PEOPLE v. DANIELS (DAVID SCOTT)

Appellant’s Reply Brief

Cal.April 28, 2014

SUPREME COURT COPY IN THE SUPREME COURTFOR THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, No. S095868 Plaintiff and Respondent, V. (Sacramento County Sup.Ct. DAVID SCOTT DANIELS, No. 99F10432) Defendant and Appellant. SUPREMECOURT p Mee FILED PR APPELLANT’S REPLY BRIEF APR 28 2014 Appeal from the Judgmentof the Superior Court of the State of ExaricfiavicGuire Clerk for the County of Sacramento Deputy HONORABLE JAMESL. LONG, JUDGE MICHAEL J. HERSEK State Public Defender GARY D. GARCIA State Bar No. 157682 Senior Deputy State Public Defender 1111 Broadway, 10th Floor Oakland, California 94607 Telephone: (510) 267-3300 Garcia@ospd.ca.gov Attorneys for Appellant Tn: we i PN I rN fj ae Poa bol NS } { fy a : t ia “ Poe my V3 pax ps ae ii ! vee EE EOE he \ beeé tee Gu ou 4 Wo cod Ada Loh ii TABLE OF CONTENTS Page APPELLANT’S REPLY BRIEF 2.2... 0... cece cee cee cece eee e eee e ee enees 1 INTRODUCTION 2.0... 0... cece ee cece e renee eee e ene e tent eeenes 1 I. THE GUILT AND PENALTY JUDGMENTS MUST BE REVERSED BECAUSE THE RECORD DOES NOT AFFIRMATIVELY REFLECT. A KNOWING, INTELLIGENT AND VOLUNTARY WAIVER OF THE RIGHT TO COUNSEL 2.0... . cece ccc cece cette tne ence ne enees 2 A. Introduction 2.0... . cece cece eter e cence eee e ee ee ee nnees 2 B. A Valid Waiver of the Right to Counsel Requires That the Record Affirmatively Show That the Waiver Was Knowing,Intelligent and Voluntary . 6...cece teen eee eee n eee ee eeee 3 1. Pertinent Legal Principles .......... ccc cece cece eee ee eens 3 C. The Record Does Not Affirmatively Show That Appellant Madea Knowing,Intelligent and Voluntary Waiver of His Right to Counsel «0.1... 0. ccc cece cence eee renee eee eneees 9 1. The December 20, 2000, Hearing ........... cece cece eee ees 10 2. The January 5, 2001, Hearing ........... cece eee eee eee eee 17 D. The Invalid Waiver of Counsel Requires Reversal .................. 22 II. APPELLANT’S WAIVER OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A JURY TRIAL ON THE MURDER AND RELATED CHARGES, SPECIAL CIRCUMSTANCES AND PENALTY WAS NOT A KNOWING AND INTELLIGENT WAIVER 2... ccc cece cece eee ee eee eee e nee nent tesa eee eeeenees 23 A. Introduction 2... ccc cee ec etc ete cette eee t eee eae eeeens 23 TABLE OF CONTENTS B. Appellants Waiver of His Constitutional and Statutory Rights - toa Jury Trial Was Not a Knowingand Intelligent Waiver Because It Was Not Made With a Full Awareness of the Nature of the Rights Being Relinquished .......... 0. cece cece cee cee eee eee e teens 24 C. The Denial ofAppellant’s Rights to a Jury Trial Was Structural Error, Requiring Reversal of Appellant’s Conviction of the Murders, Special Circumstances and Related Felonies Tried By the Court ....... 28 Hl. ALLOWING APPELLANT TO REPRESENT HIMSELF, WAIVE JURY TRIAL AND NOT CHALLENGE THE PROSECUTION’S EVIDENCE IN ANY WAY WAS TANTAMOUNTTO PLEADING GUILTY, IN VIOLATION OF PENAL CODESECTION 1018 AND THE EIGHTH AND FOURTEENTH AMENDMENTS...............006- 32 A. Introduction 2.0... ccc cee ccc eee eee eee e eee eeeeaes 32 B. Appellant’s Actions Were Tantamountto Guilty Pleas to Capital Murder Without the Consent of Counsel in Violation of Penal Code Section 1018 2... eccee eee ee cece teen eet e ene 33 1. Penal Code Section 1018 Precludes a Capital Defendant From Discharging Counsel, Representing Himself, and Entering a Guilty Plea... okie eee cece eee eens 33 2. Appellant’s Actions and Inaction in the Trial Court Were Tantamountto a Guilty Plea, in Violation of Section 1018 ...... 34 C. A Death Judgment Based on a Slow Plea of Guilty Violates the Eighth and Fourteenth Amendments ........... 0... ccc ce eeeeeeees 46 D. The Denial of Independent Review in This Case WasPrejudicial ...... 47 il IV. VI. VII. VIL. TABLE OF CONTENTS Page THE TRIAL COURT’S ERRONEOUS REFUSAL TO CONSIDER APPELLANTS DRUG USE IN MITIGATION VIOLATED APPELLANT'S RIGHTS UNDER STATE LAW ANDTHE EIGHTH AND FOURTEENTH AMENDMENTS, AND COMPELS REVERSAL OF THE DEATH JUDGMENT... 0... ccc ccc cece cee e cence eenn sane eeenees 48 APPELLANT WAS DENIED AN INDEPENDENT REVIEW OF HIS AUTOMATIC MOTION FOR MODIFICATION OF THE DEATH VERDICT, IN VIOLATION OF STATE LAW AND THE EIGHTH AND FOURTEENTH AMENDMENTS............ ccc ccc eeucccecceeeenees 53 A. Imtroduction 2.0... cece ence cence cette eevee eeeeenees 53 B. Appellant’s Argument is Cognizable on Appeal .................00 54 C. Penal Code Section 190.4, Subdivision (e), Entitles All Capital Defendants to Independent, Trial-Level Review ..................0- 58 D. The Failure to Provide a Separate and Independent Review Constituted Violated Appellant’s Rights to Due Process and Equal 5dC0)(10150) 62 E. Conclusion ............... Le eeeeaeueecneeueevuceenenennenns 64 REVERSAL IS REQUIRED BASED ON THE CUMULATIVE EFFECT OF ERRORS THAT UNDERMINED THE FUNDAMENTAL FAIRNESS OF THE TRIAL AND THE RELIABILITY OF THE DEATH JUDGMENT ..... 0... cece cc eee tee neceeneeuaeeeas 65 CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION.............0 ccc ceeeeeeeeaes 66 THE SENTENCE OF DEATH IMPOSED IN CONNECTION WITH APPELLANT'S CONVICTION OF SECOND DEGREE MURDER MUST BE VACATED..... 0... 0. cece cece eect eee e cece eeeeeeeneeees 67 ili TABLE OF CONTENTS Page CONCLUSION ....cccee nee e eee e eee e ne neeenerenas 68 CERTIFICATE OF COUNSEL (CAL. RULES OF COURT, RULE8.630(b)(1), (2)) . 0... ccc eee ee cee ee eens 69 iv TABLE OF AUTHORITIES Page(s) FEDERAL CASES Adams vy. United States ex rel. McCann (1942) 317 U.S. 269 oeeccecsecsccsscesesessesesssseesessseeesecesseestcseesoesececoesseesseesesenseessssessseeseetaes 4 Almendarez-Torres v. United States (1998) 523 US. 224 vecccsessccssssesesecesstsecsesssnscesssecscssesecsstecenssscesneesseesseeaeseasessesaeessseaess 62 Atkins v. Virginia (2002) 536 U.S. 304 weeeeseseseccscesesssssecsssescesscesessessssensecssenssseessussauesessasseaesensessesseessees 49 Boykin v. Alabama (1969) 395 US. 238 oo... eeeesccssccsecesetsssseseessensssscesssseesseeasesaccausaneseesenesauecsesseeseessses 27, 36, 43 Coloradov. Spring (1987) 479 U.S. 564 weeccccecceseseceseesceessescessceesceessesssnesaresasesesaceseseeseeseeseeeeeeseesseesanasauseeses 39 Conev. Bell (2009) 556 U.S. 449 woeesesesssescesstscesssessessnessessssseesssssscsseseesseeeseesseestsseescessessevesessasens 52 Eddings v. Oklahoma (1982) 455 U.S. 104 woeeesssssssceesscsseeetsacssesssesoessesseeseeesssatecseessssscnsscsassssssesonssenes 49, 50 Faretta v. California (1975) 422 U.S. 806 ..ceeeecsssscsssesseccesssssssssssssesscsscssessescenseesesuacescesceseuseusesssussesensensens passim Gilmore v. Taylor (1995) 508 U.S. 333 wee eesssesceecesesesesscsscsssssensensssssessseecesssssesesecsssseseusuesesecassassessasacesssseaesaes 5 Godinez v. Moran (1993) S09 U.S. 389 oeeeescssssssscsssssssscssesscssssssensseessestessssscessescescssensenssesensenseatecs 4,9,16 Gregg v. Georgia (1976) 428 U.S. 153 cececcssecssssessssseesssesessesccsscesssssssesessescessseuseseeseussseussssavaceseceeesanscenesas 51 Indiana v. Edwards (2008) 554 U.S. 164 ceesscsscsssssssssssssssessssssssnsssecesssssesesseseeseseeseee stestendenteeeasesseseesesensesesseneeeaes 9 TABLE OF AUTHORITIES Page(s) Johnson v. Zerbst (1938) 304 U.S. 458 woecessesssceecssesssseessssessseseseessesessessseessecssesseseusecssssstecesseeassceaseseeneess 29 Lopez v. Ryan (9" Cir, 2011) 630 F.3d 1198 w..eccssesccsssessesssssssssssesessosessssesssassesecessesasseseceesesaceesteneneeeeees 49 McCarthy v. United States (1969) 394 U.S. 459 oeccesssessssessenesssssseseessseesesseseesseseseseseseesesstsesonssaseuseeeseesesseasseeees 29 Murray v. Schriro (9Cir. 2014) F.3d, 2014 WL 998019 wiciccscscssssccesessesesessssessesesseseseces 49, 50 Pattersonv. Illinois (1988) 487 U.S. 285 woe cecsssessessssessssscsscesssssesessestessecssessustsscssesessssseeassssecsseesscsceaceueees 5,11 Patton v. United States (1930) 281 U.S. 276eeeesecssssesssesssssssessessessssesssecsssssssssssssssseseccesesessesssassaserecsceacears 28, 29 Penry v. Lynaugh (1989) 492 U.S. 302 oeessesccssscesssssssscssssssssesesssseseseecesssesessssssscssssssesesacesacecsecearsaceeeaeacers 49 Towery v. Ryan (9" Cir, 2012) 673 F.3d 933 ...cssecssssteccsesssesscssssvessssssssssesscessscesseceesecseesscessessassensersessesecsess 49 United States v. Jin Fuey Moy (1916) 241 U.S. 394 oecsesssssessssssessssscssesesesestesesesecscsssesscssessscessacaseseecseatacsesaserssesucats 62 United States v. Lopez-Osuna (9Cir, 2001) 242 F.3d 1191 ..cscccescessessessecsesssssssessessssscssesrecsesecsucsteseressecsassessecsecaesscsecaes 5 Von Moltke v. Gillies (1948) 332 U.S. 708 ...esecssseesecesesssessssssesssssssssssesssescsesessessssesacsuscscssesecsssasasecssssatsesusecavensases 11 Woodsonv. North Carolina - (1976) 428 U.S. 280 cecceececscsssssssesssssssesesesesssssesesssesscsescssssscecscsenseacaracsesscersesesueasacsneaseess 5 vi TABLE OF AUTHORITIES Page(s) STATE CASES Bunnell v. Superior Court (1975) 13 Cal.3d 592 wicccssscsssccesssscsscseessseseesscsessserseessesceseeseersssseeseasssssesteneesseseasseeeees 36 In re Colar (1970) 9 Cal.App.3d 613...eeesssssessessseseesesccsssssessessssssseseseassacsarsnseseessnsseeeaseeseetsnesees 44 In re Mosley (1970) 1 Cal.3d 913 ....eseecessecssscneeessssceneeareassasessensssnssssscsneensesessceansansraseseneescessntssesenseeses 36 Inre Tahl (1969) 1 Cal.3d 122 oeeeesssssssseesecsecssrseessesseserseseesseessusssssersscssesessessseeseesenears 36, 39, 43 People v. Alfaro (2007) 41 Cal.4th 1277 cosccsssssssssssesssssssesssssssesssssssstsecsssssesssssussessessusessssscssevessssssssesssases 33 People v. Blair (2005) 36 Cal.4th 686 wecccsecssscsssesecssctssessssssseesssscssceesesnssseseecsoesesecesseeseteaees 10, 12, 20 People v. Bloom (1989) 48 Cal.3d 1194 uecsseccsensssssessessensecsseseessssnssnesscssessnsenssoeensassesssseseasessecsessseseess 21 People v. Burdine . (1979) 99 Cal.App.3d 442 oo. eeesesescessessessesesecseeessecessenseeseceeseseesseeeeeessessessnsnaseseaseesoas 8, 12 People v. Burgener (2009) 46 Cal.4th 231 oeeesesssscsscsessesessecssessseessssessccnssecessessessesensseesseceesensenessseessensrtseeeaes 5 People v. Carpenter (1997) 15 Cal.4th 312 occssccceseessssecsecesseessssssecsesssseeeneseeseesenesecsenseeeeteees 44, 54, 57-58 People v. Chadd (1981) 28 Cal.3d 739 oeecssssssescscsessessessssesssssessssesssseseeseesescssseseessseserteretsees 33, 34, 45, 46 People v. Collins (2001) 26 Cal4th 297 on. eecsecsceseseeessseesccssesssesscecsrsessesssesseserssesesssseesseassasaceasens 28, 29, 30 vii TABLE OF AUTHORITIES Page(s) People v. Cook (2006) 39 Cal.4th 566 oo. ccccsssesesscsesseesesseesneessessessssscesseesseeesesesseeseeeseeseesenesensones 41, 42 People v. Corona (1978) 80 Cal.App.3d 684 oo. ecccsesessctesssscsscesseessssseseecessrsesesesensrssueserseesseseeasseeseeaetens 12 People v. Deere (1985) 41 Cal.3d 353 eeeesesesssceesscsseesesesesssesessesssesesseseesesseeeeeeseseaeesessessesseceseeeeesensens 27 People v. Diaz (1992) 3 Cal.4th 495 weescscssssecssesecsesescesssesessessscessessseeccessesseesecceesensaseasesssenseesensees 58, 59 People v. Ernst (1994) 8 Cal.4th 441 iccicecssssecssscsssesesssssssessessessessesessscesscesseseasseeeesssesentesesenseees 29, 30 People v. Floyd . . (1970) 1 Cal.3d 694 woeecssessessenesesssssecesesensesssssseseeesscedsnoessressensseresseteceaesaneeseesnes 10, 11 People v. French (2008) 43 Cal.4th 36 oc.ccssssssssscsssccsecssecsessnccssssessessecscesseensessseseesessaseassessessereseeseeteneenee 57 People v. Frierson (1979) 25 Cal.3d 142cecscsesssccssssesecsessesscerscesscsssesesssenesseeeseeesaeseeseseeseesaeseeneeeaees 58, 61-62 People v. Gaston (1999) 74 CalApp.4th 310 oeecsesesscssecssssssseeessessenssesessecesaeseeee prcrnrnrernncrnen 51 People v. Gilbert (1969) 1 Cal.3d 475 .iccsccscccscssseessssesccsetscsescsesescsssseeresseaseacsuesssseesessessessssaesseaesesesesaneeeeenes 46 People v. Gray (1982) 135 Cal.App.3d 859 oo... sscsssscssseseeecssscecesssssceseesssecescsssessssecassceesassseseestsecenesees 36 People v. Griffin (1988) 46 Cal.3d 101] icssseescseeseesetssssessssesecessssesseesssesssssessesseseeseesestesssensssssereses 40 Vili TABLE OF AUTHORITIES Page(s) People v. Guerra (2006) 37 Cal.4th 1067 ...c.ccccscssssssssscssssseessssssccssessesssccassscsesssescsssessscesensessssseesseeceeeess 54 People v. Hendricks [(1987) 43 Cal.3d 584 wi ccssscsscrsessssssssssesssescsssesssssgssescsessssserseessscssessssssssensenseseses 36, 38 People v. Hill (1992) 3 Cal.4th 959 secscssseceetsseesssessesenescssessneceenessenssesecnsaeseessessesneseesseeenssssatecssseeseseeses 1 People v. Horning (2004) 34 Cal.4th 871 occcesesscsscssssseescersesscssessessssseseessesssssssssecessscesceseeesssesesesease passim People v. Howard (1930) 211 Cal. 322eeeeeesscessessesecesessececessecsccscesssessssaassessesseessensesessesseseseeseceeaeeeenseseeee 25 People v. Hung Thanh Mai (2013) 57 Cal.4th 986 .....esecsscsscesssssesesscceeeseesseeeesssesssessseessesesseessseeseetessesessnensesesees 33, 34 People v. Johnson (2012) 53 Cal.4th 519 oecesssssesscssssscsccserssscsesecessscsssssssssesssscsessessessesessscsscaeseeesesssssseonens 9 People v. Joseph (1983) 34 Cal.3d 936 oo. cceecscscsssesseesssseseeessesessessesseseressneessensssasessesseasecesseeseesscessssesens 5,18 People v. Kennedy (2005) 36 Cal.4th 595... icscsscsscssssscssscscessrssersessessesesesscesscecessesecesessseessersesseseessasensetsees 51 People v. Koontz (2002) 27 Cal.4th 1041 ccccssccssesssssscseeseessessessecsssssesscesecesssscesseseeeesecsetsntesssesensess passim People v. Lawley (2002) 27 Cal.4th 102 oeecsesssesesecsseessecseeesseescsessssscseesesseeseeseesscesssesseeeesssessseeseeees 4,10 People v. Levey (1973) 8 Cal.3d 648 wececesscssstssessnessnsessescssssscssesssesessessensesseseseseesessessseestersceaeeaesesseasenens 36 ix TABLE OF AUTHORITIES Page(s) People v. Lopez (1977) 71 Cal.App.3d 568 oo. eeeeescseecceseesseessscessersecsassensscessesessoaseteeessssseaseeeeneneees passim People v. Martinez (1999) 71 CalApp.4th 1502 oo...eeessssecsesssseesscesccessssecesecssesseassesonessessesnesseessesssensaees 51 People v. McDaniel (1976) 16 Cal.3d 156 ocececesecessesseesccseseserssessecssessssssssessasesssessesepeesesssesensesseseneeseesess 5 People v. Memro (1995) 11 Cal.4th 786 occcsssssssesesesscesscesssessesssseceeseesseessstsesens seseeeeesseseaeesnseseeneaees 40 People v. Monterroso (2004) 34 Cal.4th 743ccceccescssssssscesesseessesscessseesessessessessenssessessesssssceseeseeseesoeessnasees 54, 57 People v. Murphy (1972) 8 Cal.3d 349 iiecssscsseessccssscesssssenseenees vaceeaceseeesesecacseeesaeeserseaaeesenecneesensenseeenees 39 People v. Riel (2000) 22 Cal.4th 1153 oneecsssscssesessecseesseesseessseessssseesesesessssseesssstessssessceenees 54, 55, 56 People v. Riggs (2008) 44 Cal.4th 248 oeesscsssssessessessecssscnssssessssccsesesssssesesssssesessssnssessscsssoeesseeees 17, 18 People v. Robertson (1989) 48 Cal.3d 18 occsesssescsssssscssssssssnecsssssssesscssssessseessssscsesssscseessesenseeseeseeeseeseaes passim People v. Rodriguez (1986) 42 Cal.3d 730 ..ceccsscsssessscesscsssssensessssseseessessssessesseseesessessssseseessseussscsesensoese 60, 61 People v. Rundle (2008) 43 Cal.4th 76 weescsessssssessresesseesssesessencsessecseseessssccesessssessssaecessesserssesseasoeeeoess 34 People v. Sanders (1990) 51 Cal.3d 471 iciccscssssesscrsssssecrssesseccsseessessscsseesseseseessessssersessessteessesseesesseses 43, 44 TABLE OF AUTHORITIES Page(s) People v. Scott (1997) 15 Cal.4th 1188 occescsscssssssssscsessscasssesssssesssrsssessessenseeessesessenenseraes 44, 45, 50 People v. Stansbury (1993) 4 Cal.4th 1017 occescssseecsscesessscsssssecsssesecsesssesseeesesesseassesesssesssesesessenseeseeeesens 45 People v. Stowell (2003) 31 Cal.4th 1107 woeeecssssssssesessscseccsevscsssscsorssseesceesessccssesessesesecesresesses 54, 56, 58 People v. Teron (1979) 23 Cal.3d 103 oo. ceessssssesecessesssenessssescesscescsssesaseescesenssensessessseesecsssssctsneessees 15, 45 People v. Terry (1970) 2 Cal.3d 362 w.eeeesessssscssesessssenseccssscesscssesencessseeesesseesssensaseacenssseessnenssecseesenessesens 44 People v. Tijerina (1969) 1 Cal.3d 44 oecccssssssessessesesssssssscssseseessscessessessesessssceseesessnaesccessssesseeesseseseeess 26 People v. Tran (1984) 152 Cal.App.3d 680 occccsecssesscscsesssessessscssscsessessensessenssseseesseseeseaees 35, 36, 37 People v. Traugott (2010) 184 Cal.App.4th 492 oocescsssccsscssscessstessessenscessessesecssessessessssesssseesesseceaesseeesass 23 People v. Vera (1997) 15 Cal.4th 269 oecccssssssecsssssscssssssessessssesssesssesseseessssesessessseceeseeseseseeseessseaeneese 57 People v. Weaver (2012) 53 Cal.4th 1056 wccesssscesessscsssssssssscsscsssessesssscessoesecssessessesseeeseesetesessenetses passim People v. Windham (1977) 19 Cal.3d 121 oeeceeesseesessceesseeseestocssseseseesseeseseseseeseessasensssesssseecsassesseeseaeneeses 18 People v. Wright (1987) 43 Cal.3d 487 vecccsscesesssssssssscessesssssesensscsssecsscnsessuesessssesseseesstetsesecasees 35, 36, 37 xi Price v. Superior Court (2001) 25 Cal.4th 1046 oieeessscsseseesssssecsessseeeessersessscesseesessessessessessesssseseseersseceesenses 1 Solberg v. Superior Court (1977) 19 Cal.3d 182eeeescesssccescsecsessessenssseessecsesseessecersscseesssnseeeesessasoesessonssesecesseasees 34 Thomas v. Superior Court (1976) 54 Cal.App.3d 1054 oo... eessesssssssessessseseresescsesensenesseseessensseessesseseedeacenssseonesesea ees 11 Verdin v. Superior Court (2008) 43 Cal.4th 1096 oecesscssssesssessessecesessesssesseesssesceesssescessessesseesecesseesesseessensserenses 54 CONSTITUTIONS U.S. Const., Amends. O cceccccssssercccecsesssseeeeccecesesssnsnceceneeecsceesesesaeseeseesnesensaeaes 46 BL esssseessensseeesseescecsscesessesesessssesecssscseseceesesessessesces passim 4eeecececcscnsecessensseeeesesacseeescessceeesseessanscesesesenens passim Cal. Const., art. 1, § 16 wii csscccsccsssssnsceceececesscscsssncecececcessseeensessssenseccess 25, 28 STATUTES Pen. Code §§ 190.1 weeeeccscsecsecsseecesetenseeesnetseessesscsseesseserseseeesessesoees 44 190.3, SUD. (K) .....cscscscesesseseesensseersessssesesessesesesees 49 190.4, SUD. (€) ....ceeseseesersecerssteeceesessesseeseeseeees passim OB6.1 wee eessceetscesscncecssnssessesscasesesssceseesssessansesesseseeeeaes 3 1018 ooceeeeeseeeceesceessresssnensseenssseseteesseeseessseeesoes passim 1181, Subd. (7) oesecceeeseeeeseseeeseeeseeseeeensesseessess 60, 61 FEDERAL COURT RULES Fed. Rules of Crim. Proc. Rule 23 vices cessessssssesssessesecesseeesscesseseseseasceasseesrersseseerssseeee 28 TEXT AND OTHER AUTHORITIES Physician’s Desk Reference (61% ed. 2007) p. 2490 oo... cueecssssssscsssssscessesssssersessesreesssarees 19 xii IN THE SUPREME COURT FOR THESTATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, No. S095868 Plaintiff and Respondent, Vv. (Sacramento County Sup.Ct. No. 99F10432) DAVID SCOTT DANIELS, Defendant and Appellant. APPELLANT’S REPLY BRIEF INTRODUCTION In this brief, appellant does not reply to respondent’s arguments which are adequately addressed in appellant's opening brief. Unless expressly noted to the contrary, the absence of a responseto anyparticular argumentor allegation made by respondent, or to reassert any particular point made in the openingbrief, does not constitute a concession, abandonmentor waiverof the point by appellant (see People v. Hill (1992) 3 Cal.4th 959, 995, fn. 3, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13), but reflects appellant’s view that the issue has been adequately presented andthe positions ofthe parties fully joined. For the convenience of the Court, the arguments in this reply are numbered to correspondto the argument numbers in Appellant’s OpeningBrief.' ‘ The record will be cited here in the same manneras in Appellant’s Opening Brief: “CT,” Clerk’s Transcript; “ACT,” Augmented Clerk’s (continued...) L THE GUILT AND PENALTY JUDGMENTS MUST BE REVERSED BECAUSE THE RECORD DOES NOT AFFIRMATIVELY REFLECT A KNOWING, INTELLIGENT AND VOLUNTARY WAIVER OF THE RIGHT TO COUNSEL A. Introduction As described in greater detail in appellant’s opening brief (AOB 23- 31), Judge Gary Ransom of the Sacramento County Superior Court granted appellant’s motion to represent himself on December 20, 2000. (1 RTS 12- 16.) On January 5, 2001, after the case was assigned to Judge James Long, appellant stated that he wished to continue representing himself. Appellant argued that the record does notaffirmatively show a knowing,intelligent and voluntary waiverof the right to counselin either instance. Judge Ransom made noinquiry at all into appellant’s understanding of the charges and Judge Long made no meaningfulinquiry. Neither judge made any inquiry into appellant’s legal experience or informed him of the complexities of a capital trial. Further, Judge Long ignored appellant’s statementthat he did not view self-representation as a disadvantage, despite the warnings he had received. Asa result, the record does not demonstrate that appellant “understood the disadvantages of self- representation, including the risks and complexities of the particular case.” '(...continued) Transcript; “RTL,” Reporter’s Transcript in the Lower Court; “RTS,” Reporter’s Transcript in the Superior Court. appellant refers to the record on appealin the same manneras in his opening brief. (See AOB,fn.2.) 2 (AOB23-49.) Respondent contends that appellant’s contentions are meritless because (1) the record as a whole demonstrates that appellant was amply warnedof the dangers and disadvantagesof self-representation such that his choice to proceed without counsel was made with eyes open, and (2) any error was harmless beyond a reasonable doubt because appellant was determined to waive counsel regardless of the warnings provided. (RB 35- 63.) Respondent’s contentionsare incorrect. B. A Valid Waiver of the Right to Counsel Requires That the Record Affirmatively Show That the Waiver Was Knowing, Intelligent and Voluntary 1. Pertinent Legal Principles In Faretta v. California (1975) 422 U.S. 806, 819, the United States Supreme Court held that, under the Sixth and Fourteenth Amendments,a defendantin a state criminaltrial has a right to the assistance of counsel as well as a correspondingright to self-representation. However, a defendant whoelects to represent himself or herself may do so only after knowingly, intelligently, and voluntarily choosing to forgo the assistance of counsel. (Id. at p. 835.) Because the Court in Faretta recognized a tension between the right of self-representation and its decisions holding that the Constitution requires that no accused can be convicted and imprisoned unless he has been accordedthe right to the assistance of counsel,it ? In a supplemental opening brief filed on February 7, 2014, appellant raises two additional argumentsrelating to the trial court’s decision to allow him to represent himself: (1) the trial court erred whenit permitted appellant to represent himself in a capitaltrial; and, (2) the convictions, special circumstance findings, and death verdict must be reversed becausethe trial court erroneously permitted appellant to waive counselin violation of Penal Code section 686.1. 3 imposeda dual duty upontrial courts: first, to ascertain that a defendant whoseeksto exercise the right to self-representation has knowingly and intelligently foregonethe traditional benefits associated with the rightto counsel, and secondarily, to ensure that the record establishes that the defendant knowswhatheis doing,i.e., that his choice is made with eyes open. ([bid.; Adams v. United States ex rel. McCann (1942) 317 U.S.269, 279.) Althoughthis Court has held that “no particular form of wordsis required in admonishing a defendant who seeks to waive counselandelect self-representation,” and that “the test is whether the record as a whole demonstrates that defendant understood the disadvantagesofself- representation, including the risks and complexities of the particular case” (People v. Koontz (2002) 27 Cal.4th 1041, 1070),it is clear that, at a minimum,.a waiverof the right to counsel cannot withstand constitutional scrutiny under the Sixth and Fourteenth Amendmentsunlessit is preceded by an inquiry and findings by the court that the defendant was both competentto standtrial and that his decision to forgo the assistance of counsel was both knowing and voluntary. (Godinez v. Moran (1993) 509 U.S. 389, 400-401; see also People v. Lawley (2002) 27 Cal.4th| 102, 139 (“The requirements for a valid waiverofthe right to counsel are (1) a determination that the accused is competent to waivethe right, i.e., he or she has the mental capacity to understand the nature and object of the proceedings against him or her; and (2) a finding that the waiver is knowing and voluntary, i.e., the accused understandsthe significance and consequencesofthe decision and makesit without coercion”].) In assessing whether the record affirmatively reflects a constitutionally valid waiverof counsel, “the focus should be on what the defendant understood, rather than on what the court said or understood.” (United States v. Lopez- Osuna (9" Cir. 2001) 242 F.3d 1191, 1199,cited with approval in Peoplev. Burgener (2009) 46 Cal.4th 231, 241.) Moreover, given the obvious dangers of proceedingto trial without counsel, the Supreme Court has insisted that “a more searching or formal inquiry” is required when a defendant wishes to waivehis right to counsel at trial because “the full dangers and disadvantages of self-representation” are more substantial and less obviousattrial than during other stages of the proceedings. (Patterson v. Illinois (1988) 487 U.S. 285, 299-300.) The Court has therefore “imposed the most rigorousrestrictions on the information that must be conveyed to a defendant, and the proceduresthat must be observed before permitting him to waivehis right to counsel at trial.” (Id. at p. 298.) An even more searching inquiry is required in a capital case because of the Eighth Amendment’s demandfor heightenedreliability in the findings leading to a death judgment. (Woodson v. North Carolina (1976) 428 U.S. 280, 305.) “[W]ith respect to [capital cases] we have held that the Eighth Amendmentrequires a greater degree of accuracy and factfinding than would betrue in a noncapital case.” (Gilmore v. Taylor (1995) 508 U.S. 333, 342.) Although this Court has held that a capital defendant may waive counseland represent himself (People v. Joseph (1983) 34 Cal.3d 936, 943-944), it has also recognizedthat self-representation is not intended “to enhance the reliability of the truth-determining or fact-finding process.” (People v. McDaniel (1976) 16 Cal.3d 156, 166.) Therefore, before accepting a waiver of counsel, a trial court must conducta full and careful inquiry to assure that a capital defendant’s waiver is knowing, intelligentquiry g g and voluntary. ‘This Court has summarized with approval a set of advisements and inquiries suggested by the Court of Appeal in People v. Lopez (1977) 71 Cal.App.3d 568 to ensure a clear record of a defendant’s knowing and voluntary waiver of counsel. (People v. Koontz, supra, 27 Cal.4that p. 1070.) Specifically, the Lopez court advised the following: First, it is necessary, as Faretta says, that the defendant “be made aware of the dangers and disadvantages of self-representation.” Under this category, we suggest that the defendant be advised: (a) That self-representation is almost always unwise and that he may conduct a defense “ultimately to his own detriment.” (Faretta, supra, at p. 834 [45 L.Ed.2dat p. 581].) (b) Thathe is entitled to and will receive no special indulgence by the court, and that he mustfollow all the technical rules of substantive law, criminal procedure and evidence in the making of motions and objections, the presentation of evidence, voir dire and argument. It should be madecrystal clear that the samerules that govern an attorney ~ will govern, control and restrict him — and that he will get no help from the judge. He will have to abide by the samerules that it took years for a lawyerto learn. (c) That the prosecution will be represented by an experienced professional counsel who,in turn, will give him no quarter because he does not happen to have the sameskills and experience as the professional. In other words, from the standpoint of professional skill, training, education, experience, andability, it will definitely not be a fair fight. It would be Joe Louisvs. a cripple, or Jack Nicklausvs. a Sunday hacker. (d) That he is going to receive no morelibrary privileges than those available to any otherpro.per., that he will receive no extra time for preparation and that he will have nostaff of investigators at his beck andcall. Second, we feel it would certainly be advisable to make someinquiry into his intellectual capacity to make this so-called “intelligent decision.” In this category, inquiry might be madeof: (a) His education and familiarity with legal procedures. For example, can he read and write? If not, how does he propose to handle such items as written exhibits and instructions? (b) If there is any question in the court’s mind as to a defendant’s mental capacity it would appear obviousthat a rather careful inquiry into that subject should be made — probably by wayof a psychiatric examination. It would be a trifle embarrassing to get half way through trial only to discover that a court has determined that a mentally deficient or seriously mentally ill person has been allowed to make a “knowing andintelligent” decision to represent himself. (c) In order to show thathis choiceis an intelligent one, he must be made awareof the alternative,i.e., the right to counsel. He should be made awareofjust what that means including, of course, his right to court-appointed counsel at no cost to himself. (d) Perhaps some exploration into the nature of the proceedings, the possible outcome, possible defenses and possible punishments might be in order. While this may seem to be sliding back into pre-Faretta practices,it will serve to point up to defendant just whatheis getting himself into and establish beyond question that “‘he knows what heis doing and his choice is made with eyes open.” (Faretta, supra, at p. 835 [45 L.Ed.2d at p. 582].) (e) It should be made clearthat if there is misbehaviorortrial disruption, the defendant’s right of self-representation will be vacated. Third, he should definitely be made awarethatin spite of his best (or worst) efforts, he cannot afterwards claim inadequacyof representation. Pitiful though his efforts may be, he cannot thereafter complain that his self-representation was inadequate. As Faretta says (fn. 46, p. 834 [45 L.Ed.2d, p. 581]), “Thus, whatever else may or may not be open to him on appeal, a defendant whoelects to represent himself cannot thereafter complain that the quality of his own defense amountedto a denial of‘effective assistance of counsel.” In other words, by choosing to represent himself, he will be throwing away one ofthe criminal defendant’s favorite contentions on appeal. (People v. Lopez, supra, 71 Cal.App.3d at pp. 572-574; see also Peoplev. Burdine (1979) 99 Cal.App.3d 442, 447 [noting that the Lopez court suggested ten areas, divided into the following three categories, that may be considered and exploredby thetrial court in a Faretta hearing: (1) the dangers and disadvantagesof self-representation; (2) the defendant’s intellectual capacity to make “this so-called ‘intelligent decision’”; and (3) the waiverofthe right to appeal on the ground of inadequacyof representation].)° On appeal, the reviewing court examines “de novo the whole record ~ not merely the transcript of the hearing on the Faretta motionitself— to determine the validity of the defendant’s waiverof theright to counsel.” (People v. Koontz, supra, 27 Cal.4th at p. 1070.) True, this Court has explained that “[n]Jo particular form ofwords is required in admonishing a defendant whoseeks to waive counsel andelect self-representation; the test is whether the record as a whole demonstrates that defendant understood the disadvantagesofself-representation, including the risks and complexities of > Although the Lopez court explained that it was not attempting to establish any minimum requirements, it recognized that “it is rather obvious that an adequate inquiry [must] be made in order for the reviewing court to ascertain that the defendant has knowingly andintelligently elected to represent himself.” (People v. Lopez, supra, 71 Cal.App.3d at p. 574.) 8 the particular case.” (Ibid.) Nevertheless, it is clear that, at a minimum,a waiverof the right to counsel cannot withstand constitutional scrutiny under the Sixth and Fourteenth Amendmentsunlessit is preceded by an inquiry and findings by the court that the defendant was both competent to stand trial and that his decision to forgo the assistance of counsel was both knowing and voluntary. (Godinez v. Moran, supra, 509 U.S.at pp. 400- 401; see also Indiana v. Edwards (2008) 554 U.S. 164, 175-178 [holding that the United States Constitution permits a State to limit a defendant’s right to self-representation by insisting upon representation by counselat trial where the defendant lacks the mental capacity to conduct his owntrial defense]; People v. Johnson (2012) 53 Cal.4th 519, 528 [holding that California’s trial courts may denyself-representation where Edwards permits such denial].) C. The Record Does NotAffirmatively Show That Appellant Made a Knowing,Intelligent and Voluntary Waiver of His Right to Counsel Accordingto respondent, the record amply demonstratesthat appellant was warnedofthe pitfalls of self-representation such thathis choice to proceed without counsel was made with eyes open. (RB 53-55.) Respondentis incorrect. As respondentnotes (RB 55-56), a reviewing court examines de novo the whole record — not merely the transcript of the hearing on the Faretta motion itself— to determine the validity of the defendant’s waiver of the right to counsel. (People v. Koontz, supra, 27 Cal.4th at p. 1071.) Even underthat standard, however, a careful reading of the record shows that the admonitions givenin this case did not suffice to ensurethat appellant’s waiverofhis right to counsel was voluntary, knowing and intelligent within the meaning of Faretta v. California, supra, 422 U.S.atp. 9 835. 1. The December20, 2000, Hearing In his openingbrief, appellant argued that, during the proceedings of December20, 2000, Judge Ransom’sbrief advisementsto appellant fell far short of what is required for a valid waiver of counsel in a capital case. (AOB 39-43.) In particular, Judge Ransom failed to explore “the nature of the proceedings, potential defenses and potential punishments.” (Peoplev. Koontz, supra, 27 Cal.4th at p. 1071.) Respondent contends that none of appellant’s arguments regarding Judge Ransom showthat the Faretta advisements were defective. (RB 55- 58.) In particular, respondent contendsthat appellant examined Judge Ransom’s advisementsin isolation, and that the record as a whole demonstrates that appellant’s waiver was valid. Respondent’s position is incorrect. As a preliminary matter, respondent contendsthat appellant’s argument fails because these particular advisements are not required by Faretta (RB 55, citing People v. Koontz, supra, 27 Cal.4th at p. 1070), and the failure to inquire appellant’s awarenessofpotential defenses or the precise nature of the proceedings does not automatically invalidate a waiver (RB 55, citing People v. Blair (2005) 36 Cal.4th 686, 709, fn. 7, and People v. Lawley, supra, 27 Cal.4th at p. 142). However, while it is true that “[n]Jo particular form of wordsis required in admonishing a defendant” (People v. Kooniz, supra, 27 Cal.4th at p. 1070), it is not insignificant that this Court approved and summarized the Lopez guidelines from which these areas of inquiry were derived(id. at pp. 1070-1071). | Moreover, respondent unduly minimizes the significance of People v. Floyd (1970) 1 Cal.3d 694, 703 (cited at AOB 35, 38), a pre-Faretta case 10 in which this Court held that a knowing andintelligent waiver requires that the defendant “‘understand[] the nature of the offense, the available pleas and defenses and the possible punishments.” (RB 55.)* As one court has pointed out: Although only limited reliance may now be placed on pre-Faretta cases, these [Faretta] standards are notunlike those set forth in People v. Floyd (1970) 1 Cal.3d 694, 703 [83 Cal.Rptr. 608, 612, 464 P.2d 64, 68], wherein the court stated that “Although the defendant’s right to represent himself cannot be denied simply because he is unable to ‘demonstrate either the acumenorthe learning ofa skilled lawyer’ [citations], a defendant may waive counsel and chooseto represent himself only if the defendant has an intelligent conception of the consequencesofhisact[citation] and understandsthe nature of the offense, the available pleas and defenses, and the possible punishments [citation].” [Italics added,originalitalics omitted.] (Thomasv. Superior Court (1976) 54 Cal.App.3d 1054, 1058,fn. 4. * People v. Floyd, supra, 1 Cal.3d 694 wasoverruled on another ground in People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36. > Respondentpoints out that, contrary to appellant’s suggestion (AOB 34), the United States Supreme Court did not “hold” in Von Moltke v. Gillies (1948) 332 U.S. 708, 723-724 (plur. opn. of Black, J.), that a valid waiver must “be made with an apprehension ofthe nature of the charges, the statutory offenses included within them, the range of allowable punishments,possible defenses to the charges and circumstancesin mitigation thereof andall other facts essential to a broad consideration of the whole matter.” (RB 55-56, fn. 16.) Nevertheless, appellant’s larger point stands: the United States Supreme Court, in a post-Faretta decision, referred to Von Moltke v. Gillies in support of its statement that “we have imposed the mostrigorousrestrictions on the information that must be conveyedto a defendant, and the procedures that mustbe observed, before permitting him to waivehis right to counselat trial.” (Patterson v.Illinois, supra, 487 U.S.at p. 298.) 11 Turning to the adequacy of Judge Ransom’s Faretta advisements,a close reading of the record demonstrates that he failed to address some of the crucial advisements identified in People v. Lopez, supra, 71 Cal.App.3d at pp. 572-574. (See People v. Burdine, supra, 99 Cal.App.3d at p. 447.) First, Judge Ransom failed to adequately inform appellant with respect to “the dangers and disadvantagesofself-representation.” (People v. Koontz, supra, 27 Cal.4th at p. 1070; People v. Lopez, supra, 71 Cal.App.3d at pp. 572.) In particular, Judge Ransom failed to advise appellant that he would receive no morelibrary privileges than those available to any other pro per defendant, that he would receive no extra time for preparation, and that there would be limitations on his access to investigators. (See People v. Lopez, supra, 71 Cal.App.3d at p. 573.) There can be no question that legal research (and therefore accessto the law library) and investigative resourcesare crucial to a legal defense. (See People v. Blair, supra, 36 Cal.4th at p. 733 [a defendant’s federal and state constitutional rights to self-representation include the rightto all reasonably necessary meansofpresenting a defense; “[t]hus, ‘a defendant whois representing himself or herself may not be placedin the position of presenting a defense without accessto a telephone, law library, runner, investigator, advisory counsel, or any other means of developing a defense.’ [Citation.]”]; People v. Corona (1978) 80 Cal.App.3d 684, 705 [important decisions to withdraw crucial defenses, or to waive the assertion of clear legal rights, will render representation inadequate if made without the benefit of necessary factual and legal research].) Therefore, because the trial court failed to advise appellant with respect to law library privileges and accessto investigators, it cannot be said that he was adequately advised 12 of the disadvantagesof self-representation.° Second, Judge Ransom failed to sufficiently inquire into appellant’s intellectual capacity to makethis so-called “intelligent decision.” (People v. Lopez, supra, 71 Cal.App.3d at p. 573.) For instance, he failed to probe appellant’s familiarity with legal procedures. Further, although Judge Ransom notedthat appellant was facing the death penalty, he failed to probe the nature of the proceedings, possible defenses, and the fact that he wasfacing not only a death sentence, but a sentenceoflife imprisonment withoutparole. Even more remarkable, the trial court failed to explore appellant’s mental capacity (ibid.), although gunshot woundssustained by appellant prior to his arrest had left him severely incapacitated,at least at the time of hisJanuary 11, 2000, arraignment.’ Appellant’s participation in subsequent ° Respondent claimsthat appellant was given a form which explained his library privileges as a self-represented inmate. (RB 53,citing 1 CT 185 [“ORDER: COUNTY JAIL INMATEPRO PER STATUSand PRIVILEGES”].) In fact, that form wasan order signed by Judge Ransom and directed to the sheriff of Sacramento County. Nothing inthe record indicates that appellant ever saw the form, let alone that he was aware ofall the advisements contained therein. ” Appellant’s arraignment, which took place in the intensive care unit of the Sacramento Medical Center (1 RTL 1, 3), commencedas follows: [Court]: David Scott Daniels. Mr. Daniels, I’m Judge Michael G. Virga of the Sacramento Superior Court. We’re convening court proceedingsat this time. I’m going to be asking you some questionsat this time. Can you understand meat this time, Mr. Daniels? If you could indicate by putting forward onefinger ifyou can hear me. Okay. There’s no response from Mr. Daniels. Mr. Daniels[,] can you hear me? If you can, nod your head if you can hear meatthis time. I see no response from Mr. (continued...) 13 proceedings was minimal — mostly confined to brief, one-word, responses — and the record on appeal shedslittle light on his mental capacity on those occasions. (1 RTL 17 [during March 3, 2000, arraignment, appellant was silent except to respond “Yes” when the court asked whether he waived time for his preliminary hearing]; 1 RTL 37-38 [during proceedings of May 24, 2000, appellant refused to waive time for the preliminary hearing]; 1 RTL 40-41 [during proceedings of May 31, 2000, appellant joined in withdrawinghis not guilty plea, and waived time for his preliminary hearing]; 1 RTL 43 [during proceedings of June 14, 2000, appellant waived 7(...continued) Danielsat this time. (1 RTL 1-2.) A nurse asked appellant to respond to the court’s questions by nodding his head, then stated that he had noddedhis head slightly. She then asked appellant to hold up two fingers to show that he could hearher, but he did not respond. According to the nurse, for the most part of today he has been communicating with me by noddinghis head yes or no. If I asked him to open his mouth, he has. This morning when I did my neuro assesments he held up two fingers, squeezed my hand, released. For the neuro surgeon whowasjust in here, he did the same thing,so. (1 RTL 2.) The prosecutor himself informed the court that appellant had been unconsciousuntil just days before the arraignment. (1 RTL 2-3.) Judge Virgalater stated that appellant had made eye contact with him, and also with other individuals in the room. (1 RTL 9.) The court granted defense counsel’s request that, in light of appellant’s incapacitated state, arraignment on additional charges be continued for eight weeks. (1 RTL 7- 9.) Even if this Court should find that appellant’s mental condition at the time of his arraignmentis irrelevant to whether his Faretta waiver was knowing,intelligent and voluntary, the same cannotbe said of his use of Neurontin, a medication he took to address nerve damagerelated to his injuries. (See Section C.2, post.) 14 time for further proceedings]; 1 RTL 44-45 [during proceedings of August 7, 2000, appellant stated that he wished to plead guilty]; 1 RTL 47 [during proceedings of August 18, 2000, appellant waived time for his preliminary hearing]; 2 RTL 405 [at the conclusion of his four-day preliminary hearing, appellant declined to reaffirm his not-guilty pleas, and insteadstated that he wished to enter a guilty plea, and that he agreed to take up the matter at a later time]; 1 RTS 11 [during proceedings of September 1, 2000, appellant stated that he could not afford to hire his own lawyer, asked to address the courtin private, and declined to waive time for the next proceeding].) Even if appellant “did not engage in incomprehensible outbursts and groundless diatribes” (RB 56), this history should have promptedthetrial court to inquire into appellant’s mental capacity. As such, respondentis incorrect in asserting that nothing occurred during the proceedings that would have caused concern about appellant’s competency. Respondent’s reliance upon People v. Teron (1979) 23 Cal.3d 103, 114, is misplaced. There, the defendant argued thatthe trial court should not have granted his Faretta motion without his having undergone a psychiatric evaluation. This Court rejected his argument, reasoning that neither defendant nor the public defender suggested any basis for a psychiatric examination, and the court’s interrogation of defendant revealed nothing suggestive of mentalillness. (Jbid.) In this case, on the other hand, Judge Ransom did not even inquire into appellant’s mental capacity. As respondentitself acknowledges, “if there is any question in the court’s mind,a rather careful inquiry into mental capacity should be made.” (RB 56, citing People v. Lopez, supra, 71 Cal.App.3d at p. 573.) Third, respondent’s assertion that “nothing suggested that appellant’s waiver was involuntary” (RB 57) should be given little weight. A valid 15 waiverofthe right to counsel requires a finding that the waiver is knowing and voluntary,i.e., the accused understandsthe significance and consequencesof the decision and makes it without coercion. (Godinez v. Moran,supra, 509 U.S.at pp. 400-401 & fn. 12; People v. Koontz, supra, 27 Cal.4th at pp. 1069-1070.) Yet, as respondent acknowledges (RB 57), Judge Ransom failed to inquire into whether appellant’s waiver was voluntary. Finally, respondentincorrectly dismisses appellant’s argumentthat Judge Ransom failed to determine whether he “truly desired” to represent himself (AOB 41-42). (RB 57-58.) According to respondent, “Judge Ransom askedthe precise question, and appellant responded that he wanted to represent himself. (IRTS 14-15.)” (RB 57.) However, the trial court’s cursory inquiry was unlikely to uncover appellant’s true desires. The court merely asked, “Do you wantto represent yourself?” (1 RTS 14.) After appellant answered,“Yes, I do,” the court did not inquire further, but simply stated that it was satisfied appellant was “doing this knowingly and intelligently,” and granted his motion. (1 RTS 15.) Tellingly, respondent ignores appellant’s position that it should have been apparentto thetrial courtthat his probable reason for waiving counsel was not an unequivocal desire to represent himself but an attempt to get around Penal Codesection 1018’slimit on his ability to plead guilty. (AOB 41-43.) Therefore, as appellant has pointed out (AOB 43), the record of Judge Ransom’sinquiry and advisements does not show a knowing, intelligent and voluntary waiverof the right to counsel. Moreover, as appellant demonstrates in his opening brief (AOB 43-48) andin the section below,the advisements given by Judge Long on January 5, 2001, did not cure the inadequacy of Judge Ransom’s advisements. 16 2. The January 5, 2001, Hearing In his opening brief, appellant argued that the record of the hearing before Judge Long on January 5, 2001, does not cure the inadequacy of Judge Ransom’s advisements, and raises further questions aboutthe validity of appellant’s waiver. In particular, appellant argued that Judge Longfailed to define “malice aforethought” or explain the difference between express and implied malice; failed to explain the first- and second-degree felony murder rules on which the prosecutor andthe courtrelied in finding appellant guilty of counts 12 and 21; failed to define attempted murder or explain the elements of premeditation and deliberation alleged in connection with Count 22; and, failed to discuss the possible defenses to murderor the lesser included offenses within the charged offenses. (AOB 43-48.) Invokingthe principle that “technical legal knowledge”is not relevant to an assessmentof whether a defendant made a knowing exercise of his or herright to self-representation (RB 58,citing Faretta v. California, supra, 422 U.S.at p. 836), respondent contends that Judge Long’s Faretta advisements were not deficient. (RB 58-61.) Respondent’sposition is incorrect. First, there is a crucial difference between trial court’s failure to inquire into matters which constitute thecore of a defendant’s case — such as the elements of the charged offenses and the lesser charges thereof,or the possible defenses against those charges — and technical matters such as __ evidentiary rules, e.g., “the various burdensofproof, the rules of evidence, or the fact that the pursuit of one avenue of defense might foreclose another.” (People v. Riggs (2008) 44 Cal.4th 248, 277; see also Faretta v. California, supra, 422 U.S. at pp. 835-836 [“We need make no assessment 17 of how well or poorly Faretta had mastered the intricacies of the hearsay tule and the California code provisions that govern challenges of potential jurors on voir dire. [Footnote omitted.]”].) Appellant does not argue that a defendant must “pass a ‘mini-bar examination’ in order to exhibit the requisite capacity to make a valid Faretta waiver” (People v. Joseph (1983) 34 Cal.3d 936, 943, cited at RB 58), but rather that, as suggested by the salutary Lopez advisements,the trial court should have inquired into matters such asthe nature of the proceedings, the possible outcome,possible defenses and possible punishments might be in order. (See People v. Lopez, supra, 71 Cal.App.3d at p. 573.) For this reason, respondent’s reliance upon People v. Riggs, supra, 44 Cal.4th at pp. 227-278, fn. 10, is misplaced. (RB 58-59.)° Second, contrary to respondent’s suggestion (RB 56, 57, 60), Judge Long’s Faretta advisement did not cure the inadequacy of Judge Ransom’s advisement. As noted above, Judge Longfailed to define “malice aforethought” or explain the difference between express and implied * In Riggs, this Court commentedthat “it is improper for a trial court to quiz a defendant on such topics [as “the various burdensofproof, the rules of evidence,or the fact that the pursuit of one avenue of defense might foreclose another’’] and then draw on the defendant’s lack of knowledge of the substantive law as a basis for denying the right to proceed without counsel.” (People v. Riggs, supra, 44 Cal.4th at pp. 227-278, fn. 10.) In supportof its comment, this Court cited People v. Windham (1977) 19 Cal.3d 121, 128, which in turn quoted Faretta v. California, supra, 422 USS. at p. 836 [“the defendant’s ‘technical legal knowledge’is irrelevant to the court’s assessment of the defendant’s knowing exercise of the right to defend himself”] (italics added).) Appellant respectfully submits that this Court’s reference to “knowledge of the substantive law” (as opposed to “technical legal knowledge”) in footnote 10 ofRiggs is unsupported by Faretta. 18 malice; failed to explain the first- and second-degree felony murderrules on which the prosecutor andthe courtrelied in finding appellant guilty of counts 12 and 21; failed to define attempted murder or explain the elements of premeditation and deliberation alleged in connection with Count 22; and, failed to discuss the possible defenses to murderorthe lesser included offenses within the charged offenses. (See AOB 43-48.) In addition, Judge Long,like Judge Ransom, failed to (1) advise appellant that he would receive no morelibrary privileges than those available to any other pro. per., that he would receive no extra time for preparation, and that there would be limitations on his access to investigators; and, (2) failed to probe appellant’s familiarity with legal procedures. (See People v. Lopez, supra, 71 Cal.App.3d at p. 573.) Judge Long’s advisementsimilarly failed to cure the inadequacy of Judge Ransom’sinquiry with respect to appellant’s mental capacity. Although Judge Long,unlike Judge Ransom,asked appellant questions about his mental condition (1 RTS 38-39), he nevertheless failed to conduct the “rather careful inquiry into that subject” required in this case. (See People v. Lopez, supra, 71 Cal.App.3d at p. 573.) In particular, Judge Long failed to adequately follow up on appellant’s statement that he was taking Neurontin (1 RTS 39), a drug whoseside effects may include dizziness, somnolence, abnormal thinking, and amnesia (Physician’s Desk Reference (61* ed. 2007) p. 2490). As such, Judge Long should not have ended the inquiry at appellant’s statement that the medication wasnotinterfering with his choice to represent himself (1 RTS 39), but instead should have ordered a psychiatric examination. (See People v. Lopez, supra, 71 Cal.App.3d atp. 573.) At a minimum,the court should have inquired into the effects of Neurontin before accepting appellant’s waiver; for example, the court could 19 have appointed an expert to report to the court with respect to the effects of that drug on a patient’s mental functioning. In the absence such an inquiry, there can be no assurancethat the drug wasnot, in fact, “clouding [appellant’s] mind.” (1 RTS 39.) Third, contrary to respondent’s suggestion (RB 60), the record does not indicate that appellant was aware of the possible defense or defensesin his case. Although appellant stated that he felt he could present a defense (1 RTS 42), he did not say, nor was he asked to explain, what that defense or defenses might be. Moreover, appellant’s letter to Nikki (ACT 852,cited at RB 60) does not show that appellant was awareof, or that he intendedto, presenta self-defense theory. Even if appellant heard defense counsel’s reference to self-defense during the preliminary hearing (1 RTL 400,cited at RB 60), it cannot be assumedthat he truly understood whether and how he might present such a defense were he to waivehis right to counsel. Respondent’s reliance upon Blair on this point is misplaced. (RB 60.) There, this Court stated in a footnote that the trial court’s failure to query the defendant concerning his understanding of potential defenses did not invalidate his waiver. (People v. Blair, supra, 36 Cal.4th at p. 709, fn. 7.) However, that case is readily distinguishable: in concluding that Blair understood the Faretta warnings given in his case, this Court acknowledged that he had “demonstrated considerable legal knowledge, and had represented himself at his previoustrial on the attempted murder charges involving the same underlying events.” (/d. at p. 709.) This circumstance alone readily distinguishes Blair from the instant case. Fourth, contrary to respondent’s position (RB 60-61), the record does not show that the Faretta advisements were adequate notwithstanding Judge Long’s failure to define “aggravation”or “mitigation,” or to explain 20 those concepts by providing examples from section 190.3. Respondent states that Judge Long told appellantthat the special circumstance allegations meant that he would proceedto a penalty phaseif found guilty (RB 60, citing 1 RTS 26, 40-41), a fact appellant himself acknowledged (AOB 45). But, tellingly, respondent does not address appellant’s argument that, because Judge Longfailed to define or explain the concepts of “aggravation” and “mitigation,” there is no showing that appellant understood whatthe assistance of counsel would meanat the penalty phase. (AOB 45-46.) Finally, respondent incorrectly contests appellant’s argumentthat Judge Long should have asked appellant to explain why he did not view self-representation as a disadvantage. (RB 61, citing AOB 46-47; see also 1 RTS 35.) Respondent suggests that appellant’s statement simply “repeats” whathe had previously indicated, i.e., that he had accepted responsibility for the charged offenses and knewthat death wasa potential punishment. (RB 61, citing ACT 805-815.) It does no such thing. Similarly, there is no basis for respondent’s pronouncementthat “appellant apparently viewed self-representation — i.e., being the ‘captain of the ship,’ as an advantage.” (RB 61.) The record simply does not establish why appellant wanted to waive counsel. (See AOB 45-46.) Moreover, respondent’s reliance upon People v. Bloom (1989) 48 Cal.3d 1194 is misplaced. (RB 61.) In particular, Bloom movedto represent himself after the jury returned guilt verdicts. (/d. at p. 1203.) Therefore, Bloom’s guilt phase did not raise the due processandreliability concerns implicated in this case (see AOB 39-49), where appellant’s failure to meaningfully participate in his own defense calls into question the reliability of the guilt verdicts and special circumstances. (See AOB 39- 21 49.) Even assuming, arguendo,that appellant preferred death to life in prison (see RB 57, 61), a death sentence rendered under these circumstancesis constitutionally unacceptable. For the foregoing reasons, the Faretta advisements given by Judge Long, even viewed in combination with those given by Judge Ransom, were constitutionally inadequate. Thus, the record does not demonstrate that appellant’s waiverofhis right to counsel was knowing, intelligent and | voluntary. D. The Invalid Waiver of Counsel Requires Reversal Appellant has adequately demonstrated that the trial court’s error requires that the judgmentbe reversedin its entirety. (AOB 47-49.) That discussion need notbe repeated here. Hf // 22 Il. APPELLANT’S WAIVER OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A JURY TRIAL ON THE MURDERAND RELATED CHARGES, SPECIAL CIRCUMSTANCES AND PENALTY WAS NOT A KNOWINGAND INTELLIGENT WAIVER A. Introduction In his opening brief, appellant argued that his waiverof his constitutional rights to a jury trial as to his guilt and the truth of the charged special circumstances wasneither knowingnor intelligent, as he was never informedof or waived the “essential element of unity in the verdict” (People v. Traugott (2010) 184 Cal.App.4th 492, 500) — that a jury ina felony case consists of 12 persons whose verdict must be unanimous — nor washe informed of the consequencesof his waiver. That error was structural, requiring automatic reversal of the entire judgment. Moreover, appellant’s waiverofhis rights to a jury trial on whether the death penalty should be imposed wasinvalid and independently requires that the death judgment imposedbythe court be set aside. (AOB 50-67.) Respondentcontends thatthe totality of the circumstances under which the expressjury trial waivers were made showsthat appellant entered knowing andintelligent waivers of the rights to have a jury decide the guilt and penalty phases. Respondent further contendsthat any errorin the admonitions given is harmless under any prejudice-based standard. (RB 63- 80.) Respondent’s contentions are incorrect. 23 B. Appellant’s Waiver of His Constitutional and Statutory Rights to a Jury Trial Was Not a Knowing and Intelligent Waiver Because It Was Not Made With a Full Awarenessof the Nature of the Rights Being Relinquished Acknowledging that Judge Long did nottell appellant that a jury consists of 12 persons who must reach a unanimousverdict, respondent contends nonetheless that appellant was aware ofthe nature ofa jury trial and the consequences of abandoningit because: (1) appellant was aware of the nature of a jury trial based on his experience of waiving that right when pleading guilty to prior offenses; (2) Judge Long explained tng! appellant could have a jury or the court decide guilt or innocence,the truth of the special circumstances, and the penalty, and appellant repeatedly stated that he understood and wished to proceed with a courttrial; (3) appellant had been represented by counsel prior to his waiverofhis rightto a jury trial, and respondent presumesthat counsel would have discussed with appellant the nature ofa jury trial; and, (4) appellant was informed of the consequencesofhis expressjury trial waiver,i.e., that the court would make the necessary findings. (RB 71-73.) Respondent’sposition is incorrect. First, respondentis incorrect in contending that appellant was aware of the essential elements of a jury trial based on the fact that, in prior cases, he had been advisedofhis right to have a jury of 12 people reach a unanimous decision. (RB 71, citing ACT 828-829, 840, 842.) Even assuming, arguendo,that appellant recalled the advisements he had received more than a decade earlier (ACT 826, 828-829 [reporter’s transcript of October 22, 1990, proceedings]; ACT 839-840, 842 [reporter’s transcript of March16, 1988, proceedings]), they were given in noncapital cases. 24 Therefore, it cannot be assumedthat he understood the consequencesof waivinghisrights to a jurytrial in this capital case, at least with respect to the special circumstance allegations and penalty. Second, Judge Long’s explanation that appellant could have a jury or the court decide guilt or innocence, the truth of the special circumstances, and penalty, told him just that: that he could have a jury or the court decide guilt or innocence, the truth of the special circumstances, and penalty. (Rb 72, citing 1 RTS 43-46, 88-89, & 2 RTS 315-317.) Similarly,it is immaterial that Judge Long “made clear that he would decide appellant’s fate if appellant waived theright to a jury trial.” (RB 73, citing 1 RTS 44- 45 & 2 RTS 315-317.) Judge Long’s statements did not inform appellant of the essential elementsofa jury trial: (1) the numberof jurors; (2) impartiality of the jurors; and, (3) unanimity of the verdict. (Cal. Const., art. 1, § 16; People v. Howard (1930) 211 Cal. 322, 324.) Judge Long apparently understood this was critical matter; as respondent concedes (RB 72), Judge Long mistakenly stated that “[w]e also talked about your right to a jury trial with members of these communities that would determine whether or not — the question of guilt or innocence” (1 RTS88). Perhaps Judge Longerroneously believed that he had addressed the elementsofa jury trial during their supposedtalk. Third, the fact that appellant had been represented by counselprior to his waiverofthe right to a jury trial does not undermine his claim. For instance, respondent’s reliance upon People v. Robertson (1989) 48 Cal.3d 18 is misplaced. (RB 72-73.) There, Robertson was represented by two counsel at the time of the waiver “who overthe course ofseveral days discussed with him ‘at length’ the consequences and nature of his proposed waiver.” (/d. at p. 36; italics added.) As such,it is reasonable to presume, 25 as this Court did, that Robertson’s counsel would have informed him ofthe effect of a jury deadlock, a subject which the trial court apparently failed to coverin its “extensive and thorough voir dire expressly directed to determining his waiver was knowing,intelligent and voluntary.” (/d. at pp. 36-37 & fn. 5.) It is also significant that Robertson’s counsel madeclear that, as a tactical matter, they had determinedthat it was to his advantage that he waivehisright to a jury trial and opt for a court trial instead. (dd.at p. 36 & fn. 4.) Respondent’s reliance upon People v. T:ijerina (1969) 1 Cal.3d 41 is similarly misplaced. As respondent acknowledges (RB 73), Tijerina was represented by an attorney at both the preliminary hearing andattrial, and he wascarefully questioned before his waiver of a jury trial was accepted. He stated that he knew whata jurytrial was, and he wasalsotold that “that is when twelve people sit over here in the box andhear all the evidence.” (Id. at pp. 45-46.) Under those circumstances, this Court held that the trial court’s failure to advise Tijerina that a jury’s verdict must be unanimousdid not render his waiver ineffective. (Id. at p. 46.) In the instant case, appellant did not have the benefit of an advisement by counsel, as he was representing himself at the time of his waiver. (See AOB 61-62.) Appellant acknowledgesthat, after he informed the trial court that he wished to plead guilty, and defense counsel confirmed that they wishedto enter not guilty pleas on his behalf, the trial court told appellant that he could “take that issue up with [his] counselat a later time.” (2 RTL 405.) But the record is silent as to whether defense counsel did confer with appellant regarding his request to plead guilty, let alone whether they explained the essential elements of a jurytrial or the consequences of non-unanimity. (See AOB 57-62.) Thus, respondent’s assertion that, “[n]o 26 doubt, competent counsel would have discussed with appellant the nature of a jury trial, including the unanimity requirement, when urging that a jury trial was more beneficial than a guilty plea” (RB 72-73), amounts to nothing more than merespeculation.’ Finally, respondent does not squarely address appellant’s argument that the waiver of a penalty phase jury wasalso invalid because he was never informed that a direct consequence of his waiver would be the loss of the right to an independenttrial court review of the penalty imposed by a jury (AOB66-67). (RB 73-74.) In particular, respondentrelies on People v. Robertson (1989) 48 Cal.3d 18, 38, where this Court rejected a similar argument, butfails to address appellant’s argumentthat that case is distinguishable because Robertson (unlike appellant) was represented at counselat the guilt phase, and therefore this Court could presume that Robertson’s counsel had informed him of the “consequencesand nature” of the penalty phase jury right (AOB 66-67). (RB 74.) For the same reason, respondent’s reliance upon People v. Deere (1985) 41 Cal.3d 353is misplaced. (RB 73-74.) The defendant in Deere, like the defendantin Robertson, was represented by counsel at the guilt phase and waived his right to a penalty phase jury. (People v. Deere, supra, 41 Cal.3d at pp. 357, 359-360.) Under these circumstances, it cannot be said that appellant’s waiverof a penalty phase jury was knowingandintelligent. * Of course, as appellant has pointed out (AOB 62),it is ultimately the court’s responsibility, not that of counsel or the defendant himself, to ensure that the record reflects that the waiver of a fundamental constitutional right is knowing andintelligent. (See, e.g., Boykin v. Alabama(1969) 395 U.S. 238, 244.) 27 C. The Denial of Appellant’s Rights to a Jury Trial WasStructural Error, Requiring Reversal of Appellant’s Conviction of the Murders, Special Circumstances and Related Felonies Tried By the Court Appellant has already demonstrated that (1) because his waiver of his rights to a jury trial was not knowing andintelligent, he was denied his fundamental constitutional right to a jury trial, and (2) that the denial of his rights to a jury trial was structural error, requiring reversal of his conviction of the murders, special circumstances andrelated felonies tried by the court. (AOB 63-64.) However, appellant here addresses respondent’s contention that the validity of his jury trial waiver should be determined by examining the totality of the circumstances under which it was made, and that, viewed in that light, any inadequacy in the admonitions was harmless. (RB 74-80.) Respondent’s analysis is fatally flawed for the following reasons. First, whether appellant’s waiver was “express” — as respondent repeatedly characterizes it (RB 63, 71, 73, 74, 79, 80) — is a separate question from whether it was knowing andintelligent. As appellant has pointed out (AOB 51): (1) a waiver of the rights to a jury trial under both the federal and state constitutions requires an express and personal waiver by the defendant (People v. Collins (2001) 26 Cal.4th 297, 304-305 & fn. 2 [express waiver in open court required under both state and federal law]; Calif. Const., art. 1, § 16; Patton v. United States (1930) 281 U.S. 276, 308-312 [express personal waiver required under federal Constitution]; see also Fed. Rules of Crim. Proc. Rule 23 [express, written waiver required underfederal rules]); and, (2) a waiver ofthe right to a jury trial must be voluntary, knowing,andintelligent, “‘made with a full awareness both of the nature of the right being abandoned and the consequencesofthe 28 decision to abandonit’” (People v. Collins, supra, 26 Cal.4th at p. 305, citing Colorado v. Spring (1987) 479 U.S. 564, 573; McCarthy v. United States (1969) 394 U.S. 459, 465-466; Johnsonv. Zerbst (1938) 304 U.S. 458, 464; Patton v. United States, supra, 281 U.S. 276, 308-312). Second, contrary to respondent’s assertion (RB 74-75), this Court has madeclear that an invalid waiver, even an expressone,is structural error. (People v. Collins, supra, 26 Cal.4th at pp. 311-312.) Although Collins was fully advised ofthe of the “nature of the rightto trial by jury,” includingthat “all 12 jurors would haveto agree to the verdict”(id. at pp. 301, 311), this Court held that a waiver of a jury trial obtainedbya trial court’s assurance of an unspecified benefit was involuntary and therefore invalid. (Id. at pp. 311-312.) In reaching this conclusion,this Court refused to engagein the “totality of circumstances” analysis employed by the Court of Appeal, and endorsed by Justice Brownin her concurrence. (Id. at pp. 304, 314.) This Court further held that “a harmless error standard does not, and cannot, applyin the [] case.” (Id. at p. 311; see also People v. Ernst (1994) 8 Cal.4th 441, 448-449[trial of the chargesto the court, without an express waiver by defendantofhis right to have the casetried to a jury, denied him his right to a jury trial, requiring reversalof the judgment].) Significantly, respondent offers no reason, other than the reasoning of Justice Brown whichthis Court has alreadyrejected, to overrule Collins. Third, respondentallowsthat “an express jury trial waiver involuntarily obtained is reversible per se” (RB 74, citing People v. Collins, supra, 26 Cal.4th at pp. 310-312), and acknowledgesthat the denial of the right to a jury trial constitutes a structural defect (RB 74, citing Peoplev. Ernst, supra, 8 Cal.4th at pp. 448-449), but its attemptto distinguish the 29 instant case from Collins and Ernstfalls short. (RB 74-80.) All three cases involve invalid waivers, albeit for different reasons: Collins’ waiver was involuntary; Ernst did not expressly waivehis right to a jury trial; and, as explained in appellant’s opening brief and the precedingsections, appellant’s waiver was not knowingandintelligent. The basis of the invalidity is irrelevant to assessing prejudice. Where a defendant’s waiver of the jurytrial is invalid, he or she has been denied the constitutional rights to a jurytrial, and the error is reversible per se under both the state and federal Constitutions. (People v. Collins, supra, 26 Cal.4th at p. 310-311, and casescited therein.) Fourth, respondent has erroneously conflated the question of whether the waiver was valid — i.e., whether there was error — and thetest for assessing prejudice if the waiver was invalid. That is, respondent suggests that this Court examinethe totality of the circumstances in determining whether there was any inadequacyin thetrial court’s admonitions, and, if there was, whether that inadequacy was harmless. (RB 74-80.) Respondent’s position reflects a misunderstandingofthe totality-of-the- circumstancestest.’° Respondent’s reliance upon Justice Brown’s concurring opinion in People v. Collins, supra, 26 Cal.4th at pp. 313-314 is misplaced. (RB 78.) Although Justice Brown indicated that she would have evaluatedthe validity of the jury trial waiver in that case underthe totality-of-the- circumstancestest (id. at p. 313), she did not suggestthat the test had any '° In Ernst, this Court specifically rejected the People’s suggestion that it apply a totality-of-the-circumstancestest in that case and find, under that test, that the defendant validly waived hisrightto a jury trial despite his failure to do so expressly. (People v. Ernst, supra, 8 Cal.4th at p. 448.) 30 bearing on the issue of prejudice. Indeed, she stated that, “once we determine the jury waiver wasnot valid under the totality of circumstances, then the question becomesthe effect of the absenceof a valid waiver. I agree thetrial court was not authorized to proceedin the absenceof a valid waiver, and hence we must reverse.” (Id. at p. 314.) Thus, for the reasonsset forth in appellant’s opening brief and in the instantbrief, the death judgment mustbe reversed. Hf H/ 31 III. ALLOWING APPELLANT TO REPRESENT HIMSELF, WAIVE JURY TRIAL AND NOT CHALLENGE THE PROSECUTION’S EVIDENCEIN ANY WAY WAS TANTAMOUNT TO PLEADING GUILTY, IN VIOLATION OF PENAL CODE SECTION 1018 AND THE EIGHTH AND FOURTEENTH AMENDMENTS A. Introduction In his openingbrief, appellant argued that, by waiving counsel and his right to a jury trial on guilt and penalty, by not presenting any evidence or argumentin his behalf or cross-examining any witness, he was allowed to do what Penal Codesection 1018 prohibits for defendants charged with capital offenses — pleading guilty without the consent of counsel. Appellant further argued that, because his convictions were obtained in violation of section 1018, the murder convictions and special circumstance findings, as well as the death judgments predicated on those convictions, must be reversed. Finally, appellant also argued that reversal is required because the proceedings below, which were tantamountto a slow plea, undermined the reliability of appellant’s convictions and the death judgment,in violation of the Eighth and Fourteenth Amendments to the United States Constitution. (AOB 68-87.) Respondentcontendsthat even if Penal Code section 1018is - applicable to defendants who discharge counsel and proceed with self- representation, appellant’s conduct wasnot tantamountto a guilty plea because he did not surrenderany rights in consequence of a stipulation or negotiated disposition. Moreover, respondent contends, thereliability required by the Eighth and Fourteenth Amendments wasattained because the judgment was entered in conformity with the rigorous standards of 32 California’s death penalty law. (RB 80-96.) Respondent’s contentions are incorrect. B. Appellant’s Actions Were Tantamountto Guilty Pleas to Capital Murder Without the Consent of Counsel in Violation of Penal Code Section 1018 1. Penal CodeSection 1018 Precludes a Capital Defendant From Discharging Counsel, Representing Himself, and Entering a Guilty Plea In his opening brief, appellant argued that Penal Code section 1018 precludesa trial court from accepting a plea of guilty to a capital crime from a defendant who has waived counsel. (AOB72-78.) Respondentcontendsthat this Court has never squarely confronted the issue of whether a defendant in a capital case may discharge counsel, engage in self-representation, and enter a guilty plea. (RB 85,citing People v. Chadd (1981) 28 Cal.3d 739, 746-747, and People v. Alfaro (2007) 41 Cal.4th 1277, 1299, fn. 4.) However, relying in part on those cases, this Court recently reaffirmedthat: a plea of guilty to a capital felony may not be taken except in the presence of counsel, and with counsel’s consent. (§ 1018.) Even if otherwise competentto exercise the constitutional right to self-representation (Farettav. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562), a defendant may not discharge his lawyer in order to enter such a plea over counsel’s objection. (E.g., Peoplev. Chadd [supra, 28 Cal.3d at pp. 747-757]; see People v. Alfaro [supra, 41 Cal.4th at pp. 1299-1302].) (People v. Hung Thanh Mai (2013) 57 Cal.4th 986, 1055.)"! 1! Mai’s counsel, unlike defense counsel in this case, consented to a “slow plea” on the issues of guilt and special circumstances. (Peoplev. (continued...) 33 This Court has identified strong reasons whyallowinga capital defendant to discharge his lawyerin order to plead guilty over his lawyer’s objection would be improper. Amongotherthings, this Court observed that “it is difficult to conceive of a plainer statement of law than the rule of section 1018 that no guilty plea to a capital offense shall be received ‘without the consent of the defendant’s counsel.’” (People v. Chadd, supra, 28 Cal.3d at p.746, quoting Solberg v. Superior Court (1977) 19 Cal.3d 182, 198 [“When statutory languageis thus clear and unambiguousthereis no need for construction, and courts should not indulgein it”].) In addition, this Court pointed out that the Attorney General’s suggestion that section 1018 could beinterpreted to read that a capital defendantcould fire his attorney, represent himself, and plead guilty would “obliterate” section 1018’s careful distinction between capital and non-capital defendants, and concludedthat “[s]uch a construction would be manifestly improper.” (/d. at p. 747.) In this regard, appellant again points out that, in enacting section 1018, the Legislature included the requirement of counsel’s consent to “eliminate arbitrariness” and “serve as a further independent safeguard against erroneous imposition of the death penalty.” (People v. Chadd, supra, 28 Cal.3d at p. 750.) 2. Appellant’s Actions and Inaction in the Trial Court Were Tantamountto a Guilty Plea, in Violation of Section 1018 In his opening brief, appellant argued that, given his counsel’s refusal to allow him to plead guilty, he waived counsel andasserted his right of self-representation. When, despite his waiver of counsel, the trial (,..continued) Hung Thanh Mai, supra, 57 Cal.4th at p. 1055.) 34 courtstill refused to allow him to plead guilty to the capital charges, he requested a courttrial and then did nothing at all. He did not cross-examine the prosecution witnesses, did not raise any objections to their testimony, and did not present any witnesses or evidence or make any argumentin defense or in mitigation. In short, the court trial was nothing more thana slow plea of guilty, in violation of Penal Code section 1018. (AOB 78-84.) Respondent, however, contendsthat application of section 1018is not relevantin this matter because appellant did not engage in conduct tantamount to a guilty plea. (RB 86-93.) Thatis, the case did not involve an “agreed-upon disposition,”“a finding of guilt on an anticipated charge,” or a “promised punishment.” (RB 89, citing People v. Tran (1984) 152 Cal.App.3d 680, 683, fn. 2.) Moreover, because appellant did not surrenderany constitutional rights in consequence of any negotiated agreement, his conduct was not“a bargained-for submission” on the transcripts from prior proceedings constituting a slow plea or conduct tantamountto a guilty plea. (RB 90,citing People v. Wright (1987) 43 Cal.3d 487, 496.) Respondent’s contentionsare incorrect. A “slow plea” or conduct tantamountto a guilty plea “‘is an agreed- upon disposition of a criminal case via any one of a numberof contrived procedures which doesnotrequire the defendantto admit guilt but results in a finding of guilt on an anticipated charge and, usually, for a promised punishment.” (People v. Wright, supra, 43 Cal.3d at p. 496, quoting 2 To be precise, the Tran court defined a “slow plea”as “an agreed-upon disposition of a criminal case via any one of a numberof contrived procedures which does not require the defendant to admitguilt but results in a finding ofguilt on an anticipated charge and, usually, for a promisedpunishment.” (People v. Tran, supra, 152 Cal.App.3dat p. 683, fn. 2; italics added.) 35 People v. Tran, supra, 152 Cal.App.3d at p. 683, fn. 2; italics added.) This Court has explainedthat: Underthe rule of Boykin v. Alabama [(1969) 395 U.S. 238], and In re Tahl [(1969) 1 Cal.3d 122], as extended in Bunnell v. Superior Court (1975) 13 Cal.3d 592 [119 Cal.Rptr. 302, 531 P.2d 1086] and othercases, “when the defendant agrees to a submission procedure, such as a guilty plea or a submission on the preliminary hearing transcript, by virtue of which he surrenders one or more ofthe three specified rights [jury trial, confrontation and privilege against self-incrimination]” (People v. Hendricks [(1987) 43 Cal.3d 584, 592]), the record mustreflect that he was advised of and personally waived the applicable right or rights. (Bunnell [v. . Superior Court (1975) 13 Cal.3d 592, 605].) When the submission is a guilty plea or “tantamountto a plea of guilty” (In re Mosley (1970) 1 Cal.3d 913, 924 [83 Cal.Rptr. 809, 464 P.2d 473]) the Boykin-Tahl requirements are constitutionally compelled. (Id. at p. 926, fn. 10; see People v. Levey (1973) 8 Cal.3d 648, 652 [105 Cal.Rptr. 516, 504 P.2d 452].) When, however, the submissionis in fact not tantamountto a guilty plea — when “it appears on the wholethat the defendant advanceda substantial defense” (People v. Wright (1987) 43 Cal.3d 487, 497 [233 Cal.Rptr. 69, 729 P.2d 260]) — the Boykin-Tahl advisements and waiversare not constitutionally compelled, but are required only as a matter of judicial policy. (Ibid.; see People v. Hendricks, supra, 43 Cal.3d at p. 592; cf. People v. Gray (1982) 135 Cal.App.3d 859, 869 [185 Cal.Rptr. 772] [hybrid proceeding].) (People v. Robertson (1989) 48 Cal.3d 18, 39.) Although this Court has explained that “[i]f it appears on the whole that the defendant advanced a substantial defense, the submission cannot be considered to be tantamount to a plea of guilty” (People v. Wright, supra, 43 Cal.3d at p. 497; see also People v. Robertson, supra, 48 Cal.3d 18, 39), it has also madeclear that “a submission that did not appear to be a slow plea because the defendant 36 reserved the right to testify and call witnesses or to argue the sufficiency of the evidence [citation] may turn out to be a slow plea if the defense presented no evidence or argument contesting guilt.” (Peoplev. Wright, supra, 43 Cal.3d at p. 497.) Asnoted above, respondent contends that appellant did not enter a slow plea or engage in conduct tantamountto a guilty plea because: (1) the case did not involve an “agreed-upon disposition,” “a finding of guilt on an anticipated charge,” or a “promised punishment”(RB 89,citing People v. Tran supra, 152 Cal.App.3d at p. fn. 2); and, (2) appellant did not enter a slow plea or engage in conduct tantamountto a guilty plea because he did not surrenderany constitutional rights in consequence of any negotiated agreement, and therefore his conduct was not “a bargained-for submission” on the transcripts from prior proceedings constituting a slow plea or conduct tantamountto a guilty plea (RB 90,citing People v. Wright, supra, 43 Cal.3d at p. 496). However, appellant already has demonstrated that, even if he did not formally enter a slow plea, his actions andinaction in the trial court were tantamountto a guilty plea. (AOB 78-84.) It was clear even before the court trial began whatappellant intended to do. For instance, he had attempted to plead guilty several timesearlier in the proceedings and attempted to do so again before Judge Long. (1 RTS 48.) Before appellant waivedjury, the court had been informed by the prosecutorthat he contemplated doing so. (1 CT 255.) In agreeing to the courttrial, appellant did not reserve the right to present witnesses or any other evidence, declined the court’s offer to appoint an investigator or advisory counsel (1 RTS 47- 78), and did not request time to prepare for the guilt trial, which was scheduled to begin just ten days later. (1 RTS 78.) The court knew that 37 appellantdid not have discovery or any other materials with him in court, and whenit inquired, appellant said he did not want to bring them. (1 RTS 62-63.) Appellant’s failure to participate in his trial further demonstrated that his intent wasto plead guilty. He did not contest the facts or law in any way. He did not cross-examine any of the prosecution witnesses, nor did he present any witnesses, any evidence or any argument. Therefore, contrary to respondent’s position, appellant did not “defend himself by nonparticipation.” (RB 90.) He did not defend himself at all. Moreover, because appellant did not defend himself, he effectively surrendered his constitutional rights to, at the very least, jury trial and confrontation. Under these circumstances, the court knew or reasonably should have knownthat it was almostcertain to reach verdicts of guilt and findingsof true as to the special circumstance allegations, notwithstanding the prosecution’s burden of proving appellant’s guilt beyond a reasonable doubt. Similarly, after the court read its verdicts and special circumstance findings, appellant again waivedhisright to counselandto a jury trial for the penalty phase, anddeclined the district attorney’s offer of assistance in bringing witnesses to court. (2 RTS 315, 317.) Therefore,the trial court knew or should have knownthat it was very likely to reach a death verdict, andto this extent the case involved what amounted to a “promised punishment.” The cases cited by respondentstand in stark contrast to the instant case because they involved sufficiently “substantial” defenses that they did not involve submissionsor the surrenderof constitutional rights. For instance, in People v. Hendricks (1987) 43 Cal.3d 584, 592 (cited at RB 86- 87), this Court rejected the defendant’s claim that the defense presented on 38 his behalf amounted to no defense atall and was therefore tantamountto a guilty plea, and hence that the court should have obtained from him a Boykin-Tahl waiver. \n reaching its holding, this Court pointed outthat, among other things: the defendant was deemed to have been informed of his rights by counsel; the case wastried to a jury, prosecution witnesses were cross-examined; and, the defendant declared on the recordthat he had several discussions about the conductofthe trial with counsel and expressly stated his agreementthat he shouldnottestify, that no other witnesses should take the stand, and that closing argument should not be presented. (Ibid.) In sum,the case did not involve a submission by virtue of which defendant had surrenderedhis rights. (/d. at pp. 592-593.) In People v. Murphy (1972) 8 Cal.3d 349, 365-366 (cited at RB 87), this Court rejected the defendant’s argumentthatif defense counsel’s strategy was to present a “minimal defense”to gain the sympathyofthe jury, it was tantamountto a plea of guilty, and that the trial judge therefore wasrequired to obtain from him a waiverof his rights in accordance with In re Tahl, supra, 1 Cal.3d 122. In so doing, this Court pointed outthat such a waiver was not required because the defendant, through counsel, exercised his right of confrontation by cross-examining prosecution witnesses, and took advantageofhis right againstself-incrimination by not taking the ‘witness stand. (Id. at p. 366.) Moreover, this Court concluded thatthe evidence presented by defense counsel could be described as “minimal” not because of counsel’s incompetence, but was instead the concomitant of being faced with compelling evidenceofthe defendant’s guilt and the possibility that any additional evidence would further weakenhis case; in short, the record clearly indicated that the decision not to presentadditional evidence wastactical. (Id. at p. 367 & fn. 16.) 39 In People v. Griffin (1988) 46 Cal.3d 1011, 1029 (cited at RB 87), this Court rejected the defendant’s contention that his murder conviction mustbe reversed becausethe trial court permitted defense counsel to enter whatwas tantamountto a guilty plea without obtaining a Boykin-Tahl waiverof the constitutional rights he was giving up. In reaching its holding, this Court reasoned that the defendant had not surrendered his rights since he had a jurytrial with the opportunity to cross-examine,call witnesses, andtestify, counsel presumably advised the defendantof his rights, and there wasnoindication that the defendant disagreed with his attorney’s tactical approach. (/bid.) In this regard, appellant further notes that the defense in Griffin employed forensic experts, moved to suppress forensic evidence, and movedto exclude photographic evidence. (/d. at pp. 1019-1020, 1023, 1028.) | In People v. Memro (1995) 11 Cal.4th 786, 857-858(cited at RB 87), this Court rejected the defendant’s claim that counsel implicitly entered a plea of guilty to the murder of Carl Carter, Jr. (one of three murder victims in the case) when they concededat closing argumentthat he killed him. This Court concluded that defense counsel had simply concededthe obvious,i.e., that the defendant had killed Carter, which was a reasonable tactical decision for the following reasons: the defendant’s confession would have made any argumentthat he did not kill Carter wholly unpersuasive, and counsel were wise to maintain credibility with the jury by acknowledging the obvious. (Id. at p. 858.) In addition, appellant observes that the defendant presented a defense at both the guilt and penalty phases of his trial: during the guilt phase, an alibi defense was presentedasto the other two murders, and although counsel conceded that the defendantkilled Carter, he argued that the killing did not amountto first degree murder; 40 during the penalty phase, defense counsel summoneda witness, the defendant’s sister, and, at closing argument, emphasized his mental problems, his cooperation with the police,lingering doubt regarding the special circumstance in light of his alibi defense, the grimnessoflife imprisonment, his lack of a prior felony conviction, the likelihood that he would not be dangerousin prison, and positive aspects of his background and character, including his remorse when he wasdiscovered. (Id.at pp. 815-817.) In People v. Cook (2006) 39 Cal.4th 566 (cited at RB 87),this Court rejected the defendant’s argument that when his counsel in opening argument concededthat the defendant had confessed to killing victim Bettancourt(one of three murder victimsin the case), counseleffectively pleaded him guilty to that murder, even thoughhe received no formal admonitions and gave no express personal Boykin-Tahl waiver. (People v. Cook, supra, 39 Cal.4th at pp. 573, 590.) This Court reasonedthat the defendant waspresentat jury selection, during argumentonpretrial motions, and whenthe prosecution stipulated that it would not seek to admit into evidence his unwarned confessionto killing a second victim, Sadler. Therefore, the defendant knew before defense counsel’s opening statement that he was about to have a jury trial at which he would be represented by counsel and would not haveto testify. The defendant then exercised each of the three constitutional rights at his trial, where he argued thathis killing of Bettancourt was at most second degree murder, or possibly not murder but involuntary manslaughter. (/d. at pp. 590-591.) Appellant further notes that, although the defense concededthat the defendant had shot Bettancourt, the defense focused on the similarity of the witnesses’ statements as evidence they had been coachedbythepolice. 41 Moreover, Teresa Beasley, who had given a statementin June 1992 identifying the defendant as the shooter, testified that her statement had been coerced and reflected what the police wanted her to say. Finally, in an effort to establish that the killing was at most second degree murder, the defense presented expert testimony by a private criminalist and a psychiatrist with expertise in the effects of alcohol and drugs. (People v. Cook, supra, 39 Cal.4th at p. 577.) Respondent’s reliance on cases applying the requirements ofBoykin- Tahlto a penalty phase tried withouta jury is similarly misplaced. (RB 87- 89.) For instance, in People v. Robertson, supra, 48 Cal.3d at p. 28, the defendant was found guilty of two special-circumstance murders and the penalty wasfixed at death. On appeal, this Court reversed the penalty judgment. ([bid.) Onretrial, the defendant waivedjury trial and defense counsel stipulated that the court could read and consider the former testimony of 21 specified witnesses relating to the circumstancesof the crimes, the backgroundto his statementsto the police, the special hearing on the admissibility of his confession, andhisfirst trial. (/d. at pp. 38-39.) The parties called three of those witnesses, as well as 20 additional witnesses. (Id.at p. 39.) On appeal from the penalty-phaseretrial, this Court rejected the defendant’s contention that the trial court erred in failing to advise him and obtain Boykin-Tahl waivers. (People v. Robertson, supra, 48 Cal.3datp. - 39.) In rejecting the defendant’s argument, this Court stated that he had no constitutional right at the penalty phase to a jury trial. (Id. at p. 40.) This Court observed that his waiverofhis statutory rightto a jury trial was not a consequenceofhis stipulation to admission of the witnesses’ former testimony, but preceded it. bid.) Finally, this Court concludedthat 42 counsel’s conduct was not tantamountto a guilty plea requiring a Boykin- Tahl waiver because the defendant had the opportunity in the prior proceedings to confront and cross-examine the witnesses whose former testimony was admitted and he exercised that right. Moreover, he preserved the opportunity — by reserving the right to call the witnesses — in the penalty trial. Under those circumstances, counsel’s choice ultimately to exercise Robertson’s right of confrontation in only a limited manner wasnot a “submission,” but rather a tactical decision. (Jbid.) In short, defense counsel “offered a complete and skillful defense.” (Id. at p. 40.) Finally, in People v. Sanders (1990) 51 Cal.3d 471, 527 (cited at RB 88-89), this Court rejected the defendant’s argument that “his decision to forgo presentation of evidence at the penalty phaseof his trial was tantamountto a guilty plea without the consent of his counselin violation of section 1018.” This Court explained that it found the defendant’s premise faulty: his decision to refrain from offering evidence is not tantamountto a guilty plea and is thus not governed by section 1018. His choice did not amountto an admissionthat he believed death was the appropriate penalty, nor did he give up his right to confrontor cross-examinethose testifying against him at the penalty phase. (Cf. Boykin v. Alabama (1969) 395 U.S. 238, 243 [23 L.Ed.2d 274, 279, 89 S.Ct. 1709}; In re Tahl (1969) 1 Cal.3d 122, 130-133 [81 Cal.Rptr. 577, 460 P.2d 449].) Moreover, his decision refusing to take part in the penalty phase did notnecessarily make it any more likely that his jury would find death was the appropriate penalty. The jury could, for example, have found mitigating factors from evidence presentedat the guilt phase. [Footnote omitted.] We conclude the scope ofsection 1018 is not so broad as to embrace defendant’s decision of nonparticipation in the penalty phaseofhistrial. 43 (Id. at p. 527.) Respondentalso takes issue with appellant’s argumentthat: (1) the trial court should have inquired into appellant’s intentions before commencingthetrial to determine if he was attempting to effectively plead guilty; and, (2) that if the parties had confirmed that the courttrial was tantamountto a guilty plea to capital murder, the court could have averted error by refusing to accept the jury waiver. (RB 90-91; see also AOB 81- 84.) According to respondent, the trial court had no authority to overrule the consentof the parties to waivetrial by jury. (RB 90,citing People v. Terry (1970) 2 Cal.3d 362, 378, overruled on another ground in Peoplev. Carpenter (1997) 15 Cal.4th 312, 381-382.) Citing People v. Scott (1997) 15 Cal.4th 1188, 1209, respondent further asserts that once a defendant has knowingly and voluntarily waived jury trial, and both parties have consented, the court must accept the waiver. (RB 90.) However, the portion of the Terry opinion cited by respondentis inapplicable to this case becauseit relates to not to Terry himself, butto his co-defendant, a juvenile who wasineligible for the death penalty. (People v. Terry, supra, 2 Cal.3d at p. 378; see also Pen. Code, § 190.1; In re Colar (1970) 9 Cal.App.3d 613, 616.) The trial court in Terry could not have run afoul of section 1018 in that case, as the pertinent language of that provision — namely, the requirement that defense counsel consent to any plea of guilty (Pen. Code, § 1018) — did not apply to Terry’s co-defendant. Similarly, Scott is distinguishable in that the defendant wasnot only represented by counsel, but both he and defense counsel agreed that the '3 During the guilt phase, the defense presented evidence in support of an alibi defense. (People v. Sanders, supra, 51 Cal.3d at p. 488.) 44 waiver wasin his best interests “in terms oftrial tactics.” (People v. Scott, supra, 15 Cal.4th at p. 1208.) Therefore, respondenthasfailed to adequately address appellant’s argumentthat the constitutional and policy interests reflected in section 1018 were not served by the truncated, non-adversarial proceedings in this case. (AOB 83-84.) Respondentis also incorrect in dismissing appellant’s argumentthat, before commencingthetrial, the court could have reappointed counsel to consult with and advise him about how to proceed. (RB 91-93; see also AOB81-82.) Appellant has demonstrated at length that a defendant’sright to self-representation is not absolute, and that, under the circumstances present in this case, the trial court had the authority and duty tointerfere. (AOB 82-84; see also ArgumentI, incorporated by reference as if fully set forth herein.) Respondent implicitly acknowledges as much. (RB 93,citing People v. Stansbury (1993) 4 Cal.4th 1017, 1041-1047.) Respondent’s reliance upon People v. Teron (1979) 23 Cal.3d 103, overruled on another ground in People v. Chadd (1981) 28 Cal.3d 739, 750, fn. 7, is misplaced. (RB 92.) There, the defendant represented himself but questioned no witnesses and presented neither evidence nor argument onhis ownbehalf. (/d. at p. 108.) On appeal, the defendant contendedthat the trial court erred in permitting him to represent himself. (/d. at p. 112.) In rejecting his claim, this Court stated that a defendant “bears no duty to present a defense.” (/d. at p. 115.) This Court further stated that, “having put the state to its proof, [the defendant] has no obligation to try to rebutit.” (Ibid.) However, Teronis inapposite becauseit did not address the argumentraised here: that the defendant’s action and inaction in the case wastantamountto a guilty plea, in violation of Penal Code section 1018. It 45 is axiomatic, of course, that cases are not authority for propositions not considered therein. (See, e.g., People v. Gilbert (1969) 1 Cal.3d 475, 482, fn. 7) In addition, Teron was overruled insofaras it stated that a capital defendant“has the right to plead guilty, even against the advice of counsel.” (People v. Chadd, supra, 28 Cal.3d at p. 750.) In light of the circumstances described above andin appellant’s opening brief, respondent’s contention that appellant was properly exercising his right to force the state to its proof must be rejected. (RB 92- 93.) To pretend otherwise would require, as appellant has pointed out (AOB 71), that this Court elevate form over substance in a mannerthat cannot be countenanced by section 1018 and this Court’s interpretation of it. C. A Death Judgment Based on a Slow Plea of Guilty Violates the Eighth and Fourteenth Amendments In his opening brief, appellant argued that the absence of certain critical protections — in particular, the assistance of counsel and the adversary processitself (i.e., cross-examination and the presentation of defense evidence and argument) ~ underminedthereliability of appellant’s convictions and the death judgment, in violation of the Eighth Amendment and the Sixth and Fourteenth Amendments. (AOB 85-87.) Respondentincorrectly contends that appellant’s argumentis meritless because the constitutional standards for the reliability of a death judgmenthave beensatisfied. (RB 93-95.) Appellant submits that he has sufficiently set forth his argumentin the opening brief, and that he needs only to express his disagreement with respondent’s claim that the court considered evidence of appellant’s drug use as a potentially mitigating circumstance. (RB 95.) In this regard, appellant incorporates by reference 46 ArgumentIV, in which he argues that at the penalty phase thetrial court did not properly consider evidence relating to his drug use as evidence in mitigation, as if it were fully set forth herein. D. The Denial of Independent Review in This Case WasPrejudicial For the reasonsset forth in appellant’s opening brief and in the instant brief, the death judgment must be reversed. (AOB 131-132.) Hf // 47 IV. THE TRIAL COURT’S ERRONEOUS REFUSAL TO CONSIDER APPELLANTS DRUGUSEIN MITIGATION VIOLATED APPELLANT'S RIGHTS UNDER STATE LAW AND THE EIGHTH AND FOURTEENTH AMENDMENTS, AND COMPELS REVERSAL OF THE DEATH JUDGMENT In his opening brief, appellant arguedthatthe trial court erred by (1) limiting its consideration of his drug use to his state of mindat the time of the capital crimes, despite evidence of appellant’s history of repeated and substantial drug use for years prior to the capital crimes(includingat the time of prior robberies considered in aggravation), and (2) refusing to fully consider appellant’s impairmentat the timeofthe crime, thereby violating his rights under state law and the Eighth and Fourteenth Amendmentsto the United States Constitution. (AOB 88-110.) Respondent contendsthat (1) appellant’s claim is premised on the erroneous assumption that the voluntary ingestion ofillegal drugsis per se mitigating; (2) that the trial court did not refuse to consider mitigating evidence, but determinedthat appellant’s drug use was not mitigating; and, (3) that to the extent the court erred, the error was harmless beyond a reasonable doubt. (RB 96-105.) Appellant submits that he has sufficiently demonstrated that the trial court erred in refusing to consider his drug use in mitigation, but here addresses respondent’s claim that appellant’s _ “contention is premised on the faulty assumption that voluntary and repeated ingestion ofillegal drugsis per se mitigating.” (RB 97-98.) Respondent’s claim betrays a basic misunderstanding of appellant’s argument. Whether or not druguseis “per se mitigating” is beside the point. Instead, appellant argued thatthe trial court could have considered 48 evidence of his repeated and substantial drug use as mitigating in and of itself under section 190.3, subdivision (k), but did not do so. (AOB 91-98.) As the Ninth Circuit Court of Appeals has pointed out, [u]nder clearly established [United States] Supreme Court authority, a state court may nottreat mitigating evidence of a defendant’s character or background“asirrelevant or nonmitigating as a matter of law” simply because it does not have a causal connection to the crime. Towery v. Ryan, 673 F.3d 933, 946 (9th Cir. 2012) (per curiam); see also Penry v. Lynaugh, 492 U.S. 302, 318, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989)(citing Eddings [v. Oklahoma (1982)] 455 U.S.[104,] 114, 102 S.Ct. 869 and holding that a state cannot, “consistent with the Eighth and Fourteenth Amendments,preventthe sentencer from considering and giving effect to evidence relevant to the defendant’s backgroundorcharacteror to the circumstancesof the offense that mitigate against imposing the death penalty”), abrogated on other grounds by Atkinsv. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). On the other hand, the sentencer may consider “causal nexus .. . as a factor in determining the weightor significance of mitigating evidence... .” Lopez v. Ryan, 630 F.3d 1198, 1204 (9th Cir. 2011) (citing Eddings, 455 U.S.at 114-15, 102 S.Ct. 869) (footnote reference omitted). (Murray v. Schriro (9" Cir. 2014) __ F.3d __, 2014 WL 998019, *31.) In Murray, the Ninth Circuit Court of Appeals rejected the | petitioner’s argumentthatthe trial court misapplied Eddings v. Oklahoma, supra, 455 U.S.at p. 115,andits progeny by requiring a nexus between the mitigation evidence(i.e., evidence relating to his dysfunctional childhood, head injuries, hyperactivity, and alcohol/drug use) and commission of the crimes. (Murray v. Schriro, supra,___ F.3d __, 2014 WL 998019, *32.) Onappeal, the Arizona Supreme Court had concluded thatalthough the petitioner’s dysfunctional childhood,head injuries, hyperactivity, and alcohol/drug use were mitigating factors, they had negligible mitigating 49 force because the petitioner had not shown how they affected his behavior on the night of the murders. (/bid.) The Ninth Circuit held that, taken in the full context of the Arizona Supreme Court’s “exhaustive analysis,” there wasnoClearindication in the record that its statementthat the petitioner ““fail[ed] to show how this [family] background impacted his behaviorat [the crime scene]” amounted to an impermissible screening mechanism under Eddings. (Ibid.) By contrast, the trial court in this case stated that appellant’s drug use did not prevent him from “understand[ing] the nature and criminality of his actions.” (2 RTS 468.) In effect, the trial court used a causal nexus analysis — specifically, whether appellant was “able to understand the nature and criminality of his actions” — as an “impermissible screening mechanism”to disregardcritical mitigating evidence. (See Murray v. Schriro, supra, ___ F.3d __, 2014 WL 998019, *31.) Significantly, the trial court’s analysis was much morestrict and narrow thanthat ofthe Arizonastate court in Murray (i.e., whether the petitioner’s family background“impacted his behaviorat [the crime scene]”). Respondent’s reliance upon People v. Scott (1997) 15 Cal.4th 1188 is misplaced. (RB 98.) There, the trial court found “that even though there wasdrug use, that he was not impaired bythe effects of intoxication.” (People v. Scott, supra, 15 Cal.4th at p. 1222.) Therefore, the court found the defendant’s drug use to be “not mitigating.” (Jbid.) On appeal, this Court rejected the defendant’s contention that the trial court erroneously “refused to consider”in mitigation the evidence ofhis cocaine use shortly before the crime. (bid.) In so holding, this Court explained thatthetrial court considered the defendant’s cocaine use, but simply “foundthat [the] evidence did not, in fact, mitigate.” (/bid.) 50 Respondent’s reliance upon People v. Kennedy (2005) 36 Cal.4th 595, 639, is similarly misplaced. (RB 99.) There, the trial court stated that, _ after considering every possible mitigating factor, including any circumstances extenuating the gravity of the crime, it found “nothing except the possibility that there was testimony that Mr. Kennedy used some narcotics prior to the commission ofthis offense, this killing.” (People v. Kennedy, supra, 36 Cal.4th at p. 639.) With respect to Kennedy’s use of drugs, the court commentedthat the “particular evidence [of his drug use at the time of the crime] is un—unmovingto this Court and is unconclusive [sic] as the evidence standsatthis time.” (Jbid.) Thatis, the trial court expressly considered the defendant’s drug use, but simply foundit to be unmoving and inconclusive. Finally, respondent’s reliance upon People v. Gaston (1999) 74 Cal.App.4th 310, 322, and People v. Martinez (1999) 71 Cal.App.4th 1502, 1511, each of which discusses the concept of a “mitigating factor” in a non- capital context, is misplaced. (RB 99.) Gaston involved an appeal by the People ofa trial court’s order vacating a prior conviction finding under the three strikes law. (People v. Gaston, supra, 74 Cal.App.4th at pp. 312-313.) In Martinez, the defendant, who had pleaded no contest to several drug- and alcohol-related offenses, unsuccessfully argued that his sentenceto life imprisonmentunderthe three strikes law was unconstitutionally cruel or unusual. (People v. Martinez, supra, 71 Cal.App.4th at pp. 1506-1507.) Thatis, neither Gaston nor Martinez involved the concept of “mitigation” within the meaning of section 190.3 and the Eighth Amendment. (See,e.g., Gregg v. Georgia (1976) 428 U.S. 153, 188 (lead opn. of Stewart, J.) [“the penalty of death is different in kind from any other punishment imposed under our system of criminaljustice”].) Respondent does not cite any 51 opinions holding that, in the context of a capital case, drug addiction cannot constitute a mitigating circumstance when the defendanthas failed to make efforts to “root out” the dependency. Indeed, an expansive body ofcapital case law demonstrates otherwise. (See, e.g., Cone v. Bell (2009) 556 U.S. 449, 473-475.) Thus, for the reasonsset forth in appellant’s opening brief and in the instant brief, the death judgment must be reversed. Hf H 52 V. APPELLANT WASDENIED AN INDEPENDENT REVIEW OF HIS AUTOMATIC MOTION FOR MODIFICATION OF THE DEATH VERDICT, IN VIOLATION OF STATE LAW AND THE EIGHTH AND FOURTEENTH AMENDMENTS A. Introduction In his opening brief, appellant argued that Penal Code section 190.4, subdivision (e), requires an independent, trial-level review of every death verdict, even when the penalty phase wastried by wayofa courttrial. Appellant did not receive the independent review of the penalty phase to which he wasconstitutionally entitled. Accordingly, appellant argued,this Court must either read into the statute a mechanism for independent review ofa trial court’s penalty verdict and remandthis case so that the review can take place, or the Court must declare the statute unconstitutional as applied to cases in whicha jury trial has been waived. In either event, this Court should vacate appellant’s death sentence. (AOB 111-132.) Respondentcontendsthat appellant has forfeited any claim regarding the motion to modify the death verdict by failing to object in the trial court. Respondentfurther argues that appellant wasnot entitled to separate review by a different judge at the trial court level, and that appellant received a proper modification hearing underthe statute “when giving the plain language its most expansive reading.” Finally, respondent contends, appellant forfeited his due process and equal protection claimsbyfailing to object, and, in any event, the claims are meritless. (RB 105-117.) As appellant demonstrates below, respondent’s contentionsare incorrect. 53 B. Appellant’s Argumentis Cognizable on Appeal Respondentincorrectly contends that, because appellantfailed to makea specific objection at the modification hearing, his claim that he was denied an independentreview ofhis automatic motion to modify the verdict is not cognizable on appeal. (RB 110, citing People v. Weaver (2012) 53 Cal.4th 1056, 1090-1091, People v. Horning (2004) 34 Cal.4th 871, 912, and People v. Riel (2000) 22 Cal.4th 1153, 1220.) Respondent further contendsthat, by failing to object in the trial court, appellant has forfeited his due process challenge (RB 114,citing People v. Monterroso (2004) 34 Cal.4th 743, 759) and his equal protection challenge (RB 115, citing People v. Carpenter (1997) 15 Cal.4th 312, 362, superceded by statute on another groundasstated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106). Respondent’s contentions are incorrect. The purposeofthe forfeiture rule is to bring errors to the trial court’s attention sothat, if feasible, the court may cure them at the earliest opportunity. (People v. Stowell (2003) 31 Cal.4th 1107, 1114.) However, where counsel’s objections would have been futile, the forfeiture rule does not apply. (People v. Guerra (2006) 37 Cal.4th 1067, 1126, disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.) In Weaver, the trial court advised the defendant, before accepting his waiverof a jury trial, that it would not “conduct a separate, independent review of the evidence” under section 190.4, subdivision (e), “because the judge has madethe decision.” (People v. Weaver, supra, 53 Cal.4th atp. 1090.) The court explained that “the automatic, independent|review of the evidence and the way the law was applied by the court will not take place in a jury waiver because there is no jury performancefor[the trial judge] to review.” (Ibid.) The defendantstated that he understood, and both defense 54 counselstated they agreed. (/bid.) On appeal, this Court held that the defendant’s contention that he did not receive a proper hearing under section 190.4, subdivision (e), was not cognizable on appeal because he not only failed to object at trial, but expressly acknowledgedbefore trial that he would not receive such a hearing dueto his jury waiver. (Id. at p. 1091.) In Horning, during a discussion of whether the court should entertain a motion to modify the verdict, defense counsel suggested that the court “may just want to refer to [its verdict],” adding that he did not “wantto waive anything.” (People v. Horning, supra, 34 Cal.4th at p. 912.) The judge subsequently refused to rule on the motion for modification, believing it was unnecessary to repeat the reasons for the verdict. Defense counsel responded, “Okay.” (/bid.) On appeal, Horning arguedthat the court had erred in failing to rule on the motion. (Jbid.) However, this Court held that “Tb]ecause defendant did not object ... the issue is not cognizable on appeal.” (Ibid.; citations omitted.) Significantly, this Court recognizedthat, although defense counsel might not have wanted to “waive anything,” he did so when he suggested that the court might referto its earlier ruling and responded, “Okay,”after the court expressed the belief that it did not have to state its reasons again. ([bid.) In Riel, a jury returned a verdict of death, and the trial court imposed that sentence. (People v. Riel, supra, 22 Cal.4th at p. 1172.) On appeal, the defendant contendedthatthe trial court made a numberoferrors in denying the automatic motion to modify the death verdict. (People v. Riel, supra, 22 Cal.4th at p. 1220.) This Court held his claims were waivedfor failure to object. (Ibid.) Neither Weaver, Horning, nor Riel is dispositive. No mechanism exists to provide independent review for defendants tried by a judge, so no 55 objection could have cured the trial court’s error. Because any contemporaneous objection would have been futile and could not have “easily corrected or avoided” error (see People v. Stowell, supra, 31 Cal.4th at p. 1114), this Court should reach the merits of appellant’s challenge to section 190.4, subdivision (e). Moreover,each of those casesis distinguishable from the instant case in critical respects. First, as respondent concedes (RB 73-74), Judge Longfailed to warn appellant that a consequenceofhis jury trial waiver would be the loss of the right to an independenttrial court review of the penalty imposed by a jury. Weaver, on the other hand, was admonishedin that regard, and expressly acknowledgedbefore trial that he would not receive such a hearing due to his jury waiver. (People v. Weaver, supra, 53 Cal.4th at pp. 1090-1091.) Similarly, in contrast to the defense in Horning, appellant did not expressly waive an independent review of the verdict. (See People v. Horning, supra, 34 Cal.4th at p. 912.) Second, unlike appellant, the defendant in Riel wastried bya jury, and therefore the trial court’s review of the penalty verdict constituted an independent review of the verdict within the meaning of section 190.4, subdivision (e). (People v. Riel, supra, 22 Cal.4th at pp. 1172, 1220.) That is, Riel did not involve the complete denial of an independent review of the penalty verdict, and therefore it has no relevanceto the instantcase. Third, unlike appellant, Weaver, Horning and Riel wereall represented by counsel. (People v. Weaver, supra, 53 Cal.4th at p. 1090; People v. Horning, supra, 34 Cal.4th at p. 912; People v. Riel, supra, 22 Cal.4th at pp. 1175-1177, 1209-1210.) Because appellant was not represented by counsel, and the record doesnot establish that his waiver of the right to counsel was knowing,intelligent and voluntary (see ArgumentI, 56 incorporated by reference asif fully set forth herein), it cannot be assumed that he understood the consequencesofhis waiverof his rightto a jurytrial, including the fact that the trial court would effectively rule on the correctnessof its own verdict. . In the event this Court finds that appellant’s failure to object is significant, the issue is still cognizable on appeal because the trial court’s error implicates fundamentalconstitutional rights. (See People v. Vera (1997) 15 Cal.4th 269, 276-277, abrogated on another ground,as recognized by People v. French (2008) 43 Cal.4th 36, 47, fn. 3.) A lack of timely objection in the trial court does not forfeit the right to raise a claim asserting the deprivation of certain fundamental,constitutional rights for the first time on appeal. (Ibid.) As discussed below,the denial of an independent review of appellant’s death verdict under section 190.4, subdivision (e), violated appellant’s rights to due process, equal protection, and a reliable sentencing determination. Therefore, the issue is cognizable on appeal, even in the absence of a specific objection. Respondent’s reliance upon People v. Monterroso, supra, 34 Cal.4th at p. 759, and People v. Carpenter, supra, 15 Cal.4th at p. 362,is misplaced. (RB 114.) In Monterroso, this Court rejected the defendant’s contention that comments madebythetrial court during death-qualification voir dire had the effect of encouraging the jury to return a death verdictin violation of his state and federal rights to due process, a fair trial, an unbiased jury, and a reliable guilt and penalty phase determination. (People v. Monterroso, supra, 34 Cal.4th at p. 759.) In Carpenter, the trial court denied the defendant’s motion to sever certain counts, finding that “these cases are so connected becauseofthat ballistics issue that, in my opinion, there really is no serious issue here.” (People v. Carpenter, supra, 15 57 Cal.4th at p. 362.) Both of those cases involved matters which could have been cured if they had been broughtto the court’s attention (see People v. Stowell, supra, 31 Cal.4th at p. 1114), while, as noted above, no objection could have cured the denial of an independent review ofthe trial court’s death verdict. C, Penal Code Section 190.4, Subdivision (e), Entitles All Capital Defendants to Independent, Trial-Level Review ASrespondent acknowledges, this Court has recognizedthat the languageof section 190.4, subdivision (e), is ambiguous with respect to whether the provision applies to judge-sentenced capital defendants as well as jury-sentenced defendants. (RB 111, citing People v. Diaz (1992) 3 Cal.4th 495, 575, fn. 34.) However, respondentasserts, because the court provided a detailed statementof its reasons for imposing the death sentence, and this Court has a record from whichit can review the propriety of the court’s decision, appellant has obtained the “thoughtful and effective appellate review”that section 190.4, subdivision (e), was designed to provide and protect. (RB 113-114, citing People v. Frierson (1979) 25 Cal.3d 142, 179.) Therefore, respondent suggests, there was no error. (RB 114.) Respondent’s position is incorrect. Respondent’s argumentis groundedin dicta in People v. Diaz, supra, 3 Cal.4th at p. 575, fn. 34. (RB 112.) There, this Court stated in dicta that, “[a]lthough at first glance a modification motion after a penalty phasecourt trial appears to be an exercise in futility,” “[t]he statutory requirementthat the reasons be stated on the record enablesus to review the propriety of the penalty determination made bythetrial court sitting without a jury.” (People v. Diaz, supra, 3 Cal.4th at p. 575, fn. 34.) Respondent further relies on People v. Horning, supra, 34 Cal.4th at p. 912, in which 58 this Court quoted footnote 34 of the Diaz opinion in holding that no error resulted from the trial court’s failure to rule on Horning’s automatic motion to modify the sentence, since such motion would have been superfluous becausethe trial court had already given detailed statements whenit originally rendered its verdict. (RB 112-113.) Finally, respondent relies on People v. Weaver, supra, 53 Cal.4th at pp- 1090-1091, in which this Court cited the Diaz and Horning dicta in rejecting the defendant’s contention that the trial court did not conduct a proper hearing on his automatic application to modify the death verdict under section 190.4, subdivision (e). (RB 113.) In doing so, this Court notedthatthe trial court stated its reasons twice — once whenit imposed the death penalty and a second time whenit denied the automatic motion to modify the verdict. (People v. Weaver, supra, 53 Cal.4th at p. 1091.) This Court also rejected Weaver’s argumentthat, because section 190.4, subdivision (e), does not logically apply to a courttrial, the California death penalty schemeis “unconstitutionalin that it fails to provide a mechanism for an independent review ofa trial court’s penalty phase verdict.” (People v. Weaver, supra, 53 Cal.4th at p. 1091.) In so holding, this Court stated that the defendant hadcited no authority holding that a defendant who waivesa jury has a constitutional right to an independent review of the court’s verdict, and declined to so hold. (/bid.) Moreover, this Court pointed out that the defendant fully understood that he would not receive an independent review of the court’s verdict when he waivedhis rightto a jury trial. (/bid.) Noneof the cases cited by respondentis dispositive. The dicta in Diaz and Horning (People v. Horning, supra, 34 Cal.4th at p. 912; People v. Diaz, supra, 3 Cal.4th at p. 575, fn. 34) should be disapproved because 59 this Court did not consider the plain language and purposeofthe statute, legislative history, nor the constitutional rights at stake. (AOB 113-120.) For the samereasons, appellant’s claim is not defeated by this Court’s rationale in Weaver,i.e., its conclusion that the defendantin that case had cited no authority holding that a defendant who waivesa jury has a constitutional right to an independent review of the court’s verdict. (People v. Weaver, supra, 53 Cal.4th at p. 1091.) First, the purpose of section 190.4, subdivision(e), is to provide independentreview ofthe death verdict, not simply to ensure that a statement of the judge’s findings appears on the record. (AOB 118, fn. 37.) Penal Code sections 190.4, subdivision (e), and 1181, subdivision (7), trigger an automatic application for modification of the verdict in every case in which a death verdict is returned. Section 190.4, subdivision (e), imposes two obligations uponthetrial court: (1) to independently review the verdict to determine whetherit was contrary to the law or evidence by reweighing the aggravating and mitigating factors presented attrial; and, (2) to state reasonsforits findings on the record. If the trial court only states findings justifying the death verdict and fails to independently reweigh the evidence, the statute is not satisfied. (See People v. Rodriguez (1986) 42 Cal.3d 730, 793-794 [vacating death verdict because it was not clear from the face ofthe trial court’s ruling whether or to what extent the ruling was based on an independent review of the evidence].) second, the Legislature intended that section 190.4, subdivision(e), provide independent review forall capital defendants. (AOB 115-120.) In his opening brief, appellant explainedthat, although the languageofthat statute is ambiguous,the legislative history showsthat the statute applies equally to both to judge-sentenced defendants and jury-sentenced 60 defendants. (Ibid.) As appellant argued,section 190.4, subdivision (e),is itself rooted in another California statute, Penal Code section 1181, subdivision (7), which states that the trial court may modify the verdict “in any case wherein authority is vested by statute in the trial court or jury to recommend or determine asa partof its verdict or finding the punishment to be imposed.” (AOB 119-120.) Moreover, as appellant has pointed out, the protections afforded by section 190.4, subdivision (e), apparently were created by the Legislature as a substitute for appellate-level proportionality review by providing independent,trial-level review ofall death verdicts, not just those of defendants tried by juries. (AOB 116-118.) There is no evidence in the legislative history that the Legislature intended to exempt defendants who waivedjury trial. (AOB 129.) If the Legislature had wishedto limit section 190.4, subdivision (e), to defendantstried by juries, it would have doneso. Third, independent review undersection 190.4, subdivision (e), is a constitutionally-required element of California’s death penalty scheme and an important “safeguard”for adequate appellate review. (AOB 113-115; People v. Rodriguez, supra, 42 Cal.3d at p. 794 [holding that failure to specify reasons for denying modification motion prevents the assurance of “thoughtful and effective appellate review”].) Both this Court and the United States Supreme Court have emphasizedthat the independent review guaranteed bysection 190.4, subdivision (e), is necessary to ensure that the death penalty is not arbitrarily imposed. (AOB 113-115.) This Court has also warnedofthe constitutional dangers of respondent’s approach: “if subdivision (e) were construed as precluding independent review of the death verdict by the trial judge, questions of federal constitutionality might arise.” (People v. Rodriguez, supra, 42 Cal.3d at p. 794, citing Peoplev. 61 Frierson, supra, 25 Cal.3d at pp. 178-179.) Respondent’s view must be rejected in order to preserve the constitutionality of the statute. (Almendarez-Torres v. United States (1998) 523 U.S. 224, 237-238; United States v. Jin Fuey Moy (1916) 241 U.S. 394, 401 [A statute must be construed,if fairly possible, so as to avoid not only the conclusionthatit is unconstitutional, but also grave doubts uponthat score.”].) Contrary to respondent’s contention, a statement on the record by a judge whoexplains his own verdict is not an independent review of that verdict, and doesnotsatisfy section 190.4, subdivision (e). Based on the language, purpose, andlegislative history of the statute, as well as the constitutionalrights at state, this Court should reject respondent’s argument and interpret section 190.4, subdivision (e), as mandating independent review Ofall death verdicts at the trial level. To the extent that the dicta in Diaz and Horning, and/or this Court’s reasoning in Weaver, suggest otherwise, this Court should disapprove those cases. -D. ‘The Failure to Provide a Separate and Independent Review Constituted Violated Appellant’s Rights to Due Process and EqualProtection In his opening brief, appellant demonstrated that, even if independenttrial court review is not otherwise constitutionally required, the denial of that review to appellant violated his rights to due process and equal protection underthe federal Constitution. (AOB 113, 127-130.) With respect to appellant’s due process claim, respondentasserts that in Peoplev. Weaver, supra, 53 Cal.4th at p. 1091, this Court rejected the same constitutional claim that appellant presents here, and that appellant fails to offer any persuasive reason why this Court should vary from its decision in Weaver. (RB 114.) Respondent further asserts that appellant’s equal protection claim fails because he has not demonstrated thathe is 62 “similarly situated” to capital defendants whose penalty phases weretried to juries. (RB 115-116.) Respondent’s contentionsare incorrect. It is true that Judge Longstated his reasons for denying appellant’s automatic motion to modify the death verdict. (2 RTS 464-469.) However, as appellant has pointed out (AOB 113), the hearing that the court conducted wassimply a reaffirmation of its own penalty phase verdict. The failure to provide appellant with the independent review guaranteed by section 190.4, subdivision (e), denied him a reliable sentencing determination andviolated his due process and Eighth Amendmentrights. (AOB 113, 127-130.) Because appellant was deprivedofa statutorily- and constitutionally-required layer of review guaranteedto all capital defendants by section 190.4, subdivision (e), this Court does not have a record from whichit can properly review appellant’s death sentence. Moreover, respondent missesthe point of appellant’s equal protection argument. California’s death penalty schemeprovides for automatic, independentreview atthe trial level for all capital defendants by wayof section 190.4, subdivision (e). (AOB 113-120, 128-130.) This statewide classification scheme affects the fundamentalrights ofall capital defendants, regardless of whether they waived anyrightto a jury trial. (Ibid.) Therefore, for equal protectionpurposes,appellant is similarly situatedto all other capital defendants. If this Court reads section 190.4, subdivision(e), as creating separate classifications for judge- and jury- sentenced defendants, then this disparate treatmentis arbitrary and violates appellant’s right to equal protection underthe federal Constitution. (AOB 128-130.) The State has no compelling interest that would justify depriving judge-sentenced defendants of independentreview atthetrial level, and respondent does not show otherwise. (Ibid.) 63 E. Conclusion For the reasonsset forth in appellant’s opening brief and in the instant brief, his death judgment must be reversed. (AOB 131-132.) // H 64 VI. REVERSALIS REQUIRED BASED ON THE CUMULATIVE EFFECT OF ERRORS THAT UNDERMINED THE FUNDAMENTALFAIRNESS OF THE TRIAL AND THE RELIABILITY OF THE DEATH JUDGMENT Appellant has argued that the cumulative effect of the errorsattrial require reversal of the convictions and sentence of death evenif any single error considered alone would not. (AOB 133-134.) Respondent simply contends noerrors occurred, and that any errors which may have occurred were harmless. (RB 117.) Theissue is therefore joined, and no further reply to respondent’s contentions is necessary. Should this Court find errors which it deems non-prejudicial when considered individually,it should reverse based on the cumulative effect of the errors. // Hf 65 VI. CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION Appellant argued in his opening brief that many features of California’s capital sentencing schemeviolate the United States Constitution. (AOB 135-142.) Appellant recognizes that this Court has previously rejected these arguments, but urges the Court to reconsider them. Respondentrelies on the Court’s previous precedents without any substantive new arguments. (RB 117-125.) Accordingly, no further reply to respondent’s contentions is necessary . / HI 66 VIII. THE SENTENCE OF DEATH IMPOSED IN CONNECTION WITH APPELLANT'S CONVICTION OF SECOND DEGREE MURDER MUST BE VACATED In his openingbrief, appellant argued that the trial court erred when it found true the multiple murder special circumstance attached to Count 21 (charging the murder of LaTanya McCoy), and whenit imposed a death sentence on that count. The legally unauthorized sentence of death must therefore be vacated. (AOB 143.) Respondent concedesthat appellant’s position is correct, and that the sentence of death imposed on that count must be vacated. (RB 125-126.) The issue is therefore joined, and no further reply is needed. // // 67 CONCLUSION Forall the aforementioned reasons, the judgmentin this case must be reversed in its entirety. DATED:April 28, 2014 Respectfully submitted, MICHAEL J. HERSEK State Public Defender Ano A— GARY D. GARCIA Senior Deputy State Public Defender Attorneys for Appellant 68 CERTIFICATE OF COUNSEL (CAL. RULES OF COURT,RULE8.630(b)(1), (2)) I, Gary D. Garcia, am the Senior Deputy State Public Defender assigned to represent appellant David Daniels in this automatic appeal. I directed a memberofourstaff to conduct a word countof this brief using our office’s computer software. On the basis of that computer-generated word countI certify that this brief is 18,315 wordsin length. thef— GARY D/GARCIA! Attorney for Appellant 69 DECLARATIONOF SERVICE Re: People v. David Scott Daniels . Sacramento Superior Ct No.99F10432 Supreme Court No. S095868 I, Neva Wandersee,declare that I am over 18 years of age, and nota party to the within cause; my business address is 1111 Broadway, 10" Floor, Oakland, California 94607. I served a copy of the attached: APPELLANT’S REPLY BRIEF on each of the following, by placing same in an envelope addressed respectively as follows: Office of the Attorney General Habeas Corpus Resource Center Attn: Larenda Delaini 303 SecondStreet, Suite 400 P.O. Box 944255 San Francisco, CA 94105 Sacramento, CA 94244-2550 David Scott Daniels P.O. Box K-90141 San Quentin State Prison San Quentin, CA 94974 Each said envelope wasthen, on April 28, 2014, sealed and deposited in the United States mail at Oakland, California, in Alameda county in which I am employed, with the postage thereon fully prepaid. I declare under penalty of perjury that the foregoingis true and correct. Signed on April 28, 2014, at O¢kland| Califofnia. DECLARANT