from the 38 nonexistence ofa fact; it can be drawn only from fact actually established.”]; accord, People v. Stein, supra, 94 Cal.App.3d at p. 239; 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’’]; Reese v. Smith, supra, 9 Cal.2d at p. 328 [a doubtful or uncertain fact must inure to the detrimentof the party with the burden of proof on the issue].) Reversal of appellant’s conviction for assault with a firearm in count3 is warranted for lack of substantial evidence. (Cf. Jackson v. Virginia, supra, 443 U.S. at p. 318; People v. Bean, supra, 46 Cal.3d at p. 932.) /// 39 VII. THE TRIAL COURT PREJUDICIALLY ERRED BY DENYING THE MOTION FOR MISTRIAL AFTER THE PROSECUTORELICITED INADMISSIBLE TESTIMONY 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, REQUIRING REVERSAL OF APPELLANT?’S CONVICTIONS. Appellant explained in his opening brief that the prosecutor committed misconductbyeliciting inadmissible testimony from prosecution expert witness Detective Curt Levsen on defendant’s gangaffiliation, including testimony that appellant used the number 13, which shows ... allegiance to the Mexican Mafia, because 13 is the -- represents the 13th letter of the alphabet, which is M, whichis their way of showingtheir allegiance to the Mexican Mafia. Not saying these individuals are membersof that Mexican Mafia, but just they’re underthe jurisdictional rule of the Mexican Mafia. In other words, they are Surenos in Southern California, and they pay taxes to the Mexican Mafia. [RT 18:2784.] Thetrial court granted the defense motion to strike references to the Mexican Mafia, ruling that the testimony was entirely inappropriate and irrelevant, and would have been excludedif the prosecutor had given advance notice of an intent to present the evidence. (RT 19:2802, 2807-2808.) The court denied the motion for mistrial and admonished the jury. (RT 18:2784, 2795, 19:2806-2807, 19:2816-2818.) The admonition failed to cure the prejudice appellant suffered by being associated with the Mexican Mafia as evidenced by 40 the fact that after the admonitionthetrial jurors expressed concernedfortheir personal safety, suggesting fear of the Mexican Mafia. (RT 31:4518-4519.) The admonition also failed to cure the prejudice appellant suffered by being associated with the Mexican Mafia because the Mexican Mafia is known for witness killings, and appellant was defending against charges of murder and conspiracy to commit murder of a witness, and he was defending against a witness-killing special circumstance allegation. (AOB 162-172.) Immediately prior to the offending testimony, the court held an Evidence Code section 402 hearing on the admissibility of gang testimony, explicitly cautioning the prosecutor to limit his questions of Levsen to appropriate matters. In connection with gang testimony, the court ruled,in part: This is what my concern is, Mr. Camacho[i.e., the prosecutor]. We’ve been intrial now,this is our 11th day of actual trial. And in my opinion, youtried a very clean case up to this time. I think that the evidence has been admissible, and you’ve created enough fact situation for you to appropriately argue this to the jury. Now,if we go beyond the line here and muddy the 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 havethat built in. We knew that when wesat the jury. And I don’t know the I can’t recite 41 the individual questionnaires of the jurors that are sitting here, but I 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 Levsen couldtestify in a limited manner about the defendants’ gangaffiliation and the nature of the gang signs shownin certain photographs. (RT 18:2759-2760.) Respondent argues that there was no prosecutorial misconduct in asking Levsen aboutthe significance of the number 13 “because the prosecutor simply asked a proper follow-up question” (RB 59)-1.e., “What’s the significance of displaying a Roman numeral of 13?” (RT 18:2784.) But in view of the court’s ruling during the Evidence Codesection 402 hearing, and the prosecutor’s knowledge that the question would elicit inadmissible testimony about the Mexican Mafia—a matter the prosecutor chose notto disclose to the court during the hearing on the scope of Levsen’s testimony—this was not a proper question. From the Delalozatrial the prior year, the prosecutor knew that the question would elicit testimony about the Mexican Mafia; yet the prosecutor did not disclose the proffered testimony about the Mexican Mafia during the Evidence Code section 402 hearing in this case. (RT 19:2801-2802, 2807-2808; AOB 159- 163.) Moreover, in view ofthe trial court’s expressed concern during the 402 hearing about limiting the gang testimony, and in view ofthe inappropriate and 42 irrelevant nature of the testimony about the Mexican Mafia, the prosecutor should have knownthat the court would rule that testimony about the Mexican Mafia wasinadmissible. The prosecutor’s tactic here-which succeededin placing before the jury irrelevant and highly prejudicial testimony—was reprehensible. Respondentarguesthat “[a] prosecutor simply is not guilty of misconduct when he questions a witness in accordance with the trial court’s ruling.” (RB 59, citing People v. Rich (1988) 45 Cal.3d 1036, 1088.) But the prosecutor was not acting in accordance withthetrial court’s rulings. Those rulings did not permit the prosecutor to introduce irrelevant and inappropriate testimony. (RT 19:2801- 2802, 2807-2808 [trial court states that the testimonyis irrelevant and inappropriate; People v. Bonin (1988) 46 Cal.3d 659, 689 [“It is, of course, misconductfor a prosecutorto ‘intentionally elicit inadmissible testimony.’”’].) Therecord reveals that the prosecutor was on notice this testimony would be objectionable. Prior to limiting Levsen’s testimony, the court expressed reluctance in permitting any testimony about gang signs, and explicitly cautioned the prosecutor about going “beyondthe line here and muddy(sic) the water... .” (RT 18:2759.) The court further stated, And just feel that there’s so much chance ofreversible error creeping in with a person expressing these kinds of opinions which might have an undue influence on the jury, more so than others.” [RT 18:2759.] 43 The prosecutor withheld information about the Mexican Mafia from the court when the parties were discussing whether testimony would be permitted about gang signs. (RT 18:2750-2760.) The court ruled that Levsen’s testimony would be limited to defendant’s gangaffiliation and the nature of the gang signs shownin certain photographs. (RT 18:2759-2760.) The prosecutor then promptly andintentionally elicited testimony about the Mexican Mafia from Levsen, catching the defense and the court by surprise. (RT 18:2783-2784.) The record thus reveals that the prosecutor engaged in reprehensible conductto present inadmissible testimony linking appellant to the feared Mexican Mafia. Respondent’s citation to People v. Rich, supra, 45 Cal.3d 1036is unavailing. (RB 59.) There, this Court held that the prosecutor properly elicited rebuttal testimony of a prosecution expert witness about a report written by a defense expert witness who hadtestified about the report, finding that the questions on rebuttal were entirely consistent with the trial court’s rulings, and thus no prosecutorial misconduct was shown. (/d. at p. 1089.) In Rich, the prosecutor did notelicit inadmissible testimony. (/bid.) Here, by contrast, the prosecutor engagedin reprehensible conductto present testimony linking appellant to the Mexican Mafia, which testimonythe trial court held was both inappropriate andirrelevant. (RT 19:2801-2802, 2807-2808.) 44 Respondent arguesthat the reference to the Mexican Mafia wasbrief and “no other mention ofit had occurred duringtrial” (RB 59), and cites People v. Woodberty (1970) 10 Cal.App.3d 695, apparently to suggest that since the reference to the Mexican Mafia occurredlate in the trial the judge wasbetter able to assess the prejudicial impact of the testimony. (RB 59.) Respondentis mistaken, and People v. Woodberty, supra, is inapposite. Levsen’s testimony linking appellant to the Mexican Mafia was made in powerful words. Levsen wasthe prosecution’s sole witnessto testify that appellant wasaffiliated with the Mexican Mafia. (RT 18:2783-2784.) By the time Levsentestified, the prosecution had already adduced testimonythat appellant and his codefendants were members of the East Side Whittier Cole Street gang. (RT 12:1499-1514.) The highlight of Levsen’s testimony was linking appellant’s membership in the East Side Whittier Cole Street gang with an affiliation to the Mexican Mafia. This was profound testimony that could not escape the minds of those who heardit. In People v. Woodberty, supra, 10 Cal.App.3d 695, the defense moved for a mistrial after prosecution witness Terrell refused to answer further questions on defense cross-examination. (/d. at pp. 708-709.) The appellate court held that the trial court did not abuse its discretion when denying the motion because by the time Terrell refused to answer further questions “appellant had been afforded 45 considerable opportunity to cross-examine” him. (/d. at p. 709.) The appellate court noted that there wasa transcript of Terrell’s prior testimony at defendant’s first trial, and thusthe trial judge was aware of “whatfurther waslikely to unfold.” (/bid.) The appellate court also noted that “the motion was madeonly after the trial was well along, permitting the judge to view the situation from retrospective advantage.” ([bid.) Woodberty simplystates that in some instances a court is better able to assess prejudice of an error having heard moreofthe evidence, and that wasparticularly true there becauseofthe ability of the trial court to look at witness Terrell’s prior testimony. Woodberty has noparticular application to the instant case. Respondentargues that assuming prosecutorial misconduct appellant has madean insufficient showing of prejudice because the jury wastold to disregard the offending testimony. (RB 60,citing People v. Holloway (2004) 33 Cal.4th 96 and People v. Osband (1996) 13 Cal.4th 622.) But in view of the feared nature of the Mexican Mafia,' the fact that the charges in this case included a witness killing, the link Levsen drew between appellant and the Mexican Mafia, and the concern thetrial jurors expressed for their personal safety (RT 31:4518-4519), ' The Mexican Mafia conjures immediate fear because the Mexican Mafia is one of the most notorious and dangerous gangs, and is known for retaliatory conduct, including the murder of prosecution witnesses. (Cf. Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1128-1129. 46 there is no realistic possibility that appellant’s jury could put this matter out of their minds, and thus appellant was deprived of the due processright to a fundamentally fair trial. (AOB 163-172; cf. Darden v. Wainwright (1986) 477 US. 168, 181.) .... It does not reflect in any degree uponthe intelligence, integrity, or the honesty of purpose of the juror that matters of a prejudicial character find a permanent lodgmentin his mind, which will, inadvertently and unconsciously, enter into and affect his verdict. The juror does not possessthat trained and disciplined mind which enables him either closely or judicially to discriminate between that which he is permitted to consider and that which heis not. Because ofthis lack of training, he is unable to draw conclusionsentirely uninfluenced by the irrelevantprejudicial matters within his knowledge. (People v. Albertson (1944) 23 Cal.2d 550, 577,citations omitted,italics added.) Respondent’s citations to People v. Holloway, supra, and People v. Osband, supra, are unavailing because neither case involved testimony aboutthe feared Mexican Mafia. (See People v. Holloway, supra, 33 Cal.4th at p. 151 [motion for mistrial relating to testimony that defendant preferred the conditions on death row to those he would face if confined on a life sentence, but “not that he preferred dying to serving a life sentence”]; People v. Osband, supra, 13 Cal.4th at p. 714 [holding that the trial judge had no duty to investigate jury misconduct where there was no evidencethat potentially improper conduct by an alternate juror contaminated the seated jurors].) 47 Finally, respondent argues that the testimony about the Mexican Mafia “must be considered in the context of the examination of the gang expert.” (RB 60, citing People v. Cox (1999) 20 Cal.4th 936? (sic) and People v. Smithey (1999) 20 Cal.4th 936.) Levsen testified as the prosecution’s gang expert witness about the gangaffiliation of appellant and his codefendants. (RT18:2775-2792.) At the time Levsentestified, the prosecution had already adduced testimony that appellant and his codefendants were members of the East Side Whittier Cole Street gang. (RT 12:1499-1514.) Levsen confirmed their gang membership,but he wasthe only witnessto identify appellant’s association with the Mexican Mafia. (RT 18:2783-2784.) In context of Levsen’s entire testimony, the testimony about appellant’s affiliation with the Mexican Mafia formed the cornerstone ofhis testimony. Nordoes respondent’s citation to People v. Smithey, supra, 20 Cal.4th 936, support her argument. Smithey involved an isolated question by the prosecutor on cross-examination seekingto elicit inadmissible expert opinion testimony regarding defendant’s capacity to form the intent necessary for the charged crimes. (/d. at pp. 958, 961.) Smithey is distinguishable from the instant ? Respondent’s citation to People v. Cox, supra,is actually a citation to People v. Smithey, supra, 20 Cal.4th 936 (RB 60), and thus adds nothing to respondent’s argument. 48 case becauseit did not involve the type of highly inflammatory expert testimony at issue here linking the defendant to the Mexican Mafia. Considering the dearth of the evidence to support appellant’s convictions on counts 4, 5, 6, and 7, and the special circumstancetrue findings of multiple- murder and witness-killing (ante, §§ II, UII, IV, V & VI)—arguing the evidence was insufficient to support the convictions and true findings—this was a close case. The highly inflammatory nature of the testimony about the Mexican Mafia, especially in a multiple murder case involving a witness killing, renderedthe trial court’s admonition inadequate to cure the prejudicial impact of the jury hearing this evidence. This is particularly the case here, where the jury expressed fear that the defendants might learn of their identity (RT 31:4518-4519), reinforcing the fact that testimony about the Mexican Mafia, which suggested appellant’s dangerousnessto the jury, could not be set aside by the jury. (See Peoplev. Naverrette (2010) 181 Cal.App.4th 828, 833-834 [police officer’s blurting out prejudicial statement not cured by admonition to disregard testimony]; Peoplev. 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 evidence relating to a lie detector test was so prejudicial that defendant was denied fair trial]; People v. Ozuna (1963) 213 Cal.App.2d 338, 342 [reversible error, and admonition insufficient, when the defendant was called an “ex-convict’”].) 49 It is reasonably probable that the effect of the prosecutor’s misconduct caused an erroneousresult. Reversal of appellant’s convictions and death judgmentis required. //] 50 IX. ARIAS’S OUT-OF-COURT STATEMENTSAND HIS PRIOR TESTIMONY-THE VAST MAJORITY OF WHICH RESPONDENT AGREES WERE ERRONEOUSLY ADMITTED INTO EVIDENCE—-REQUIRE REVERSAL OF APPELLANT’S CONVICTIONS ON COUNTS3, 4 AND 5 BECAUSE THE STATEMENTSAND PRIOR TESTIMONY PREJUDICIALLY IMPLICATED APPELLANTIN THE ASSAULT ON ARIAS AND THE MURDER OF MOLINA AND MURILLO. Appellant explained in his opening brief that the erroneous admission of out-of-court statements and prior testimony of nontestifying witness Carlos Arias—identifying appellant as the person whoassaulted him with a firearm an hourprior to the murder of Molina and Murillo—requires reversal of appeliant’s convictions on counts 3, 4 and 5 becausethe prosecution sought to prove these charges, in material part, with Arias’s prior testimony and out-of-court statements. (AOB 173-209.) A. APPELLANT HAS NOT FORFEITED THE CONFRONTATION CLAUSE CLAIM MADEIN CONNECTION WITH ARIAS’S TAPE-RECORDED STATEMENTSTO THE POLICE; ALTERNATIVELY, THE FAILURE TO RAISE THE CONFRONTATION CLAUSE OBJECTION RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL. Respondentarguesthat “appellant has waived any confrontation clause claim as to taped statements to the police for failure to object on those grounds.” (RB 61; see RB 63-64.) At issue here is the testimonial out-of-court statements that Arias madeto the police in a tape-recorded interview on October 24, 1997. 51 (RT 14:1912-1917.) There has been no waiveror forfeiture of the confrontation clause claim. Trial defense counsel objected to the admission of Arias’s prior testimony (given at the trial of Delaloza) on the ground that Arias wasnot subject to “cross- examination” by appellant’s counsel. (RT 12:1532-1533.) Counsel for codefendant Bermudezjoined in the objection, which he characterized as “the confrontation problem... .” (RT 12:1533.) Trial defense counsel also objected as hearsay to admission of Arias’s out-of-court tape-recorded statements to the police. (RT 14:1910) Trial defense counsel thus made a sufficient objection to preserve for appeal the issue whether admission of Arias’s prior testimony and out-of-court statements deprived appellant of the federal constitutional right to confrontation under the Sixth and Fourteenth Amendments. As respondentnotes, generally a defendant forfeits his right to claim error under the Sixth Amendment’s confrontation clause on appeal by failing to object below. (RB 63-64; People v. Lewis (2006) 39 Cal.4th 970, 1028, fn. 19.) Appellant did not forfeit the confrontation clause claim because at the time of trial in 2000 it would have been futile to have raised it. (People v. Harris (2013) 57 Cal.4th 804, 840 [failure to raise a Crawford claim in a pre-Crawfordtrial is excusable].) 52 Atthe timeoftrial, the admission of extrajudicial hearsay statements of unavailable witnesses did not violate the confrontation clause if those statements, as here, fell within a firmly rooted hearsay exception or contained particularized guarantees of trustworthiness. (See Ohio v. Roberts (1980) 448 U.S. 56, 66, overruled by Crawford v. Washington (2004) 541 U.S. 36.) In Crawford, the United States Supreme Court held that “[w]here testimonial statements are at issue, .. . the Sixth Amendment demands whatthe commonlaw required; unavailability and a prior opportunity for cross-examination.” (/d. at p. 68.) Until 2004, when the United States Supreme Court decided Crawfordv. Washington, supra, the scope of a defendant’s Confrontation Clause rights was delineated by Ohio v. Roberts (1980) 448 U.S. 56, which “conditions the admissibility of all hearsay evidence on whetherit falls under a firmly rooted hearsay exception or bears particularized guarantees of trustworthiness.” (Crawford v. Washington, supra, 541 U.S.at p. 60 [internal quotation marks omitted].) Any out-of-court statement was constitutionally admissible so long as it fell within an exception to the hearsayrule or, if that exception wasnot firmly rooted, the court found that the statement waslikely to be reliable. (See White v. Illinois (1992) 502 U.S. 346, 366 (Thomas, J., concurring in part and concurring in the judgment) [noting that the Roberts line of cases tended to “constitutionalize the hearsay rule and its exceptions”); Lilly v. Virginia (1999) 53 527 U.S. 116, 140 (Breyer, J., concurring) [“The Court’s effort to tie the Clause so directly to the hearsay rule is of fairly recent vintage....’’].) Crawford abrogates Roberts with respect to prior testimonial statements by holding that such statements may neverbe introduced against the defendant unless he or she had an opportunity to cross-examinethe declarant, regardless of whetherthat statementfails within a firmly rooted hearsay exception or has particularized guarantees of trustworthiness. (Crawford v. Washington, supra, 541 U.S.at pp. 61, 68.) Thoughevidentiary challenges are usually waived unless timely raised in the trial court, this is not so whenthe pertinent law later “changed so unforeseeably that it is unreasonable to expecttrial counsel to have anticipated the change. [Citations.]” (People v. Turner (1990) 50 Cal.3d 668, 703; Peoplev. Kitchens (1956) 46 Cal.2d 260, 262-263 [no objection necessary if the objection not supported by the then-current law].) The rule announced in Crawford is such a rule, and it consistently has been applied retroactively to cases, such as the instant one, pending on appeal. (People v. Thomas (2005) 130 Cal.App.4th 1202, 1208; People v. Song (2004) 124 Cal.App.4th 973, 982; People v. Sisavath (2004) 118 Cal.App.4th 1396, 1400; People v. Saffold (2005) 127 Cal.App.4th 979, 984 [no waiver of confrontation challenge to hearsay evidence of a proof of service to establish service of a summonsor notice, because “[a]ny objection 54 would have been unavailing under pre-Crawford law’’]; see People v. Johnson (2004) 121 Cal.App.4th 1409, 1411, fn. 2 [“failure to object was excusable, since governing law atthe time of the hearing afforded scant grounds for objection”’].) In a footnote, respondentnotes the burden to establish ineffective assistance of counsel, and summarily asserts that “appellant fails to do so here and subsequently in the brief.” (RB 63, fn. 13.) Appellant has shown ineffective assistance of counsel on this record because defense counsel objected to admission of the tape-recorded statements as hearsay, thereby revealing that counsel intended to seek exclusion of the evidence. (RT 14:1910) 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 (1979) 23 Cal.3d 412, 426, italics 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 or rational strategic reason for counsel’s failure to explicitly raise the confrontation clause objection because counsel objected to admission of the tape-recorded statements on hearsay grounds. Anyfailure to adequately raise the confrontation claim amounted to 55 ineffective assistance of counsel because there was a soundbasis for the objection. (See People v. Cudjo (1993) 6 Cal.4th 585, 616; People v. Fosselman (1983) 33 Cal.3d 572, 581-582.) Defense counsel’s deficient representation prejudiced appellant because admission of Arias’s prior testimony and out-of-court statements strongly and directly linked appellantto the assault with a firearm on Arias (count 3) andalso to the killings of Molina and Murillo (counts 4 & 5, respectively). (AOB 197- 209.) Reversal of appellant’s convictions on 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. B. ARIAS’S STATEMENTSTO LUKE BISSONNETTE WERE NOT ADMISSIBLE AS SPONTANEOUS STATEMENTS. Respondentargues that Arias’s statements to Luke were properly admitted as spontaneous statements under Evidence Code section 1240. (RB 64-66.) Respondent is mistaken. The statements did not qualify as spontaneous statements, and thus were inadmissible hearsay. (AOB 192-197.) The statementsat issue here involved Luke’s testimonythatafter 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.) Luketestified, over defense hearsay objection, that Arias told him that he (Arias) “almostgot killed”that 56 night because “Richard Penunuri had pulled out a gun andputit to his head.” (RT 10:1181-1182.) In support of the argument that Arias made the statements while underthe stress of the event, respondentstates that “Luke described Arias as ‘exhausted from running’ and ‘[rJeally tired’ and ‘[s]till breathing heavy’ when he saw Arias at the Goodhueresidence... .” (RB 65, citing RT 10:1180.) But respondent describes facts unrelated to the startling event which wasthe subject of the out- of-court statements—i.e., the gunman pointing the gun at Arias. Instead, Arias was exhausted from running and breathing heavily because he ran from Hornell Street to GoodhueStreet. (RT 10:1167-1172.) At least twenty minutes elapsed between the time that Arias saw Luke on Hornell Street and when they reunited on Goodhue Street. (CT Supp. Vol. IV-1, p. 160.) “The crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule is . . . the mental state of the speaker. The nature of the utterance-how long it was madeafterthe startling incident and whetherthe speakerblurted it out, for example-may be important, but solely as an indicator of the mental state of the declarant.” (People v. Raley (1992) 2 Cal.4th 870, 892-893, quoting People v. Farmer (1989) 47 Cal.3d 888, 903-904.) Before the statements were made, Luke saw Arias on the back patio speaking with Luke’s sister, Laura. (RT 10:1167, 1180.) Luke, Arias and Laura were on the back patio for an additional 20 minutes, and it was sometime during 57 that 20-minute period that the statements were made. (RT 10:1176-1177, 1180- 1182.) The statements were made after Arias had left 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). There was nothing spontaneous about the statements as they were made during a discussion with Laura and Luke. Under these circumstances, and in view of the fact Arias’s heavy breathing and exhaustion were unrelated to the startling event, Arias’s statements were made undercircumstances evidencing ample opportunity to reflect. The statements thus do not qualify as spontaneous statements because they were the product of “processing information in a deliberative manner.” (See People v. Gutierrez (2000) 78 Cal.App.4th 170, 181.) Respondent’s citation to People v. Brown (2003) 31 Cal.4th 518 is unavailing. (RB 65.) There, Julie Bender’s testimony that she heard her brother-in-law, Mark Bender, implicate defendant in a murder was admissible as a spontaneous statement because“the declarant, Mark Bender, was crying, shaking and visibly upset when he madethe statement” implicating defendant. (People v. Brown, supra, 31 Cal.4th at p. 541.) Here, in contrast, Arias was not crying and shaking. Instead, he was having a conversation with Luke’s sister on the patio long after the incident with the gunman had passed. (RT 10:1167-1172, 58 1180.) Arias ran to the house on GoodhueStreet, and thus he was not exhausted and breathing heavily from the incident with the gunman. Instead, Arias “was exhaustedfrom running. Really tired. Still breathing heavy [from running].” (RT 10:1180, italics added.) Thetrial court’s finding that Arias’s statements qualified as a spontaneous declaration is not supported by substantial evidence. (AOB 192-196.) C. RESPONDENT AGREES THAT ADMISSION OF ARIAS’S TESTIMONIAL OUT-OF-COURT STATEMENTS MADETO THE POLICE AND ADMISSION OF HIS PRIOR TESTIMONY AT THE DELALOZA TRIAL VIOLATED APPELLANT’S CONSTITUTIONAL RIGHT TO CONFRONTATION. Respondentagrees that 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 because it is prior testimony. (RB 66-67; AOB 180-185.) Respondent further agrees that Arias’s prior testimony was admitted in violation of appellant’s right to confrontation because appellant wasnot a party to the Delaloza trial where Arias’s former testimony was given, and he did not otherwise have the opportunity to cross-examine Arias. (RB 66-67; AOB 180-185.) Respondentagrees that 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 (2006) 547 U.S. 813 59 because the statements were made under circumstances objectively indicating that the primary purpose ofthe interrogation wasto 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). (RB 66-67; AOB 180- 185; Davis v. Washington, supra, 547 US.at p. 822.) Respondentfurther agrees that Arias’s out-of-court statements to the police were admitted in violation of appellant’s right to confrontation. (RB 66-67; AOB 180-185.) D. RESPONDENTAGREESTHATARIAS’S PRIOR TESTIMONY AT THE DELALOZA TRIAL AND HIS OUT-OF-COURT STATEMENTSTO THE POLICE WERE NOT PROPERLY OFFERED FOR ANY NONHEARSAY PURPOSE. Appellant explained in his opening brief that after finding that Arias was an unavailable witness,the trial court admitted Arias’s prior testimony andhis testimonial out-of-court statements to the police on the groundsthathis prior testimony was sworn testimonyandthat his out-of-court statements to the police wereprior inconsistent statements. (RT 1:192-193, 12:1532-1533, 1535-1538, 14:1806, 1910-1911.) Respondentagrees that admission of both the prior testimony and out-of- court statements to the police violated the hearsay rule because they were statements made otherthan by a witness while testifying at appellant’s trial and were offered to prove the truth of the matter asserted. (RB 69-71; AOB 189-192; 60 cf. Evid. Code, § 1200, subd. (a); People v. Lewis (2008) 43 Cal.4th 415, 497- 498.) Respondentfurther agrees that the prior testimony and out-of-court statements to the police were not properly offered for any nonhearsay purpose. (RB 69-71; AOB 189- 192.) Specifically, respondent agrees Arias’s statements were not admissible as prior inconsistent statements under Evidence Code sections 770 and 1235. (RB 69-71.) Respondent agrees Arias’s statements were not admissible as prior testimony under Evidence Code section 1291 or statements of an unavailable witness under Evidence Codesection 1294. (RB 69-71.) E. THE JURY’S CONSIDERATIONOF ARIAS’S OUT-OF-COURT STATEMENTS AND PRIOR TESTIMONY REQUIRE REVERSAL OF APPELLANT’S CONVICTIONS ON COUNTS3, 4 AND 5. Three categories of statements by Arias were erroneously admittedattrial: (1) nontestimonial out-of-court statements that Arias purportedly made to Luke Bissonnette (RT 10:1181-1182); (2) prior testimony that Arias gaveat the trial of Alejandro Delaloza (RT 12:1532-1533, 14:1840-1907); and, (3) testimonial out-of-court statements that Arias made to the police ina tape-recorded interview on October 24, 1997 (RT 14:1912-1917). 61 Respondent agrees that the second andthird categories of statements identified above were erroneously admitted in violation of appellant’s federal constitutional rights. (Ante, § IX, subds. C & D.) Respondent acknowledgesthat “to avoid reversal of appellant’s convictions [on counts 3, 4 and 5], it is the People’s burden to establish beyond a reasonable doubtthat the error in admitting Delaloza’s (sic) [Arias’s] testimony and statements did not contribute to the verdicts... .” (RB 67, citing Peoplev. Mower(2002) 28 Cal.4th 457, 484 and Neder v. United States (1999) 527 U.S. 1, 15; Delaware v. Van Arsdall (1986) 475 U.S. 673, 684 [applying Chapman’? ~ analysis to Confrontation Clause violation].) Under Chapman,“reversal is unwarranted not when the record is devoid of evidence that the error had an adverse effect, but only whenthe state has shown beyond a reasonable doubtthat the error did not have an adverse effect.” (People v. Jackson (2014) 58 Cal.4th 724, 778 (conc. & dis. opn. of Liu,J.), italics in original; see Gamachev. California (2010) 562 U.S. __ [131 S.Ct. 591, 593] (statement of Sotomayor,J.).) Respondentarguesthat the error in admitting Arias’s prior testimony and out-of-court statements was harmlessasto the assault with a firearm (count 3) “because any information gleaned from them were(sic) already known from 3 Chapman vy. California (1967) 386 U.S. 18, 24. 62 whathe told Lukeright after running away from appellant, which was properly admitted at trial as an excited or spontaneous statement.” (RB 68.) Respondent is mistaken. Respondent’s argumentrelies on this Court finding noerrorin the admission of Arias’s statements to Luke Bissonnette (i.e., the first category identified above), and thus respondent implicitly concedes that count 3 should be reversedif this Court finds, as it should, that Arias’s out-of-court statements to Luke Bissonnette were not admissible as spontaneous statements. (See Arg. IX.B, ante.; AOB § IX.G., pp. 197-209.) Evenif this Court finds no error in the admission of Arias’s statements to Bissonnette, the admission of those statements does not cure the prejudice appellant suffered from the erroneous admission of Arias’s prior testimony and taped statementsto the police(i.e., the second and third categories identified above, respectively). Respondent argues that “any reliance on the taped statements and prior testimony was unnecessary for the jury to convict appellant” because Luketestified that Arias told him that appellant pulled out a gun a putit to his head. (RB 68.) First, the premise of respondent’s statement is erroneous. Whetheror not the jury’s reliance on the erroneously admitted evidence was unnecessaryfor thejury to convict appellant, it is the prosecution’s burden to prove beyond a reasonable doubtthat the erroneously admitted evidence did not 63 contribute to the verdict, or else suffer a reversal of the conviction. (See People v. Robertson (1989) 48 Cal.3d 18, 62; see Chapmanv. California, supra, 386 U.S.at pp. 20-21.) Second, the record reveals that Arias’s prior testimony did contribute to the verdict because during guilt phase deliberations the jury requested and received readback of Arias’s entire prior testimony from the Delalozatrial. (RT 25:3802-3803, 3808-3809; CT 12:3332 [“Would like the Carlos Arias testimony from the De La Loza[sic] trial read back.”]; see Weiner v. Fleischman (1991) 54 Cal.3d 476, 490 [when considering the prejudicial nature of the error, “we consider whetherthe jury asked for a rereading of the erroneousinstruction or of related evidence’’].) Moreover, a significant factor bearing on the prejudice analysis is the importance of the witness’ testimonyto the prosecution’s case. (Delaware v. Van Arsdall, supra, 475 U.S. at p. 684.) The trial court stated that Arias was an “essential witness” for the prosecution. (RT 12:1537.) The fact that the prosecutor sought and obtained admission of Arias’s prior testimony and out-of- court statements reflect the prosecutor’s view that Arias was an essential witness. Thejury’s request for readback of Arias’s prior testimony confirmed that he was an important witness. (RT 25:3802-3803, 3808-3809; CT 12:3332.) Luke Bissonnette—-the only other eyewitness to count 3-left the area prior to the 64 purported assault on Arias, and thus Luke did nottestify to an assault on Arias. (RT 9:1133-1138, 10:1156-1157.) The record thus establishes that Arias’s prior testimony and recorded statementto the police were very importantto the prosecution’s case. Arias’s prior testimony and recorded statement to the police likely strongly influenced the jury because this was the only evidence produced by the prosecution where Arias gavea first-hand accountof the events. (AOB 197-209.) Respondent argues that the error in admitting Arias’s prior testimony and statements to the police was harmlessas to the murders of Molina and Murillo (counts 4 and 5) because the prior testimony and statements “merely reaffirmed that appellant was in the neighborhood whenshots werefired.” (RB 69.) Respondentis mistaken. Arias was the only witness who purportedly saw appellant with a gun in his hand. (RT 9:1135-1138, 14:1849; AOB 17-19.) Luke never saw appellant with a firearm. (RT 9:1111-1138, 10:1156-1157.) Arias’s prior testimony and statements to the police thus provided the only evidence that appellant wasin the neighborhood and armedwith afirearm. Arias told the police that an hourafter seeing appellant with a handgun on Hornell Street, Arias heard gunshots while inside the Goodhue Street residence. (CT Supp. Vol. IV-1, pp. 171.) He looked outside the bedroom window and saw someone running. (CT Supp. Vol. IV-1, 65 pp. 171-172.) Arias identified the person as wearing the samejacket with a hood as the gunman on Hornell Street was wearing. (CT Supp. Vol. IV-1, pp. 160- 161, 172.) In both opening and rebuttal arguments, the prosecutor told the jury that the People had proven that appellant was the gunman in connection with the double homicide because Arias’s prior testimony and statementsto the police established that appellant was in the neighborhood and armed with afirearm. (RT 22:3404-3405, 3419, 3432; RT 24:3687, 3699.) The prosecutor’s reliance in closing argument on erroneously admitted evidence,as here, strongly indicates prejudice. (See People v. Guzman (1988) 45 Cal.3d 915, 963; People v. Roder (1983) 33 Cal.3d 491, 505; Depetris v. Kuykendall (9th Cir. 2001) 239 F.3d 1057, 1063 [prosecutor’s reliance on error in closing argumentis indicative of prejudice].) Arias’s prior testimony and out-of-court statements were non-cumulative and uniquely incriminating evidence linking appellant to the murders of Molina and Murillo (counts 4 and 5). In view of the importance of Arias to the prosecution’s case, in view of the jury’s request for readback of Arias’s prior testimony, and in view ofthe fact that the prosecutor explicitly relied on Arias’s prior testimony andout-of-court statements during closing argument, the prosecution is unable to prove that the guilty verdicts actually rendered in this 66 trial was surely unattributable to the error. (Sullivan v. Louisiana (1993) 508 U.S. 275, 279; People v. Sakarias (2000) 22 Cal.4th 596, 625.) Appellant’s convictions on counts 3, 4 and 5 mustbe reversed. //1 67 X. ALEJANDRO DELALOZA’S STATEMENTSTO THE POLICE, WHICH RESPONDENT AGREES WERE ERRONEOUSLY ADMITTED INTO EVIDENCE, REQUIRE REVERSAL OF APPELLANT’S CONVICTIONS ON COUNTS1, 2, 4 AND 5 BECAUSE THE STATEMENTS PREJUDICIALLY IMPLICATED APPELLANT IN THE RALPHS PARKING LOT INCIDENT AND THE MURDER OF MOLINA AND MURILLO. Appellant explained in his opening brief that the erroneous admission of Alejandro Delaloza’s statements to the police—implicating appellant in the Ralphs parking lot incident and the murder of Molina and Murillo—requires reversal of appellant’s convictions on counts 1, 2, 4 and 5 because the prosecution sought to prove these charges, in material part, with Delaloza’s statements. (AOB 210- 235.) Respondent agrees that appellant’s federal constitutionalright of confrontation was violated by admission into evidence of Delaloza’s statements, which included (1) an audiotape of Delaloza’s interrogation by the Los Angeles County Sheriff's Departmentrelating to the murder of Molina and Murillo (counts 4 & 5) and (2) Detective Mary Hanson’s testimony about statements Delaloza madeto her during an interrogation relating to the Ralphs parkinglot incident (counts 1 & 2).4 (RB 71, 73.) 4 In view of respondent’s concession that admission of Delaloza’s statements violated appellant’s federal constitutional right of confrontation, appellant does not address herein whether there was an abuse of discretion in admitting Delaloza’s statements under state law (Evid. Code, § 1230) (RB 75-78) 68 Respondent acknowledgesthat becausethe error is of federal constitutional dimension “to avoid reversal of appellant’s convictions, it is the People’s burden to establish beyond a reasonable doubtthat the error in admitting Delaloza’s testimony (sic) did not contribute to the verdicts ....” (RB 73; see Delaware v. Van Arsdall, supra, 475 U.S.at p. 684.) Respondentarguesthatthe error in admitting Delaloza’s statements was harmless as to the Ralphs parking lot incident (counts 1 & 2) “because any information gleaned from his statements to the police was already made knownto the jury through other witnesses’ testimony.” (RB 74.) Respondent also argues that “Delaloza’s statement wasnotcrucial in establishing appellant as the perpetrator” because he was independently identified by Kreisher and Cordero. (RB 74.) Respondentis incorrect because Delaloza was an important witness for the prosecution, strongly and directly linking appellant to the robbery of Kreisher and Cordero (counts 1 & 2, respectively). Delaloza was an important witness for the prosecution as shownbythe prosecutor’s statement to the court that Delaloza’s “admissions to Detective Mary Hanson .. . implicate Penunuri in the Whittier robbery.” (RT 13:1742,italics added.) Delaloza’s statements to Detective Hanson did implicate appellant in the robbery. (AOB 213-214, 227-228; RT 13:1749-1753.) becausetheissue is fully addressed in appellant’s opening brief. (AOB 220-226.) 69 Delaloza’s statements provided the prosecution with important evidence of appellant’s involvement becausethe identifications made by Kreisher and Cordero were impeached with evidence of misidentification, inconsistencies, and fabrication. Kreisher’s testimony was impeached with evidence that whenfirst shown a photographic array by Detective Hansonhe notonlyfailed to identify appellant, but he identified someoneelse as the perpetrator. (RT 9:1090-1091.) Cordero’s testimony was impeached with evidence that he described the person he identified as appellant as being “about 175 to 180 pounds” (RT 9:988-989), whereas appellant was muchlarger man, weighing 250 pounds. (RT 9:1067- 1068, 19:2819; CT 13:3633; CT Supp. Vol. IV-7, p. 1519.) Cordero’s testimony also was impeached with evidence that he was previously convicted of forgery~a crime of moral turpitude—andhelied at the preliminary hearing in this case. (RT 9:996-998, 1005-1008, 1020-1022.) Respondentarguesthat the error in admitting Delaloza’s statements was harmless as to the murders of Molina and Murillo (counts 4 and 5) because “Delaloza’s account to the police merely reaffirmed that both appellant and Delaloza were in the neighborhood whenshots were fired, and appellant was running towardsthe car at the time.” (RB 75.) Respondentis mistaken. Delaloza’s statements strongly and directly linked appellantto the killing of Molina and Murillo (counts 4 & 5, respectively). (AOB 211-212, 228-235.) 70 Delaloza’s statements to the police placed appellant at the scene ofthe killings precisely when gunshots were fired. (RT 12:1443-1444; CT 12:3280- 3281; CT Supp. [V:109-142.) Further incriminating appellant, Delaloza stated that immediately after the shooting appellant returned to the vehicle and demandedthat they flee the scene,stating, “let[‘]s go man... .” (CT Supp. IV:119.) Appellant’s jury was instructed,in part: Theflight ofa person immediately after the commission ofa crime, or after he is accused of a crime,1s not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light ofall otherprovedfacts in deciding whether a defendantis guilty or not guilty. ... [CT 12:3370, italics added.] Respondent’s harmless error argument ignores the powerfully incriminating nature of an accomplice’s statement implicating a defendant. (See Bruton v. United States (1968) 391 U.S. 123, 126-137.) Delaloza’s statements also excluded Delaloza himself as a possible gunman, undercutting appellant’s defense to the charges that pointed to Delaloza as the likely gunman. (See AOB 43-52.) Firearm examiner Catalanitestified that the shell casings found at the scene of the murders matched those found in a subsequent search of Delaloza’s residence, revealing that the same gunfired the shell casings foundat both locations. (RT 13:1692-1695.) A black jacket and two sweatshirts, both with hoods, were found at Delaloza’s residence. (RT 19:2873-2878.) Delaloza was wearing clothing similar to that of the shadowy 71 figure seen by Luke Bissonnette—consistent with the clothing foundat his residence—and thus he could have been the shadowyfigure running away from the double homicide. (RT 9:988-989, 11:1361-1367; 19:2878-2880.) Further, the prosecution’s expert testified that if appellant was the gunmanthe jacket worn by him would contain gunshot residue. (RT 19:2832-2833, 2840-2841.) But there was no gunshot residue on the black jacket recovered in the search of appellant’s residence. (RT 19:2832-2833, 2840-2841.) In view of the powerfully incriminating nature of Delaloza’s statements to the police, the prosecution is unable to prove beyonda reasonable doubtthat the guilty verdicts in this case on counts 1, 2, 4 and 5 were surely unattributable to the error in admitting the statements. (Cf. Sullivan v. Louisiana, supra, 508 U.S. at p. 279.) Appellant’s convictions on those counts mustbe reversed. /// 72 XI. IN CONNECTION WITH ALEJANDRO DELALOZA’S STATEMENTS, THE TRIAL COURT PREJUDICIALLY ERRED BY FAILING TO INSTRUCT THE JURY ON THE RULES RELATING TO ACCOMPLICE TESTIMONY, THEREBY LOWERING THE PROSECUTION’S BURDEN OF PROOF AND REQUIRING REVERSAL OF COUNTS If,2, 4 AND 5. Appellant explained in his opening brief that Alejandro Delaloza was an accomplice as a matter of law. Whenthe audiotape of Delaloza’s interrogation wasplayedto the jury, he already had been convicted of the 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).° (AOB 236-260.) Thetrial court failed to instruct the jury on the rules relating to accomplice testimony with respect to Delaloza’s statements. (AOB 243-247.) Prior to playing the audiotapeto the jury, the court stated that Delaloza was an accomplice in connection with counts 4 and 5 (murder of Molina and Murillo, respectively), but then the court withdrew that statement, instructing the ° Respondentrepeatedly refers to Delaloza’s statements as testimony. (RB 78 [Testimony of Delaloza’’], 81 [“Delaloza’s Testimony”], 82 [“testimony of Delaloza”], 83 [“Delaloza’s testimony’’], 84 [‘‘Delaloza’s testimony”’].) But Delaloza did nottestify in this case, nor was any prior testimony admitted into evidence. Instead, the court admitted Delaloza’s custodial statements to Detective Hanson andthe audiotapeof his police interrogation. (RT 12:1427; CT 12:3280-3281 [People’s Exh. 37 [audiotape]; CT Supp. IV:109-142 [People’s Exh. 38 [transcript].) 73 jury,”That’sfor thejury to decide whattheposition ofeach ofthese parties were.” (RT 12:1443, italics added.) In connection with counts 4 and5, the court failed to instruct that Delaloza was an accomplice as a matter of law. (RT 12:1442-1443.) The court also failed to instruct that the testimony of an accomplice must be viewed with “care and caution” (CALJIC No. 3.18). (RT 12:1442-1443.) The court’s brief statement did not even mention counts 1 and 2 (robbery of Kreisher and Cordero, respectively). (RT 12:1442-1443.) Respondentfails to address whether Delaloza was an accomplice in connection with counts | and 2. (See RB 81-84.) Respondent’s failure to address the issue constitutes a concession of appellant’s position. (See People v. Bouzas (1991) 53 Cal.3d 467, 480 [omission of response to appellant’s argument implies concession to that argument].) Norcanit be disputed that Delaloza was an accomplice as a matter of law in connection with counts 1 and 2. When the audiotape of Delaloza’s interrogation wasplayed to the jury Delaloza had been convicted of the robbery of Kreisher and Cordero. Delaloza thus wasliable to prosecution for the identical offense charged against appellant. (Pen. Code, § 1111; see People v. Coffman and Marlow (2004) 34 Cal.4th 1, 104 [‘“‘Whether a personis an accomplice is a question of fact for the jury unless the facts and the inferencesto be drawn therefrom are undisputed.”’].) 74 In connection with counts 4 and 5, respondent arguesthat “the trial court was not bound to conclude that Delaloza was an accomplice as a matter of law.” (RB 82.) Respondent is mistaken. There can be no dispute that Delaloza was an accomplice as a matter of law in connection with counts 4 and 5 because when the audiotape of Delaloza’s interrogation was played to the jury Delaloza had been convicted of the first degree murders of Murillo and Molina. Delaloza thus wasliable to prosecution for the identical offense charged against appellant. (Pen. Code, § 1111; see People v. Coffman and Marlow, supra, 34 Cal.4th at p. 104.) Respondentarguesthat “‘in light of a// the accomplice instructions given, the trial court’s omission was nonprejudicial.” (RB 82,italics in original.) Respondentnotes that the jury was instructed with “CALJIC Nos. 3.10 [accomplice defined], 3.11 [corroboration], 3.12 [sufficiency of evidence to corroborate an accomplice], 3.13 [one accomplice cannot corroborate another], [and] 3.18 [care and caution].” (RB 82-83.) But these instructions do not prove respondent’s argument becausethe instructions entirely failed to identify Delaloza, as respondent acknowledges. (RB 83.) Moreover, the court’s instructionslimited the definition of an accompliceto ‘“‘a person whois subject to prosecution for the identical offense charged in Counts six and seven against the defendantontrial by reason of aiding and abetting or being a memberof a 75 criminal conspiracy.” (RB 80; CT 12:3386.) The instructions thus removed Delaloza as a possible accomplice because he wasnot subject to prosecution for the offenses charged in counts 6 and 7 (conspiracy to commit murder of Jaime Castillo and murder of Jaime Castillo, respectively). The accomplice instructions cited by respondentrelated solely to Jesus Marin, an accomplice as a matter of law in connection with counts 6 and 7. (RT 24:3759-3760.) Delaloza was not subject to prosecution for any offenserelating to Castillo. (RT 12:1477; CT Supp. VI, pp. 1172-1184.) Respondentargues that the instructional error was harmless understate law becauseit is not “reasonably probable that such error affected the verdict.” (RB 82, citing People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130.) Respondent is mistaken. Preliminarily, respondentfails to address appellant’s arguments that in view of the importance of Delaloza’s statements to the prosecution’s case on counts 1, 2, 4 and 5, the instructional error violated appellant’s federal constitutional rights to due process andjury trial, thereby requiring the prosecution to prove beyond a reasonable doubtthat the error did not contribute to the verdicts. (AOB § XLD., pp. 246-250.) Respondent’s failure to address the issue constitutes a concession of appellant’s position. (See People v. Bouzas, 76 supra, 53 Cal.3d at p. 480 [omission of response to appellant’s argument implies concession to that argument].) Respondentarguesthat the instructional error was harmless for three reasons. (RB 82-85.) Respondentfirst argues that “the trial court’s failure to instruct that Delaloza was an accomplice as a matter of law was mitigated byits recitation” of CALJIC Nos. 3.10, 3.11, 3.12, 3.13, and 3.18, identified above. (RB 82-83.) Respondent argues, “While the court did not explicitly identify Delaloza in giving these instructions, they more than adequately conveyed the essence of accomplice testimony and howthe jury wasto handle such testimony.” (RB 83.) But as explained above,these instructions limited the definition of an accomplice to Marin in connection with counts 6 and 7, and thusentirely excluded Delaloza as an accomplice. Respondentnext arguesthat the instructional error was harmless because “there was information apart from the jury instruction which cast suspicion on Delaloza’s testimony.” (RB 83.) Respondentnotes that the purpose of Penal Code section 1111 is to compelthe jury to treat accomplice testimony with distrust and suspicion. (RB 83, citing People v. Miranda (1987) 44 Cal.3d 57, 101, overruled on other grounds in People v. Marshall (1990) 50 Cal.3d. 907, 933, fn. 4.) Respondent arguesthat the jury would havetreated Delaloza’s testimony and statements with distrust and suspicion in view of “Delaloza’s 77 status as a former co-defendant” andhis “inconsistent statements in his police interview and his uncooperative testimonyat trial... .” (RB 83.) Respondent’s factual assertions are made withoutcitation to the record, and thus the argument is waived. (See Miller v. Superior Court (2002) 101 Cal.App.4th 728, 743 [failure to cite to the record waives claim].) Nor is there any evidence in the record that the jury was aware of Delaloza’s status as a former codefendant. (See AOB7-52 [statement of facts]; RB 2-17 [statement of facts].) Nor was Delaloza inconsistent in his police interviews. In connection with the Ralphs parkinglot incident (counts 1 and 2), after an initial denial, Delaloza admitted being involvedin the incident, and then made statements incriminating appellant. (RT 13:1749-1749.) Delaloza admitted taking property, and even told Detective Hanson that some of the stolen items mightstill be found at his home. (RT 13:1750-1753.) With respect to the audiotape of Delaloza’s interrogation (relating to the murder of Murillo and Molina in counts 4 and 5, respectively), Delaloza placed himself and appellant at the scene of the murders. Delaloza admitted driving the get-away vehicle, but shifted blame to appellant by stating that he heard gunshots and saw appellant running. (RT 12:1443-1444; CT 12:3280-3281; CT Supp. IV:109-142.) There was nothing inherently suspect about Delaloza’s statements 78 to the police such that the jury would be —without proper instruction—compelled to treat his statements with distrust and suspicion. Finally, respondent arguesthat the instructional error was harmless because “‘Delaloza’s testimony wassufficiently corroborated by independent evidence.” (RB 84.) In connection with the Ralphs parking lot incident (counts 1 and 2), respondent argues that “Delaloza’s description of the events were (sic) corroborated by Cordero and Kreisher, who separately identified appellant as the perpetrator of the robberies.” (RB 84.) But neither the testimony of Cordero nor the testimony of Kreisher provides sufficient corroboration of Delaloza’s statements identifying appellant. Kreisher’s identification of appellant was suspect because whenfirst shown a photographic array by Detective Hanson he identified someoneelse, not appellant. (RT 9:1090-1091.) Cordero’s identification of appellant was suspect because he described appellant as being “about 175 to 180 pounds” (RT 9:988-989), whereas appellant weighed 250 pounds. (RT 19:2819.) Cordero’s testimony was impeached with evidence that he suffered prior felony convictions for forgery and attempted strong-arm robbery (RT 9:996-998), and he lied at the preliminary hearing in this case. (RT 9:1005- 1008, 1020-1022.) Accordingly, the evidence cited by respondent lacks sufficient corroboration because it does not connect appellant with an elementof the crime in such a wayas to suggest that Delaloza wastelling the truth. (See 79 People v. Williams (1997) 16 Cal.4th 635, 680-681 [corroborating evidence must tend to connect the defendant with an elementof the crime in such a way as to satisfy the jury that the accomplice istelling the truth].) With respect to the audiotape of Delaloza’s interrogation (relating to the murder of Murillo and Molina in counts 4 and 5, respectively), respondent argues that Delaloza’s statements placed appellant at the scene of the shooting and corroborated the description given by Luke and Arias of a man dressed like appellant running away from the Goodhueresidence.” (RB 84.) But as respondent concedes, Arias’s prior testimony and statements to the police were admitted in violation of appellant’s federal constitutional right to confrontation, and thus Arias’s statements about someone running away from the Goodhue residence cannotbe used as corroborating evidence. (Ante, § IX; RB 66-67.) Nor does Luke Bissonnette’s testimony provided sufficient corroboration. Luke’s testimony was unreliable because he consumeddrugsthat would have impairedhis ability to accurately observe the events. (RT 10:1232-1233, 1237- 1238.) He acknowledged that he never saw the gunman’s face, but only looked out of the window after the shots were fired and saw someonein the distance, from behind, and for only two seconds. (RT 10:1059-1066.) He admitted that it wastoo dark to tell what the person was wearing, and thus he could notidentify the person, although he assumedit was appellant because he had seen appellant 80 an hourearlier on Hornell Street. (RT 10:1059-1066.) Dr. Kathy Pezdak, Ph.D., testified that Luke could not have accurately identified someone underthe circumstances described by him (i.e., in the dark, at a distance, and from behind), but explained the phenomenon where an erroneousidentification occurs when the witness has an expectation of seeing a particular person. (RT 19:2850-2852, 2856, 2872.) The evidencelacks sufficient corroboration because it does not connect appellant with an elementof the crime in such a wayas to suggestthat Delaloza wastelling the truth. The prosecutor’s repeated reliance during closing summation on Delaloza’s statements implicating appellant reveals the importance of those statements to the prosecution’s case, and strongly suggests that the verdicts were influenced by Delaloza’s statements. (RT 22:3403-3404, 22:3420, 22:3432, 22:3434, 24:3695; see Yates v. Evatt (1991) 500 U.S. 391, 403-404 [an instructional error may be found to be harmless whereit is shown beyond a reasonable doubtthat the error was “unimportant in relation to everything else the jury considered onthe issue in question, as revealed in the record”’].) It is thus reasonably probable that the instructional error affected the verdict. The prosecution also will be unable to prove that that omission of the accomplice instructions as to Delaloza did not contribute to the guilty verdicts. 81 (Cf. Sullivan v. Louisiana, supra, 508 U.S.at p. 279.) Appellant’s convictions on counts 1, 2, 4 and 5 must be reversed for instructionalerror. /// 82 XII. THE 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-REQUIRES REVERSAL OF APPELLANT’S CONVICTIONS. Appellant explained in his openingbrief that after Delaloza invoked the privilege against self incrimination and refusedto testify, the court forced an | Evidence Codesection 402 hearing—in the presence of the jury—on the admissibility of Delaloza’s statements to the police. (AOB 261-285.) At issue here are comments the judge made when informing the jury that Delaloza had refused to testify and when overruling the defense objection to the admission of his statements. (Post, § XII.C.) A. THE FORFEITURE RULE DOES NOT APPLY BECAUSE THE JUDICIAL MISCONDUCT AROSE DURING A FORCED 402 HEARINGIN THE PRESENCE OF THE JURY, PLACING DEFENSE COUNSELIN AN UNTENABLEPOSITION AND RELIEVING HIM OF A DUTY TO OBJECT. Respondent arguesthat the issue has been forfeited byfailure oftrial defense counsel to object to the court’s commentsin the presence ofthe jury. (RB 85-86.) Respondentis mistaken. The forfeiture rule does not apply because in view of the judge’s insistence that the matter be discussed in the presence of the jury (RT 12:1431), 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 thus poisoning 83 the jury againsthisclientor, alternatively, giving up his client’s ability to argue misconduct on appeal. (See People v. Sturm (2006) 37 Cal.4th 1218, 1237.) The failure to object thus should not preclude review becausethe record reveals that any attempt by counsel to object to the court’s procedure and comments “would have been futile and counterproductiveto his client.” (/bid., citing People v. Hill (1998) 17 Cal.4th 800, 821.) Respondentarguesthat the “futility exception typically arises when the court has overruled the defendant’s objections in a mannerthat suggests any further objections would be useless.” (RB 85, citing People v. Hill, supra, 17 Cal.4th at p. 821.) Although overruling a series of objections might excuse additional objections as futile, an objection is excused where,as here, it would almost certainly be overruled. (See People v. Hamilton (1989) 48 Cal.3d 1142, 1184, fn. 27; People v. Pitts (1990) 223 Cal.App.3d 606, 692 [rule that objection is necessary to preserve issue on appeal“is not applicable where any objection would almostcertainly be overruled”’].) Nor should a rule of forfeiture be applied in this case becausethetrial court’s conduct in forcing a 402 hearing in the presence ofthe jury, and then openly stating its view of the evidence, in a manner damagingto the defense,is shocking and denied appellant a fundamentally fair trial. (See People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648 [court retains “discretion to excuse 84 the lack of an objection and elect to exercise that discretion in defendant’s favor because of the shocking nature of the error which renderedthetrial unfair”’].) B. RESPONDENTIMPLICITLY CONCEDES THAT DEFENSE COUNSEL’S FAILURE TO OBJECT RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL. Respondentdoes not address appellant’s argumentthat should this Court find the issue forfeited, then appellant was deprived of the constitutional right to effective assistance of counsel. (See RB 84-92; AOB 267-270; Stricklandv. Washington (1984) 466 U.S. 668, 684-685.) Respondent’s failure to address the issue constitutes a concession of appellant’s position. (See People v. Bouzas, supra, 53 Cal.3d at p. 480 [omission of response to appellant’s argument implies concession to that argument].) C. THE JUDGE ENGAGEDIN PREJUDICIAL MISCONDUCT BY HOLDING THE 402 HEARING IN THE PRESENCEOF THE JURY, BY VOUCHING FOR THE TRUTH OF THE PROSECUTION’S EVIDENCE,B 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. At issue here are the following categories of statements by the judge,as identified in appellant’s opening brief (AOB 261-267, 270-284): (1) commentingto the jury that Delaloza had been broughtinto the courtroom outside of their presence and refusedto testify and/or take part in the proceedings (RT 12:1431 [‘I’m sorry for this delay in the proceedings, but what 85 was involved here was a witness whois in custody wasto be broughtinto the court to testify. And that witness was unwilling to even comeinto the court, and, once he cameinto the court, he refused totestify or to be sworn or to have any part in the proceedings. The nameof that witness was Mr. Delaloza. He has been referred to as Hondoin these proceedings.”’]); (2) forcing an Evidence Codesection 402 hearing on the issue of the admissibility of Delaloza’s statements to the police in the presence of the jury (RT 12:1431), and subsequently discussing the evidence and overruling defense counsel’s objections in the presence of the jury (RT 12:1431-1444); (3) agreeing with the prosecutor’s assessment of Delaloza’s statement that Delaloza was the getaway driver in connection with the Molina and Murillo homicides (counts 4 & 5), thereby implicitly suggesting that appellant was the shooter (RT 12:1433 [the court: “TI think that’s inherent in his statement that he made [to the police].”]; see RT 12:1435 [the court: “He was there. He was the driver of the car.”]); (4) disparaging defense counsel Bernstein’s argument regarding the admissibility of Delaloza’s statements to the police and vouchingfor the truth of Delaloza’s statements (RT 12:1434-1435 [the court: “Mr. Bernstein,if this witness were called to the stand and had willingly testified, I would not stop him 86 in his testimonyif he testified exactly as he’s testified in this statement. [§] That doesn’t make sense [Mr. Bernstein].’’]); (5) vouching for the truth of Delaloza’s statements to the police. (RT 12:1435 [the court: “He was there. He wasthe driver of the car.”]); (6) disparaging defense counsel and vouchingfor the truth of Delaloza’s statements. (RT 12:1436 [the court: “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.”’]); and, (7) informing the jury that Delaloza was previously tried by a jury for the “double murder” charged in this case, was convicted by the jury, was sentenced, and has appealed the judgment (RT 12:1442-1443). Respondent acknowledgesthat (1) “a judge should be careful not to throw the weightofhis judicial position into a case,” (2) “judges should be exceedingly discreet in what they say and do in the presenceofa jury lest they seem to lean toward or lend their influence to oneside or the other[,]” and (3) only “one instance ofjudicial misconduct may constitute prejudicial error if egregious... .” (RB 86.) Respondent further acknowledgesthat“a trial court cannot become an 87 advocate for either party under the guise of commenting on the evidence... .” (RB 87.) In connection with the first category of statements identified above, respondentarguesthat the judge did not commit misconductbytelling the jury that Delaloza had refused to testify because a “judge’s factually accurate comment cannotbe said to be improper.” (RB 89.) Respondent is mistaken. The judge stated: I’m sorry for this delay in the proceedings, but what was involved here was a 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 court, he refused to 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, italics added.] Atthe time of the hearing, Delaloza had been convicted of the double homicide of Molina and Murillo and the judgmentof conviction in his case was pending appeal. (RT 12:1442.) Delaloza thus retained a Fifth Amendment privilege not to testify. (See People v. Fonseca (1995) 36 Cal.App.4th 631, 633; People v. Lopez (1999) 71 Cal.App.4th 1550, 1554.) The judge’s commentthat Delaloza wasinitially “unwilling to even come into the court,” and then when hedid “he refused to testify or to be sworn orto have any part in the proceedings” (RB 12:1431), was not a proper evidentiary matter in this case because Delaloza wasexercising a constitutional right. 88 (People v. Fonseca, supra, 36 Cal.App.4th at p. 633.) The comments revealed the judge’s displeasure with Delaloza’s actions and suggested to the jury that Delaloza’s actions were unlawful. This encouraged speculation by the jury that Delaloza had something to hide or wasfearful of testifying against appellant. In connection with the second category of statements identified above, respondentargues that there was no misconductin holding the 402 hearing in the presence ofjury, and thus the judge’s statementto “defense counsel to ‘state his position’ regarding the finding that Delaloza was unavailable” was not misconduct. (RB 89.) Respondent misreads appellant’s argument. Appellant does not argue that the court’s statement to counsel (‘‘state your position”) was itself misconduct. (See AOB 274.) Nor does appellant argue that every 402 hearing conducted in the present of a jury constitutes misconduct, although appellant is unaware of any case where a 402 hearing on the admissibility of evidence washeld in the presence ofthe jury, and respondent points to none. (See AOB 274; see Evid. Code, § 310, subd.(a) [‘‘All questions of law (including but not limited to questions concerning . . . the admissibility of evidence, and other rules of evidence) are to be decided by the court.’’]; see also People v. Banks (1970) 2 Cal.3d 127, 137, fn. 6.) Instead, appellant argues that the judge engaged in misconduct “[b]y engaging defense counsel in an Evidence Codesection 402{] hearing in the 89 presence ofthe jury, and then ultimately discussing the evidence and overruling defense counsel’s objections in the presence ofthejury ....” (RT 1431-1444). (See AOB 274,italics added.) In other words, the section 402 hearing actually conducted in this case amounted to misconduct. Respondentgroupsthe third, fourth,fifth, and sixth categories of statements identified above into one general response underthe heading, “No misconduct for commenting on evidence becauseit did not distort the testimony.” (RB 90.) Preliminarily, respondent fails to address appellant’s arguments that (1) the judge criticized and disparaged defense counsel in the presence ofthe jury, (2) the judge vouched for the prosecution’s theory andthe truth of the Delaloza’s statements to the police, and (3) the judge’s comments on the evidence favored the prosecution and usurped the jury’s fact-finding function. (See RB 90-91; AOB274-278.) Respondent’s failure to address these issues constitutes a concession of appellant’s position. (See People v. Bouzas, supra, 53 Cal.3d at p. 480 [omission of response to appellant’s argument implies concessionto that argument].) Respondentargues that the judge “did not distort testimony not only because they (sic) were accurate and already part of the evidence, but also because the trial court’s comments concerned a rational inference that could be 90 drawn from the evidence,i.e., Delaloza admitted being the driver ofthe car.” (RB 91, citing People v. Mayfield (1997) 14 Cal.4th 668, 755.) Contrary to respondent’s suggestion that the judge mayhelp the jury interpret the evidence, in a jury trial, as here, “All questions of fact are to be decided by the jury.” (Evid. Code, § 312, subd.(a).) Further, “the jury is to determine the effect and value of the evidence addressedtoit, including the credibility of witnesses and hearsay declarants.” (Evid. Code, § 312, subd. (b); see Bracy v. Gramley (1997) 520 U.S. 899, 904-905 [due process requires thetrial judge to protect the defendant’s right to a fair jury trial, and to conducting the proceedings without bias and in a mannernot favoring either party]; Turner v. Louisiana (1965) 379 U.S. 466, 472- 473; In re Murchison (1955) 349 U.S. 133, 136.) Nor does respondent’s quote from People v. Mayfield, supra, 14 Cal.4th 668 assist her. (RB 91.) In Mayfield, in connection with a jury view of the crime scene, this Court held that the trial judge did not improperly participate in the proceedings by requesting of the parties “that police cars be positioned at the service station as they were at the time Sergeant Wolfley was killed” and by directing “where the jurors would be positioned during the proposed demonstration firings of Sergeant Wolfley’s gun.” (/d. at pp. 737, 739.) This 6 Respondentcites to page 755, but the quoted statement is found at page 739. 91 Court “reject[ed] defendant’s underlying assumptionthat trial judge, except when ruling on objections, must remain passiveat the trial while the attorneys are presenting the evidence.” (/d. at p. 739.) Here, appellant does not assert that the judge must remain passive. Instead, appellant argues that the judge usurped the jury’s fact-finding function and improperly signaled to the jury that the judge was allied with the prosecution. The judge did so by (1) disparaging defense counsel, (2) vouching for the prosecution’s theory, (3) providing the jury with an interpretation of Delaloza’s statements in a manner favorable to the prosecution, and (4) vouchingfor the truth of Delaloza’s statements. (AOB 274-278.) Respondentalso argues, without citation to legal authority, that “the judge’s comments cannotbe said to be improperas they were part and parcel of the court’s decision-making process regarding the admissibility of the statements.” (RB 91.) Respondent misses the point. Regardless of whether or not “the judge’s comments . . . were part and parcel of the court’s decision-making process regarding the admissibility of the statements” (RB 91), the judge’s comments were improper because they were madein the presence of thejury. (AOB 273-285.) In connection with the seventh category of statements identified above, respondent arguesthat appellant invited the error because defense counsel requested that the jury be informed that Delaloza was convicted of the double 92 murders. (RB 92.) Respondentis incorrect as this did not invite the error. The trial court previously overruled appellant’s objection to admission of Delaloza’s statements to the police (RT 12:1432-1440), and thus defense counsel’s request that the jury be informed that Delaloza was convicted of the double murders was a defensive action to offset or explain the erroneously admitted evidence. (See People v. Turner (1990) 50 Cal.3d 668, 704, fn. 18 [“defensive acts” to mitigate effect of adverse ruling do not amount to waiver]; People v. Scott (1978) 21 Cal.3d 284, 291; People v. Sam (1969) 71 Cal.2d 194, 207-208; Jameson v. Tully (1918) 178 Cal. 380, 384.) Finally, respondent argues harmless error because there were no repeated disparaging comments and the jury wasinstructedthat it, not the court, was the trier of fact. (RB 93.) Respondent is mistaken. The judge’s comments during the 402 hearing in the presence ofthe jury painted a vivid picture of Delaloza as a recalcitrant witness-i.e., one “unwilling to even comeinto the court,” and refusing “to be sworn or to have any part in the proceedings.” (RT 12:1431.) But Delaloza’s actions, as described above, had no relevance to appellant’s guilt or innocence because Delaloza was lawfully exercising his constitutional right not to testify. After portraying Delaloza as a recalcitrant witness, the judge improperly commented on the evidence and created the impression that he (the judge) wasaliying himself with the prosecution. (AOB 274-278.) The general 93 jury instructions cited by respondent at page 93 on witness credibility and statements by the judge afforded appellant no protection against the backdrop of the trial judge’s misconduct. (See People v. Sturm, supra, 37 Cal.4th at pp. 1233, 1237-1238; Jackson v. Denno (1974) 378 U.S. 368, 382, fn. 10.) The prosecution will be unable to prove that the judicial misconduct was harmless beyond a reasonable doubt because Delaloza’s statements to the police formed a material part of the prosecution’s evidence on the double homicide, which also provided the purported motive for appellant to conspireto kill Castillo. Delaloza identified himself as the driver of the Cadillac, and placed appellant at the scene of the killings (wearing a large black jacket) at the precise time that the gunshots were being fired. (RT 12:1443-1444; CT 12:3280-3281; CT Supp. IV:109-142.) Delaloza shifted the blame to appellant, stating he was unaware there would be a shooting, and when appellant came running backto the Cadillac (at the time of the shooting) Delaloza was upset with appellant about the shooting. (CT Supp. IV:109-126.) This undercut appellant’s defense to the charges that pointed to Delaloza as the likely gunman. (See AOB 43-52.) Reversal of appellant’s convictions is warranted. (Cf. Sullivan v. Louisiana, supra, 508 U.S. at p. 279; People v. Sturm, supra, 37 Cal.4th at pp. 1243-1244.) //1 94 XIII. THE TRIAL COURT’S INSTRUCTIONS TO THE GUILT-PHASE JURY IN THE LANGUAGE OF CALJIC NO.17.41.1-THE DISAPPROVED “JUROR SNITCH” INSTRUCTION-REQUIRES REVERSAL OF APPELLANT’S CONVICTIONS. | Appellant argued in his opening brief that by instructing in the language of CALJIC No. 17.41.1 (i.e., the jury snitch or anti-nullification instruction)thetrial court violated his federal constitutional rights to jury trial and due process by invading the secrecy ofjury deliberations and undermining the jury’s free exercise of the powerof nullification. (AOB 286-290, but recognizing Peoplev. Engelman (2002) 28 Cal.4th 436.) Respondent arguesthat the claim has been forfeited because appellant did not object to the instruction. (RB 94.) Respondent is mistaken. The claim is cognizable on direct appeal because the instruction is incorrect and it implicates appellant’s substantial rights. (See People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7; Pen. Code, § 1259.) Penal Codesection 1259 states, in relevant part, “Upon an appeal taken by the defendant, the appellate court may . . . review anyinstruction given, refused or modified, even though no objection was madethereto in a lower court, if the substantial rights of the defendant were affected thereby.” Respondent’s assertion that the instructional error claim is forfeited because appellant’s substantial rights were not affected misstates the statutory language. (RB 94.) In 95 other words,it is illogical to argue, as respondent does, that section 1259 means that a defendant must object to an instructionalerror if, and only if, it did not affect his substantial rights or he has forfeited the claim. Respondentfails to critically analyze the issue, but simply refers to this Court’s decision in People v. Engelman, supra, 28 Cal.4th 436. (RB 94-95.) Appellant urges this Court to recognize the constitutional infirmity in CALJIC No. 17.41.1, which is revealed in the application of the time-honored concepts of the secrecy ofjury deliberations and the powerto nullify. The “secrecy of deliberations is the cornerstone of the modern Anglo-American jury system.” (United States v. Thomas (2nd Cir. 1997) 116 F.3d 606, 618.) A juror’s ability to acquit “in the teeth of both law and facts” (Horning v. District ofColumbia (1920) 254 U.S. 135, 138) is a well-established power that has been with us since Common Law England. (Bushell’s Case (C.P. 1670) 124 Eng.Rep. 1006 [releasing jury foreman Bushell, who wasarrested for voting to acquit William Penn of unlawful assembly against the weight of the evidence and the requirements of the law]; Dunn v. United States (1932) 284 U.S. 390, 393-394 [recognizing powerofnullification].) //1 96 XIV. THE CUMULATIVE EFFECT OF THE GUILT PHASE ERRORS REQUIRES REVERSAL OF APPELLANT’S CONVICTIONS. Appellant identified numerouserrors in his opening brief which occurred during the guilt phase trial. (AOB 152-290.) Respondent summarily addresses appellant’s cumulative prejudice argument, asserting that “either no errors occurred or that any alleged error either considered individually or together was harmless.” (RB 96.) Respondent concedeserror in connection with the admission of Arias’s prior testimony and statementsto the police, which error violated appellant’s constitutional right of confrontation. (RB 61-70.) Respondentalso concedeserror in connection with the admission of Delaloza’s prior statements, which error violated appellant’s constitutional right of confrontation. (RB 71-77.) Respondentcannotdispute that the cumulative effect of multiple errors maybe so harmfulthat reversal is required. (See Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643 [cumulative errors may so infect “the trial with unfairness as to makethe resulting conviction a denial of due process”’]; Greerv. Miller (1987) 483 U.S. 756, 764.) This is the case here, where serious errors separately identified in Arguments VIII through XIII cumulatively, or in any combination thereof, 97 violated appellant’s due process rights under Chambers v. Mississippi (1973) 410 U.S. 284, 298, 302-303. These errors include admission of inadmissible testimony that appellant was acting underthe jurisdiction of the Mexican Mafia, that he showedallegiance to the Mexican Mafia, and that he paid taxes to the Mexican Mafia. (AOB,§ VIII.) The errors include, as respondent acknowledges, erroneous admission out-of-court statements and prior testimony of nontestifying witness Carlos Arias, and erroneous admission of testimonial out-of-court statements of nontestifying witness Alejandro Delaloza. (AOB, §§ IX and X, respectively). The erroneous admission of Delaloza’s statements was compounded by the failure to instruct the jury to view Delaloza’s testimony with care and caution. (AOB § XI.) These errors were further compoundedbythetrial judge’s remarks— in the presence of the jury—that he believed that Delaloza was the getawaydriver in connection with the Molina and Murillo homicides (counts 4 & 5), thereby implicitly suggesting that appellant was the shooter, thereby depriving appellant of the due process right to fundamentally fair trial. (AOB, § XII.) Reversal of appellant’s convictions is required because respondenthas not proven beyond a reasonable doubtthat the guilty verdicts actually rendered in this trial were surely unattributable to the cumulative effect of the multiple errors. 98 (Cf. Sullivan v. Louisiana, supra, 508 U.S. at p. 279; People v. Sturm, supra, 37 Cal.4th at pp. 1243-1244.) /// 99 PENALTY PHASE AND SENTENCING XV. APPELLANT’S EXCLUSION FROM 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 THE TRIAL COURT’S INSTRUCTIONS RELATING THERETO, REQUIRE REVERSAL OF THE DEATH JUDGMENT. A. INTRODUCTION. Appellant explained in his opening brief that during a joint penalty trial with codefendant Castro—and in the midst ofjury deliberation whether appellant should live or die-the jury heard closing argumentfrom the prosecutor and Castro’s defense counsel implicating appellant, and then received further instruction on the law. All of this was done outside of appellant’s presence, and without a waiver of appellant’s right to be present duringtrial. (AOB 296-303.) Appellant further explained that the prosecution will be unable to prove beyond a reasonable doubt that the constitutional error did not contribute to the verdict 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—a 100 result the jury returned with a verdict of death for appellant and life for Castro. (AOB 303-312.) B. RESPONDENT’S WAIVER ARGUMENTFAILS BECAUSE THE RECORD DOES NOT SUPPORT A KNOWING AND INTELLIGENT WAVIER OF APPELLANT’S RIGHT TO PERSONAL PRESENCEAT TRIAL. Preliminarily, respondent uses the terms forfeiture and waiver interchangeably, never once distinguishing between the two. (RB 97-98.) The terms are not the same. “[W]aiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiveris the 399‘intentional relinquishment or abandonmentof a knownright.’” (People v. Simon (2001) 25 Cal.4th 1082, 1097, fn. 9, citing United States v. Olano (1993) 507 U.S. 725, 733; see also In re Sheena K. (2007) 40 Cal.4th 875, 880, fn. 1 [describing difference between forfeiture and waiver and noting that the term ““waiver’ ... conveys an express relinquishmentofa right or privilege’’].) Respondentimplicitly recognizes, as she must, that the judge never addressed appellant personally on the issue of the right to be present. Nor did the judge obtain either an oral or written waiver from appellantofhis right to be present. (See RB 97-100.) | Instead, respondentstates that “defense counsel explicitly waived appellant’s the (sic) right to be present.” (RB 98, citing RT 30:4470.) Respondentis mistaken. Outside of appellant’s presence, the court informed 101 defense counsel that the proceedings would be conducted in appellant’s absence but that defense counsel could attend. (RT 30:4470.) Defense counsel stated, “Thank you, your honor.” (RT 30:4470; AOB 297.) The trial court never asked defense counsel to waive appellant’s presence, nor did trial defense counsel explicitly waive appellant’s presence. Defense counsel’s acquiescence does not constitute a waiver by appellant of the right to be present during a critical stage of the proceedings. In addition to the requirementof 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 and intelligent. (People v. Robertson, supra, 48 Cal.3d at pp. 60-61.) A trial court’s failure to even inform a defendantof his right to personal presence,as here, necessarily precludesa finding on appealthat the defendant knowingly and intelligently waived that right. (Cf. Moran v. Burbine (1986) 475 U.S. 412, 421 [a waiver is knowing andintelligentif it is “made with a full awareness of both the nature of the right being abandoned and the consequencesofthe decision to abandonit.’’].) Respondent argues, without citation to any authority whatsoever,that “Ta}ppellant has no fundamentalright to be present at a codefendant’s closing argument during the penalty phase.” (RB 98.) Respondent is mistaken. This 102 wasa jointtrial where the prosecutor and Castro’s defense counsel repeatedly made inculpatory statements about appellant during closing argument, and then the judge instructed the jury on the law—all outside appellant’s presence. In view of the fact that this occurred in a joint penaltytrial, and prior to the jury returning a verdict as to appellant, the proceedingsare correctly viewedas a part of appellant’s penalty trial. (See People v. Bryant, Smith & Wheeler (August 25, 2014, S049596) __Cal.4th , —_‘ [Slip Opn.p. 39] [A jointtrial is not equivalent to simultaneousseparate trials”].) Noris respondent’s argument supported by hercase citations. (RB 98.) People v. Virgil (2011) 51 Cal.4th 1210 involved the defendant’s absence from a side-bar conference, which wasnota critical stage of the proceedings. (/d. at pp. 1236-1237.) People v. Santos (2007) 147 Cal.App.4th 965 involved defendant’s absence after verdict when the jury requested to leave through a private exit, and thus ‘‘did not constitute a critical stage of the proceedings.” (/d. at p. 972.) In re Horton (1991) 54 Cal.3d 82 involved defense counsel’s stipulationto trial by a temporary judge (as opposed to a regularly elected or appointed superior court judge), which could be made without the consentof the client because it did not involve a fundamental constitutional right of the defendant. (/d. at pp. 93-95.) People v. Mayfield, supra, 14 Cal.4th 668 involved the defendant’s absence at a jury view ofthe crime scene,a critical stage of the proceedings, but in contrastto 103 the instant case, the “defendant, in open court and on the record, made a voluntary andintelligent waiver ofpresence at thejury view.” (Id. at p. 738, italics added.) People v. Frierson (1985) 39 Cal.3d 803 involved the issue whethertrial counsel had the authority, over defendant’s objection, to refuse to present a defense to the special circumstance charge, an issue not involving a defendant’s presenceat trial. (/d. at pp. 812-817.) Nordid appellant waive the statutory right to presence. (AOB 300.) Respondentfails to address the statutory right to presence, which is not waived except in writing. (See RB 98; Pen. Code § 977, subd. (b)(1).) Respondent’s failure to address the issue constitutes a concession of appellant’s position. (See People v. Bouzas, supra, 53 Cal.3d at p. 480 [omission of response to appellant’s argument implies concession to that argument].) Moreover, the proceedingsat issue here fall squarely within the language of section 977, subdivision (b)(1), whichstates, in pertinent part, that “the accused shall be present . . . during those portions of the trial when evidenceis taken before the trier of fact ...” and the “accused shall be personally presentat all other proceedings unless he or sheshall, with leave of court, execute in open court, a written waiverofhis or her right to be personally present... .” Appellant did not execute a written waiver of his presence. Accordingly, there 104 was no valid waiverofhis right to be present during the trial. (People v. Johnson (1993) 6 Cal.4th 1, 18.) C. REVERSAL OF THE DEATH VERDICTIS REQUIRED BECAUSE APPELLANT WASPREJUDICIALLY DENIED THE RIGHT TO BE PRESENTAT CRITICAL STAGESOF HIS JOINT TRIAL WITH CODEFENDANT CASTRO. Respondentarguesthat appellant did not havea right to be present during the closing argument of codefendant Castro because the proceedings did not bear a reasonable, substantial relation to his opportunity to defend against the charges. (RB 99-100.) Respondentis mistaken. This wasajointtrial where the prosecutor and Castro’s defense counsel repeatedly madeinculpatory statements about appellant during closing argument, and then the judge instructed the jury on the law—all in the midst ofjury deliberations as to appellant. Closing argument, instruction of the jury, and jury deliberationsare critical stages of the criminal proceedings. (See Herring v. New York (1975) 422 U.S. 853, 857-858 [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 instructionis a critical stage of the proceedings]; People v. Rubalcava (1988) 200 Cal.App.3d 295, 299 [jury deliberationis a critical stage of criminal proceedings].) Respondent argues that assuming appellant was absent from critical stage of the proceedings, “he has not shown that his absence wasprejudicial.” 105 (RB 100,italics added.) But respondent’s formulation of the issue-shifting the burden to appellant to show the absence of prejudice—is plainly not the law, as a constitutional violation during a capital penalty trial is reversible unless the prosecution can provethe error was harmless beyond a reasonable doubt. (People v. Robertson, supra, 48 Cal.3d at p. 62; see Chapman vy. California, supra, 386 U.S.at pp. 20-21.) Indeed, even “[s]tate law error occurring during the penalty phase will be considered prejudicial when there is a reasonable possibility such an error affected a verdict. [Citations.] Our state reasonable possibility standardis the same, in substance andeffect, as the harmless beyond a reasonable doubt standard of Chapmanv. California (1967) 386 U.S. 18, 24. [Citations.]” (People v. Jones (2003) 29 Cal.4th 1229, 1264, fn. 11, italics in original.) Noris respondent’s argument supported byhercase citations because each case involved defendant’s absenceat a non-critical stage of the proceedings. (RB 100; People v. Perry (2006) 38 Cal.4th 302, 311-312 [bench conference]; People v. Bradford (1997) 15 Cal.4th 1229, 1357 [in-chambers conference]; People v. Santos (2007) 147 Cal.App.4th 965, 972 [“the jury’s request to leave through a private exit and the trial court’s approval did not constitute a critical stage of the proceedings”’].) Where a defendantis absent duringcritical stages of the proceedings, as here, respondent bears the burden of provingthe error 106 harmless beyond a reasonable doubt. (People v. Robertson, supra, 48 Cal.3d atp. 62; see Chapmanv. California, supra, 386 U.S. at pp. 20-21.) Respondenthas notsustained its burden of proving that the errordid not contribute to the death verdict. Respondent does not dispute that the prosecutor’s closing argument implicated appellant as the person who purportedly ordered the witness killing of Castillo, which the prosecutor characterized as among the most “horrific styles of murders that you see... .” (RT 30:4473.) Respondentalso does not dispute that the prosecutor argued that Castillo was killed because of the “double homicide”-i.e., the killings of Molina and Murillo for which only appellant, and not Castro, was convicted. (RT 30:4473.) Respondent does not dispute that the prosecutor argued that death was the appropriate penalty, referring explicitly to the killing of Murillo, Molina, and Castillo. (RT 30:4474.) But only appellant was convicted ofall three homicides; Castro was not even charged with the murders of Murillo and Molina. Respondentalso does not dispute that the prosecutor then explicitly urged the jury to return a death verdict as to appellant. (RT 30:4474-4476, 4480-4481.) Respondent does not dispute that Castro’s trial defense counsel also argued in a mannerthat implicated appellant and encouraged the jury to further consider the aggravating nature of appellant’s actions, especially when compared to Castro’s conduct. (RT 30:4484-4485, 4493.) 107 Respondentalso does not dispute that the trial court’s instructions applied not only to Castro, but also applied to appellant. (See RB 100; RT 30:4498-4500, 4509.) Yet appellant was not even present for the jury to view him and assess his demeanorwhile these aggravating arguments were made, or while the court was instructing the jury. This impaired the jury’s assessment of his moral culpability by removing his humanity from view. (See AOB 310-311.) A defendant’s demeanoris often one of the most important considerations for the jury in deciding whethera capital defendant deservesto live or die. (See Rigginsv. Nevada (1992) 504 U.S. 127, 143-144 (conc. opn. of Kennedy,J.); People v. Leonard (2007) 40 Cal.4th 1370, 1420, citing People v. Lanphear (1984) 36 Cal.3d 163, 167 [sympathy for defendant may be based on jury’s in-court observations].) Theprosecution thus will be unable to sustain its burden of proving that the error in excluding appellant from these critical proceedings was harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 U.S. at pp. 20- 21.) Reversal of the death judgmentis required. // 1 108 XVI. THE PENALTY INSTRUCTIONS AND THE TRIAL PROCESS-WHEREBY CLOSING ARGUMENTSOF COUNSEL AND JURY INSTRUCTIONS PURPORTEDLY RELATING TO CASTRO WERE GIVEN IN APPELLANT’S ABSENCE ANDIN THE MIDST OF PENALTY PHASE DELIBERATIONS-DENIED APPELLANT THE CONSTITUTIONAL RIGHT TO AN INDIVIDUALIZED SENTENCING DETERMINATION, REQUIRING REVERSAL OF THE DEATH JUDGMENT. Appellant explained in his openingbrief that the trial court erroneously instructed the jury, in part, “So what you decide against one person should not be carried overinto the decision of the other person, unless youfeelit is appropriate.” (RT 29:4426,italics added.) This instruction deprived appellant of the constitutional right to an individualized sentencing determination. (AOB 313-325; see People v. Lewis, supra, 43 Cal.4th at p. 461; Lockett v. Ohio (1978) 438 U.S. 586, 605-606 (plur. opn. by Burger, C.J.).) Appellant also explained that the 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 orlife as to codefendant Castro, deprived him ofthe constitutional right to an individualized sentencing determination. (AOB 313-325.) Recognizing that ‘‘a judge must appropriately instruct the jury to assess independently the appropriateness of the death penalty for the defendant” (RB 102, citing People v. Ervin (2000) 22 Cal.4th 48, 95), respondentstates that “the 109 trial court initially and briefly misspoke whenit told the jury, ‘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’... .” (RB 102, italics added.) But there is no indication in the record that the judge misspoke, and respondentcites none. Morever, andcritically here, there is no indication in the record that the jurors understood whetheror not the judge misspoke. The words actually spokento the jury mustbe carefully scrutinized, “for whether a defendant has been accorded his constitutional rights depends upon the way in whicha reasonable juror could haveinterpreted the instruction.” (Sandstrom v. Montana (1979) 442 U.S. 510, 514.) Respondent argues that the error was cured when the court instructed the jury, “‘In this case you must decide separately the question of the penalty as to each of the defendant.’” (RB 102-103.) Respondent is mistaken. The additional instruction did not cure the error because there is no apparent inconsistency between the two instructions—t.e., the jury could simultaneously decide separately the question of the penalty as to each defendant andarrive at each separate verdict by, in part, comparing the relative culpability the defendants. It is reasonably likely that one or more jurors decided that appellant should die without an accurate understanding of what evidence may properly inform the penalty decision. (See Carter v. Kentucky (1981) 450 U.S.288, 302 [Jurors are 110 not experts in legal principles; to function effectively, and justly, they must be accurately instructed in the law.”’].) Respondentarguesthat an instruction to consider separately the question of the penalty as to each defendant “is adequate to ensure individualized sentencing in joint penaltytrials.” (RB 103, citing People v. Taylor (2001) 26 Cal.4th 1155, 1173-1174.) Taylor is inapposite because it did not address the instructional error presented here, or any instructional error whatsoever. (/d.at p. 1174.) “[C]ases are not authority for propositions not considered.” (Peoplev. Alvarez (2002) 27 Cal.4th 1161, 1176.) Respondent further argues that “it was clear that the jury carefully considered the evidence as to each defendant and determined each penalty separately, given that appellant and Castro received separate punishments — death for appellant and life without the possibility of parole for Castro.” (RB 103.) Respondentis mistaken. Instead of revealing that the jury made an individualized assessment of moral culpability, as required,’ the disparate verdicts show that it is reasonably likely that the jurors arrived at each verdict by, 7 Cf. Lockett v. Ohio, supra, 438 U.S. at pp. 605-606; People v. Cox (1991) 53 Cal.3d 618, 682-683 [“The very purpose of the penalty phaseis to determine the appropriate sentence for the defendant’s crime,i.e., an individualized assessmentof the offender’s moral culpability for his particular offense in light of statutorily and constitutionally relevant considerations.”], citing Woodson v. North Carolina (1976) 428 U.S. 280, 303-305. 111 in part, comparingthe relative culpability of appellant and Castro, just as the jury wasinstructed they could do. (RT 29:4426.) Respondent does not dispute appellant’s claim “that thetrial court implicitly encouraged the jury to comparethe relative culpability of each defendant by allowing the prosecutor to argue Castro’s portion of the closing arguments while the jury was deliberating as to appellant.” (RB 103.) Instead, respondent arguesthat “there is nothing in the record indicating the jurors failed to assess independently the appropriateness of the death penalty for appellant, or engaged in improper comparative evaluations of the defendants due to any interruption. In the absence of a showingthat the jurors in this jointtrial were unable or unwilling to assess independently the respective culpability of each codefendant, there was no error.” (RB 103.) Respondent is mistaken. The record showsthat the jury wasinstructed in a manner permitting a comparative analysis of culpability, and then by interrupting the penalty phase deliberations and permitting the prosecutor to argue for a verdict of death against both Castro and appellant, the judge implicitly encouraged the very comparative analysis of culpability its instructions permitted. Wherethere is a reasonable likelihood that the jurors applied an instruction in way that violates the federal constitution, as here, the error is one of 112 federal constitutional dimension. (See Estelle v. McGuire (1991) 502 U.S. 62, 71-72.) Theerrors described above deprived appellant of the constitutional right to an individualized sentencing determination, requiring reversal of the death judgmentbecausethe prosecution is unable to prove beyond a reasonable doubt that the error did not contribute to the verdict. (See People v. Robertson, supra, 48 Cal.3d at p. 62; see Chapman v. California, supra, 386 U.S. at pp. 20-21.) /// 113 XVII. THE TESTIMONY OF PROSECUTION WITNESSES JAVIER CASTILLO AND LINDA CASTILLO THAT APPELLANT SHOULD BE SENTENCED TO DEATH REQUIRES REVERSAL OF THE DEATH JUDGMENT. A. INTRODUCTION. Appellant explained in his openingbrief that the prosecutor was permitted to elicit testimony from Javier Castillo and Linda Castillo (Jaime Castillo’s father and stepmother, respectively) that appellant should be sentenced to death. (AOB 326-338; RT 26:3905-3907, 27:3984, 3990.) Javier Castillo testified that he had no objection to the death penalty being sought against appellant, and since appellant “gave the order to kill my son.... he should [not] be given that same opportunity [for life imprisonment] to do the same thing again. ....” (RT 27:3984.) Linda Castillo testified that she was “for the death penalty. I want these people to be killed in [sic] lethal injection. .... If you guysget the penalty,it’s good. Butit’s a shamethat the system takes so long to be ableto kill these people. They mightbein for life, anyway.” (RT 27:3990.) B. THE FORFEITURE RULE SHOULD NOT APPLY HERE BECAUSE THE TRIAL COURT OVERRULED DEFENSE COUNSEL’S OBJECTION TO THIS LINE OF QUESTIONING. Respondentargues the issue has been forfeited because “[a]lthough counsel objected to the initial line of questioning by the prosecutor (see 26RT 114 3905-3907), defense counsel failed to renew his objection when the prosecutor” questioned Javier and Linda Castillo. (RB 107-108.) Respondentis mistaken. Whenoverruling defense counsel’s objection to John Molina’s testimony about what he felt was an “appropriate penalty for this jury to impose upon Richard Penunuri” (RT 26:3904), the court and counsel discussed the issue in an Evidence Code 402 hearing, after which the court ruled that the prosecutor was permitted to ask penalty-phase witnesses “what their opinion is [about the penalty the jury should impose], so [the] objection [is] overruled.” (RT 26:3905-3907; see People v. Zemavasky (1942) 20 Cal.2d 56, 62; Douglas v. Alabama (1965) 380 U.S. 415, 422; People v. Diaz (1951) 105 Cal.App.2d 690, 696 [““Where a court has madea ruling, counsel must not only submit thereto butit is his duty to acceptit, and he is not required to pursue the issue.”].) C. RESPONDENT DOES NOT ADDRESSTHE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM. Respondent does not address appellant’s argumentthat should this Court find the issue forfeited, then appellant was deprived of the constitutional right to effective assistance of counsel. (AOB 330-332; see RB 107-109; Stricklandv. Washington (1984) 466 U.S. 668, 684-685.) Respondent’s failure to address the issue constitutes a concession of appellant’s position. (See People v. Bouzas, supra, 53 Cal.3d at p. 480 [omission of response to appellant’s argument implies concession to that argument].) 115 D. |THE TESTIMONY OF JAVIER CASTILLO AND LINDA CASTILLO THAT APPELLANT SHOULD BE SENTENCED TO DEATH REQUIRES REVERSAL OF THE DEATH JUDGMENT. Respondent recognizesthat “the views of a victim’s family as to the appropriate punishment are beyondthe scope ofconstitutionally permissible victim impact testimony.” (RB 107; Payne v. Tennessee (1991) 501 U.S. 808, 830, fn. 2 and Booth v. Maryland (1987) 482 U.S. 496, 508-509; People v. Cowan (2010) 50 Cal.4th 401, 484.) Nonetheless, respondent argues that “question posed by the prosecutor to three* family members was within the scopeof constitutionally permissible victim impact testimony” because “the prosecutor merely sought any information from the witnesses that they might deem relevant for the jury to know ‘in evaluating the proper punishment’ for appellant.” (RB 108, footnote added.) Respondentis mistaken. Javier Castillo expressed the opinion that appellant should be executed, stating that he had no objection to the penalty being sought by the prosecutor because appellant “gave the order to kill my son” and thus “should [not] be given that same opportunity [forlife imprisonment] to do the same thing again. ....” (RT 27:3984.) Linda Castillo explicitly testified that 8 Respondentalso cites to the testimony of witness Mike Murillo (RB 106), but appellant does not raise an issue with respect to his testimony, and thus the two witnessesat issue here are Javier and Linda Castillo. (AOB 326- 338.) 116 she wanted appellant killed, and even expressed frustration at the system for taking “so long to . .. kill these people.” (RT 27:3990.) The prosecutor thus elicited “the viewsof a victim’s family as to the appropriate punishment[, which] are beyondthe scopeof constitutionally permissible victim impact testimony.” (RB 107, citing, among other cases, Payne v. Tennessee, supra, 501 U.S.at p. 830, fn. 2 and Booth v. Maryland, supra, 482 U.S.at pp. 508-509.) Respondentseeks support for her position in People v. Benavides (2005) 35 Cal.4th 69. (RB 108.) But Benavides involved the entirely separate issue concerning testimony about howthevictim’s death “affected extended family members ....” (/d. at p. 107.) In Benavides, this Court did not address the factual issue presented here-i.e., testimony from family membersthat the defendant should be killed by the state rather being sentencedto life in prison. (Id. at pp. 106-107; see People v. Alvarez, supra, 27 Cal.4th at p. 1176 [“cases are not authority for propositions not considered”’].) Respondentalso argues that any error was harmless because “the allegedly improper testimony constituted only a small portion of the victim impact testimony.” (RB 109.) Respondentis mistaken. Javier and Linda Castillo testified that appellant should be put to death for killing their son. (RT 27:3982- 3984, 3986, 3990.) The length of the testimony, in proportion to other testimony, does not somehowlessenits impact. For example, Linda Castillo testified that 117 people like appellant need “to be killed” by “lethal injection.” (RT 27:3990) Her testimony reinforced Javier Castillo’s testimony that a death sentence was “especially [appropriate] as to appellant” because appellant “gave the orderto kill my son.” (RT 27:3984.) This was powerful testimony designed to influence the jury’s verdict, and thus the prosecution cannot nowcarry its burden of proving beyond a reasonable doubt that the error did not contribute to the verdict. (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 verdict is warranted. // 1 118 XVIII. ADMISSION OF EVIDENCE IN AGGRAVATIONOF A PURPORTED ASSAULT WITH A FIREARM ON JASON UZEL REQUIRES REVERSAL OF THE DEATH JUDGMENT BECAUSE THE EVIDENCE IS WOEFULLY INSUFFICIENT TO SUSTAIN A FINDING THAT APPELLANT PERPETRATED THE ASSAULT. Appellant explained in his opening brief that the prosecution introduced evidence in aggravation that in May 1997 someone committed an assault with a firearm on R.J. Uzel by shooting him in the leg and chest as he wasseated in a vehicle, a violation of Penal Code section 245, subdivision (a)(2). (AOB 339- 357.) Appellant explained that the evidenceis insufficient to sustain a finding that appellant perpetrated the assault because (1) Uzel neveridentified his assailant, (2) witness Debra Recio did not see whofired the shots, although she testified that a few days after the shooting there was speculation “on the street” that Dozer from Cole Street was involved somehow,(3) witness Abraham Van Rood saw a “young man”firing the shots, but was unable to identify the shooter, and (4) the gunmanleft the scene in a vehicle registered to an address used by codefendant Bermudez. (AOB 339-357.) Respondent recognizes that Uzel did not identify appellant as the gunman, nor did Uzel see where the shots werefired from. (RB 110 [“Although Uzel testified he did not see where the bullets had come from, he did admit knowing 119 appellant from high school.”].) When interviewed by twopolice officers at the hospital, Uzel did not have any information aboutthe identity of the person who shot him. (RT 27:4039, 4042.) With respect to witness Recio, respondentstates that Recio “had previously testified that, ‘all I rememberhim it (sic) was Dozer, and he was trying ——- they weretrying to figure out how they could get back at Cole Street for shooting at them, vice versa.’” (RB 110, citing RT 27:4054.) Respondent omits the salient fact that Recio testified that Uzel never told her that he had been shot by appellant, although there was speculation “onthe street” that appellant was somehowresponsible for the shooting. (RT 27:4050-4051, 4054-4055.) Recio testified, in part, that “when he [Uzel] got out of the hospital, it was out on the street that Dozer, whoever Dozer was, from Cole Street had did it. R.J. [Uzel] did not comestraight out, it was Dozer... .” (RT 27:4055.) Recio testified on cross-examination,in part: Q: So basically what he -- what you testified to that’s been read back in court? Mm-hmm. Is in effect gossip from the street? Yeah. Like I said, what they -- they meaning one gang to another. Q F&F 2B PS And you’ve not heard anything from R.J. [Uzel] where he’s telling you whoshot him? 120 A: No. Q: From his own personal knowledge. A: No. [RT 27:4055.] Contrary to respondent’s suggestion that “Uzel and Recio gave conflicting testimony,” an issue for the jury to resolve, the record does not support a solid, credible inference that appellant was the shooter. Uzel testified that he was never able 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.) Shetestified that while she was driving Uzel to the hospital, and then while at the hospital, Uzel never stated that appellant was involvedin the shooting. (RT 27:4050-4051.) She testified that the word “on the street” was that Dozer was involved. (RT 27:4051.) But Recio’s testimony about the word “on the street”—implicating Dozer in some unspecified way-is speculative, and thus cannot support a finding that appellant was the gunman. (See People v. Daniels (1991) 52 Cal.3d 815, 861-862.) Respondentarguesthat any error in admitting the evidence was harmless because“[t]he assault on Uzel wasrelatively trivial in comparison to the circumstancesofthe crimes in which appellant was convicted... .” (RB 111.) Respondent is mistaken. The assault with a firearm on Uzel wasthe only prior 121 criminal conductintroduced in aggravation in support of the death verdict. Respondentignores the fact that the prosecutor used this evidence to show the callousness of appellant’s behavior, arguing to the jury during closing summation, “Dozer even two months before the Whittier murders actually tried to kill, injure, and even, well, kill and injure Jason Uzel at that McDonald’s parking lot on May 20th, 1997. That kind of tells you what kind of person Dozer was. Or still is, for that matter.” (RT 30:4443.) Indeed, contrary to respondent’s attempt to minimize the aggravating nature of the assault with a firearm on Uzel, the prosecutorexplicitly told the jury during closing summation, “Andagain,this is a significantfactor in aggravation, which can not be overcomebyanything in mitigation that we’ve already heard.” (RT 30:4444,italics added.) Having arguedto the jury that the assault with a firearm on Uzel was a “significant factor in aggravation” (RT 30:4444), respondent cannot nowcarry its burden of proving the opposite—1.e., that the evidence did not contribute to the death verdict. (See People v. Roder, supra, 33 Cal.3d at p. 505 [error not harmless under Chapmanbecause,in part, “the prosecutorrelied on the [erroneous] presumptionin his closing argument’’]; People v. Martinez (1986) 188 Cal.App.3d 19, 26 [error not harmless under Chapmanbased, 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 122 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.”]; Depetris v. Kuykendall, supra, 239 F.3d at p. 1063 [prosecutor’s reliance on error in closing argumentis indicative of prejudice].) Reversal of the death judgmentis required. //]/ 123 XIX. IN VIEW OF THE ADMISSION OF PRIOR VIOLENT CRIMES EVIDENCE IN AGGRAVATION, THE TRIAL COURT’S INSTRUCTION THAT THE PROSECUTION HAD NO BURDEN OF PROOF AT THE PENALTY PHASE REQUIRES REVERSAL OF THE DEATH JUDGMENT. Appellant explained in his opening brief that the court’s instruction to the jury, “The People do not have a burden of proofat this stage of the proceeding[,]” (RT 30:4430), and the failure to define proof beyond a reasonable doubt in connection with the prior criminal conduct of assault with a firearm on Uzel (RT 30:4462-4469; CT 13:3526-3540), prejudicially removed the burden of the prosecution to prove that appellant committed the assault. (AOB 358-367; People v. Cowan, supra, 50 Cal.4th at p. 494 [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. Lewis, supra, 43 Cal.4th atp. 535.) Respondentagreesthat the “trial court’s omission in defining reasonable doubt waserror.” (RB 113.) Respondentarguesthat the error was harmless because “the jurors had been given the appropriate instructions during the guilt phase.” (RB 113, citing People v. Cowan, supra, 50 Cal.4th 401.) But Cowan is inapposite because there 124 the trial court did not instruct the jury, as here, that “People do not have a burden of proofat this stage of the proceeding.” (/d. at pp. 493-495; see RT 30:4430.) In view ofthe specific instruction that the prosecution did not have a burden of proof at the penalty phase, and the court’s failure to define reasonable doubt, it is reasonably likely that the jury did not apply the beyond-a-reasonable- doubt standard to any evidence produced during the penalty phase, including evidence ofthe assault with a firearm on Uzel. Respondentwill be unable to prove that the instructional error was harmless beyond a reasonable doubt because (1) the assault with a firearm on Uzel the only prior criminal conduct admitted by the prosecution, (2) evidence that appellant perpetrated the assault was not proven beyond a reasonable doubt (ante, § XVIII), (3) the prosecutor argued the assault during closing summation in urging the jury to return a death verdict (RT 30:4443-4444), and (4) as the prosecutortold the jury, appellant’s assault with a firearm on Uzel was a “significant factor in aggravation.” (RT 30:4444.) (See 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 considered on the issue in question,as revealed in the record”’].) /// 125 XX. CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT?’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION. Appellant explained in his opening brief that many features of California’s capital sentencing scheme, alone or in combination with each other, violate the United States Constitution. (AOB 368-411.) In People v. Schmeck (2005) 37 Cal.4th 240, a capital appellant presented a numberof often-raised constitutional attacks on the California capital sentencing schemethat had been rejected in prior cases. As this Court recognized, a major purpose in presenting such arguments is to preserve them for further review. (/d. at p. 303.) This Court acknowledgedthat in dealing with these attacks in prior cases, it had given conflicting signals on the detail needed in order for an appellant to preserve these attacks for subsequent review. (/d. at p. 303, fn. 22.) In order to avoid detailed briefing on such claimsin future cases, the Court authorized capital appellants to preserve these claims by “do[ing] no more than (1) identify[ing] the claim in the context of the facts, (ii) not[ing] that wepreviously have rejected the same ora similar claim in a prior decision, and (iii) ask[ing] us to reconsider that decision.” (/d. at p. 304.) Accordingly, pursuant to Schmeck and in accordance with this Court’s own practice in decisionsfiled since then, appellant has, in Argument XX of the 126 opening brief, identified the systemic and previously rejected claimsrelating to the California death penalty schemethat require reversal of his death sentence and requests the Court to reconsiderits decisions rejecting them. These arguments are squarely framed andsufficiently addressed in the openingbrief, and therefore appellant makes no reply to respondent’s argumentat pages 115- 119. /// 127 XXI. THE ERRORSIN BOTH THE GUILT AND PENALTY PHASES OF TRIAL, INDIVIDUALLY AND CUMULATIVELY, OR IN ANY COMBINATION THEREOF, REQUIRE REVERSAL OF THE DEATH JUDGMENT. Appellant explained in his opening brief that numerouserrors occurred at every stage ofhis trial from jury selection through the guilt and penalty phases. (AOB 412-416.) The muitiple errors mandate an analysis of prejudice that takes into account the cumulative and synergistic impact of the errors. (See Caldwellv. Mississippi (1985) 472 U.S. 320, 341.) Respondent summarily states that “the record contains few,if any, errors made bythetrial court or prosecution, none of which wereprejudicial.” (RB 120.) This Court must consider the cumulative prejudicial impact of the various constitutionally-based errors because cumulative prejudicial impact can itself be a violation of federal due process. (Taylor v. Kentucky, supra, 436 U.S.at p. 487, fn. 15.) A trial is an integrated whole. Thisis particularly true of the penalty phase of a capital case, where the jury is charged with making a moral, normative judgment, and the jurors are free to assign whatever moral or sympathetic value they deem appropriate to each item of mitigating and aggravating evidence. The jurors are told to considerthe “totality” of the mitigating circumstances with the 128 “totality” of the aggravating circumstances. (See CT 13:3539-3540; CALJIC No. 8.88.) Asappellant explained in his opening brief, the death sentenceis unconstitutionally excessive and unreliable where, as here, 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. (AOB,Statement of Facts, § E.1, pp. 57-61.) Thereis 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 in the jury selection and guilt phases ofthetrial, as set forth in Arguments I through XIII, inclusive, including the cumulative effect of the errors in the guilt phase of trial (Argument XIV), deprived appellant of a fair and reliable penalty determination. (AOB 65- 295.) The penalty phase jury instructions andthetrial process, where appellant was excluded from the courtroom during argument andinstructionsrelating to Castro (but implicating appellant), deprived appellant of the right to be presentat trial and denied him an individualized sentencing determination. (Ante, §§ XV & XVI; AOB 296-325.) The testimony of prosecution penalty phase witnesses 129 Javier Castillo and Linda Castillo that appellant should be sentenced to death denied appellant therightto a reliable penalty determination. (Ante, § XVII; AOB 326-338.) Finally, the admission of legally insufficient evidence in aggravation of a purported assault with a firearm on Uzel, and the instructional error relating thereto in relieving the prosecution of its burden ofproof, underminedthe reliability of the penalty determination. (Ante, § XVIII & XIX; AOB339-367.) In view ofthe substantial individual and cumulative errors, and appellant’s case in mitigation for a life sentence—which included evidencethat appellant’s conduct was inducedbychronic drug addiction and that he is of good character and is a caring person with redeeming qualities (AOB 57-64)-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, supra, 472 U.S. at p. 341.) Appellant’s death sentence must be reversed due to the cumulative effect of the numerouserrorsin this case. /// 130 CONCLUSION Forthe reasons set forth above, and thoseset forth in appellant’s opening brief, appellant Richard Penunuri respectfully requests reversal of his convictions and the judgmentof death. Respectfully submitted, Dated: “eo dol, By: ee 7 StephenLathrop Attorney for Defendant and Appellant RICHARD PENUNURI CERTIFICATE OF COMPLIANCE I hereby certify under penalty ofperjury underthe laws of the State of California that there are 28,108 wordsin this brief. Respectfully submitted, Dated: -/o>-oly By: me i Stephen M->Eathrop Attorney for Defendant and Appellant RICHARD PENUNURI 131 Proof of Service Iam employed in the County ofLos Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 904 Silver Spur Road #430, Rolling Hills Estates, CA 90274. On November 10, 2014, I served the following document(s) described as Appellant’s Reply Brief on the 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 Valerie Hriciga 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 ofthe District Attorney Pomona Courthouse South 400 Civic Center Plaza, #201 400 Civic Center Plaza Pomona, California 91766 Pomona, California 91766 Richard Penunuri, #T-06637 CSP-SQ BLANK 1-AC-60 San Quentin, CA 94974 Iam readily familiar with the firm's practice for collection and processing of correspondence and other materials for mailing with the United States Postal Service. Onthis 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 under the laws ofthe State of California that the aboveis true and correct and that this Proof of Service was executed on November 10, 2014, at Rolling Hills Estates, California. Stephen M. Lathrop —<_——_—_—_ Printed Name Signature