PEOPLE v. MERRIMAN

Appellant’s Opening Brief

Cal.September 21, 2010

SUPREME COURTCOPY PEOPLE OF THE STATE OF CALIFORNIA ) S097363 DEPUTY Plaintiff/Respondent “ ) Ventura County ) CR45651 ) vs. ) ) ) SUPREME COURT ) FILED JUSTIN JAMES MERRIMAN ) | ) SEP 2.1 2010 Defendant/Appellant Frederick K. Onirich Clerk ) APPELLANT’S OPENING BRIEF TO THE HONORABLE RONALD M.GEORGE, CHIEF JUSTICE, AND TO THE HONORABLEASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA On Automatic Appeal from the Judgment ofthe Ventura County Superior Court, Honorable Judge Vincent J. O’Neill Presiding Glen Niemy Attorney at Law P.O. Box 764 Bridgton, ME 04009 (207) 647-2600 State Bar # 73646 Attorney for Appellant Soreneeee DEATH PENALTY TABLE OF CONTENTS TABLE OF AUTHORITIEG..........coccsoscscocsocsccssscsssssccssessoncsssossonessooesxiii STATEMENTOF THE CASE..........csccsssssorscsccssssssvscssssssessscoesscoessoeee 1 STATEMENTOF FACT......cccsssssssccssscesescscserscsscerersscocsccarsscscsssoroeee 6 GUILT PHASE Murderof Katrina Montgomery (Count J)..........000.aescecovecsceccsccoeescoss 6 Sexual Offenses Against Robin Gates (Counts II-IV)........... 33 Sexual Offenses Against Billie Bryant (Counts V-VIII)......... 35 ChargesRelated to the January 30-31, 1998 Arrest..........00 4] Appellant’s Uncharged Offenses...........0B-0Wpv-cccccssssccsscescsccossosonasos46 Kristin Spellins...........cccseccocscsssscsssssccscscscscovsccoessessoocssooasos46 Corrie Gagliand.............sccccccssscsscsscssssscscessesesssssssscsseseees48 Katrina Montgomery (Spring/Summer1992).......0..000049 Further Police Operation /Other Evidence Against APPellantt..........sccorcsscocscsrcccccescocceessccscosvccsssvcensscesccssssconoonsosorsacoees Si Appellant’s Case.. eee sevecsccoseccescececcesscsoscesseasoescoooes69 PENALTY PHASE Prosecutor’s Case -in Chief.............. wee . wold Victim Impact Evidence............00ecccccssocseccovescsosersoscecoees72 (i) + epnereaghonReritBREAIGNORE ohtegoine cCuahseaneet gas Sone a ge et ae At setntontmhatatabhnamienigiiagtte rks omens cmantechernce tetas yan, metastatic Evidence of Other Crimes Committed by Appellant..........cccccorsssresecssssccsccesescscsseesensssosssecsscsesesssssseccssoessescnses75 Appellant’s Case. ose seoevecccoseoece 1D People’s Rebuttal Case..... secevoceeeoverens 92 ARGUMENTS I. APPELLANT’S RIGHT TO DUE PROCESS OF LAW, A FAIR TRIAL, EFFECTIVE ASSISTANCE OF COUNSEL AND A FAIR DETERMINATION OF GUILT AND PENALTY UNDERTHEFIFTH,SIXTH, EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION WERE VIOLATED B Y THE PREJUDICIAL CONDUCT OF JUROR # 1........ccccscsssscoosccosesoonceseece94 A. Introduction.............ccccccsssosssseesccsesscsccscscescseoscsoncsssescecesnsssosscoess94 B. Procedural and Factual SummaPV.............ccsscseccsscsoovcosssooee95 C. Legal AnalySis.............s0000eavescceccseerescsecsosesacseeseaseoscoorecsescessos 103 1. General Law ofJuror Miscondutt............sssssssoseseseees 103 2. Juror #1's Concealment of Her Relationship with Deputy Bakerat Voir Dire was MisCOnduct............cccccsscrosssssssscrccssssssescossscecscosscossscsscsoooss 105 3. Communicating with Deputy Baker was Juror Misconduct. The Content of the Conversation and the Juror Testimony at the Hearing Show Separately or Together that Juror #1 was Biased Against Appellant Requiring a Reversal Of the JUUGMENL..............ccccssrsceesesscssceccessssooseceecesscceneenees 110 (ii) INTRODUCTION TO ARGUMENTSII-VIIL.....cccssssssscceseseessoverenee 120 Ii. UNDER CALIFORNIA LA, THE COURT COMMITTED REVERSIBLE ERRORBY FAILING TO SEVER COUNTI (THE MURDER COUNT) FROM THE BALANCE OF THE INDICTMENT............ccsccscscssscssssssssoecscccsescssscerccccsscssnssscssscssoososees 124 A. Procedural Historry............scscoccscsscssssesscceesscrsessonsecsenscsosonccoesees 124 B. Statutory Standards for Joinder Under California LAWocnscoscsscccsscsesceserscssccccessssescececcoessccececcnccsecescessctacsousecesssensssccocecesece 126 C. General Law of Cross-Admissibility................cccssccsssscssssoeoees 128 1. SUDAIVISION (a)..........cccssssscssssccscscescsscesssssscescsssossacseososconss 129 2. SUDGIVISION (D)........ccccssssscssssecsserecsssessescnsscessnscecsssescorsonse 130 D. General Law of Cross-Admissibility for Issues of Intent, Common Plan or Scheme and Tdentity...........ccccccsscccccssecsccccecccssssssessssosescocscsesscessssaconenescosenscasoneaoes 131 1. Untent.............cccccscoscrsssscccesscsscescsesccsssccseseccesossevessencccosencrs 131 2. Common Plan Or Scheme............eccssssccssrssccceescsccoseses 132 3. [dentity............ccccssrcssrssssssoressesesesescssscsesessscscsecsonssseecooscoes 133 E. There is No Cross-Admissibnility Between the Murder and COUNTS 9-19........ccccsrescccessercrereesscssssvcsscceesescssseevesenssssocesossossoevos senses 133 F. There is No Cross-Admissibility Between the Rape Counts and the Murder Coumtt...........ccsccscssssosssccsscscseccesseceocescosccscsccsocesees 134 1. Application of Evidence Code Section 1101(b)........... 134 2. Application of Evidence Code Section 1108.............046 139 (iii) a. Evidence Code Section 1108 Does Not Apply to Murderor the Special CircuMstanceeS..........cccccccccsscesccvccescccscccoscscocecoosscccoee 140 b. The Application of Evidence Code Section 1108 is Subject to Evidence Code 352 AMALYSIS.......ccccssesecssorcnccccccccscscsecsesscccosscseesceasesseesses 141 G. The Very Limited Cross-Admissibility Between the Murder and Counts 165-20 (Conspiracy and Witness Dissuasion) Was NotSufficient to Dispel the Inference Of Prejudice...............ccccssccccossssscssseceeessscscsseossscororssees 144 H. The Trial Court Committed Reversible Error in Joining the Non-Cross Admissible Counts in that Appellant Suffered Substantial Prejudice from the JOINder.............sscccssssescssocseccesccsescccssccsssssesecsocscceesscesscsesoosee 145 1. Public Policy Considerationhs Regarding Judicial ECOMOMY............ccccsscsssccessscscnssesscenscesscsssssssessees145 2. Discussion of the Fourt “Bradford” Criteria..........000150 a. Cross-Admissibility of Counts..........ccccccscsesescees 150 b. One of the Crimes is Punishable by Death........cccccsccssccsssessssscscessscsersasossssssccsossssssesoessonses 150 c. Inflammatory Nature of Crimes................cc0e8 151 (1) Inflammatory Nature of Evidence.......155 of Counts 9-15 (2) Inflammatory Nature of Evidence........ 156 of Counts 2-9 (3) Inflammatory Nature of Evidence Of Counts 16-20.........cccsccsosrreccscsrcsssccssoseece 157 d. Joinder of “Weaker” and “Stronger” COUNLTS.........0crccsccocssccccssccsscecssscvovsccevesoscossosesecsonsers 168 (iv) J. Even if the Trial Court Did Not Abuse its Discretion in Denying the Motion to Sever, Joinder of the Counts Actually Impaired the Trial to the Extent that Appellant Suffered Substantial PrejUudice.........cscccceccccscssccscesccsecesscceccesscccessccrecscsssoncesseoosceseoresesess 170 K. Appellant Was Substantially Prejudiced by the Improper JOUNAE|N........csccccrcecssevsssevseccssscessscesescsescccserscesencesccsoscassesensesssacesoos 171 I. THE JOINDER OF THE NON-MURDER COUNTS AND THE MURDER COUNT VIOLATED APPELLANT’S RIGHT TO DUE PROCESS OF LAW UNDERTHE FIFTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION...........ccccscsorssscsossccssssssssscscssccesscscesscssscssseessscssscssooasons 172 TV. THE ADMISSION OF EVIDENCE OF UNCHARGED ALLEGED OFFENSES AGAINST OTHER WOMEN VIOLATED APPELLANT’S RIGHT TO A FAIR TRIAL UNDER BOTH STATE LAW AND THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION.............cccscssssscossssccscecsccessccconssscesscscesscsesssssesscnsesensoeres 176 A. Kristen Spellins............scscscccssssssscescsssscscssssescccssssecssesssesceccoes 176 1. Factual and Procedural SummaFy.............scccssscssocees 176 2. Legal Argumentt...........cccccscsoccssescccssssscscssvsscecosseesoocoes 179 B. Corrie Gaglian0............cccssscsscscscccssccessscssscsssccsssssccsssasssesonece 183 1. Procedural and Factual Historry.............scsecscsssercsees 183 Z. Legal Argument............cccccssssssssscssscsssscsscsssssscssonscsonsces 184 C. Susan VAancl.........ccccccccrrcccscersessscsescscssccssscssessssaccscsssoesceassovecs 185 1. Factual and Procedural Historry..............cscccssssossroesees 185 2. Legal Argument...........ccscccsscsccssscsssssssscsscscscssscccsonees 187 (9) V. THE ADMISSION OF THE HEARSAY STATEMENTS OF TRINA MONTGOMERYTO SHAWNA TORRES ,KATHERINE MONTGOMERYAND LEE JANSEN PREJUDICED APPELLANT AND DENIED HIM A RIGHT TO A FAIR DETERMINATION OF BOTH GUILT AND PENALTY UNDER THEFIFTH, SIXTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION AND THE LAWS OF * CALIFORNIA........cccsccsssscssssscsccssesesssssscscssscssessessescesssessssssenssonscseres 189 A. Procedural and Factual Summar.............scccscsccsssesssscssesees 189 1. Shawnar Torre............sscsscscsscsssscscsssssescccsssccessscssooseees 189 2. Katherine Montgomery.............csccccccccsssccsessscscessecoores 19] 3. Lee Jamsen.........sscsssssesccrcsccsrcccscssessscsscessconesersssscseosenes 193 B. Discussion of the Law..............scsccsscosecscccsssessceovssssrsseseecceens 194 1. Statement to MS. Torres..............scsssccsssccssssceseseesrooes 198 2. Statement to Katherine Montgomer’............ssessovooes 199 3. Statement to Lee Jensen............eccccerccsscseecsccesssscoese 199 C. Prejudice..............ccsscsccsccsscsssesccsccsessssceecsescvscessssecsoosesccecsccsesee200 VI. BY ALLOWING IRRELEVANT AND PREJUDICIAL EVIDENCE THAT APPELLANT POSSESSED A STOLEN CAR, THE COURT DEPRIVED APPELLANT OF DUE PROCESS OF LAW AND OF A FAIR DETERMINATION OF GUILT AND PENALTY UNDER BOTH STATE LAW AND THEFIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.........ccccssscssssccsssssssssssssrsescoscccsesersosssesoosses202 A.. Factual and Procedural History.............csscccscccsscsscsseseees202 B. Legal Argument...........csccsssscsssssssssssssessoresssercossscsersesescsors203 (vi) VIL. BY ALLOWING IRRELEVANT AND PREJUDICIAL EVIDENCE THAT APPELLANT ASKED HIS MOTHER TO DO POSSIBLY ILLEGAL ACTIVITIES FOR HIM, THE COURT DEPRIVED APPELLANT OF DUE PROCESS OF LAW AND A FAIR DETERMINATION OF GUILT AND PENALTY UNDER BOTH STATE LAW AND THEFIFTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION...........ccsscsessoesccsesscsssccosscceseccocsseseccsscesccsesconsconsseocsoooess205 A. Factual and Procedural Summary............cccccsrsssecsoeeoeccceees205 B. Legal Argument...........ccsscccccsccescssossssssersssccccccesssssssceeacsoneces206 VIII. THE IMPROPER USE AND ADMISSION OF INFLAMMATORY PHOTOGRAPHS DEPRIVED APPELLANT OF A FAIR DETERMINATION OF GUILT AND PENALTY UNDER THE FIFTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION.............cccosscsssossccceessssosssssosssesons207 A. Procedural and Factual History.............ccccssccssssscssssssssssereos207 B. Legal Argument...........scccccoscsccssscesssscsccscscsecssccceescsrsscssssssoooecs208 SUMMARYOF COUNTSTI-VITDiu........ccsssssssssssscescossccsscsscsssssescssonses210 1X. APPELLANT WAS DENIED HIS DUE PROCESS RIGHT TO A FAIR DETERMINATION OF GUILT AND PENALTY BY THE ADMISSION OF PREJUDICIAL EVIDENCEAS TO THE RELUCTANCEOF WITNESSES TO TESTIFY...........cccscosssesseccsssesssssccsescssecssesesscseccssssssscssscessessoosesnaseosscsscoese212 A. Procedural and Factual Summary...........sscccsccscesessssceseceoes212 B. Legal Discussion................ccccsssosscrscscsosessscvoscccoscsssscoossssoesooes214 C.Prejudice............sccccscccosessssssssssossscecsssssssessssssonessssssoasessscssscoescs216 (vii) tnONOMERSIN en aMNAena tennameatneaehERCAGEECmtheatone ea X. THE CUMULATIVE EFFECT OF THE DUE PROCESS VIOLATIONSIN THE GUILT PHASE REQUIRES REVERSAL OF THE JUDGMENT.............ccccccssesssssccsereccssssesescssesesecsosscesccessooesones216 PENALTY PHASE ARGUMENT XI. THE TRIAL COURT COMMITTED FUNDAMENTAL CONSTITUTIONAL ERROR UNDER THE SIXTH,EIOGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION BY EXCLUDING QUALIFIED POTENTITAL JURORS.......ccccccccccccccccsccesccsscccccscccccececvecsscccceevseseccsenee218 A. Discussion of the Law.,..........c.ccccsecssesscssccsssccscccesscscccscscscsscece218 B. The Excusal for Cause of the Following Prosecpecitve Jurors Wasa Violation of the Above Law...............sssccsssscescees223 1. Prospective Juror Shannon Billic..........c.....ccssscosssseee223 a. Questionnaire Response.............ccccscesscrscorssee223 b. Oral Voir Dire...........cccecssscssceesccecscesseesnsesoeons224 c. Analysis of Improper Granting of Challenge..............cccosscssosscrssscecscesssesssosssscssessonse233 2. Prospective Juror Bill Tallakson................cccsccssseeeee239 a. Questionnaire Response................sscccrcssscooes239 b. Oral Voir Dire...........cscsssscscccsscccsovesceseessossooe240 c. Analysis of Improper Challenge................000243 (viii) XII. APPELLANT’S RIGHT TO DUE PROCESS OF LAW, A FAIR TRIAL, AND REASONABLE DETERMINATION OF PENALTY UNDER THEFIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION WERE VIOLATED BY THE COURT’S ERROR IN ADMITTING EVIDENCE OF NON-STATUTORY AGGRAVATIONIN THE PENALTY PHASE........cccccccccccsccsccccsccscscccscssccsccccccecssccsecascecssocscscscsssssocssccececcoscsccsoees245 UMEKOGUCTION...........cccccccccescsccccssscccccancecsceeccccecescccccccscocceessooocesceccenscccsceoce245 A. Discussion of the Law of Statutory Factors in AGETAVATION........csscccccsscccssscssecccscescesooessessesessessccsescesscesecosscossces246 B. Application of the Law to the Instant Case...............sscessee248 CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL VIOLATES THE UNITED STATES CONSTITUTION...........ccccccsscssssscsersssccscsssccsssesesescccossasssoecescocssossensooaso251 XIII. APPELLANT’S DEATH PENALTY SENTENCEIS INVALID BECAUSE PENAL CODE SECTION190.2 IN IMPERMISSIBLY BROAD...........ccsssssssssccecssescsscscsecscecsserseceseasenssecceessscsesscssssesosccceoncsooseasose253 XIV. APPELLANT’S DEATH PENALTYIS INVALID BECAUSE PENAL CODESECTION190.3 (A) AS APPLIED ALLOWS ARBITRARY AND CAPRICIOUS IMPOSITION OF DEATH,IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION...........csccccssssscsssscssessececssscccoscsesesesssssessonsssesesssoecaccooses260 (ix) cetptbeisitinns nienantnnsniiamntaiirntN 8e cht aie XV. CALIFORNIA’S DEATH PENALTY STATUTE CONTAINS NO SAFEGUARDS TO AVOID ARBITRARY AND CAPRICIOUS SENTENCING, AND DEPRIVES DEFENDANTSOF THE RIGHT TO A JURY TRIAL ON EACH ELEMENT OF A CAPITAL CRIME;IT THEREFORE VIOLATESTHEFIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION............cccssssssssssscsscssscenesessssscssecsssccssessscsesscrsesssesseenees268 A. Beyond a Reasonable Doubt is the Appropriate BurdenofProof for Factors Relied on to Impose a Death Sentence, and for Finding that Death is the Appropriate Sentencee............ccsccsscsssessesessssscosesccoscseacecscsccovese269 B. Even if Proof Beyond a Reasonable Doubt Were Not the Constitutionally Required Burden for Finding (1) That an Aggravating Factor Exists, (2) That the Aggravating Factor Exists, and (3) That Death is an Appropriate Sentence, Proof by a Preponderance of the Evidence Would Be Constitutionally Compelled as to Each Such Finding................sccsccsscssssecscesessccerseacssecececsooes283 C. The Trial Court’s Failure to Instruct the Jury on Any Penalty Phase Burden of Proof Violated Appellant’s Constitutional Rights to Due Process of the Laws, and to Not Be Subject to Cruel and Unusual Punishment.................286 D. California Law Violates the Sixth, Eighth and Fourteenth Amendments to the United States Constitution ByFailing to Require Unanimous Jury Agreement ON Aggravating FactOrs..........ccsccsscsescssscsssesscesssscsessesessceseessees290 Jury AZreementl............cccccccccrrscsscssccesssessccesscseescsersscseees290 Jury Unanimity.............cccccssscccccccssssssscsscscssssssssoescosocsees292 (x) E. California Law Violates the Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution by Failing to Require that the Jury Base Any Death Sentence on Written Findings Regarding Aggravating FactOP.......csccssscsssscscscssssscccessccssscccsesnsesscssecsssessececacsaceccescsossssoocces306 F. California Death Penalty Statute as Interpreted by the California Supreme Court Forbids Inter-Case Proportionality Review, Thereby Guaranteeing Arbitrary, Discriminatory, or Disproportionate Impositions of the Death Pemallty...............sssssccccscccsssssccscsscssescsesscsssssesossossonsces310 G. The Prosecutor May Not Rely in the Penalty Phase on Unadjudicated Criminal Activity; Further, Even If it Were Constitutionally Permissible for the Prosecutor to Do So, Such Alleged Criminal Activity Could Not Constitutionally Serve as a Factorin Aggravation Unless Found to be True Beyond a Reasonable Doubt by a Unanimous Jury..............cccccscssssscsooess316 H. The Useof Restrictive Adjectives in the List of Potential Mitigating Factors Impermissibly Acted as Barriers to Consideration of Mitigation by Appellant’s JUry...........sccssccccssscorssssscessesscsosssossscssesssoscoosoescessoees317 I. The Failure to Instruct that Statutory Mitigating Facts Were RelevantSolely as Potential Mitigators Precluded a Fair, Reliable and Evenhanded Administration of the Capital Sanction...............sssccssscscssescecssecssssessccssecsssccsescososossarsooes318 J. California Law that Grants Unbridled Discretion to the Prosecutor Compoundsthe Effects of Vagueness and Arbitrariness Inherent on the Face of the California Statutory Scheme...............ccssscssccssscssssccescsssssssescecsssessecsesseeserses320 XVI. CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTIONS UNDERMINE THE CONSTITUTIONAL REQUIREMENTSOF PROOF BEYOND A REASONABLE DOUBT..........cccsssssssesssesssesoes321 (xi) 1aceeaEANdNNRADRIAN MEANOs eeccttng | Lone eee eect cmeGIRE OREEON FaasIEA XVII. EVEN IN THE ABSENCE OF THE PREVIOUSLY ADDRESSED PROCEDURAL SAFEGUARDSDID NOT RENDER CALIFORNIA’S DEATH PENALTY SCHEME CONSTITUTIONALLY INADEQUATE TO ENSURE RELIABILITY AGAINST ARBITRARY CAPITAL SENTENCING, THE DENIAL OF THOSE SAFEGUARDSTO CAPITAL DEFENDANTSVIOLATES THE CONSTITUTIONAL GUARANTEE OF EQUAL PROTECTION.............ccscsscseoscescessoeeoes324 XVHIT CALIFORNIA’S USE OF THE DEATH PENALTY AS A REGULAR FORM OF PUNISHMENT FALLS SHORT OF INTERNATIONAL NORMS OF HUMANITY AND DECENCY AND VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENT...........sccsssssssscrssssesssssessoscssossscossooese326 XIX. THE CUMULATIVE EFFECT OF GUILT AND PENALTY PHASE ERRORS WASPREJUDICIAL............0.s0se00330 CONCLUSION...........csccssesssscsscsscsesscsscsssssssscssscssscssscssescssccsocersescescesoes331 CERTIFICATE OF COMPLIANCE...........ccccssssscsscnescsasseeocscoesccesoess333 (xii) TABLE OF AUTHORITIES CONSTITUTIONAL AUTHORITIES V Amendment.............cc:ceeee sa scesacesacceseeeeeceesenaeesateeseeseeesetes in passim VI Amendmentl.............ccccecsseccceseneeeceseecsneecennscessteeeesseneess in passim VOT Amendment...........ccccccccseecesesssseccenseeeensecceesnesesssaneetseaes in passim XIV Amendment..............ccccscccccsssscesssseecesssecessseeecesseeeeesenees in passim CASE AUTHORITIES Addington v. Texas (1979) 441 U.S. 418...eecseeseeseeeteee272 Albright v. Oliver (1994) 510 U.S. 226...cccsccssssssssssesssseecsseecssees 172 Apprendi v. New Jersey (2000) 530 USS. 466.0...ee.4.1M passim Arizonav. Fulimante (1991) 499 U.S. 279... eecceseeeseeeeneeees 105 Atkins v. Virginia (2002) 536 U.S. 304.0...eee eeeseeeeeneteeeeee313, 315, 328 329 Barcley v. Florida (1973) 463 U.S. 939....cccecscscssesesteseeseetenes311 Bean v. Calderon (9" Cir 1998) 163 F3d 1073....c.cccscesceeeseeeeee 170, 171, 174, 176 Blakely v. Washington (2994) 542 U.S. 296.0... ceesseseseeeees 298, 299, 303 Brownv. Luisiana (1980) 447 U.S. 323.0... eeeeeeseeseeeereseenenees294 Brecht v. Abrahamson (1993) 507 U.S. 619... eceeeeeseteeteeeeee 171, 217 Brownv. Sanders (2006) 546 U.S. 212........ccccsssccssseesseeesseesnees304 (xiii) Bullington v. Missouri (1981) 451 U.S. 435.00...eeceeeeeeeeeees272, 297 Cage v. Louisiana (1990) 498 U.S. 39.eceeeeeeeeetseeeeteees322 Caldwell v. Mississippi (1985) 472 U.S. 340...eseeeeeeee306 Carella v. California (1989) 491 U.S. 263.0... .ceccscssesseeeeeeereees323 Chambersv. Mississippi (1973) 410 U.S. 284.00eee217 Chapman v.California (1986) 386 U.S. 18.0...eeeeeeeeeeeeesin passim Coker v. Georgia (1977) 433 U.S. 584...eecsscsstecsssesteceneeees313 Colemanv. Superior Court (1981) 116 Cal-App.3d 129........... 145, 154, 168 Cunningham v. California (2007) 549 U.S. 270.0...eects298, 300, 301 Darden v. Wainwright (1986) 477 U.S. 1268............ceceeseceeeees221 Delaware v. Dawson (1992) 503 U.S. 159.0... eeceeeseseeeteeeerees250 Dyerv. Calderon (9" Cir 1998) 151 F.3d 970.......ccsssssseeesseees 118, 119 Eddings v. Oklahoma(1982) 455 US. LO4Leeceeeeeereeeeeeee247, 287, 288 320 Edmundv.Florida (1982) 458 U.S. 782.........csccsssscssseesesreerenees258, 313 Estelle v. McGuire (1991) 502 U.S. 62.0.0... cccecccssccsssrsereesereeees 172 Featherstonev. Estelle (9" Cir. 1991) 948 F.2d 1497... 173 Fields v. Brown (9" Cir 2000) 431 F.3d 1186...sees118 Ford v. Wainwright (1986) 477 U.S. 399...eeeeesseeeeeeeeteees315 Furmanv. Georgia (1972) 408 U.S. 280...eeeeeseeeecreeteees254, 312, 316, 328 (xiv) Gardnerv. Florida (1977) 430 U.S. 349.0eeecseseeseeseeeeseeeeees294 Godfrey v. Georgia (1980) 446 U.S. 238.0... ce ceccesecerseeereeeeeees254, 267 Gray v. Mississippi (1987) 481 U.S. 648.0...eeeceseeeenenees223, 239 Gregg v. Georgia (1976) 428 ULS. 153...eeeccseeceseeeeeneeoee312, 313, 316 320 Griffen v. United States (1991) 502 U.S. 46.......... cc ceceessseeeees284, 291 Harmelin v. Michigan (1991) 501 U.S. 957...eeeeeeeeeeeeee295, 308 Hicks v. Oklahoma (1980) 447 U.S. 343.eeeeseseeseeeeeeeees285, 286, 322 Hilton v. Guyot (1895) 159 U.S. 113.eeeeessecteceeeesseeeeee328, 329 In re Anthony T. (1980) 112 Cal.App.3d 92.00.eeeeeees 147, 148 In re Carpenter (1999) 9 Cal4th 634.0.esessceeereeeeterees 103, 116 In re Hamilton (1999) 20 Cal 4° 273 ...cccccccssssscccsesscceesessees in passim In re Hitchings (1993) 6 Cal. 4" 97... ccccccsccccssessssssssessseeeees in passim In re Marquez (1992) 1 Cal.4th 584.0cceseeeeeteeeeeseees330 In re Sturm (1974) 11 Cal.3d 258.0...ecescsesecneecsenseeceeees307 In re Winship (1970) 397 US. 358........ccccsscccsseseseceseressseesseeees287 Jackson v. Virginia (1979) 443 U.S. 307........csscccssssssecerseeenees322 Johnson v. Mississippi (1988) 486 U.S. 578...eeeeseeeneees295, 316,318 Johnson v. State (Nev 2002) 59 P.3d 450...ceeeeseeeeeseeeeeees282 Kyles v. Whitney (1995) 514 ULS. 419.ceeesecseeeeeeseeeneee 173 Linseba v. California (1941) 314 U.S. 219...ecceseeeseeeees 173 (xv) Lockett v. Ohio (1978) 438 U.S. 586.0... cece ceccesceeeteeseeereeeeees247, 294, 317 Lockhart v. McCree (1986) 476 US. 162.0...ccsseseeeeeees222 Lucyv. Kirby (10" Cir) 133 F.3d 1299.0... cccssesesssssssssseessseesees 170 Martin v. Waddell’s Lease (1842) 41 U.S. 367.00... ceeeceeeseneee328 Maynard v. Cartwright (1988) 486 U.S. 356.0...eeseeeeeeee267 McDonough Power Equipment v. Greenwood (1984) 464 U.S. SB.ecccecceseeeesseesseseeesesseecesseseesessaseseeseseeassesessesesaeeseeeaeseeesetease 112 Mills v. Maryland (1988) 486 U.S. 367.0...cceeeeeereeeeeseeeeees285, 289, 308 317 Mongev.California (1998) 524 U.S. 721...ccceeeseeeeeeseees272, 294, 295 297, 324 Montanav. Egelhoff (1996) 518 U.S. 37...eescssccsesseeseeees217 Murray’s Lessee v. Hoboken Land (1855) 59 U.S. 18...............284, 291 Myers v. Ylst (9" Cir 1990) 897 F2d 417......ccccecsssssessseseseseeees285, 295, 308 Oken v. State (Md 2003) 835 A.2d 1105...eeeeseeeeeeseeees282 Park v. California (9"" Cir 2000) 202 F.3d 1149.......cesseeseeeees 173 Parle v. Runnels (9" Cir. 2007) 505 F.3d 922......cccssessssseseseoees216 People v. Adcox (1988) 47 Cal. 3d 207.0...ececcessceeeseeeeeees320 Peoplev. Allen (1986) 42 Cal.3d 1222.00eceeeeetsenneeeeees277 People v. Avalos (1984) 37 Cal. 3d 216.0...esesseeesceseeeeoees215 People v. Albarran (2007) 149 Cal. App. 4" 214.0... cccseeseees 161, 173 People v. Anderson (2001) 25 Cal.4th 543...eeeeeeeteeeees274, 283, 303 (xvi) Peoplev. Peoplev. Peoplev. Peoplev. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. Peoplev. People v. Peoplev. People v. Peoplev. People v. Anderson (1987) 43 Cal.3d 1104...eeeeesseeseoeees257 Bacigalupo (1993) 6 Cal.4th 857.0...cecesees eneeees254 Balderas (1985) 41 Cal. 3d 144.eeecseeseeeees 128, 150, 153 Beames(2007) 40 Cal.4th 907...........ccscccessseeseceeeeeeeees259 Bean (1988) 46 Cal.3d 919...sceceeeeseeteeeeetees 153 Bield (1998) 185 Ill. 2d 179.eeeeeeeeeteeeseeeees327 Bittaker (1989) 48 Cal.3d 1046...eeeeeeneeeee261 Black (2005) 35 cal.4th 1238.00.eeeeseceeseeeerenee299, 300 Bolin (1998) 18 Cal.4th 297.00.eeeeeseeseseeseeeeeees290 Boyd (1985) 38 Cal.3d 762.000...eeceeeeeeeeeseeseeeesens246, 247 Bradford (1997) 15 Cal4th 1229.00... eesccsesrceteesin passim Brawley (1969) 1 Cal. 3d 277.0.ceseseeessereeeeseeenens 170 Brock (1967) 66 Cal. 2d 645.00.ceceesteeseeeeeeeeeees 146 Brown (2003) 22 Cal.4th 226.0000... ccccecsscceseesseteeees 197 Brown (Brown I) (1985) 40 Cal.3d 512...eee277, 302 Butler (2009) 46 Cal. 4° 847... ccccscscscseseseessesseseenees236, 237 Carter (2003) 30 Cal. 4° 1166........ccccccccesssesesseseeeeeees 161 Cissna (2010) 182 Cal.App.4th 1105.00...eee113, 114 Cox (1991) 53 Cal.3d 616...ecseeseeeeeereteeeeetens 161 Cudjo (1993) 6 Cal.4th 585.0.ccessceeeneeeeeeeseens 195 (xvii) nearerthEEGSIEMBENEISTEAS Rn Kophogee ae cae ce pete Ae AoeSeNRE qtealtaeRe fated 2 ae cen’ * : 2 “ mete sii gears People v. Cunningham (2001) 25 Cal.4th 900.0...eens222 People v. Danks (2004) 32 Cal.4th 269.00...eeccccesseecssneeeeee 114 People v. Davenport (1985) 41 Cal3d 247...esscceteeseeneees318 People v. Davis (1995) 10 Cal.4th 463.0...eleeeesessceenereneees 127 People v. Dietrich (1982) 31 Cal.3d 263............cccsssccsssreeeeeeees297 People v. Dillon (1984) 34 Cal.3d 441.cccceeesseeeesenees256 People v. Diaz (1984) 152 Cal.App. 3d 926.000... eeesseeeesnees 108 People v. Duncan (1991) 53 Cal.3d 955.0... eeeceseeeseneeeneees300 People v. Earp (1999) 20 Cal.4th 826.000... ccessecceeeseeeonees236 People v. Easely (1983) 34 Cal.3d 858.0...eeeeeeeeeeeeeeeee246, 247 People v. Edelbacher (1989) 47 Cal.3d 983.000... .csccssscssseessreeenes254, 318 People v. Ewoldt (1994) 7 Cal. 4380......ccccccsessseseeseesesseeees in passim Peoplev. Falsetta (1999) 21 Cal. 4" 903......cecsessesesssscscseeeese 141-143 People v. Fauber (1992) 2 Cal.4th 792.00...eeeeeeseeeseeeeeenees306 People v. Farmer (1989) 47 Cal.3d 888.0000... cccceccsessseceeeees 197 People v. Farnham (2002) 28 Cal.4th 107.000... cccceccesserseeeees270, 279, 300 People v. Galloway (1927) 202 Cal. 81 oo...eecessecsseeeneeees 106 People v. Gray (2005) 37 Cal.4th 168.000... eeeeeeescesreneeees 113 People v. Hardy (1992) 2Cal.4th 86.0.0...ceessesesesesesecseeesreees261 People v. Hamilton (1989) 48 Cal.3d 1142.eeeeeeeeees318 (xvill) People v. Hawthorne (1992) 4 Cal.4th 43.00.eeeeeeees270, 308 People v. Hayes (1990) 52 Cal.3d 557.0...ceceecceseeeesetseneee285, 288, 308 People v. Hernandez (2004) 33 Cal.4th 1040.0...eens 161 People v. Hernandez (2003) 30 Cal.4th 835.0...+281 People v. Hillhouse (2002) 27 Cal.4th 469.00.eeseseeeeeeee256 People v. Holloway (1990) 50 Cal.3d 1098.0...eceeeseeeees 104 People v. Holt (1984) 37 Cal.3d 436...ceesesseeteceteeenees331 People v. Jenkins (2000) 22 Cal.4th 900.0000... ceeeeeseseeseeneees222 People v. Karis (1986) 46 Cal. 3d 612...eecsecsessecseesneeees204 People v. Kaurish (1990) 52 Cal. 3d at 699.0eeeeseeeees235 People v. Lewis (2009) 46 Cal.4th 1255.0eeeeneeeeeeees 140 People v. Lucero (1988) 44 Cal.3d 1006...........ccccceccccceseesssseenee318 People v. Marshall (1990) 50 Cal.3d 907..........ccccessessseessereeees 104, 314 People v. Martinez (2009) 47 Cal.4th 399.0.eeeeencererees 239 People v. Mason (1991) 52 Cal.3d 909.....ccscsssssssesssseessessesseees 147, 152, 153 People v. Martin (1986) 42 Cal.3d 437...........ccccssccsstesstessteeeeaes307 People v. Matson (1974) 13 Cal.3d 35.0.0... ccecseessseesecsteessreeees 145 People v. Mayfield (1997) 14 Cal.4th 668.00...ccesesceeees 127, 128 People v. Memro (1995) 11 Cal.4th 786............ccessecsssessneeeeees 128 (xix) People v. Medina (1995) 11 Cal.4th 694.000... ccssessteeeeeoees296 People v. Melton (1988) 44 Cal.3d 1006.0...ceeseeeseeeeeee318 People v. Mendoza(2000) 24 Cal.4th 130.00...ccessseeereeeees 153 People v. Miller (1990) 50 Cal.3d 954...eeescssceseeteeeeeeeee 133 People v. Miranda (1988) 44 Cal.3d 57.0...ee ccsccsssscessceeteeeens290, 297 People v. Moon (2005) 37 Cal.4th Lou...eeeeeeeeesesccssneteeeeeeees302 People v. Morales (1989) 48 Cal.3d 527.0...ees esessesseneeceeeeeeeee256, 321 People v. Morrison (2004) 34 Cal.3d 698.00... .ccssccesesseeereeseee298 People v. Musselwhite (1998) 17 Cal. 4™ 1216... ccccccseseeeeee 153 People v. Navarette (2003) 30 Cal.4th 929.0...eeeesseeeeeeees215 People v. Nelson (2008) 43 Cal.4th 1242.00.eeeseceneeees 188 People v. Nessler (1997) 16 Cal.4th 561.0.eeeeeeeeeeeeeeee 103, 106, 119 People v. Nicolaus (1991) 54 Cal.3d 558.00.ceeeesessseeeesees261 People v. Ochoa (2001) 26 Cal.4th 398.000...eects273, 274 301 People v. Ochoa (1998) 19 Cal.4th 353.0.eeeseceeesseeeeetees 173 People v. Odle (1988) 45 Cal.3d 286..........cccsssssesssesesesseseenees277 ' People v. Olivas (1976) 17 Cal.3d 286.0000... eecesseescesseeereeeseees325 People v. Ortiz (1979) 95 Cal. App. 3d 926.00... cececeseeteeeeeeees206 People v. Osband (1996) 13 Cal.4th 622.000.eeeeeeereeeeee 123 People v. Partida (2005) 37 Cal.4th 428.00eeeeeneteeeeeee 173 (xx) People v. Peete (1946) 28 Cal.2d 306.00...ceceeeeeeenteeeeoeees 131 People v. Perez (1981) 114 Cal. App. 3° 129.....:sccsscssetseseseees 161 People v. Phillips (2000) 22 Cal.4th 226........eaceusetesceseceeeeseeseons 197 People v. Phillips (1985) 41 Cal.3d 29...eeeescsseeereeeeeees265 People v. Poggi (1988) 45 Cal.3d 306 eeeecsceeceseeecsaccesnseeetenenseres 196 People v. Prieto (2003) 30 Cal.4th 226.0...eeeeeesseeteeeeeneees277, 282, 298 301, 302 People v. Raley (1992) 2 Cal.4th 870...........ccceessccsscseecsenteeeeees 197, 296 People v. Robbins (1988) 45 Cal. 3d 867.000... .cccessccessseeeseeees 131 People v. Robinson (2005) 37 Cal.4th 592.0000... ccsscccessereeeees204 People v. Sam (1969) 71 Cal. 2d 194...eeccsssseeessneeeeene 131, 149 People v. Sandoval (1992) 4 Cal.4th 155.00...cccecsseeeteeenees 127, 12, 158 People v. Smallwood (1986) 42 Cal.3d 415.000...eeeeeeseeeeees 147 People v. Snow (2003) 30 Cal4th 43.00... ceeseesscsreesseeeseseens275, 282-283 302 People v. Superior Court (Engert) (1982) 31al.3d 797...248 People v. Stanley (1995) 10 Cal.4th 764.00... eecsssecssseeeeees259 People v. Stewart (2004) 33 Cal. 4° 425 ......cccccessssssssssescseesees in passim ‘People v. Tafoya (2008) 42 Cal.4th 147.00... ccceesesessneeeeenees 115 People v. Taylor (1990) 53 Cal.3d 719...ceeesescestesseeeeeeees290, 293 (xxi) aseROCNLBERSuiASAICENMe People v. Thompson (1980) 27 Cal.3d 303.0...eeeeeeeceteeees 129, 130, 152, 154 People v. Tuilaepa (1992) 4 Cal.4th 569.0...ceeeccsteesteeeees280 People v. Turner (1984) 37 Cal.3d 302.0...ceeeeeeseeeeeeeeees 170 People v. Walker (1988) 47 Cal.3d 605.00.eeeeeeeneeeeeeeeeees261 People v. Watson (1958) 42 Cal.2d 818.00... ceeeseessctteoteesees 172, 201 People v. Wheeler (1978) 22 Cal.3d 258.0000... eeesceereceteeeeeeees296 People v. Williams (2003) 30 Cal.4th 1166.00...eeseeeeeeees 161 People v. Zapien (1993) 4 Cal.4th 929.00eseesseeetceeeeees210 Profit v. Florida 428 U.S. 242...cccccccececceesssssssssssssscesevess 311, 313 Pulley v. Harris (1984) 465 U.S. 37... eccecesseeceteteestesseesneees259, 311, 312 Ring v. Arizona (2002) 536 U.S. 584...ceeeeeeeesteeneesseeseenes in passim Roperv. Simmons(2005) 543 U.S. S551.eeeeeseceteesteeteceeees330 Rosales-Lopez v. United States (1981) 451 U.S. 182.0... 106 Roev. Clark (1986) 478 U.S. 570...eee ccesseeceeseeereseeeteeeentens 105 Sabbriego v. Maverick (1888) 124 U.S. 261.0... ceceeseeeeees328 Santosky v. Kramer (1982) 455 U.S. 466.000... cceeeeseeeeeeeeees272, 287 Scatterwhite v. Texas (1988) 486 U.S. 249...eceesccseeetees305 Schad v. Arizona (1991) 501 U.S. 624...eceseeereeeteeeeneees291 Showalter v. Western Pac. R.R. (1940) 16 Cal.2d 460.............. 195 Simmomsv. South Carolina (1994) 512 U.S. 154...250 (xxii) Stanford v. Kennedy (1989) 492 U.S. 361...eee eescsseteceseestenes327 State v. Bobo (1987 Tenn) 727 S.W.2d 945.cececssessessoneseees316 State v. Goodman (1979) 257 S.E. 2d 569.0...eeeeeetseseeteteees270 State v. Rizzo (Conn 2003) 833 A.2d 363..........ccsecsseseceeteeeeens282 State v. Whitfield (Mo 2003) 107 S.W. 2d 259...eee eeseeeees281 State v. Wood (Utah 1982) 648 P.2d 71eectescssseeeeneeees270 Strickland v. Washington (1984) 466 U.S. 668............cccssceeeees295, 297 Stringer v. Black (1992) 503 U.S. 222.0. eseeseseeeeeeeeeeeeeees250, 319 Sullivan v. Lousiana (1993) 508 U.S. 275.0... cscs essseeeeseeeeeetees287, 289, 305 Taylor v. Kennedy (1978) 436 U.S. 478...eeceeeeeeeeeeeees217, 330 Thomasv. Hubband (9" Cir. 2001) 273 F.3d 1164...217 Thompson v. Oklahoma (1988) 487 US. 815.eeereeereeee327 Townsend v. Sain (1963) 372 U.S. 293......ccecccsssccesseessseeeneneees306 Trop v. Dulles (1958) 356 U.S. 86.0.0... .ccesccsessssreeseeerseneeteeenees325. 328 Tuilaepa v. California (1994) 512 U.S. 967.0...eeececceeeereeenees261,304, 306 320 United States v. Bagely (1985) 473 U.S. 667........:cesceseeteeeereee 171 United States v. Daniels (D.C. Cir. 1985) 770 F.2d 1111......... 175 United States v. Douglas (9" Cir. 1986) 780 F.2d 1472........... 164 United States v. Gonzalez (9"" Cir 2000) 214 F.3d 1109........... 118 United States v. Johnson (9"Cir. 1987) 820 F.2d 1067............ 175 (xxiii) cinta nORESINENS oa ae cont og oP hast NanaANEURINACRrseeesSO fou Eman St Sah AR at United States v. Frederick (9" Cir. 1996) 78 F.3d 1370............217 United States v. Lewis (9Cir 1986) 780 F.2d 1472.......ccc00 175, 175 Wainwright v. Witt (1985) 469 U.S...cesceteeeeecssteeseeetesees in passim Walton v. Arizona (1990) 97 U.S, 639.00... ccecccsssecesesesseeeneeeees273 Weathers v. Kaiser Foundation (1971) 5 Cal,3d 98................. 105 Westbrook v. Milahy (1970) 2 Cal.3d 765.00... eeeseseereneeeees325 White v.Illinois (1992) 592 U.S. 346... ecceeseeeceeceeeeeseneenee 194 Williams v. Superior Court (1984) 36 Cal.3d 441.00in passim Witherspoonv.Illinois (1968) 391 U.S. SIO.cecein passim Woldt v. People (Colo. 2003) 64 P.2d 256.0... cseseseseeeeeeenes281 Woodsonv. North Carolina (1976) 428 US. 280...eee238, 318, 321 Zant v. Stephens (1983) 462 US 862.000...eeeeseceseseeeeeteeeeenee254, 318 CALIFORNIA STATUTORY AUTHORITY Evidence Code SECTION 352.0... cecseccsscceseecessceeseesceecscerseeeeesecaeessecnersseesseesereeness in passim Section 1158... eeeseeeeseceeseceseeecseeeseeeseeeseeeeeeeseeeneseeasecseesarees295 Section L1O1icceeescsssssesessecseesseeseensseesssesseseseessnssneessseeses in passim Section 1108.0... ececcccssssccesssecessceeesecesseesssessesesseeeeserecsaeeseas in passim Section L150.eecceeseseeceseesseesecseeeseeecenseeeeeseseacensesseneeeeeeees 104 Section 1240.0... .cccsseescesecsseccsccsesesseccsseceseeseessecsesseteneseneeeeesneeas 197 (xxiv) Penal Code Section 190.2...csccssseessecccesssscessssessesevssecsssecssescssesssseseeseeeesin passim Section 190.3... ecccscccsssccscccceseeccsscesssoesensessencceseecceeeesensctsesaensin passim S€CtION 954.0 eescccseeeeseeesssessssssessecessseessseessseeceresssesesesesceeeees 126 Section 954.1vesessecsssecssseessssssssssesesesesesesesesssesssesesseeeoes 126 ‘OUT OF STATE STATUTORY AUTHORITY Ala. Code sec 13A-5-45,46........cccccccccssssscccscessssseseseseeeeeeness269, 309 . Ala. Code section 13A-5-53.........cceseeseessseescceeceeeesenceseeeenes313 Ark. Code Ann Section 5-4-603..........cccccccccccssessscsccssseeeeessees269, 270, 292 309, 313 Ariz. Rev . Stat. Ann. Sec 13-703 (C ).....ceeeccssreceessreceeees 369, 270, 309 Colo Rev State 16-11 103...eeeeseescesteeeecseseeeteeeeesees292 Conn. Gen Stat. Ann section 53a-46A (€)..........::cccesceesenees269, 309 Conn. Gen Stat. Ann section 53a-46D............cccccccccccceseeteeees269, 270 Del Code Ann tit 11, section 4209 (d) (1)... ce eesesereereeeeees269, 309 Fla. St. Ann. Section 921.141(3)...... eeeesccssseeresseesteeserees269, 309 Ga Code Ann sec 17-10-30...eesceessssssesssssesssssesseeees269, 309 Ga Code Ann sec 17-10-35... eeessceeeceseeesceseeeteeesneeenes314 Idaho Code sec 19-2515 ...iccccceeccccecccscccccccnscssssssesssnsnsrssssesees269, 314 Idaho Code sec 19-2827 (€ ) (3).....cssccssssssesscssssseseseseeeeseenes314 (xxv) aARALIRENATELEANmr Ee NOTSn a GE Uy coPN iitatentedAALSREPRISMANNRE EH ge tg TI. Stat Ann ch 38...escesesseresesscneeseeerensssesseseeeeeeeeees292 Ky. Rev.Stat. Ann section 532.025...........ccssscccsssseesereeeeoes269, 309 Ky. Rev.Stat. Ann section 532.075..........cccccsscessssteeeetreeeens314 La Code Crim Procedure art 905.7 ...........ccccccccccsscsessesssereaee269, 309 La Code Crim Procedure art 905.9... eeeeeseeteeseeseeeees314 Md Ann.Codeart 27, section 413.000... cceecceeeessseseseeeeseees269, 309 Miss Code Ann Section 99-19-103.......ccccsssteeeessscceeeenes292, 309 Miss Code Ann section 99-19-1050...eee eessecereeeeesneeeees314 Mont. Code Ann. Section 46-18-3100...eeesceeeeeeees269, 309 Neb. Rev.Stat. Section 29-2522........cccccccssssssssceseessesseseesees269, 309 Nev. RevSt. Ann. Section 175.554 (3)........ccscssecssesseeteees309 Nev. Rev. St Ann section 177.055...cescseeeeeeeeeneeeees314 N.H.Rev.Stat. Ann. Section 630.5...ceseseeeseeeeernenees292, 309 N.M.Stat Ann section 31-20A-3-4..0....c.eceeesceeseeeeeeeeeneees292, 309, 314 N.C. Gen Stat. Section 15A-2000 oo.eeccteeeeeeeeneees314 Ohio Rev. Code section 2929.04...ceesecesseesseseeseeeeeeees314 Okla Stat. Ann. Tit 21, section 701.11.eeeeeeeeeee309 PA. Cons. Stat,. Ann section 9711 (C) (1)... eeeeceeees292, 309, 314 S.C. Code Ann section 16-3-20 oiicccccsscessccssssseesseees292, 309 S.C. Code Ann section 16-3-25 0... cesssccssesseeseteereesenes314 (xxvi) S.D. Codified Laws Ann section 23A-27A-5......ccccccccceesees309 S.D. Codified Laws Ann section 23A-27A-12........cceseees314 Tenn. Code Ann section 39-13-204(f)(g)...........csceeeeeeeee269, 309 Tenn. Code Ann section 39- 13-206...csscccteeteeteees314 Tex. Crim Proc. Code Ann.Section 37.071 .........ccceeccceees269, 292, 309 Va. Code Ann.Section 17,110.10.ecseseeteeeeeeeones309 Va. Code Ann section 19.2-264.4 (C )....cccesseccesssceessneees314 Wyo.Stat section 6-2-102 (d) (1) (A)... ceesccccescccsseececeeceeeeeeneees314 Wyo. Stat section 6-2-1020... ceccccccsseesssnsessseesecseeeeseteeeesees269, 309, 314 Wyo.Stat. Section 6-2-1030... cesssseessssecccsssesesssseeeessreeseneees314 Wash. Rev. Code Annsection 10.95.060 (4)...........cccccceseeeeees270 Wash.Rev. Code Annsection 10.95.030............ccssceeneeeseoereeeees314 OTHER AUTHORITY Cal. Code of Regulations, Title 15, section 2280 et seq............307 CALSIC 8.85.0... eecscecccesssssceceenonseescsetencesessseseeseeseecansasecorensa249 CALIIC 8.88.00. ceceesecseeceeceneeeneesersaceeasecneeseseeesesaeesaeensaees in passim 21 UVS.C. 848.eccesecceseceneestecensceeeeeeeseeeccneeseaeeacesseecareseneeeses295 Amnesty International, “The Death Penalty List of Abolitionist and Retentionist Countries.” (Dec 1999)... ccecccsssscsssseeessscssesssccsssseeeseseessseecnscessesstesessescees327 (xxvii) Kozinski v. Gallagher, Death: The Ultimate Run-On Sentence, 46 Case W.Res. L.Rev. 1, 30 (1985)...ceeeeeee315 Soering v. United Kingdom: Whether Continued Use of the Death penalty in the Untied States Contradicts International Thinking (1990)16 Criminal and Civil Coninement, 339...........cccccccsccccccsecccecececceseccesssssssesesers327 Shatz and Rivkind, The California Death Penalty Scheme: Requiem for Furman? 72 N.Y&U.L. Rev. 1283 (1997)...cece eescscccsecesseseeeeesseteeesteseesseeseeeeneeeeeseeeseeees256 (xxviii) IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA ) $097363 ) Plaintiff/Respondent ) Ventura County VS. ) ) CR45651 JUSTIN JAMES MERRIMAN ) ) Defendant/Appellant ) ) ) APPELLANT’S OPENING BRIEF On Automatic Appeal from the Judgmentofthe Ventura County Superior Court, Honorable William Bailey, Judge. STATEMENT OF THE CASE A consolidated indictment was filed on November 27, 2000, charging appellant with 28 counts ofcriminal activity.'_ The indictment 1. A summary chart will follow.It also should be noted that 8 of these counts were severedpriortotrial. sateNeONAPRONFOROSEPSEaoe charged the first degree murder of Katrina Montgomery, on or about November28, 1992, with the allegations of use of a deadly weapon (a knife) and special circumstances of rape and forcible oral copulation (Count I; P.C. section 187, 190.2 (a) (17) (C), 1192.7 (c) (23), and 23033 (b)); the rape, oral copulation, and penetration by a foreign object of Robyn G., on or about and between October 1, 1994 and March 20, 1995 (CountsII, IIT and IV; P.C. section s 261 (a) (2), 288 (c), and 289 (a)); three incidents of rape of Billie B., between August 1, 1994 and January 31, 1995, as well as an attempted oral copulation during the third incident (Counts V, VI, VII and VII; P.C. sections 261(c) (2) and 644/288 (c); resisting an executing officer, with the special allegation ofpersonal use of a hand gun, exhibiting a deadly weaponto a police officer to resist arrest, assault on a police officer, vandalism with damages over $5000, and being underthe influence of a controlled substance on January 30-31, 1998 (Counts IX-XV;P.C. sections 69, 12022.5 (a) (1), 417.8, 245 (c), 594 (b) (2) and Health and Safety Code section 1155 (a)); conspiracy to dissuade a witness by force or threat with a special allegation that the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang, to wit, the Skin Head Dogs, with the specific intent to promote, further and assist in criminal conduct of gang members on or about January 6, 1998, to May20, 1999 (Count XVI; P.C. sections182 (a) (1),136.1 (c) (1), and 186.22); solicitation to dissuade a witness and dissuading a witness by force or threat, on or about January 6, 1998 to March 31, 1999 (Counts XVII-XX; P.C. Sections 136.1 (c) and 653 (f).) COUNT ALLEGED CHARGE DATE VICTIM 1 Katrina Murder and 11/28/92 . Montgomery special circumstances 2 Robyn Gates Forcible Rape 10/1/94-3/30/95 3 Robyn Gates Forcible Oral 10/1-94-3/30/95 Copulation 4 Robyn Gates Foreign 10/1/94-3/3/95 objection 5 Billie Bryant Forcible Rape 8/1/94- 1/31/95 6 Billie Bryant Forcible Rape 6/1/95-9/30/95 7 Billie Bryant Forcible Rape 10/1/95- 11/30/95 8 Billie Bryant Att. Forcible 10/1/95- Oral Cop 11/30/95 9 Miller and Resisting 1/30/98-1/31/98 Beery Executive Officer (PC69) 10. Exhibiting Deadly Weapontoa police officer to Avoid Arrest (417.8) 1/30/98-1/31/98 11 Set Taylor Assault on Police Officer (245 (c )) 1/30/98-1/31/98 12 Sgt Taylor Resisting Executive Office 1/30/98-1/31/98 13 Exhibiting Deadly Weapon toa police officer to Avoid Arrest (417.8) 1/30/98-1/31/09 14 Jeanette Rail Vandalism Over $5,000 1/30/98-1/31/98 15 Under Influence of Controlled Substance 1/30/98-1/31/98 16 Conspiracy toDissuadeWitness byForce orThreat PC 182(a ) (1) and 136.1(c) withsection 186.22allegation 1/6/98-5/20/99 17 Solicitation to 1/6/98-3/31/99 Dissuade Witness PC136.1 (c) 653f (a) 18 John C. Dissuading a 1/6/98-3/31/99 Witness by Force or Threat PC136.1 (c) 19 Larry N. Dissuading 1/6/98-3/31/99 Witness by Force or Threat PC 136.1 (c) 20 Chris B. Dissuading 1/6/98-3/31/99 Witness by Force or Threat PC 136.1 (c ) Jury selection began on November29, 2000 (VII CT 1530 et seq.) and the jury was empaneled on January 4, 2001. (VII CT 1701 et seq.; 35 RT 6069.) The prosecutor’s case commenced on that same day. The governmentrested on January 31, 2001. (VII CT 1846 et seq.; 52 RT 9251.) Appellant rested on February 2, 2001. (VII CT 1861 et seq.; 54 RT 9632.) On February 7, 2001, the prosecutor presented a very short rebuttal case. (VIII CT1891 et seq.; 54 RT 9634.) On February 8, 2001, the jury received the case for deliberation. (VIII CT 2019 et seq.; 57 RT 10230.) On netaeARissAPRgeomeHeyce oe AN OMee February 13, 2001, the jury returned a guilty verdict on all counts and true findings onall allegations. (VIII CT 2057 et seq.; 58 RT 10313.) The penalty phaseofthe trial commenced February 27, 2001. (VIII CT 2101 et seq.; 59 RT 10484.) The prosecutor rested the same day, whereupon appellant commencedpresentation of his case, resting on March 1, 2001. (VIII CT 2117; 60 RT 10598-61 RT 10927.) The prosecutor began its rebuttal case on March 5, 2001. (VIII CT 2140 et seq.; 61 RT 10970.) On March8, 2001, appellant testified in his own behalf. (VIII CT 2221 et seq.; 64 RT 11398.) On March 12, 2001, the jury returned a verdict of death. (VIII CT 2228 et seq.; 65 RT 11558.) A Motion for a New Trial and Reduction ofPenalty wasfiled on April 24, 2001. (VII CT 2269 et seq, VII CT 2276 et seq.) On May1, 2001, the motion was denied bythetrial court and a judgment of death was entered. (VIII CT 2298; 65 RT 11613.) STATEMENTOF FACTS MURDER OF KATRINA MONTGOMERY(COUNTI) Katrina Montgomery, knownto her friends and family as Trina, was 19 years old in November, 1992. Atthat time, she wasliving with her parents in Los Angeles. (37 RT 6483.) On November 26" she attended a Thanksgiving celebration with her very large extended family. (37 RT 6489.) While her family had plansto go to a relative’s house in Santa Barbara the following day, Trina had other plans. She told her motherthat she would join the family in Santa Barbara that Saturday. Trina told her mother that she would be working on Friday, then meeting a friend, Keith Ledgerwood,in the evening. (37 RT 6490-6493.) Trina’s mother, Kathryn, was sick that Saturday and did not go to Santa Barbara. At approximately 2:00 p.m. on Saturday, Mrs. Montgomery received a call from Apry! Porcho, a friend of Trina’s. Mrs. Montgomery wassurprised to hear from Apry! because she had not heard from her in sometime. Apryl asked Mrs. Montgomery if Trina was home. Mrs. Montgomery told Apry! that Trina had gone to Santa Barbara. While Mrs. Montgomery was not concernedatthis call, she did not like Apry] calling becauseshe did not approve of Apryl’s lifestyle. (37 RT 6493-6495.) An hourlater, Mrs. Montgomery received a far more troubling phone call. She wastold by a law enforcementofficer that the La Crescenta Sheriff’s Office had found Trina’s truck abandoned over an embankmentin the Angeles Crest Forest. (37 RT 6495-6496.) The truck wasoffthe road on a dirt turnout over a dirt beam. There seemedto be blood on the truck bed and tailgate area. (39 RT 6906-6907.) The police called shortly after this first call to inform Mrs. Montgomery that her daughter had not been located. (37 RT 6497.) Mrs. Montgomery immediately called her sister in Santa Barbara and was informedthat Trina had never shown up. Mrs. Montgomery continued to make calls to Trina’s friends in a futile attempt to find her. (37 RT 6497.) At approximately 7:00 pm that evening, Mrs. Montgomery receiveda call from Scott Porcho, Apryl’s husband, asking if Trina was there. Mrs. Montgomery told Porcho aboutthe calls from the police and he replied that he hadn’t seen Trina for the past few months. (37 RT 6499.) Mrs. Montgomery then called other members ofher family in an attempt to find Trina. (37 RT 6500.) She also called the Porcho house and spoke again to Apryl, whosaid that she hadn’t seen Trina for months. She followedthis up with a call to Keith Ledgerwood, whotold herthat there was a possibility that Trina was at the Porcho house. (37 RT 6501-6502.) After speaking to Ledgerwood, Mrs. Montgomery called the Porchos once again. This time, Apryl admitted speaking with Trina earlier that 2. This blood waslater analyzed by a criminalist from the LAPD. While the source ofthe blood could not be positively identified, the analysis showedthatit wasthe blood of a biological child of Michael and Katherine Montgomery, Trina Montgomery’s parents. (39RT 6917.) weekandsaid Trina mentioned something about visiting the Porchos in the near future. However, Apry]still denied seeing Trina recently. (37 RT 6502.) She told this lie because her husband, Scott, had ordered her to do so and she wasafraid of him. (40 RT 7127-7129.) Earlier that evening, Mrs. Montgomery had spoken to Trina’s close friend, Lee Smith, who suggested that she call appellant. (37 RT 6504.) Mrs. Montgomery had some knowledgeof appellant andhis relationship with Trina. In early 1992, Mrs. Montgomery became awarethat Trina was communicating with someonein jail by the name of Justin Merriman. She knew that appellant wasa friend ofTrina’s boyfriend, Mitch Sutton. She also knewthat Trina had been accepting collect calls from appellant while he wasin jail. She told Trina not to accept these calls any longer. (37 RT 6484-6485.) One morning in March 1992, Mrs. Montgomery and Trina wereat homeand Trina seemed very upset. Mrs. Montgomery asked her why. Trina told her that the previous night she had visited appellant. Due to the late hour, Mrs. Merriman had offered her a place to spend the night. Sometime during the night, appellant entered her guest room, climbed into bed with her and made sexual advances. Trinasaid she felt sick and needed to use the bathroom. Instead of going to the bathroom, she fled the house eeeeCrae and drove home. (37 RT 6486-6487.) Mrs. Montgomery followed Lee Smith’s advice and called appellant, whosaid that he last saw Trina a couple of nights before at a “get together” at the Porcho house. (37 RT 6504-6507.) At 2:00 that morning, Mrs. Montgomery called the Porcho house once again. This time, Apryl admitted that Trina wasat their house on Friday night. Apryl told Mrs. Montgomery she did not wantto tell the truth before because she did not want Mrs. Montgomery to think that they “did anything bad” to Trina. Apryl never explained this statement to Mrs. Montgomery. (37 RT 6521-6522.) Overthe next several years, Mrs. Montgomery continued in herfutile efforts to find Trina. Mrs. Montgomery nowbelieves that her daughteris dead. (37 RT 6524-6526.) Apryl Porcho® had known Trina Montgomery for several years prior to 1992. She first becamefriends with Trina when they were both living in the Ojai area. (39 RT 7009.) Trina wasinvited to a party at the Porcho house, at 1231 Azalea Street in Oxnard, on the Friday after Thanksgiving, 1992. At that time, John Cundiff and Juno Diaz werealso living with the Porchos. (39 RT 7101-7104.) At the time of this party, Scott Porcho was a memberofa street gang 3. Bythe timeofthe trial, Apryl had remarried and assumed her new husband’s name of Bronley. 10 knownas the Skin Head Dogs. This gang was a violent, racist gang associated with other white supremacist gangs. (39 RT 6996, 7000.) Although womenassociated with gang members, no women were allowed to join. Gang membersconsidered each other as “family” and felt that they owedtheir allegiance to each other. They referred to each other as “brothers.” (39 RT 7002-7003.) Appellant was a memberofthis gang and wasreferred to by his monikers “Mumbles” or “Knucklehead.” (39 RT 7013.) Both Porcho and appellant were considered leaders of the Skin Head Dogs. (39 RT 7022.) Scott Porcho considered himself a good friend of Trina Montgomery. Hesaid that they were like brother and sister, having met through Mitch Sutton, Trina’s ex-boyfriend and a fellow Skin Head Dog. (39 RT 7019) Many ofthe attendees at the party were Skin Head Dogsandtheir girlfriends. In addition, 12-15 membersof anotheraffiliated gang, the Sylmar Peckerwood Family, attended the party, including Ryan Bush and Larry Nicassio. (39 RT 7023; 7028.) Trina wasalready drunk whenshearrivedat the party. She arrived by herself in her truck before appellant got to the party. She had an overnight bag with her as she was supposedto stay overnight at the Porchos. (39 RT 7043-7044.) There wasa lot of drinking and LSD use during the party. In 11 addition, there were several incidents of violence. One ofthese incidents involved a Sylmar kid who wastaking a snake out of the case and spraying beer in the living room. Appellant took offense at this and punchedthis person, who eventually was taken out ofthe party. (389 RT 7047-7050) Scott Porcho remembered a few specific incidents involving Trina’s conductat the party. He rememberedTrina giving her car keys to Apry! and telling her “no matter what, don’t give me my car keys back.” (39 RT 7051.) He also rememberedat somepoint that evening he was playing cards with appellant, who told Porcho “no matter what, keep Trina away from me.” After this, he saw Trina with her arm aroundappellanttrying to talk to him and Porchohad to escort her away. (39 RT 7051-7052.) Trina continued to drink throughout the evening. (39 RT 7052.) At some point, Scott Porcho heard a scream coming from his bedroom. When he arrived at the bedroom,he saw Trina on the bed holding her stomach,like she had been hit. Appellant was one of seven or eight men standing around her in a semi-circle. When Porcho appearedin the bedroom, the men looked at their feet and acted as if they had no idea what wasgoing on. Appellant told Porcho that nothing was going on. Apry! Porchothen escorted Trina out of the bedroom. It was obvious to her that Trina had beenstruck. (39 RT 7053-7055.) 12 Trina continued drinking. She was oneofthe drunkest peopleat the party. At approximately 2:00 a.m., a few hours after the altercation in the Porcho’s bedroom,there was another incident involving Trina. Scott Porcho was playing cards in the dining room with John Cundiff. Only ten people or so remained at the party. Larry Nicassio pushed Trina against the kitchen wall and began choking her with both hands. (39 RT 7056-7057.) Ryan Bush and appellant were standing next to Nicassio. Nicassio hadalso held a knife to Tina’s throat. Bush pulled a knife out of his boot, showed it to Porcho and smiled. (39 RT7057; 7059-7060.) Atthat point, Porcho jumped upout ofhis chair and smashed appellant over the head with a beer bottle. He also struck both Nicassio and Bush. Heattacked appellant first because he felt that appellant was the best fighter, therefore, the most dangerous. Appellant had a large shard of glass in his head from the beer bottle. (39 RT 7061-7063.) Porchocontinued to struggle with appellant, who was bleeding badly from the head. Asthe altercation spilled into the dining room area, the two ofthem almost tipped over a terrarium and simultaneously wentto rightit. Atthat point, the fight suddenly stopped. (39 RT 7065-7067.) Trina took appellant to the bathroom to tend to his head wound. (39 RT 7067-7069.) Either Bush or Nicassio then said to Scott Porcho, “Thank you for stopping 13 LentoNRCRESEIS in us from doing what we might have done.” (40 RT 7277.) Atthis point Apryl returned to her house after driving a partygoer home. She observed the blood and disarray and wanted everyoneto leave. (39 RT 7069-7070; 40 RT 7112; 7118.) Apryl took Trina into her bedroom and then drove appellant, Nicassio and Bushto appellant’s house, a forty minute roundtrip. (40 RT 7118; 7124.) When she returned to her house, Trina wason the phone with appellant. Apry] believed that the phone conversation ended and appellant called back. (40 RT 7120-7121.) Scott Porcho intervened and stopped Trina from speaking further with appellant. (40 RT 7290.) Trina wanted her keys back but Apryl refused to give them to her because she wantedto keep Trina from going to see appellant. (40 RT 7288- 7889.) Trina becamevery upset. She began calling Apryl names andberating Apryl for trying to run herlife. Trina was throwing things and seemed drunk. (40 RT 7122-7123.) Apryl eventually relented and threw Trina her keys. Trina left the house and Apry] never heard from her again. (40 RT 7123.) Larry Nicassio, one of the peopleat the party testified at appellant’s trial. On Thanksgiving weekend, 1992, he was 16 years old. He belonged to the Sylmar Family Peckerwoods. He looked upto the elder membersofthe Skin Head Dogs, including Porcho and appellant. His cousin, Ryan Bush, 14 wasalso a memberofthe Sylmar gang. (45 RT 8026-8029.) Prior to the Thanksgiving weekend party at the Porchos he had met Trina Montgomery on a few occasions. (45 RT 8036-8038.) Nicassio had been a gang membersince he was10 years old. (46 RT 8242-8244.) His gang fought a lot and Nicassio willingly joined in these violent altercations. (46 RT8247-8249; 8252-8253.) The gang was Nicassio’s life and he shared their white supremacist views. (46 RT 8251; 8255.) Nicassio attended the Porcho party with Wayne Gibson, Gibson’s brother and Roman Dobratz. They got to the party about 8:00 p.m. There wasa lot of drinking and use ofLSD. (45 RT 8042-8044.) Nicassio did not talk to Trina at the party. However, he saw her with appellant and it was his impression that they were not getting along. (45 RT 8048-8050.) At somepoint during the evening, appellant approached Nicassio and said that he wanted him to “do something”to Trina. Nicassio thought that appellant was joking with him, as the older gang membersoften played jokes on the younger ones. Appellant handed Nicassio a steak knife and said “We’re goingto get that bitch.” He did not take appellant seriously and put the knife down. Appellant approached him the same way onceagain, and Nicassio again just laughedit off. (45 RT 8052.) 15 Appellant handed Nicassio a knife for the third time andsaid, “take this, this is the last one I am giving you. You’re going to doit, and this is the last one I am giving you.” Nicassio then walked up to Trina from behind and, without her seeing him, mimedstabbing her in an effort to make the other people watching him laugh. He then discarded the knife. (45 RT 8053- 8055.) Nicassio denied ever choking or threatening Trina. He also denied that Scott Porcho ever hit him or Ryan Bush. (45 RT 8061.) In addition, he recalled anotherfight in the kitchen in which appellant told Scott that appellant was going to do something to Trina and Scott said, ““You’re not going to fucking touch her” and then hit appellant over the head with a beer bottle. (45 RT 8057-8058.) He also remembered Trinastarted yelling at Porcho andappellant. Nicassio told Trina to “Get the fuck out of here, you’re just making it worse.” Trina slapped him and said “You can’t talk to methat way, I’m property ofthe Skin Head Dogs.” Nicassio pushed Trina out of the way reflexively and she fell. (45 RT 8063.) According to Nicassio, Trina went into the bathroom to tend to appellant’s head wound. When Trina was washingappellant’s head, appellant looked at Nicassio and mouthed,“Are you goingto doit, doit now, do it now.” Nicassio again did not take this seriously. (45 RT 8068.) 16 Nicassio indicated that after this altercation, Apryl Porcho dropped appellant, Ryan Bush andhimself off at appellant’s house. They had something to eat in the kitchen and wentupstairs to appellant’s bedroom to go to sleep. Bush and Nicassio slept on the floor and appellant used the bed. At some point, Nicassio heard a phone conversation in which appellant asked Scott Porcho to put Trina on the phone. (45 RT 8072-8073.) Nicassio recalled appellant telling Trina she could comeoverto his house andstay. Nicassio believed that this call occurred between 4:00 and 5:00 a.m. Nicassio had noreason to believe that anything was wrong. (45 RT 8073- 8074.) Trina arrived at appellant’s house in her truck and appellant went to get her. Trina walked into the bedroom, wearing the same clothes she was wearing at the party. It seemed like she had sobered up quite a bit. Sheleft the room, changed into sleeping clothes, and got into bed with appellant. (45 RT 8075-8078.) After Trina and appellant had some conversation, appellant got on top of Trina, straddling her with his knees on her shoulders. Appellant said “Come on,just do it” and Trina replied, “Not with them in the room.” Nicassio heard appellant smack Trina in the face and say, “Do it now,bitch.” Nicassio, afraid of appellant, just looked away. He heard the soundsoforal 17 copulation and Trina saying, “No.” Nicassiostill did nothing to stop this. (45 RT 8079-8081.) Appellant got on top ofTrina and started having vaginal sex with her. Trina was begging him to stop, repeatedly saying, “Justin, don’t do this.” Trina was unclothed at this point and she was whimpering that she wassore. Nicassio had no doubt that Trina was being raped, but neither he nor Bush did anything to stop it. (45 RT 8082-8083.) Appellant got out ofbed, put somelotion on his genitals, got back into bed andstarted to have sex with Trina again. Trina again asked appellant to stop, saying that she did not wantto get pregnant. Appellant finished having sex with her, got off of her and said, “There, you’re pregnant.” Nicassio claimed that appellant then made Trina perform oral sex on him once again, with appellant sitting on the bed and Trina on the floor before him. She said that her mouth was hurting. Appellant then asked Bush and Nicassio, “Do you guys want someofthis?” Neither replied. (45 RT8084-8086.) Trina said she had to go to the bathroom, but appellant told her to go in the garbage can. Finally, Nicassio spoke up andtold appellantto let her go to the bathroom. WhenTrina started to get dressed appellant suddenly stabbed herin the throat. She grabbed herthroat and fell over, curled in a 18 Hit A mabe oe SSOPSSSOehRNRERCERIN EREASMEMESEEIYIRENEI ball, begging appellant not to hurt her. Appellant threw a blanket over Trina, got a big crescent wrench out of a drawer, knelt down andstruck Trina in the head. Nicassio heard a loud thud and felt the floor shake. Due to his fear of appellant, he again did not intervene. (45 RT 8089-8090.) Nicassiostill heard labored breathing. When he looked again, he saw appellant holding Trina by the hair with a knife to her throat. He looked away. (45 RT 8090-8091.) The next time Nicassio looked, appellant had rolled Trina up in some blankets or sleeping bags. Appellant told Nicassio and Bushthat they were going to have to makea plan to cover up the murder. Nicassio told appellant that he was going to walk out the door but wouldn’t tell anyone what happened. However, appellant told him that he wasn’t going anywhere. As appellant had a knife in his hand at the time, Nicassio felt threatened. (45 RT 8091-8092.) Appellant then placed the knife and wrench that he used to kill Trina in a plastic bag along with someofTrina’s personal possessions. Bush and appellant were discussing what to do next. Appellant wanted Bush and Nicassio to carry Trina’s body downstairs. Nicassio told appellant he was afraid to touch it. Appellant told Nicassio to go downtothestreet and pull Trina’s truck around. Nicassio said he did not want to do it but appellant told 19 him that he was the only one who could drive a stick shift. Nicassio did as he wastold, fearing retaliation from appellant. (45 RT 8093-8094.) Between 8:00 and 9:00 a.m., Ryan Bush and appellant carried Trina’s body out of the house and placed her in the back of her truck. Ryan was panicking because he believed that appellant’s mother, Sue Merriman, saw them carrying the body, but appellant said that his mother wouldn’t say anything. (45 RT 8096-8098.) Thethree set off in the truck to a house on Carlsbad Street in Sylmar where Sylmar gang membersoften stayed. Appellant gave a very nervous Nicassio directions, telling him to “drive cool,” as Trina’s body wasin the back ofthe truck. Nicassio believed that he was as legally responsible for Trina’s death as appellant and was very afraid ofbeing apprehended.( 45 RT 8098-8102.) The three menarrived at the Carlsbad Street house. Nicassio had no idea about the plans for the body, as he was not consulted. Ryan went into the house, and Nicassio said to appellant, “I’m only 16, I can’t believe that this is happening.” Appellant said “I’m sorry for getting you involved.” (45 RT 8102-8103.) Bush then came out ofthe house with paint thinner and rags. He put them in Wayne Gibson’struck and droveoff, motioning for Nicassio and appellant to follow. Nicassio never thought about asking the 20 people at the house for help because he believed that they would all side with appellant. (45 RT 8103-8105.) The three men were going to go to a location in Sylmarto dispose of the body but there were too many people around. Nicassio then followed Bush to Sunset Farms, a secluded rural area, where they followed a dirt road approximately 200-300 yards before pulling over. In a ravine that paralleled the dirt road, there was a drainage pipe. Bush and appellant put Trina’s body in the drainage pipe and covered the pipe with tumbleweedsand garbage to hide it. Nicassio claimed that he never touched the body. (45 RT 8106- 8109.) Thethree then left the Sunset Farmsarea, with Ryan again driving the Gibson truck and Nicassio and appellant in Trina’s truck. They stopped at a Santa Carita Valley gas station to get gas for Trina’s truck and then proceededto Little Tujunga Rd. in the Angeles National Forest. They stopped the trucksat a turn out. Nicassio saw bloodin the back ofthe truck. They used the paint thinner and the rags to wipe down Trina’s truck. (45 RT 8109-8111, 8114) ‘After they wiped downthetruck, Bush attempted to roll it down an embankmentoff the side of the road. However, the truck became stuck on the berm and would not moveanyfurther. The three then got into Gibson’s 21 truck and then proceeded to a Denny’s restaurant to discuss whattheir next move would be.* (45 RT 8117-8118.) Appellant told Nicassio and Bushthat if anyone asked questions they should say that Nicassio paged Wayne Gibson that early morning from appellant’s house and Gibson picked Nicassio and Bush up and brought them back to Sylmar. (Vol. 45 RT8119.) The three then left Denny’s and drove appellant back to his house. After doing this, Bush and Nicassio dumpedtheplastic bag containing Trina’s things, along with the knife and the wrench, in a dumpster in an industrial area off the highway. They stopped to buy Bush some newclothes because the ones he was wearing were bloodstained. (45 RT 8123-8125.) Two days later, Bush and Nicassio borrowed a car and returned to where they hadleft Trina’s body. They arrived at the scene at approximately 11:00 p.m. Both had shovels, but Bush dug the grave while Nicassio served as a lookout. Bush buried Trina less than 5 feet from where the body was originally left. Again, Nicassio never touched the body. (45 RT 8128-8129.) Nicassio claimed that he wasafraid and ashamedafter the killing. A few weekslater he wasat a drive-in movie with Brandi Exposito and told her what happenedto Trina. Nicassio told her that he was ashamed and had 4. While Nicassio claimed not to recall much about the conversation, he did recall that the decision was that he and Bush would eventually go back and bury Trina. ([bid.) 22 setNeaSISRCEYen Seng mi chap BuneneSeettoyROEAEAeAaT to “get it out.” (45 RT 8130-8131.) Nicassio saw appellant at another party two to four weekslater. Appellant told Nicassio not to worry because his mother had cleaned up the blood. Appellant also asked Nicassio about whether Trina’s body was buried, and suggested that the decomposition of the body could be accelerated by spreading lye overthe burial site. Nicassio never did this. (45 RT 8133-8134.) Around this time, Nicassio took a ride past the location wherethe body wasburied to see whether there was any police tape in the area. Nicassio saw none. (45 RT 8134-8135.) Over the next few years a lot of “rumors”started to surface and Nicassio believed that people he knew wereaccusing him of“things.” In November, 1997, Nicassio heard that a new grand jury was going to be hearing evidence about the case. (45 RT 8137-8138.) Aroundthis time Nicassio received a call from an acquaintance, Tara Tamaizzo. Nicassio had no idea whether she was working as an informant for the prosecution, but began to suspect that she was when she persisted in asking him questions about Trina. Ms. Tamaizzo said she wanted to meet with Nicassio in person.She told him she had been subpoenaedto testify before the grand jury and wantedto talk with him first. They metat a Motel 6 on November18, 1997. Nicassio told herto tell the 23 necesAEROEMCPR oR ae grand jury that she didn’t remember anything about the case because otherwise she would jeopardize the lives of three people. A few dayslater, Nicassio wasarrested for the murder ofKatrina Montgomery and taken to either the Oxnard or Ventura police station. Ryan Bush and Brandi Exposito were arrested as well. (45 RT 8138-8140.) The police asked Nicassio to lead them to the body. He thought about cooperating but he wasafraid. He told the police that he needed a lawyer to give him guidance. Nicassio told the police that ifRyan cooperated he would as well. Brandi Exposito cameto see Nicassio at the jail and told him that she had told the police what Nicassio had told her about the crime. Nicassio was both angry and afraid that he would spendtherest of his life in prison because appellant had previously told him that he was going to go to jail for life if they were caught. (45 RT 8141-8142.) Nicassio then met Mr. Bamieh, appellant’s prosecutor. Mr. Bamieh told him that if he showedthe police where the body waslocated, Nicassio would be charged on a non-capital crime. Nicassio refused, both because he didn’t trust the district attorney’s office and because “in his heart” he knew he was guilty of murder. (45 RT 8143.) Nicassio was taken to the Ventura County jail and booked for Trina’s murder. He then called Ryan, who told him to make no deals with the 24 authorities. Nicassio wanted to makea deal but wasafraid of gang retaliation. In December, 1997, Nicassio appeared in juvenile court. He was represented by attorney Darrin Kovinsky, who told Nicassioto talk to the prosecutor about a deal in the case. Nicassio’s lawyer worked out an arrangement by which he would be sentenced under Penal Code section 32, accessory after the fact, but he would technically be pleading guilty to manslaughter. (People’s Exhibit 69.) This deal was memorialized in letter dated March 12, 1998 which provided that Nicassio would have to cooperate fully in the investigation of Trina’s death. The letter also indicated that Nicassio would receive the maximum term for manslaughter. (45 RT 8144-8148.) After entering this agreement, Nicassio led Mr. Bamieh and other police authorities to Sunset Farmsto look for Trina’s body. However, the area had undergone development and was completely changed from 1992. The body could not be located. (45 RT 8149.) Nicassio never pled to a manslaughter charge, instead pleading guilty to accessory to murderafter the fact. He was sentencedto three years in prison. For safety reasons, he served his time in the Ventura County Jail. (46 RT 8239-8241.) Detective William Heim of the Los Angeles Police Department 25 Missing Person’s Unitalsotestified at appellant’s trial. When the detective arrived at the Merriman’s house, shortly after Trina’s disappearance, he observed a man cleaning the carpets. This man said that he was called to the house because ofa coffee spill. Detective Heim spoke to appellant’s mother, Sue Merriman, and told her he wasinvestigating a missing person and wanted to speak with appellant. (41 RT 7377-7379.) Upon hearing this, Mrs. Merriman becamenervousandsaid, “I don’t want to talk anymore.” However, she did say that she wassure that her son had come home with two other boys because she could hear them. She said nothing about seeing Trina. (41 RT 7379-7380; 7382-7383.) A few days thereafter, Detective Heim transferred the case to a homicide unit. (40 RT 7283.) After the police spoke to him on November 29, 1992, Porcho’s parole wasviolated for associating with other gang members. The police then came to jail to speak with him again. At that time Porcho told them that appellant left the party with Nicassio and Bushto go to appellant’s house. Healso told them that Nicassio, who was armed with a knife, had Trina up against a wall and appellant and Ryan Bush were standing in the general area. (40 RT 7215-7217.) On December 1, 1992, LAPD homicide detective James Harperre- interviewed Apryl Porcho. He read Apry]herrights but she refused to talk to 26 him without first consulting with her husband. That same day, Detective Harper contacted Scott Porcho in the county jail. (41 RT 7390.) Scott told Detective Harper that he had knownTrina for seven to eight years. He told Detective Harper that Trina wasinvited to the party and she was planning on spending the night at his house. Porchoalso said that there was an altercation at the party over a card game andhehit appellant over the head with a beer bottle because he thought appellant was cheating. He then said the party ended about 1:00-2:00 a.m. and Apryl drove appellant home.Healso stated that Trina told him that she hated appellant. (41 RT 7390-7392.) Later in the interview, Porcho changedhis story. He now told Detective Harperthat the fight was really about Larry Nicassio having his hands around Trina’s throat. He stated that at about 1:00 a.m., he noticed that Larry had Trina against the wall with Ryan Bushto Nicassio’s left and appellant in front of Bush. (Vol. 41 RT 7393-7394.) Porcho then said that he saw Ryan pull a knife out of a sheath, smile widely, and then put the knife away. Right afterward, Nicassio pulled out a knife. Porcho then told Detective Harperthat he hit appellant with a beer bottle, hit Nicassio in the face and kicked Bushin the ribs. (41 RT 7394-7395.) Porchostated that by this time everyone was very drunk. He told Detective Harper that at approximately 4:00 a.m., Apryl took Bush, Nicassio 27 and appellant to appellant’s house. Before Apryl returned, appellant called his house to speak with Trina but Porcho wouldn’t let him. When Apryl returned home, an argumenterupted between Trina and Apryl concerning Trina’s accusations that Apryl wastrying to run herlife. Scott then stated that at approximately 5:00 a.m. Trina left his house, alone in her truck. Scott said that at approximately 6:00 a.m., appellant called the Porcho house and asked to speak with Trina. Scott told appellant Trina had gone. (41 RT 7395-7396.) On December2, 1992, Detective Harper once again interviewed Apryl Porcho. Apryl said she was good friends with Trina. Trina arrived at the party at approximately 6:00 p.m. with the intent of spending the weekend with the Porchos. Appellant arrived at the party an houror so later. Apryl told Detective Harper she drove appellant, Nicassio and Bush homeat 4:00 a.m. Before she left she had taken Trina’s car keys because Trina was very upset and said she was goingto drive to “Keith’s”’ house. After Apryl returned from dropping appellant and the other two menoffat appellant’s house, appellant called and asked for Trina. Apryl gave the phoneto Trina and walked away, without hearing any of their conversation. Trina then continued arguing with Apry] until Trina grabbed her overnight bag andleft 5. Presumably “Keith” was a reference to Keith Ledgerwood, Trina’s friend. 28 in her truck. (41 RT 7397-7399.) Ember Wyman’is appellant’s sister. During the Thanksgiving season of 1992, she wasliving with appellant and their motherat the Miller Court residence. She woke up one morning in November, 1992, to see her mother cleaning up blood on the stairs with a pot and somerags. She helped her motherclean. (42 RT 7591-7592.) Ember remembered the police coming to the house about the same time as the carpet cleaner the day after she helped her mother clean up the blood. She was troubled because she heard that a girl named Katrina Montgomery was missing and appellant was a possible suspect in her disappearance. Whensheasked appellant if he had anything to do with her disappearance, he said something alongthelines of “we don’t need to talk aboutthat.” (42 RT 7593-7594.) During this period of time, Ember becamefriends with Lisa Nichols, whowasherprayer partner in church. Ember remembered talking to Lisa about cleaning up the blood and told her she wasscared. Shealso told Lisa the morning that she helped her motherclean up the blood, appellant went on a long ride with someone named “Ryan.” (43 RT 7596-7597.) In January of 1996, Emberspoketo District Attorney Investigator 6. Ember Merriman married priorto the trial and changed her name. 29 Dennis Fitzgerald. She wasnottruthful with him about her cleaning up the blood because she wastrying to protect her family. She later admitted to lying to the grand jury and failing to tell them about the blood. (43 RT 7597- 7599.) Lisa Nichols recalled the conversation with Ember. According to Lisa, Embertold her that she and her mothercleaned upa lot of blood tracked on the stairs. Ember told Lisa that right after she saw the missing person fliers for Trina, she thought the blood may have had something to do with the missing girl. Lisa also remembered Embersaying that when she confronted her brother about the blood, appellant said that he would be “going to hell” for what he did. (43 RT 7632-7633.) Susan Vance, 27 years old at the time ofthetrial, testified she first met appellant when she was 14 years of age and appellant was a few years older. She began a sexualrelationship with him. She associated with appellant and other Skin Head Dogssuch as James Tibbs, Scott Porcho, Mike Wozny andtheir female associates, Billie Bryant, Bridget Callahan and Apryl Porcho. Ms. Vancetestified that she started to stay away from these people once she becamepregnantandthat her lifestyle is very different from herlifestyle when she associated with the Skin Head Dogs. (39 RT 6866- 6869.) 30 In 1992, Ms. Vance became aware that Trina Montgomery disappeared after a party. (39 RT 6868-6869.) In 1995 she had a conversation with John Cundiff, a Skin Head Dog, about Trina’s disappearance. Shortly after this conversation, Ms. Vance visited appellant at his home.She had been seeing appellant off and on for the past three years but she was not sure why she wenton that particular occasion. Before she could comeinto the house, appellant came downstairs and started to beat her in the face. She retreated into her car to escape him. However, he talked her back out of the car, and hit her multiple times in the face once again. (39 RT 6870-6875.) Appellant took Ms. Vance by the arm and they proceededto his room. He asked her what she and John Cundiffhad talked about regarding the disappearance of Trina Montgomery. Ms. Vance refused to answer any questions about her conversation because she wasafraid appellant might hurt John. She eventually left and never went back again. (39 RT 6875-6877.) Mark Volpei, an investigator for the Ventura County District Attorney, was assigned the Montgomery investigation in the summer of 1997. His role wasto assist Investigator Dennis Fitzgerald with investigations involving the Ventura County Jail. As part ofthe investigation concerning the Trina Montgomery homicide, Investigator Volpei executed a 31 search warrant at the home of Sue Merrimanat 853 Miller Court in Ventura. Volpei was looking for a connection between appellant and Trina and also for evidence of gangaffiliations. (37 RT 6580-6582.) Aspart of the search, photos and hundredsofletters were seized. Someofthe letters were written by appellant to Trina while he wasinjail. There were noletters from Trina to appellant found. (RT 6583-6584.) However, appellant’s letters evidenced a relationship between Trina and appellant. The first of these letters were written on January 5, 1990 and the last on March 4, 1992. (37 RT 6652.) Taken as a whole these letters indicated appellant’s desire to establish a personal and sexual relationship with Trina. As time progressed these letters became more sexually explicit as appellant tried to convince Trina he would makea good boyfriend when he wasreleased from jail. (37 RT 6586; 6592; 6595; 6603; 6608; 6612; 6620; 6623; 6629; 38 RT 6634; 6641.) While these letters are ambiguous as to Trina’s reaction to appellant’s entreaties, they evidenced that she engaged in some sort ofphone sex with appellant (37 RT 6609), came to visit him in jail (37 RT 6635), and sent him revealing photos of herself. (37 RT 6616.) In addition, there was a sexually explicit “Application for Companionship ” that Trina filled out at appellant’s request. According to Investigator Volpei, these applications are commonly sent to womenby inmatesin search of 32 women whowill engage in fantasies with them. (38 RT 6651.) COUNTSILIV SEXUAL OFFENSES AGAINST ROBYN GATES Robyn Gates met appellant through a mutualfriend, Ian Morrow. She would socialize and use drugs with appellant, and they had a sexual relationship. (42 RT 7484, 7510.) During the time period November, 1994 through January, 1995, Ms. Gates wasliving on her father’s boat, which she turned into a drug party location. One day, during this period oftime, appellant cameoverto the boat to use both heroin and methamphetamine with her. There were two other people on the boat with them. (42 RT 7486- 7489; 56 RT 9837-9838.) At some point Ms. Gates and appellant went below to a small bedroom. Ms. Gates went willingly and planned to take more drugs with appellant once they got to the bedroom. (42 RT 7489-7490.) The twostarted kissing but appellant started to get aggressive, restricting Ms. Gates’s freedom of movement. Hetold herto “sit (my) ass down”on the bed. She wanted to stop what was going on but felt that she really could not leave. Appellant was making her afraid but she really could not say why. She was not sure whether she madeit clear to him that she wanted to leave but she “thought” she did. Appellant had pornographic magazines, which made her uncomfortable. He ordered her to perform oral 33 sex on him. (42 RT 7492-7493.) Ms.Gates did have oral sex with appellant. She wasafraid but could not specify what she thought would happenifshe refused. While she was performingoral sex, appellant was looking at the pornographic magazines. Shetried leaving the room a few times but appellant called her names and kept putting her on the bed. They then had vaginal sex after she told him that she wanted to leave. Appellant refused her requests to stop. She told him that she wasphysically sore but he continued having sex with her. (42 RT 7493- 7496.) At somepoint, Ms. Gates felt something other than appellant’s penis inside of her. She didn’t know whatit wasat first but it was cold and hard. She eventually realized that it was a gun.’ This scared her but she never screamed because she did not think anyone would come and help her. At one point, one of appellant’s friends opened the door while they were on the bed and she was naked with appellant looking at a magazine. Appellant just started talking to this person as if nothing unusual was happening. (42 RT 7497-7499.) 7. Elaine Byrd was a casual acquaintance of Ms. Gates. In late 1994 or early 1995, she was at ShawnaTorres’ house. Ms Gates was there as well and was crying and seemed traumatized. Ms. Byrd overheard Ms. Gates say that appellant “took a gun and shovedit up inside ofher pussy.” (43 RT 7647-7648.) 34 Appellant upset Ms. Gates by calling her a “bitch” and a “whore.” Theentire incident of sexual behavior lasted 2-3 hours and she didn’t feel that she could do anything to make him stop.Appellant became angry because he could not ejaculate. At some point she just gave up trying to leave and she just wanted it to end. Eventually, appellant and his friendsleft the boat. (42 RT 7499-7500.) Ms. Gatesindicated that, after the incident, she told only Elaine Byrd about what happened. Ms. Gates felt ashamed and embarrassed. She didn’t get any medicalattention and just wanted to forget that it had happened. (Vol. 42 RT 7500-7502.) Ms. Gates saw appellant after this incident but nevertalked to him about it. She continued to take drugs with appellant but neverhad sex with him again. Eventually, Ms. Gates wentto prison for drug related offenses. (42 RT7503-7505S.) COUNTSV-VIII - SEXUAL OFFENSES AGAINST BILLIE BRYANT Billie Bryant first met appellant in the summerof 1988. She met him at Scott. Porcho’s house when she began to associate with the Skin Head Dogs. Mitch Buely, who was a Skin Head Dog, washer boyfriend at the time. Ms. Bryant began a friendship with appellant and became“a good friend”of his. (38 RT 6683-6685.) 35 She began a sexualrelationship with appellant in March, 1992, after she had broken up with Buely. Appellant told Ms. Bryant notto tell Buely abouttheir relationship or appellant “would chokeher out.” Ms. Bryant did not take this threat seriously but she had nointention oftelling Buely. (38 RT 6685-6688.) However, shestill had feelings for Buely and began contacting him again in the fall of 1992. Appellant didn’t like the idea but didn’t try to stop her from seeing him. (38 RT 6688-6689.) After appellant was released from jail for his 1992 parole violation for associating with fellow gang membersat the November, 1992, Porcho party, Ms. Bryant resumed hersexual relationship with him. However, appellant resumed using methamphetamine and had becomeverbally abusive. She rememberedone occasion, at her apartment, when herinfant daughter woke him up andhe wentinto a rage. When Ms.Bryant told him to quiet downhehit her several times in the face until she was bleeding. When a neighbor camebyto tell appellant to back off, appellant just laughed at Billie, telling her how stupid she looked. Healso told her not to think about calling the police or he would “take care of her.” (38 RT 6694-6696.) There was anotherincident, during this general period of time, when Ms.Bryant wasin her apartment at 3:30 a.m. and appellant and Ryan Bush cameto visit. Appellant was angry at her because he found out she had 36 kissed Bush at someprior date. Appellant kept harassing her about this and made whatsheperceived to be a threatening gesture toward her. Ms. Bryant respondedto this gesture by falling to the ground. Appellant acted like he could not believe that Billie could be that frightened of him. Appellant and Bushleft after Bush said, “Let’s get out of here.” (Vol. 38 RT 6699-6704.) Ms. Bryant’s relationship with appellant became increasingly more violent. In August 1994, Billie moved to the Pepper Tree Apartments on Saratoga Street, where she lived for five months. Her roommate was Shanna Kelly. During this time, appellant became sexually assaultive toward Ms. Bryant. He would often comeoverto the apartment, sometimesinvited and sometimes not. He would often kick open the front door or pound on the door or window until someonelet him in. (38 RT 6705-6707.) One night appellant, high on drugs, came over to Ms. Bryant’s apartmentlate at night when no one was home.At some point, Mike Wozny knocked on the apartment door. Appellant did not want Wozny to know he wasalone in the house with Ms. Bryant. Appellant positioned himself in the hallway and used his body weight to stop Bryant from getting to the door. He then demandedthat she orally copulate him. (38 RT 6707-6711.) Appellant pushed her head down toward his penis and grabbed her by the hair so she would orally copulate him. Ms. Bryant was scared. He also 37 made her masturbate him by placing her hand onhis penis, not letting her stop or leave the hallway area. This went on for several hours. (38 RT 6711- 6713.) Ms. Bryantalso related that there was anotherincident at appellant’s house during the time period ofAugust 1994-January 1995. The incident started out as consensualvaginal sex in his room. However, the sex went on for hours and Ms.Bryant asked appellant to stop becauseit hurt and that she was bleeding from her vagina. Hetold her to shut up and continued. When he wasfinished, he verbally degraded her for staining the sheets. He dragged her by her hair to the washing machine, where he washedthe sheets, screaming at her and saying degrading things. (38 RT 6729-6731.) At some point, Ember Merriman cameinto the laundry area. Appellant pointed out the sheets to Emberandsaid howsick it was for Ms. Bryant to come into someoneelse’s house and make such a mess. Embergiggled and said, “oh, yousilly guy.” (38 RT 6732.) Ms. Bryant also claimed that while she wasliving at this same apartment house, appellant forced sexual intercourse on her several different times, as well as forcing her to orally copulate and masturbate him. This happenedin the samehallwayasthe first occasion. She also stated that he sexually attacked her in her daughter’s in September or October of 1995. 38 This attack began on her couch.Shetried to fend off appellant by going to the bathroom andtrying to get busy with chores around the apartment. However,he kept grabbing her. Eventually, she madeit into her daughter’s room, whereappellant tackled her and straddled her. She decidedthatit would be easier if she just let him have intercourse with her, which is what occurred. (38 RT 6715-6718.) After the act of intercourse, appellant started to call her degrading names,telling her she should spend more time in the shower because she was dirty and a whore. (38 RT 6718-6719.) Ms. Bryant locked herself in the bathroom andtold appellant to leave. (38 RT 6719.) During the period of August 1994 through January 1995, there were several instances of forced sex as well as consensual sex between Ms. Bryant and appellant. According to Ms. Bryant, there were incidents where the masturbation and oral sex would go on for hours. She did not wish to participate but he used his body weight and strength to impose his will on her. (38 RT 6721-6722.) Ms. Bryant said that during their sex, appellant would look at pornography, as well as virtually any other printed material that portrayed women. This included calendars and magazines such as Cosmopolitan. (38 RT 6738.) There wasa pointin time between September and October of 1995 39 that Ms. Bryant was working at the Acapulco Restaurant. To get to work from her home, she would have to walk past appellant’s house on Miller Court in Ventura. On one occasion, she stopped by appellant’s house because appellant had stopped by the Acapulcoearlier in the day to see her. Appellant had just been released from jail and Ms. Bryant had concernsthat if she did not go over to see him, he would simply show up at her house any time he wanted. (38 RT 6723-6724.) Ms. Bryant wasnotafraid to be in the house because appellant’s mother was homeat the time and she considered Mrs. Merrimana friend. The two of them went to appellant’s room. (Vol. 38 RT 6726-6727.) Appellant wanted to be masturbated and “the usual stuff.” When Ms. Bryant tried to leave the room, appellant tackled her and started laughing a “stupid, stupid laugh” andsaid things like “you know you wantit, you know how goodit feels.” (38 RT 6727-6728.) _ Appellant then ripped offMs. Bryant’s panty hose and had sex with her. He forced her to have sex on the floor against her will, using his superior size to control her, saying he wastired ofhearing her “bitching and moaning.” (38 RT 6728.) 40 CHARGES RELATING TO THE JANUARY30-31, 1998 ARREST (COUNTSIX-XV ) In the late evening of January 30, 1998, Ventura County Deputy Sheriff Jesse Howeandhis partner Sergeant Miller were on patrol in their cruiser. (36 RT 6271-6272.) They were driving in a high crime area on Ventura Avenue, in Ventura, California. Both were dressed in jackets with embroidered badgesthat identified them as law enforcementofficers. (36 RT 6272-6274.) Deputy Howenoticed Justin Merriman and a woman onbicycles stopped on Ventura Avenue. The two officers approached these two individuals, because their bicycles had no illuminated headlight, which was a violation of the vehicle code. (36 RT 6274-6275.) Upon seeing the two officers, the bicyclists attempted to leave the scene. (36 RT6274-6275.) Deputy Howeidentified himself as an officer and ordered Merriman to stop. Merriman pedaled awayrapidly, telling Deputy Howeto “leave me the fuck alone.” (36 RT 6275-6276.) The twobicyclists pedaled away on the sidewalk heading northboundbefore turning east into an Arco Station. (36 RT 6313.) Sgt. Miller caught up to appellant mid-block on Ramona and cornered him. While still in his car, Sgt. Miller made a grab for appellant, made contact with his shirt, but was unable to subdue him. (36 RT 6314- 41 setctRRRESONALieaneA.eat 6318.) Attrial, Sgt. Miller identified appellant as the suspect, although he testified that appellant had shorter hair, less facial hair and was thinnerat trial than at the time ofthe encounter. (36 RT 6318.) Appellant pulled free of Miller’s grasp and ran through an adjacent vacant lot. Sgt. Howe and Deputy Beery gave chase on foot. Deputy Beery yelled “gun,” and the other officers observed appellant draw a steel blue revolver and hold it to his own head. (36 RT 6319.) Deputy Beery ordered appellant to put the gun down and lie down onthe ground, but appellant warned the officers not to come any closer or he would shoot himself. (36 RT 6319-6320; 6361-6362.) Later that early morning, Sgt. Miller returned to the vacant lot and found a holster, but no gun was ever found. (36 RT 6333.) Sgt. Miller heard a chain link fence rattle and cautiously proceeded acrossthe lot in appellant’s direction. He went over the chain fence and proceeded downa narrow corridor and turned northbound on Kellogg Street. (36 RT 6320-6322.) Upon reaching the corner ofKellogg and Cedar, Sgt. Miller was informed that the Ventura Police Department had begunsetting up a perimeter around a houseonthat corner. Sgt. Miller saw someoneinside of this house who had the sametype ofhair and facial hair as defendant. (36 RT 6325.) 42 Janette Rail lived at 228% Kellogg Street. Her daughter Aja, her granddaughter Lucette, Annette Berryhill, who was appellant’s girlfriend, and Jennifer Hendrix Bowkley,a house guest, were in the house when appellant entered at approximately 9:00 p.m. (37 RT 6462.) Appellant was agitated, angry, hostile, hysterical, out of breath and sweating. Ms. Rail ordered him out of the house but he refused to leave. (37 RT 6467.) She saw that appellant had a kitchen towel tented over something triangular that he appeared to be holding in his hand. When Lucette started to cry, appellant turned to Ms. Rail and stated, “either you fucking shut her up now orI will shut her up permanently.” (37 RT 6470.) Soon thereafter, while Annette distracted appellant, Ms. Rail, Aja, and Lucette were able to escape from the house. (37 RT 6470.) Set. Taylor, a SWAT commander with the Ventura Police Department, took charge of the scene. (36 RT 6391-6393.) From outside of the house, the police were able to hear furniture being moved about and things being thrown and saw someonetrying to cover the windowswith blankets. (37 RT 6494; 6435.) A half hourafter the police surrounded the house, three persons, none ofwhom being appellant, exited. Thirty minutes later, Sgt. Taylor called for a SWATteam afterfailing to persuade the other persons inside the houseto establish contact. (37 RT 6494-6495.) 43 Aroundthis time, Ventura Police Office Thomas Mendez saw Annette Berryhill exit the house and climb over a fence. She was taken to the police command post whereshe related that appellant wasirrational and wanted to make a bomb out of Drano.Shealso told the police that appellant wasnot going to comeout and that he was “going to go out with a bang.” (37 RT 6440-6442.) Further attempts to establish contact with appellant were futile. ( 37 RT 6398-6899.) After approximately six hours, a decision was made to extricate appellant by the use of tear gas. One or two shots of tear gas were fired into the houseat a time, to no effect. The police then threw a much stronger dose of tear gas, in the form of a cannister, into the house. Eventually, a coughing and gagging appellant openedthe front door from inside, took a breath of air and then closed the door again. This was repeated a second time. (36 RT 6404-6406.) Appellant eventually crawled out of the house onall fours. Sgt. Taylor stepped forward to arrest appellant, but when he saw that appellant had a knife in his hand, he stopped and ordered the other officers to back off. (36 RT 6406-6408.) Blinded by the teargas, appellant commenced to slash with the knife in the direction of any noise. Sgt. Taylor ordered that his officers attempt to subdue appellant with rubber bullets. However, the 44 bullets had no apparent effect on appellant, who crawled back into the house and shutthe door. (36 RT 6408-6410.) Within a very short time, appellant opened the door again and exited the house as gas camepouring out the door. This time, appellant had nothing in his hand. As Sgt. Taylor and someofhis officers approached appellant to effect the arrest, it appeared that appellant was reaching for a gun. Appellant was ordered to lie down on the ground, but he refused. (36 RT 6414.) Six officers then took appellant to the ground, subdued him, and placed him underarrest. (36 RT 6414-6417.) After the arrest, the police proceeded into the residence. The place wasin great disarray with furniture trashed and glass broken. (36 RT 6418; 37 RT 6445.) When Ms. Rail went back to her residence, she found only a few salvageable items. The entire house was “knee deep in debris.” (37 RT 6475.) Antiques, heirlooms, wedding gifts and other personal items also had been destroyed. She estimated the total damage at $55,000. (37 RT 6474- 6475.) Ms. Rail also heard appellant’s mother, Beverlee Sue Merriman (“Sue”) say to Aja that if she did not talk to the police, Ms. Merriman would take care of the damages. (Vol. 37 RT 6480) Dueto injuries suffered by appellant during his arrest, he was transported to the hospital by Ventura Police Officer Samuel Arroyo. During 45 seeanREEtLEEYEaeieane ig ak eta ARCO ER SE ene appearedaCOMNREGRgSAnte the ride to the hospital, appellant was unresponsive, with his head hanging down. Based uponhis training and experience, Officer Arroyo believed that appellant was underthe influence of drugs. This was confirmed by observations the officer madeat the hospital. A blood test on appellant was positive for amphetamines. (38 RT 6676.) APPELLANT’S UNCHARGED OFFENSES? Kristin Spellins Kristin Spellins Arnold was an acquaintance of appellant since approximately 1994. She met him at a party wherethey did drugs together. (44 RT 7873-7874.) One evening after this first meeting, appellant asked her to go for a ride. They first went to Jack Garcia’s house and then to appellant’s house. Ms. Spellins used methamphetamine with appellant that night. (44 RT 7875-7877.) In fact, in her own words, Ms. Spellins was, in her own words, an “out of control little girl,” who used large quantities of drugs such as methamphetamine. (44 RT 7934-7935.) Ms.Spellins memory of that night was hazy,at best. She didn’t remember whethershe arrived at the Garcia house with appellant and could not rememberif she planned on having sex with appellant once they got to 8. This evidence was admitted over objection, under Evidence Code sections 1101 (b) or 1108. 46 his house, although her grand jury testimony indicated she knew they were going to have sex. (44 RT 7944-7948; 7958-7959.) She couldn’t state with any degree of certainly whether she and appellant were boyfriend and girlfriend on the night this sexual encounter occurred. (44 RT 7965.) However, there is no doubt that Ms. Spellins willingly went with appellant to his room. Everything was consensualand the twostarted kissing. According to Spellins, the sexual acts turned to things that she did not particularly like to do. She said that he had her touch his anus and masturbate him while he was looking at pornographic magazines. He wanted her to orally copulate him and shesaid she “probably did,” although she could not say for sure what happened. (44 RT 7878-7880.) Ms.Spellins stated that this went on for “a couple of days.” However, she nevertried to run away, and doesn’t rememberif appellant tried to restrain her. (44 RT 7881.) She said she was scared of his behavior but could not articulate what was frightening to her. (44 RT 7882.) Eventually, both she and appellant voluntarily left the apartment and both went their own separate ways. She neverreported anyofthis to the police. (44 RT 7884-7885.) Ms.Spellins next remembered seeing appellant one nightat a tattoo shop where she wasgetting a “white power”tattoo, designed by appellant 47 PERMITE Bana Bret rm er BE Suet Fant. perthelNeRNSIEROEPOAfamiietw Vo Seufome em oy" and put on her buttocks by “Tattoo Bob.” After she received the tattoo, she and appellant went into the bathroom together, where appellant started shooting drugsinto his arm. In addition, he beganto use the syringe to squirt his blood at her. According to Ms. Spellins, she got upset and tried to leave. Appellant told her to shut up or he would “slit her throat” like Trina. (44 RT 7886-7890.) Again, she nevercalled the police. (Vol. 44 RT7995.) Further, after all of this she continued to see appellant on a regular basis, explaining that she couldn’t explain her behavior except for the fact that she was a “junkie.” (44 RT 7978-7979.) Ms.Spellins also remembered being on a boat with appellant and Robyn Gates. She remembered Gates and appellant going below for a few hours. When Ms. Gates reappeared she looked “weirded out” but didn’t say anything to Ms. Spellins. (44 RT 7893-7895.) However, Ms. Spellins was jealous because Ms.Gates had beenalone with appellant. (44 RT 7976.) Corie Gagliano Corie Gagliano met appellant in approximately 1985, when she was about 16 years old and Merrimana year younger. They becamesexually active and remained so over the ensuing years. (41 RT 7313-7314.) On oneoccasion, she and appellant drove to Ojai in Clint Williams’ 48 truck. She and appellant rode in the back of a covered pickup truck with Williams driving. When they arrived in Ojai, Ms. Gaglianotried to get out of the truck but appeliant would not let her. She sensed that he wanted sex but she did not wantto oblige him in the truck. He held her arms so she could not move. She knew that it would only be worse if she fought back because he was muchbigger than she wasand she knew his reputation for violence. She started to scream but no one cameto her aid. Appellant had sexual intercourse with her. (41 RT 7319-7324.) Ms. Gagliano wasusing a lot of drugs during this period of time. She also frequently associated with the Skin Head Dogsandsharedtheir white supremacist views. (41 RT 7329-7333.) She said that she did not report this incident to the police and only revealed it a long time after it happened. (41 RT 7334-7336.) She saw appellant after this incident and felt safe with him because he wasthe toughest guy she knew. (41 RT 7340-7342.) She also continued to hang out with the Skin Head Dogsand continued to take drugs with them. (41 RT 7340-7341.) Katrina Montgomery (Spring/Summer 1992) Shawna Torres wasa goodfriend of Trina’s. They attended both St. Bonaventure and Ventura High School together. She was with Trina in the 49 seemsRIN ENOS REM MASP EERNIEEeaitetareinonog one VS eae eo a apae MiSTARS,tnt summerof 1992 when Trina wentto see appellant. Trina had told Shawna that she neededto see appellant to “straighten some things out.” (37 RT 6547-6549.) Whenthey got to appellant’s house, Trina went inside. When she eventually came out she wasvery upset, saying appellant had just attacked her. She showed Shawnared marksonherthroat. Trina told herthat appellant attacked her in front of his mother and Trina was angry at Mrs. Merriman for doing nothingto help. (37 RT 6550-6551.) Kathryn Montgomery testified that there was a morning in March, 1992, when her daughter, Trina, told her about an incident that occurred with appellant. (37 RT 6485.) Trina said that she had visited appellant at night. During the visit it became very late, so appellant’s mother offered her a room to stay in. While she wasasleep, appellant snuck into the room, climbed in bed with her and madesexual advances. (37 RT 6485-6486.) Trina told appellant that she felt sick and needed to use bathroom.Helet her go and she jumpedin hercar and fled from the house. (37 RT 6487-6488.) 50 FURTHER POLICE OPERATIONS/OTHER EVIDENCE AGAINST APPELLANT After appellant’s arrest on January 31, 1998, the prosecution conducted various operations in an attempt to obtain information concerning his involvement in Trina Montgomery’s disappearance. Thefirst ofthese operations involved Larry Nicassio. Pursuant to his plea bargain, Nicassio participated in a series of operations from within the Ventura County Jail with the purposeofgetting information from appellant. (45 RT 8167-8168.) In order to help Nicassio gain appellant’strust, the prosecutor arranged for the creation of a counterfeit probation report that indicated that Nicassio had refused to cooperate with the police. (45 RT 8169-8170.) On or about April 22, 1998, a “wired” Nicassio showed appellant this report. Appellant asked Nicassio if he was going to “hold his mud,”thatis, not talk to the police. Appellant also told Nicassio that he would take care of John Cundiff, a potential witness, by beating him up, noting that he had beaten him up before being incarcerated. (45 RT 8172.) Nicassio and appellant also talked directly about Trina. Referring to her, appellant stated, “If that shit comes out ofthe ground, we’ll both be going to L.A. County.” (45 RT 8178.) During this meeting, appellant told Nicassio that he would arrange for outside visits in such a way that both he and Nicassio werein the visiting room at the same timeso they could talk. (45 RT 8174.) 51 Nicassio and appellant had other wired discussions while in jail. On one occasion, appellant told Nicassio they would explain away the blood in appellant’s room by saying it came from appellant’s forehead and from when appellant andhis friends injected drugs. (45 RT 8180; 46 RT 8206- 8207.) Subsequently, the prosecutor’s investigators instructed Nicassio to write a “kite” (a message from one inmate to another) to appellant falsely telling him that Trina’s body had been found by Los Angeles County authorities. (45 RT 8186.) In addition, the investigators arranged a counterfeit letter on Nicassio’s attorney’s letterhead, also falsely indicating that the body had been found. This letter was sent to Kristin Spellins, who wasalso working for the prosecution, with Spellins being instructed to give this letter to appellant’s mother. (45 RT 8187-8190.) While in jail, appellant told Nicassio that he should nevertell the whole truth to his attorney. (46 RT 8207-8208.) Appellant told him Nicassio’s lawyer could say that the blood in the back of Trina’s truck came from menstrual blood during sex. (Vol. 46 RT 8209.) Appellant also told Nicassio that if he were to rat” to the police, he should tell them that they took the body out the windowsoasnot to implicate Sue Merriman. (46 RT 8219.) 52 In November or December, 1997, John Crecelius, a felon and methamphetamine user, had a conversation with appellant at Sam Paterson’s house. Appellant was nervous because he had heard that his “crime partner” got arrested for the rape and murder of a womanthat appellant said he cut” five years ago. (42 RT 7448-7452.) Aboutthree or fours monthsafter this conversation, Crecelius was arrested. Because he already had oneprior felony conviction, he wrote to Deputy District Attorney Bamieh,telling Mr. Bamieh that he needed a friend.” Crecelius’s stepson was currently helping out the district attorney’s office on another murder and Crecelius thought that he might get some benefit for himself by contacting Mr. Bamieh. (42 RT 7452-7453.) In response to Crecelius’s letter, Mr. Bamieh wentto the Ventura County Jail to speak with him. Crecelius indicated that he was facing three years in prison and wanted a sentence reduction. An arrangement was struck with the District Attorney’s Office by which Crecelius would wear a wire in the jail and talk to appellant about Trina Montgomery. Crecelius was very nervous about doingthis andfelt his life may be in danger but decided to do it anyway. (42 RT 7454- 7457.) At this time, Crecelius was being housed with Nicassio. Crecelius told appellant that Nicassio was goingto rat on appellant and that Nicassio 53 teeradCEREALASRERRANDrueTEATS fie ate Stan 2 AAtaRRCRFNOESARARESET carne ot wanted appellant to take the rap for both himself and Ryan Bush. Appellant respondedbytelling Crecelius to “take care of” Nicassio, meaning Crecelius should beat Nicassio up or do something even worse. Appellant also told Crecelius that as Nicassio was the youngest, Nicassio should take the rap.” In exchangefor his cooperation with the district attorney, Crecelius received a sentence of one year county time, plus probation. (42 RT 7458-7460.) Chris Bowen wasanother informant employedby the police. In late 1996, before appellant’s arrest, appellant cameto his house. At the time, Bowen’s then wife Billie Bryant had just given birth to their daughter. (38 RT 6814-6816.) Appellant started to ask Bowen,a recidivist felon with multiple drug and burglary convictions, whether he had ever killed anybody. Appellant then told Bowenthat he had killed “Trina.” Bowen had no idea what madeappellant say this to him. Bowen thoughtthat appellant was perhapstrying to feel him out to see what Bowen knew aboutthe crime. (38 RT 6817-6818.) Bowen didn’t tell the police what appellant allegedly told him about Trina’s murder until Bowen wasarrested on other charges and a Detective Snowling asked him if he knew about any murders. At that point, Bowen told the detective that he did. After this discussion Bowen wascontacted by Mr. Bamiehand an investigator. Mr. Bamieh asked Bowen to cooperate by 54 trying to get a taped statement from appellant. (38 RT 6819-6821.) Bowen agreed to wear a wire to attempt to get a statement from appellant while they werein jail together. In addition, he agreed to be placed in a bugged cell with appellant He wasinstructed not to discuss any case that appellant was already incarcerated for and to makesure that he relayed anything that appellant said to District Attorney Investigator Volpei. (38 RT 6821-6822.) Atfirst, appellant was very suspicious about talking around Bowen. Bowentried talking to appellant in their cell, but appellant was not interested. At the time they werein the cell together, appellant was withdrawing from heroin. Bowen asked appellant whether he raped Billie Bryant but appellant refused to answer saying that was a police type question. Appellant also never repeated his assertion that he killed Trina. (38 RT 6823-6826.) Bowenalso participated in a wire operation while he wasin the holding tank. Bowen told appellant that the District Attorney wastrying to bring Scott Porcho downfrom prison to cooperate with them. Appellant responded “[t]ell him to stop talking to the motherfucker.” (38 RT 6826- 6827.) The District Attorney then asked Bowentotry to get statements from 55 FoeTRREPREHCHReet PNA geet Scott Porcho, who wasalso in the jail. Bowen was facing 7-15 years in prison for the crimes pending against him and was subject to a possible three strikes prosecution. Instead, because of his cooperation with the authorities, he only served twoyears and ten months. (38 RT 6831-6834; 6858-6859.) Bowen admitted that at the time of these operations, he hated appellant. (38 RT 6849.) In April of 1998, at the request of Investigator Volpei, Kristin Spellins agreed to visit appellant in the jail and wear a wire in the hope that she could get some information from him about Trina. Appellant did not want to speak with her but asked her to write a letter to his mother for him. (44 RT 7903-7908.) Volpei then asked Ms. Spellins to contact Mrs. Merriman to attempt to learn something about Trina’s disappearance. Duringthis initial contact, Mrs. Merriman asked Spellins to go with her to visit appellant and to ask to see Larry Nicassio. Ms. Spellins told Mrs. Merriman she didn’t know Nicassio. (44 RT 7917.) After agreeing to accompany Sue Merriman,Ms.Spellins agreed to participate in a police operation at the jail. This involved doing as Sue Merirmanasked and getting Nicassio and appellant in the samevisiting area so they could speak. Ms. Spellins was to wear a recording device during 56 these meetings. (44 RT 7919-7920.) She participated in this operation several times and after each visit was debriefed by Volpei. (44 RT 7923.) At some point, Nicassio wrote Ms.Spellins a letter with the return address of “Joey Buttafuco.” (People’s Ex 67-68.) Volpei told her to give Sue Merriman thatletter, along with a letter written by Nicassio’s attorney that was placed in the same envelope. Spellins did as she wasinstructed. (44 RT 7924; 7926-7928.) After receiving the letter in question, Sue Merriman wanted to go backto the jail to visit Larry and Justin so she could tell Larry whatto say to his attorneys. (44 RT 7927.) Spellins said she testified before the grand jury in 1998 and at Sue Merriman’strial. She said has concernsfor her safety for testifying. (44 RT 7930.) She said that she cooperated with the prosecution because she hated appellant. (44 RT 7933.) INTIMIDATION OF WITNESS CHARGES (COUNTSXVI-XX) The evidence presented by the prosecutoras to these counts consisted oftwo basic types. It first called two expert witnesses to explain basic gang structure, and, more specifically the structure and ethos of the Skin Head Dogs. These experts also testified that “rats” were people that the gang believed betrayed a gang memberby working with law enforcement. It was 57 part of the Skin Head Dog code that anyoneidentified as a rat must be prevented from or punished for “ratting” in any way possible, including deadly force. The rules of the gang indicated that ifperson was identified as a rat, all members of the Skin Heads Dogs would take the appropriate action against them andit was not necessary to advise the gang membersofany specific actions to be taken. The secondtype of evidence presented were percipient witnesses who testified as to appellant’s activities in disseminating information to various gang membersas to who “ratted” on him and were potential witnesses against him attrial. Wesley Harris was a corrections officer at Wasco State Prison who workedas aninstitutional gang investigator, gathering information on prison gangs. (47 RT 8408-8409.) He defined a “prison gang”as one that didn’t form on the streets but has its roots in the prison system. (47 RT 8412.) Mr.Harris testified that all such gangs consider anyone who cooperates with the law enforcementin any wayas traitor. (47 RT 8421.) If someoneis thought to be an informant, a gang memberwill take the matter to a “shot caller,” the “top” criminal from each particular racial or social group for a particular geographical area of the state. If the shot caller ordersit, it would be incumbent on individual gang membersto carry out 58 retribution on the informant. (47 RT 8424.) After being assigned to this case, District Attorney’s Investigator Mark Volpei educated himself on the structure of the Skin Head Dogs. He interviewed membersofthe gang, examined correspondence and obtained information from the Ventura Police Department. (48 RT 8574-8576.) He told the jury about the criminal convictions of the various members andtheir violent and racist leanings. (48 RT 8577-8588.) Volpei also learned aboutthe attitude of the Skin Head Dogs toward people who co-operated with the police against one of their members. They were proneto use violent retribution against these people but needed “paperwork,”that is, written proof of such cooperation. They would also use the words“rats” and “snitches” to describe these people. (48 RT 8589-8591) Gene Ebright had been a memberofthe Skin Head Dogs since 1991. (49 RT 8899.) Aspart of that culture, if a member of the Skin Head Dogs found out that another memberwasa “rat,” that member would do anything necessary to shut him up and the gang would be obligated to “deal with”this rat. (49 RT 8810.) Ebright went to visit appellant at the jail in December, 1998. During this visit, appellant told Ebright he should try to persuade Porcho into “saying something different than what he was.” ( 49 RT 8912-8913.) 59 1 APERPE OIESHERIHaiABIAmaces pes OF oe Ubeyy nang Ebright interpreted this to mean that appellant wanted Porcho killed even though appellant did not use these words. (49 RT 8913.) In January 1999, after appellant had been indicted for murder, Investigator Volpei was informedbya classifications deputy at the jail that a piece of mail left the facility that was addressed to the Merrimanresidence, but with a return address that indicated it was not sent by appellant. (48 RT 8591.) Investigator Volpei subsequently obtainedthis letter from jail officials through a search warrant.” Theletter in question turned out to be a letter from appellant instructing his mother to mail another enclosedletter to Brandon Sprout, an inmate at Corcoran State Prison. (People’s Exhibit 83.) Volpei instructed that the letter be resealed and sent on to Sprout. Volpei was conceredbecausethe letter from appellant to Sprout indicated that Merriman needed some help from him and Volpei knew Sprout would soon be released from prison. (48 RT 8592-8594; People’s Exhibit 97.) Pursuant to a search warrant executed at the Ventura County Jail on February 5, 1999, several letters were seized. One wasa letter from appellant to his mother asking her to send two includedletters to Mike Gawlik and Harlan Romines, both inmates in WascoState Prison. (49 RT 8789-8790, 9. Unless otherwise stated in the Statement of Facts, all of the letters seized at the jail pursuant to a warrant were already in the possessionofsheriff’s deputies having been seized by the authorities pursuant to jail policy. (40 RT 8790.) 60 8792-8794; People’s Exhibit 84.) Theletter to Gawlik told him to pass along certain information, especially to the “woods from Ventura County.” Appellant wentontotell Gawlik the names ofthe people who had worn wires, but did not ask Gawlik to encourage any violence against them. (49 RT 8794-99.) During the execution of the same warrant on February 5, 1999, a letter to Stacey Warnock wasalso seized. (People’s Exhibit 124.) Thisletter informed Ms. Warnockofvarious people who were wearing wires but, again, appellant did not ask Ms. Warnockto take any action. (49 RT 8800- 8803.) On March4, 1999, a search of Skin Head Dog MikeBridgeford’s cell was conducted at Wasco State Prison. During this search, a letter from appellant was discovered. (People’s Exhibit 85.) This letter, postmarked February 13, 1999, informed Bridgeford about the activities of Wozny, BowenandNicassio but again requested no action. (49 RT 8805-8811.) Bridgeford’s responseto this letter was also seized. It was dated February 24, 1999 (People’s Exhibit 125.) Other than wishing appellant luck with his case, there was no discussion ofthe informants or promises to do anything for appellant. (49 RT 8812-8815.) At the time of her testimony, Samantha Medina wasonprobation for 61 AL ATED RTETESATSOPREESERRR beerSETAY SAE MRSS inher conspiring with appellant to intimidate and dissuade witnesses. (48 RT 8618.) Ms. Medina used to associate with appellant and other members of his gang. (48 RT 8619-8620.) In 1999, she found out that appellant was in custody and went with Kara Allen to visit him at the county jail. She said that during hervisit, appellant never brought up the subject of anyone “ratting” on him. (48 RT 8621-8622.) However, according to Investigator Volpei, he interviewed Medina on May 26, 1999, at which time she told him that during their visit, appellant told her Kristin Spellins had worn a wire and that she should talk to Spencer Arnold, Spellins’ boyfriend, aboutthis. (50 RT 8956) Ms. Medinaalso admitted that she had then traveled to Ventura to confront Spellins about the wearing of the wire. (50 RT 8958.) Tori Szot had knownappellant for four years prior to her testimony at trial. (48 RT 8633.) She associated with white supremacist groups and was proud to espousetheir beliefs. (48 RT 8635-8636.) During this period of time she frequently communicated with various inmatesin jails and prisons. (Ibid) In 1999, appellant would call her from the jail. At some point, she became awarethat he had been indicted for murder and rape. (48 RT 8638.) While on the stand, the prosecutor showedhera letter she received from the Ventura County Jail. The return address was from an inmate named 62 “Kendricks,” but the letter was in fact from appellant. In this letter appellant asked Ms. Szot to get him the phone numberofa person named Robert.” Healso asked for Mitch Buely’s address so appellant could tell him whathis first baby’s mother was doing,stating, “He needs to know whatis popping with his first baby’s mom.Thatlittle sawed offpasty-faced troll Bildo [Billie Bryant], I know that troll’s dirty little secret.” (48 RT 8640-8645; People’s Exhibit 98.) Jasmine Guinn wasalso a friend of appellant. She had known him since approximately 1995. She knewa lot of people in appellant’s gang and had beenjailed for any numberofthings. (48 RT 8673-8675.) At one point appellant sent hera letter detailing some of the people who had been wearing wires as informants in his murdercase andtelling her to let people “with hand” (having influence) know aboutit. (48 RT 8678-84.) Ms. Guinn mostlikely told Ms. Szot about the people appellant claimed were rating on him. (48 RT 8685-8686.) Kara Allen has knownappellant since they were in elementary school together. (47 RT 8486.) Through the mail, appellant requested that Ms. Allen send a letter to Victor Challoner. She neversentthis letter. (People’s Exhibit 87.) However, at appellant’s request she did send a letter written by appellant to inmate Robert Imes. (People’s Exhibit 89.) This letter stated, 63 among otherthings, that inmates John Crecelius and Chris Bowen had been ratting on him. (48 RT 8497-8502.) Ms.Allen also wrote a letter to appellant giving him Samantha Medina’s address (48 RT 8506) knowing that Ms. Medina was supposed to contact Spencer Arnoldto tell him that his girlfriend, Kristin Spellins, was a rat. (48 RT 8513.) Appellant asked Ms.Allen to visit him at the jail. She went to see him, along with Samantha Medina.Ms.Allen first testified that she did not hear appellant ask Ms. Medina to contact Spencer Arnold, but heard Ms. Medina say she would contact him. Under further questioning from the prosecutor, Ms. Allen changedherstory and said that during a prior trial (presumably that of Sue Merriman), appellant told Ms. Medina to contact Arnold. However, she neverdid so. (48 RT 8489-8490.) Attimeofthe trial, Jennifer Wepplo was on parole for a conviction she suffered for conspiracy to intimidate witnesses in the instant case. (48 RT 8698-8699.) In 1999, appellant told Ms. Wepplo that people, including Larry Nicassio, were wearing wires on him. Ms. Wepplo communicated this information to John Reeder, a Skin Head Dogincarcerated in Centenella State Prison. (48 RT 8700-8701.) After receiving this information, in a letter postmarked February 25, 1999, John Reeder wrote back to Ms. Wepplo that someone had to “get” 64 Nicassio from inside ofthe jail. (Vol. 48 RT 8702-8704; People’s Exhibit 107.) During this period of time, Ms. Wepplo was corresponding quite a bit with appellant and his fellow gang members. She said that she wassort of a “middlewoman.” (48 RT 8715.) Wepplo would sendletters to other gang membersin prison that referred to “rats”, including one to lan Morrow stating she was glad “Mumrock”’® wasletting “all the niggas know” about what was going on with informants in his case. (48 RT 8724.) Ms. Wepplo admitted that she was spreading the word about the informants. (48 RT 8725-8726.) Ms. Wepplo wrote a letterto Skin Head Dog Jed Malmquist on March 7, 1999 (People’s Exhibit 112), telling him appellant wanted him to know about the “cheese-eaters, including Larry Nicassio, Robyn Gates, Billie Bryant, Kristin Spellins, John Crecelius, Mike Wozny and Chris Bowen.” Ms. Wepplospecifically requested that Malmquist hurt Bowen, whowasat IronwoodState Prison. She knew ofBowen’s location because appellant told her. (48 RT 8726-8730.) On March 17, 1999, Ms. Wepplo sent another letter to Malmquist at Ironwood. She asked Malmquistifhe got the previous letter about Bowen 10. Mumrockwasoneofappellant’s nicknames. 65 and told him that “Big Daddy Mumrock” said Bowen “needshis jaw wired is the only wires that should have been going on.” However,at trial Ms. Wepplotestified that appellant never said anything should be doneto Bowen,only that Bowenratted on him.It was her idea that Malmquist should attack Bowen. (48 RT 8731-8733; People’s Exhibit 113.) Ian Morrow was a memberofthe Skin Head Dogs who was incarcerated in Norco State Prison during 1999-2000. (49 RT 8873-8875.) He received a letter from Ms.Wepplo about the people who were wearing a wire in connection with appellant’s case. (49 RT 8877; People’s Exhibit 132.) His return letter to Wepplo expressed surprise and anger about these people, especially Mike Wozny.(/bid.) Morrow wrote a longletter, postmarked February 26, 1999, expressing sympathy for appellant’s legal problems, but not mentioning doing anything to any ofthe witnesses. (49 RT 8879-8881; People’s Exhibit 133.) A search warrant was executed at the jail on March 10, 1999, yielded an envelope addressed to “Fawn W.” on AnthonyStreet in Ventura from an inmate named Contreras. It contained letters from appellant to both hissister, Ember, and to Sal Sponza (49 RT 8825.) The letter to Ember requested that she mail the secondletter to Sal. (People’s Exhibit 126.) (49 RT 8825- 8828.). The letter to Sal named the people who worewiresin the 66 investigation. It made no requests for any action against them. (49 RT 8828- 8833.) | In April, 2000, Sue Merriman pled guilty to tampering by trying to dissuade Larry Nicassio and other witnesses from testifying at appellant’s trial. (49 RT 8787.) Jed Malmquist received a letter from appellant postmarked April 4, 1999 (49 RT 8866; People’s Exhibit 131), but testified that he never attempted to harm Bowenor even find him. Hetold the jury that since his release from prison in 2000, he had madeno attempts to contact any ofthe witnesses. (49 RT8868; 8871-72.) Atthe time of his testimony, Spencer Arnold was married to Kristin Spellins. Arnold was a felon who hadbeenin and out ofprison forthe last ten years. He was a white supremacist skinhead,buttestified at trial that he had abandonedthis lifestyle. While he was in custody in 1999, he was not awarethat his then-girlfriend, Spellins, had been assisting the prosecution in appellant’s case. (49 RT 8885-8886; 8892-8893) In March, 1999, Arnold received a phonecall from Kenneth Barber saying there was paperworkproving that Kristin was co-operating with the prosecution. Barber may have called her a “rat.” Arnold later got a call from appellant, who told him to “get a hold of his people.” Appellant also told 67 RRIRaORIEMERGE inesr a Arnold that someone would contact him. (Vol. 49 RT 8887-8888.) In the spring of 1999, John Hernandez was housed with appellant at the Ventura County Jail. (47 RT 8524.) Appellant gave Hernandez some grand jury transcripts that showed certain people wore wires during the investigation of appellant. Appellant wanted Hernandez to pass the word around as to what these people had done. (47 RT 8525-8526.) Appellant also gave the Hernandeza note with the names of these people written on it, saying that these people should be assaulted. (47 RT 8528-8532; People’s Exhibit 82.) Sometimeafter his December, 1998, grand jury testimony, Nicassio received a piece ofpaper with the namesofthe informantsin this case including Spellins, Nicassio, Bowman, Woznyand Crecelius. Nicassio received this paper from Henry Johnson, whotold Nicassio that he received it from John Hernandez. Nicassio did not know these other people were cooperating with the prosecutor. (45 RT 8230-8232.) Hernandeztestified that he got this list of names from appellant, who wanted other inmates to know whowasworking with the police. (Vol. 47 RT8523-8525.) Appellant wanted Hernandeztotell his “home boys”that these people were “rats.” (47 RT 8530.) Hernandez came forward with this information in exchange for a deal on a sentencethat he wasserving in Pelican Bay. (4 RT 8545et seq.) 68 Nicassio testified before the grand jury that indicted appellant on the witness tampering charges. While he wasin the court holding tank, he was approached by Harlan Romines, whois a memberof the Nazi Low Riders and a very intimidating individual. Romines told Nicassio that there was “paperwork”out on him throughoutthe entire prison system and that he would be killed for being a rat. (46 RT 8237.) APPELLANT’S CASE During the Thanksgiving season of 1992, Sue Merriman wasliving in a two story condominium at Miller Court in Ventura with her children, appellant and his sister Ember. Appellant’s room was ontop ofthe garage, separated by an open walkwayfrom therest ofthe residence. Sue Merriman’s room also wason the top floor, on the other side ofthis walkway. (52 RT 9310-9313.) She remembered nothing particularly eventful about the Friday after Thanksgiving. Early that Saturday morning she wasin her bedroom whenshe heard male voices. She knew her son had been out late that night and was happy he had come homesafely, but did not come out of her room. She heard a noise and saw a “bald boy”urinate onto her patio off the connecting bridge between the garage and the house. She was angry but went back to sleep. From her room she could usually hear what was 69 LighSeRCRAASS SAIEESOUOPERASE EE ie ong ae occurring in appellant’s room, but this morning she heard nothing unusual, nor anyone moving about the house. (52 RT 9316-9320) Mrs. Merriman eventually got out of bed at 7:00 a.m. When she got up she saw blood onthestairwell connecting the upstairs roomsto the rest of the residence. (52 RT 9322-9323.) She wasn’t concerned about the blood because it wasn’t “something that someone neededto go to the hospital.” (52 RT 9325.) She and Embercleaned the bloodoff the rug. (52 RT 9326- 9327.) Up until this point, she hadn’t seen appellant that morning. Mrs. Merrimanwasin the kitchen to making breakfast when she heard appellant comeout of his room. While having breakfast, Mrs. Merrimanspilled coffee on the kitchen rug. (52 RT 9327.) She then noticed appellant and asked him who had gotten hurt. Appellant pointed at his own head. Mrs. Merriman told appellant that she thought he neededstitches but appellant simply said, ‘Don’t baby me”and went backinto his room. (52 RT 9333-9334.) The next contact Mrs. Merriman had with appellant wasat 1:30 p.m. whenshecalled up to him that she and Ember were going to town and she would fix him a sandwich if he wanted one. Mrs. Merriman never saw anyoneelse in the house that morning nordid appellant leave the houseat any timeprior to 1:30 p.m. (52 RT 9338-9339.) Appellant was home when Mrs. Merrimanreturned from shoppingat 70 5:30 p.m. He had a hangoverand wasin his robe and pajamas. After taking a Darvocet, he went to bed between 7:00 p.m and 8:00 pm. Later that night Mrs. Merriman gota call from Trina’s father who wanted to speak to appellant. Mrs. Merriman told him that appellant had taken a pill and goneto bed. Almost immediately thereafter, the phone rang again. This time it was Mrs. Montgomery, who washysterical. She told Mrs. Merriman that her daughter was missing. Mrs. Merriman told appellant to speak with Mrs. Montgomery butshe did notlisten to their conservation. (52 RT 9347-9350.) The next morning, Sunday, appellant and his sister went to church. Mrs. Merriman did not go because she was having the carpets cleaned that morning. Mrs. Merriman had been using Judd Mashburn to clean her carpets. She decided her carpets had to be cleaned that weekend, but not because of the blood. Appellant’s room “smelled like a brewery” and the other carpets needed cleaning as well. (52 RT 9340-9341.) Mrs. Merriman believed Mr. Mashburn cleaned the dining room, living room, stairwell and Justin’s room. While the carpet was being cleaned, two officers from missing persons came to the Merriman residence and asked to speak to appellant. Mrs. Merriman told them that appellant was not home. She was awarethat appellant was on parole so she gave consentto the officers to search anywhere in the house they wanted. The officers went 71 upstairs to appellant’s room, but Mrs. Merriman did not believe they conducted a search. (52 RT 9351-9355.) Mrs. Merriman testified that the diagram ofthe jail found in her possession wasnot an escape map, but for the purpose of Mrs. Merriman driving by appellant’s cell window to wave to him. (52 RT 9359-9361.) She also indicated that to her knowledge, appellant wasnot in a “gang.” He wasjust with some kids having a good time. She knew aboutthe Skin Head Dogs but denied that appellant was one ofthem. (52 RT 9378- 9380.) PENALTY PHASE CASE Prosecution’s Case- in-Chief Victim Impact Evidence Opal Jean Montgomery had twelve granddaughters, one ofwhom was Trina. Shetestified that Trina was “ the apple of her grandfather’s eye.” She said that she couldstill feel Trina’s hug and that Trina was a very loving baby and a very nice child. She told the jury that Trina’s first prayer was “Now I Lay Me Down to Sleep.” She stated that appellant didn’t allow Trina to utter her last prayer and hopes that God can forgive appellant because she cannot. (59 RT 10506-10508.) Michael Montgomery wasTrina’s younger brother. He wasfifteen 72 years old when Trina disappeared. He rememberedthat it was important for him to be respected byhis sister. When shefirst disappeared, no one in the family knew what had happened and it became necessary for them to come up with whatever theory that they could so that they could believe she was alive. Mr. Montgomery found the disappearanceofhissister “very hard to swallow.” Hereally didn’t understand the loss until he entered college and nowwill spend the rest of his life doing what he can to keep her memory alive. (59 RT 10509-10511.) Laurie Montgomery wasTrina’ssister and the youngest ofthe three Montgomery children. She described the good relationship she had with her older sister as they were growing up. When Laurie got married it was very sad that Trina wasnot there. She wantedhersister to know that she had grown up and had changed. Thedeath ofhersisterstill keeps her up at night. (59 RT 10512-10515.) Michael Montgomery wasTrina’s father. He stated that she was very bright but turned rebellious around ninth grade. He and his wife decided not to try to control their daughter’s conduct andlet her see the world. Theylet her go to Germanyto be with her boyfriend, Mitch Sutton. She returned from Germany a changed person, having “turned a corner.” (59 RT 10527.) Mr. Montgomery realized when Trina disappeared that the situation 73 wasvery bad. He turned his focus on his other children. However,there is a dark cloud hangingoverthe entire family. He remembers Trina now through photos, videos and the memories of hundredsoffriends and family members. Thereis a giant void in his life. Due to the circumstances under which she died, there will never be a healing. The loss shattered his wife. His daughter was alwayskind, energetic and friendly, with a sense of invincibility that perhaps led to her fateful poor choice. (59 RT 10517- 10520.) Katherine Montgomery was Trina’s mother. She told the jury that she had a very close and special relationship with her daughter. Mrs. Montgomery stated that when Trina had returned from Germany, she had a new appreciation of her family. Mrs. Montgomery spent a lot of time with Trina and even when Trina wasacting out she did not show that side of herself to her very large extended family. Mrs. Montgomery played a video tape for the jury showing Trinaat a birthday party for Mrs. Montgomery’s sister and Trina dancing at a family wedding. There wasalso a scenein this tape from Trina’s grandparents’ 50" anniversary party. (59 RT 10521- 10524.) Mrs. Montgomery said her daughter will never share in these things again. She never had a funeral for her daughter and never had a proper 74 chance to say goodbye.Further, she said that bad things were brought out about her daughter by people whoreally didn’t know her. (Vol. 54 RT 10524-10526.) Evidence of Other Crimes Committed by Appellant In June of 1990, Ronald Jenkins wasa teacherat a class in the Pasa RoblesFacility of the California Youth Authority. One day, when appellant and six to eight other students werein his class, he heard appellant arguing with a black student about race. Mr. Jenkins then saw appellant pick up a chair andstrike this person on the head. (54 RT 10533-10538.) On June 26, 1994, at the Ventura County Jail, appellant was moving through the jail with fellow inmates Waterloo and Harris. Appellant was walking in front of the other two inmates when he suddenly turned around and hit Waterloo in the face. As Waterloo droppedto the floor, appellant hit him again. When Waterloo asked appellant why he hit him, appellant replied, “Because I felt like it.” (S9 RT 10568-10575.) The prosecutorread a stipulation that on July 31, 1989, appellant and his friend, James Ashby, drove to Carla Ellison’s house in Ojai. Ms. Ellison had been dating her neighbor, Scott Davis, but Ashby wasalso interested in Ms.Ellison. Mr. Davis and Mr. Ashby soon gotinto a confrontation over Ms. Ellison. She went to Mr. Davis’s house to get Scott’s motherto help. Patricia Davis arrived at the scene a few minuteslater. (59 RT 10526- 75 10527.) Appellant then approached Scott Davis, pushed a club in his face and threatened to beat the crap out of him.” Appellant also told Mr. Davis that he needed bring Ms.Ellison over to Mr. Ashby “or else” and that he better “get his fucking motherout of here.” (59 RT 10527-10528.) Anotherstipulation stated, in summary, that on July 3, 1990, appellant was an inmate at the California Youth Authority in Pasa Robles. During the early morning, appellant was underthe supervision of Officer Paul Jones, who wasorchestrating movementto the showers. Atthat time, appellant struck Officer Jones several times with his closed fists. While being subdued by Officer Jones and otherofficers, he struck Officer Jones again in the thigh and stomach. On November9, 1990, appellant pled guilty to resisting or deterring an executive officer in the performance ofhis duties by force or threat and was sentenced to two years imprisonmentin the custody of the California Department of Corrections. (54 RT 10543-10545.) Anotherstipulation was entered into which stated, in summary, that on October 31, 1992, at 1:00 am, Deputy Van Davis respondedto a “loud party” call. When he arrived, he saw appellant and another man getting up off of Richard Kutback, who waslying on the ground motionless. Appellant ran off, covered with blood. Mr. Kutback was bleeding from a large and deep laceration in his lip and mouth. Healso had bruises on his head. (59 76 RT 10545-10547.) On May 20, 1993, appellant was convicted of misdemeanorbattery. (59 RT 10543-10545.) Anotherstipulation stated in summary that on April 16, 1996, appellant and Scott Porcho were at the Living Room Nightclub in Santa Barbara. Brett Wittman was dancing in a moshpit when he wasattacked by some skinheads. Mr. Wittman wasextricated from the dance floor by security and taken to the lobby where appellant approached him and punched him in the nose, knocking Mr. Wittman to the floor. As Whitman lay on the floor, Porcho kicked him in the head twoto three times. Appellant and Porchofled from the scene. On September6, 1996, appellant pled guilty to a misdemeanorbattery causing serious bodily injury. (59 RT 10548-10550.) Anotherstipulation was entered into by counsel, which, in summary, stated that on January 12, 1998, appellant was pulled over for a Vehicle Code violation while driving a car on Ventura Ave. During a search of appellant’s person after his arrest, a small concealed knife was found. (59 RT 10550.) Anotherstipulation was entered into by counsel whichstated that on November8, 1998, appellant attacked his fellow inmates William Nolan and Paul Folse. (59 RT 10586-10589.) 77 onnytteaSHONTRMAIOGRERASEMi aRNY a he eo Appeliant’s Case Appellant’s penalty phase case consisted of testimony from his grandmotherand four expert witnesses: Dr. Patrick Barber,a clinical psychologist, Dr. Jordan Witt, a clinical psychologist with clinical neurological training, Dr. Joseph Wu, a PET scan expert, and Leonard Diamond,a forensic psychologist. Appellant’s maternal grandmother, Beverlee Waterhouse, stated that appellant was adopted by Dean Merriman when Beverlee Sue Merriman married him. She said that appellant had always shownherlove and respect and that she does not believe that appellant did these crimes. (Vol. 60 RT 10615-10618.) Dr. Patrick Barker wasa forensic and clinical psychologist, who has consulted the courts on various matters since the 1980's. In 1999, counsel requested that Dr. Barker perform a psychological evaluation on appellant. Counsel wanted Dr. Barkerto assess appellant without preconceptions. Dr. Barker was informedas to the nature of the charges appellant was facing, but wasnot given any police reports. To prevent his opinions from being effected by malingering, Dr. Barkeralso indicated that he never automatically assumed the subjects ofhis examinations alwaystold the truth. (60 RT 10730-10731.) Someofthe information used appellant’s evaluation came from interviews with appellant, his mother, and his adoptive father, Dean 78 LBAnagaR ettBRRFebbge wRes akan etEBSEAERRPREGRETERENTRETOTS, 5 Merriman. Sue Merrimantold Dr. Barker that appellant’s birth father was an alcoholic whom appellant rarely saw after his mother and father separated whenappellant was two years old. (60 RT 10732.) When appellant was five years old, Sue Merriman married appellant’s adoptive father, Dean Merriman.(60 RT 10733.) Both appellant and Mrs. Merriman described life with Dean Merrimanas “badly dysfunctional.” Both said that Dean Merriman was “seriously alcoholic” and that he argued and foughtall ofthe time with Sue. He would go into drunken rages, swear at everyone around him, break things and physically abuse his wife. (60 RT 10733.) Sue and Dean Merrimanseparated and reunited on a frequentbasis. Appellant would live with one ofthem andthen the other, creating a very unstable living environment. Appellant had significant school problems, including learning difficulties, behavioral problems and attendance problems. Hedid not finish high school. Appellant attended alterative schools, such as Mar Vista, created for students with similar problems. Appellant attended seven or eight schools prior to dropping out. (60 RT 10734.) Appellant stayed away from homea lot because he hated the turmoil there. He often stayed at a friend’s house where drugs werereadily accessible. It was there that appellantfirst started using methamphetamine 79 when he was 11 years old. (60 RT 10734-10735.) At one point he was staying at a neighbor’s house and he was sexually molested by the woman. (60 RT 10735.) Appellant was a good fighter and by his early teens other kids looked to him for protection. He got a reputation as being the type of person who would take on anyonein a fight, even people seven or eight years older. Appellant got into a lot of fights and it becamea point of pride for him that, even in his very early teens, he would not back down. (60 RT 10735.) During his mid-teens, appellant began to associate with skinheads and white supremacists. Mrs. Merriman believed this was partly due to Dean Merriman’sracism, but she also believed that it came from an incidentin which appellant was knifed by an Afro-American. (60 RT 10735-10736.) Whenappellant wasfifteen years old, he was arrested for vandalism and other crimes and wassent to Colston Juvenile Facility. Appellant spent most ofthe next ten years in detention of one sort or another. Most of the detentions wererelated to drugs. (60 RT 10736.) Dr. Barker also reviewedcertain of appellant’s school records which indicated that in seventh grade he disrupted schoolactivities by distributing methamphetaminepills to other students. There were also records ofpoor school behavior, attendance and performance, including makingracially derogatory statements to another student. (60 RT 10738-10739.) 80 Dr. Barker gave appellant varioustests, including the WAIS intelligence test, the MMPI, which measuresclinical disorders such as depression and schizophrenia, and the Millon Clinical MultiAxial Inventory, whichis a personality test. In addition, Dr. Barker had appellant fill out an extensive life history questionnaire. (60 RT 10739-10740.) The MMPIresults showed that appellant wastrying to exaggerate his virtues. As to the other tests, there was no indication that appellant was trying to manipulate the results. If anything, appellant was trying to make himself look better than he was, not more dysfunctional. (60 RT 10742.) Theintelligence test measured appellant’s full scale I.Q. at 88, which in the 21* percentile, the low-average range. Appellant’s Millon profile was shared by individuals who are unreliable, self-centered in their contempt for social convention, deeply resentful and lacking in empathy andtolerance. People withthis profile are ruthlessly indifferent to others with a low tolerance for frustration. They have personalrelationships fraught with conflicts. Appellant’s responses to the Millon also indicated poor adjustment to society, as well as addictive tendencies. (60 RT 10743.) The MMPIprofile of appellant matched the most difficult of criminal offenders: people whoare distrustful, anti-social, cold, unstable, impressionable, hostile and violent. These people have very poor impulse control, having a belief that they are entitled to anything that they want. 81 ennete genanntengOa SS onoSentaaNMnRNRRBIAptAEte anon oH mat AES They have no long range planning and blametheir troubles on other people. Exacerbating this profile was the fact that appellant took disinhibiting drugs. (60 RT 10743-10744.) Dr. Barker indicated that when under the influence appellant’s ability to plan was more severely impaired than when he was not. However, even whennot underthe influence, appellant’s planing is very short term and exhibits a lack of respect for others. He judges something as goodifit fits his immediate needs. He cannot take into account the needs of others. (60 RT 10745.) Appellant’s scored in the average range in abstract reasoning. He also understood society’s expectations of him, even though he often did not follow them. His processing speed was very slow compared the average person,falling in the 2% range. (60 RT 10746-10747.) Dr. Jordan Witt, a clinical psychologist with special training in clinical neuropsychology, did a complete neurological examination of appellant. This examination involved three components: interview of the subject, the subject’s history, and neuropsychologicaltesting. (Vol. 60 RT 10624-10627.) Dr. Witt gave appellant fourteen different neuropsychologically based tests to get as much information as possible about the workings of appellant’s brain. Hetestified that there is a possibility that the subject of 82 these tests could fake them, but these tests were extremely difficult to fake whenthey are correlated with each other. There are patterns derived from these tests which can show whethera subject was faking. These patterns were not present in the test results received from appellant. (60 RT 10627- 10630.) According to Dr. Witt, appellant presented a developmental history consistent with individuals who are highly hyperactive, impulsive, impatient and restless. Becauseofthesetraits, this type ofpeople tend to comeinto conflict with different expectations early on for performance both in school and in the community. This is the reason why appellant wentinto a special education program asa child. (60 RT 10631.) Dr. Witt indicated that such abnormalities in the way people respond, behave, think and process information can be caused genetically, in utero, or through substance abuse. From Dr. Witt’smany discussions with appellant, he cameto believe that appellant’s brain may have been damaged by such substance abuse. Appellant also reported blackouts, loss ofmemory and seizures. Dr. Witt felt that there was a concern that the significant polysubstance abuse may haveseverely affected appellant’s brain function. (60 RT 10632-10634.) In addition, Dr. Witt cited to appellant’s history of multiple head injuries as being a risk factor in brain injury. Appellant had been in many 83 fights, beginning at the age of 14, in which helost consciousness, as well as an automobile accident in which he was knocked unconscious. The longest he was unconsciousfrom oneofthese incidents was 20 -30 minutes, placing the event in the category of mild to moderate head injury. This raised the question as to whetherthis risk factor contributed to his current state of neuropsychological functioning. (60 RT 10634.) Dr. Witt’s evaluation of appellant was based on twostreams of information: the way appellant presented himself to the examiner and the results of the examination. Appellant presented as very restless, mildly agitated, very active with motor hyperactivity, also known as a motortick. Dr. Witt observed that he had a certain shake to his hands. Dr. Witt stated this was a pattern of behavior often seen in people with extreme hyperactivity. (60 RT 10635.) Based uponDr. Witt’s evaluation, appellant had several “significant to even severe problems in how he managed, processed and worked with information andreactedto it.” Dr. Witt testified that appellant had a very limited span of concentration with difficulty in shifting that concentration. His abilities in this area was severely below average. (60 RT 10635-10636.) Appellant’s second major area of neurological defect was related to learning, both with language information (things that you tell him), and with visual information (things that were presented to him). In addition, he had 84 marked memory difficulties. He ranked in the lowest 1-2 % of the general population in this memory testing. (60 RT 10636.) Appellant also executed both motor and thinking tasks at a very low speed. He appeared confused with basic instructions and did basic tasks, such as reciting words and putting pegs in holes, very slowly. Dr. Witt testified this was representative ofhow appellant’s brain works, how it managesa variety of tasks and how it communicates withitself. (60 RT 10637.) Dr. Witt found that appellant was a person whowasliving in a kind of ongoing present. He does not have the capacity to retrieve andrecall information and does not understand very much of whatis presented to him. Therefore, he cannot anticipate and plan for the future because he doesnot have the ability to take in information adequately. These problems, compoundedwith his hyperactivity, created a person wholives at the whim ofhis impulses, emotions and desires, less able to rely on his memory, reasoning, and learning of information that he gets from his environment on whichto base his actions and judgments. (60 RT 10638.) Dr. Witt concluded that appellant was neither insane nor retarded. He couldtell right from wrong. However, appellant did have brain damage, having been born with a brain that was not really functional and which only became worse with time. Appellant’s brain had a skewed pathway of 85 development and wasin effect a dysfunctional organ, which can not be repaired by surgery. (60 RT10639-10642.) Dr. Witt diagnosed appellant as having an anti-social personality disorder. Dr. Witt stated appellant had a “textbook”case in that he exhibited virtually all of the DSM-IV factors that identify this disorder. This included failure to conform with social norms with respect to lawful behaviors, deceitfulness as indicated by lying for personal profit or pleasure, irritability and aggressiveness, impulsive failure to plan ahead, reckless disregard for the safety of himself or others, consistent irresponsibility as indicated by failure to sustain consistent work, and lack of remorse. (60 RT 10703- 10706.) In addition, Dr. Witt diagnosed appellant has having the Axis I disorders of attention deficit hyperactivity disorder, learning disabilities, polysubstance dependence and cognitive disorder not otherwise specified. (60 RT 10720.) Psychiatrist Dr. Joseph Wu had published manyarticles about Positron Emission Topography (PET). He described the procedure andits uses, testifying that it can be used to look at the brain and ascertain which areas of the brain are abnormal. These results can be correlated with possible brain injury, lesions and tumors. (61 RT 10776-10780.) Dr. Wu also gavethe jury a description ofhow the brain works and whichparts ofthe brain control which brain function. (61 RT 10781-10782.) 86 Dr. Wu did a PET scan on appellant He also did an EEG. The EEG showed appellant had abnormalactivity in the frontal and temporal lobes of his brain, evidenced by complex partial seizures, a type of epilepsy that can affect motions and movements. (61 RT 10784-10787.) Dr. Wudescribed the PET procedureto the jury. He compared appellant’s scan to a composite image of 56 normalscans of a normal control group and then did statistical comparisonsto see if there were statistical abnormalities in appellant’s scan. (61 RT 10787-10794.) Dr. Wustated that the PET scan reveals an image ofthe brain in color. The color scale runs from dark purple to red: the dark purple indicating areas of the lowest activity and the red indicating areas of the highest activity. In a normalbrain, the front lobe tends to be moreactive that the rear portion of the brain. However, in appellant’s brain, there is an abnormal pattern with more activity in the rear portion of the brain. This pattern is known as hypofrontality and is consistent with brain pathologies, including lesions and with certain types of mental illnesses such as schizophrenia. (61 RT 10795-10796.) Dr. Wuexplained in detail to the jury his analysis of appellant’s PET scan. (61 RT 10797-10804.) His ultimate conclusion wasthat it was “more likely than not” that appellant had brain damagein the frontal lobe of the brain, the area of the brain involved with regulation of aggression, long term 87 cenaAEHRE AECRAMSONDErangeom TENE wg So oe oF Ce Senate temtraetnmBELIE A ARRANNNERDRS cre cone ty weak Eyes cn AP planning and judgment. People with such damagealso tend to be more violent due to this brain injury. (61 RT 10806-10810.) Leonard Diamond,a clinical and forensic psychologist, examined the appellant for the juvenile court in 1989. The court asked him to describe appellant’s personality and offer some recommendations. Dr. Diamond performed intelligence tests, tests of brain pathology, subjective drawings and ink blot tests. The information obtained from appellant was significant in terms of long term conduct disturbance, long term personality difficulties and characterological disturbance. (61 RT 10895-10897.) Dr. Diamond’s evaluation revealed an individual with a very low level of maturity who had noinsight whatsoever into his own actions and no social judgment. Dr. Diamond stated appellant “requires total restructuring of his personality but he doesn’t havethe intellectual capacity or the motivation to become involvedin that sort of treatment.” (61 RT 10897.) Appellant also scored very low onintelligence tests. The testing revealed that he had not incorporated societal values nor developed a superego. He operated on pure impulse; doing what feels good or appropriate even though those actions are totally inappropriate vis-a-vis other people’s awareness. Dr. Diamond’stesting indicated that appellant was not psychotic but had a characterological disturbance that interfered with his social judgmentskills and his ability to function in his environmentin an 88 appropriate manner. According to Dr. Diamond, appellant didn’t even know whatplanning was, as planning requires structure and an individual saying to himself, “I can do thisat this time.” However, appellant was incapable of this because he does not have an orderly progression of thoughts. (61 RT 10898-10900.) According to Dr. Diamond, appellant accepted no responsibility for his actions, making constant excuses in such a way asto indicate sociopathy. The evaluation stated that appellant needed a structured environmentand society needs protection from him. The evaluation also recommended confinement in the Youth Authority indicating that appellant was a “significant dangerto the people of California.” (61 RT 10900- 10901.) During the evaluation, appellant told Dr. Diamondthat he knew nothing about reading or math and it embarrassed him to the extent that he just gave up. Thelack of these basic skills also affected appellant’s ability to function in society. (61 RT 10902-10903.) Prior to the penalty phase of the instant case, defense counsel requested that Dr. Diamond do a re-evaluation of appellant. Dr. Diamond was given no further instructions as to what to look for or what findings defense counsel wanted to receive. (61 RT 10904-10905.) Dr. Diamond saw appellant for a total of 12-13 hours in December, 89 Lo heeeenreREAMRNNNRSTOESEAEaga eat oo teteecengen gMAttendOARMeee ooe 1 swtnasameteteconmmmnpesomtnncininaebeattigetitin SeaeCtange ee ee a 2000. Appellant was administered the WAISintelligence test, the Wechsler Memory Test, the Bender Gestalt Test, as well as projective drawingtests, the Rorschachtest, the Thematic Appreciation test, and the MMPI. (Vol. 61 RT 10905.) Theresults of these tests and evaluation showedvery little change in appellant from the time ofDr. Diamond’soriginal testing. Dr. Diamondfelt the testing was accurate because appellant lacked the basic planningskills to malinger. The testing showsno evidence of brain pathology from injury. It showedlimited intellectual awareness andthat appellant was functioning within dull normal range. The evaluation showedappellant to behostile, suspicious, negativistic, all of which indicated a borderline personality. Appellant did not have the capacity to effectively deal with his environment; he is too impulsive and “blowsup”too easily. Further, he lacked the ability to anticipate, hence, is extremely dependent. He hasnoinsight into his behavior and doesn’t respond appropriately to others. (61 RT 10906-10907.) Dr. Diamond’s evaluation revealed no hallucinations, delusions or paranoia. Further, Dr. Diamondstated that the testing eliminated organic causation for appellant’s behavior as well as any thought disorder. Instead, Dr. Diamond found sociopathy, a characterological disorder formed very early in life. People suffering from this disorder are very hard to treat and experts can’t say for sure where sociopathy originates. It could be chemical, 90 genetic, psychologicalor in utero effects that cause this disorder. It was possible that he wasjust born this way. As with all sociopaths he misunderstands his own needs and motives as well as those of others. According to Dr. Diamond, appellant has so many gapsin his awareness, he is not open to treatment. (61 RT 10908-10909.) Regarding the Thematic Apperception Test (TAT), appellant’s stories were“fraught with violence, abandonment, fear, loneliness, and blatant stupidity.” (61 RT 10910-10911.) Regarding the projective drawingtest, appellant drew a house without a foundation, signifying a lack ofpersonal foundation, great anxiety, interpersonal deficiencies and family deficiencies. Another drawing ofa tree is borderline disturbed, “over the edge” and completely inappropriate. Appellant could not stop drawingall over the page until he wastold to stop by the examiner. This drawing indicated that appellant had no environmentallimits. (61 RT 10913-10915.) Appellant’s third drawing was ofa person. Usually, subjects would draw a person ofthe same age and sex as themselves. Appellant drew a picture of a man named “Fred,” who was 44 years old and wholiked to - scream whenhe wasupset. According to Dr. Diamond, this was appellant’s self image: a person out of control. (61 RT 10915-10916.) Dr. Diamond summeduphis findings, stating appellant had not changed much in 12 years. Appellant’s judgment, self image, ability to 91 ndasreeEDAERERRAGN CimaEISENSg a ie nem = sanaeinteRERCANdpate earner function in the world andhis ability to plan wereall extremely deficient. (61 RT 10917.) Dr. Diamondstated that it was fair to say that appellant can be categorized as having anti-social personality disorder. He tested very high on the MMPI-2 lie scale. In addition, Dr. Diamond characterized appellant as a very violent, dangerous and vengeful individual. (61 RT 10918-10920.) People’s Rebuttal Case Dr. Ari Kalechstein was a forensic and clinical neuropsychologist retained by the prosecution to review Dr. Witt’s analysis. (61 RT10972- 10973; 10982.) Dr. Kalechstein stated that there were many problems with the MMPI that was analyzed by Dr. Witt. In his view, answers to many of the questions appearedto be outrightlies. In addition, appellant obviously misreported various items on the personal inventory sheet. Further, Dr. Kalechstein pointed out three tests that Dr. Witt either scored wrong or misinterpreted in such a way that greatly overestimated the degree of appellant’s neuropsychological dysfunction. (62 RT 10988 et seq.) The prosecution also called Dr. Helen Mayberg, a board certified neurologist. (63 RT 11294-11297.) Dr. Mayberg’s testimony was confined to a critique of the PET scan administered to appellant by Dr. Wu. Dr. Maybergtestified there were irregularities in compiling the “normal” 92 controls, stating there was either something wrong with the people used in the control group or something wrong with the PET machine usedtotest them. (63 RT 11319-11326.) She was concerned about which control group appellant was compared to and that no diagnosis was ever made on appellant. (63 RT11326-11333.) Moreover, the drugs appellant was taking at the time ofthe scan could also affect the test result. (63 RT 11335-11336.) Dr. Maybergtestified that based upon the particular scan given to appellant, she couldn’t derive a diagnosis, at least in part due to the drugs that appellant wastaking at the time of the scan. She further indicated that the scan results did not meetthe criteria of whatis considered a brain abnormality. (63 RT 11342-11345.) Appellant’s Rebuttal Case Against the advice of counsel, appellant took the stand. He read a statement giving his condolences to the Montgomery family and stated that his counsel did a terrible job defending him. (64 RT 11406-11411.) He also stated that he did not kill Katrina Montgomery. (64 RT 11415.) 93 ARGUMENT I. APPELLANT’S RIGHT TO DUE PROCESS OF LAW,A FAIR TRIAL, EFFECTIVE ASSISTANCE OF COUNSEL ANDA FAIR DETERMINATION OF GUILT AND PENALTY UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION WERE VIOLATED BY THE PREJUDICIAL MISCONDUCTOF JUROR#1 A. Introduction Before the first word oftestimony was uttered, appellant had been irrevocably prejudiced and deniedhis right to a fair trial. There was a juror in the box, Juror #1, who wasnot an unbiased judge, but rather a partisan. The juror misconductin this case involved two separate acts. The first was that Juror #1 was not forthcoming in her questionnaire and oral voir dire because she withheld important information from counsel and the court. Secondly, separate and apart from the aforementioned misconduct, there was evidencethat at least one of the jurors (Juror #1), if not more, decided this case, as to guilt and penalty, prior to deliberations in the guilt phase. This sitting juror had intentional contact with Ventura Deputy Sheriff Kathleen Baker. There was convincing evidence that during the evidence portion ofthe guilt phase trial, Juror #1 told this deputy that the jury wanted to “fry” appellant. Further, Juror #1 admitted that, prior to guilt phase deliberations, she discussed the case with this deputy, who told Juror #1 that she wanted appellant “put away.” The juror assured the deputy that this 94 would be done. The evidence wasirrefutable that the juror committed serious misconduct. Juror #1 carried into the deliberation room the attitudes and biases of a law enforcementagencyhostile to appellant. A “13" juror” was present. By law, prejudice from this misconduct must be presumed unless rebutted by the prosecution. Under the circumstances ofthe misconduct, rebuttal is not legally possible. Appellant wasnottried by twelve impartial jurors. This error was structural, striking at the very foundation of our system ofjurisprudence. There can be no harmlesserror analysis. These acts ofjuror misconduct deprived appellant of a fair trial and due process of law under Amendments V, VI, VIII and XIV of the United States Constitution. Reversal is required. B. Procedural and Factual Summary On March 5, 2001, during the penalty phase, the court informed counsel that Juror #1 had telephoned from homeand informed the court that due to the illness of her daughter she was seeking to be excused from further jury service. In addition, the court told counselthat it had been informed by a deputy sheriff, who was working security on the case, that Deputy Sheriff Kathleen Baker had had lunch with a juror'’ and that there may have been a 11. As matters developed, it became apparent that the juror who spoke with Deputy Baker wasalso Juror #1. 95 2 oleninaejentstephNaNAISeaeinas Smtr ont fay ren TEAMS tnd flowin ot Ee Be othe eetonoHE Namepetket NESLcengleeTREATARCRDEMH ro miee astm discussion ofthe case. (62 RT 10935-10936.) The court convenedthe jurors who were present at court, and asked them whether they knew Deputy Baker. All stated that they did not. (62 RT 10937.) An inquiry was made of Deputy David Kadosono. Heinformed the court that Deputy Baker recently told him that she had lunch with a person whosaid that she had been a juror in a murdertrial for the last two months. This juror told Deputy Bakerthat the jury was goingto “fry” the defendant. (62 RT 10942.) The court then telephoned Juror #1 and an unsworn telephonic hearing washeld with counsel present. The juror explained that her daughter had just undergonea rather serious operation and that the juror would have to take care of her for the next few weeks. (62 RT 10944-10945.) In responseto the court inquiry, she admitted that she knew Deputy Baker and had spoken to her on the phone about possibly meeting with her. She said she neveractually had lunch with Deputy Baker nor had she evertold her that the jury was going to “fry” appellant. (62 RT 10947-10949.) She also stated that this call was made after the guilt phase verdict. (62 RT 10951- 10953.) She insisted that she never told Deputy Baker how she wasgoing to vote and that she had followed the court’s instruction not to discuss the case with anybody. (62 RT 10960.) After learning this information, the court held a testimonial hearing. 96 Deputy Bakertestified that she knew Juror #1 from past family encounters. Herfirst contact with the juror regarding this case was when the Juror #1 left a message on the deputy’s answering machinestating that she was going to be in Ventura the next week for jury duty and that Juror #1 wanted to get together for lunch. (62 RT 11082.) The deputy returned the call a few days later. During that conversation, Juror #1 had told the deputy that she had been on the Merriman jury for the last two months. Juror #1 also said that “we all want to fry him.” (62 RT 11083.) The witnesstestified that call occurred before the guilt verdict. (62 RT 11087.) Deputy Bakertestified that she told her husband, sergeant and captain about this conversation. (62 RT 11092.) Sometimethereafter, the deputy called Juror #1 and told her that it would be improper for them to have lunch together while she was on the jury. (62 RT 11084.) Sergeant Richard Barber was Deputy Baker’s supervisor. (63 RT 11150-11151.) He testified that prior to the guilt verdict Deputy Bakertold him that she had lunch plans with a juror on the Merrimancase and that he told her that she should not have lunch with a sitting juror. (63 RT 11151- 11153.) Deputy Baker told Sergeant Barberthat the juror had said that the jury wantedto “fry” appellant. (63 RT 11156) Captain Gordon Hansen of the Ventura County Sheriff's Office 97 sntheteniHNABRPARISON tant ety gee nee een testified along the same lines as Deputy Baker. However, he stated that Deputy Baker told him that the juror’s exact words were that they were “looking to fry this guy.” (63 RT 11161.) Deputy Baker’s husband, Michael Baker, was also a deputy sheriff with the Ventura Sheriff's Office. He testified that while he was awarethat a conversation occurred between his wife and the juror, she never told him its details. (63 RT 11166-11167.) Deputy Kadosonothentestified that Deputy Baker had told him that one ofthe jurors had called her and informedherthat the jurors “were looking forward to frying” appellant. (63 RT 11177-11178.) Juror #1 testified that Deputy Baker was her daughter’s sister-in-law whomshehadseen socially five times prior to this incident. (63 RT 11195- 11196.) During her service on this jury, she called Deputy Bakerto invite her to lunch. (63 RT 11195-11196.) Deputy Baker was not at homebuta message wasleft and contact was made, soon thereafter. (63 RT 11197). Juror #1 estimated that this call was made approximately three weeks before guilt phase deliberations occurred. (63 RT 11198.) This conversation lasted four to five minutes. (63 RT 11199.) Juror #1 testified that during the phonecall, she and Deputy Baker madetentative plans for lunch. (63 RT 11200.) Juror #1 also recalled Deputy 98 Baker “saying something like ‘I hope you put him away’.” Juror #1 recalled responding “[h]e will be put away.” (/bid.) This was her own opinion and she didn’t “believe” she shared it with anyone other than Deputy Baker. (63 RT 11205.) Juror #1 further testified that while she had no independent recollection of the comment about the jury wanting to “fry” appellant, it is possible that she did sayit, as there is no reason why Deputy Baker would say this if it was not so. (63 RT 11211-11213.) Juror #1 further indicated that she had made up her mind that appellant was guilty before any deliberations commencedbecauseofthe strength of the evidencein the case. (63 RT 11211; 11218-11219.) While she said that the deliberative process was “open minded”and “conscientious,” it was questionable if she could have. been persuaded, during deliberations, to change her perception ofguilt. (/bid.) She also stated that at no time did she hear any discussion amongst the jurors as to penalty. (63 RT 11219-11220.) However, upon further questioning by the judge, Juror #1 stated that she did recall some comments about the penalty between her and a few ofthe jurors with whom she most associated. Shetestified that she could not rememberthe substance of these conversations. (63 RT 11225.) The court then proceededto ask all of the other jurors, individually 99 eaterPB SAEeenceApc cone ehaeanpeektOBeMStemAPreBen SPETTaeRT and outside the presence of each other, whether they overheard or participated in any conversations as to what the penalty should bein this case. All of the jurors answered in the negative. (63 RT 11249-11262.) Based uponthe above testimony, counsel moved for a mistrial, stating that Juror #1 had prejudged, prior to deliberations, not only appellant’s guilt, but also what penalty he should receive. (63 RT 11264.) Counsel further stated that the juror entered into deliberations with her mind madeup; therefore, appellant was denied his right to a fair and impartial jury. He further stated that the juror had an agenda goinginto deliberations and that she could have swayed the other jurors. In addition, counsel argued that it was quite possible that this misconduct would have an effect on the penalty phase. (63 RT 11264-11267.) Counselalso referred to misstatements the juror made on her questionnaire in which she indicated that she didn’t have any close friends or relatives in law enforcement other than Richard Walsh, a prison guard. (Vol. I Augmented CT 9, Q 32; 63 RT 11263-11269.) The court madethe following factual findings. The court found that deliberations began in the guilt phase late on February 8th and continued through the full day ofFebruary 9"andthat verdicts were reached onall counts but the murder count on the 9th. February12th was a court holiday 100 so there was a three day recess. During that recess, Juror #1 was contacted by Ventura Sheriff's Deputy Kate Baker,sister of Juror #1's son- in-law. (63 RT 11376) The court further found that Deputy Baker said something to the effect that she hopedthat the jury would put the defendant away. Juror #1 responded they would do so one wayorthe other. (63 RT 11377.) The court foundthat it believed the phrase “we are going to fry him” wasuttered in the conversation in question but the court could not ascertain who used the phrasefirst. (63 RT 11387.) The court also held that there was no improper discussion ofpenalty and no other indication of other impropriety by Juror #1, and that any remark by her was an “off-the-cuff”? comment in response to a provocative statement by Baker. (63 RT 11378.) The court also found that prior to the guilt verdict, the juror remained open minded andable to vote either way on guilt and penalty. The court further speculated that the jurors could have easily discussed Count | prior to Juror #1's conversation with Deputy Baker. (63 RT 11377-11378.) The court opined that the above facts suggested that there were four possible juror misconductissues. (63 RT 11379.) Firstly, the court stated that there was no misconduct in Juror #1's failure to mention her relationship with Deputy Baker on the questionnaire becausetheir relationship was “very 101 distant.” (63 RT 11379-11380.) The court further stated that Juror #1 did not even know that Deputy Baker workedin close proximity to the courthouse until another relative told her. (/bid.) Secondly, the court held that there was juror misconductin the occurrence of a conversation between Juror #1 and Deputy Baker. (63 RT 11380-11381.) The third issue involved the content of Juror #1's conversation with Deputy Baker. The court found this to be juror misconduct, as well as Juror #1 had been admonishednotto talk to anyone aboutthe case. (63 RT 11381.) The fourth issue was whether Juror #1 prejudged the case in somefashion. (Jbid.) The court denied the Motion for a Mistrial in spite of its finding of misconduct. The court found the question as to whether Juror #1 prejudged the penalty to be moot as she had been dismissed prior to the commencement ofthe penalty phase. (63 RT 11381-11382.) The court further held that Juror #1 did not prejudge the guilt phase, as by the time of the first conversation with Deputy Baker, the juror had legitimately begun to form opinions and that most of the verdicts had been returned. (63 RT 11382.) Further, the court held that there was no indication that the juror was reacting to bias as opposedto evidence. (63 RT 11382-11384.) The court then concluded that the presumption ofprejudice had been refuted, basing this upon the credibility of Juror #1 and the overwhelming 102 evidenceof guilt. (63 RT 11384-11386.) After the verdict of death, the court denied a Motion for New Trial that included this claim ofjuror misconduct. (65 RT 11577-11578.) C. Legal Analysis 1. General Law of Juror Misconduct. Whenan action occurs that constitutes a direct violation of the “oaths, duties, and admonitions imposed on actual or prospective jurors, such as when a juror conceals bias on voir dire, consciously receives outside information, discusses the case with non-jurors, or shares improper information with other jurors”that action is defined as jury misconduct. (/n re Hamilton (1999) 20 Cal.4th 273, 294; People v Nessler (1997) 16 Cal.4th 561, 578-579; In re Carpenter (1995) 9 Cal.4th 634, 647; In re Hitchings (1993) 6 Cal.4th 97, 118.) Further, “a sitting juror's involuntary exposure to events outside the trial evidence, even if not ‘misconduct’ in the pejorative sense, may require similar examination for probable prejudice.” (dn re Hamilton, supra, 20 Cal4th at pp. 294-295.) “Misconduct by a juror, or a non-juror's tampering contact or communication with a sitting juror, usually raises a rebuttable ‘presumption’ of prejudice.” (In re Hamilton, supra, 20 Cal.4th at p. 295.) This rebuttable presumption rests upon the limitation of impeaching a verdict set forth in 103 Evidence Codesection 1150, the pertinent part reading as follows: Upon an inquiry asto the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a characterasis likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assentto or dissent from the verdict or concerning the mental processes by whichit was determined. Whetheran individual verdict will be set aside due to juror misconduct is “resolved by reference to the substantial likelihoodtest, an objective standard.” (In re Hitchings, supra, 6 Cal.4th at 121.) The verdict will be set aside if there appears a substantial likelihood ofjuror bias. Under the substantial likelihood test, such bias can be established in one of two ways. The first way is that the circumstances attending the juror misconduct are inherently and substantially likely to have influenced thejuror. (E.g., People v. Holloway (1990) 50 Cal.3d 1098, 1110-1112; People v. Marshall (1990) 50 Cal.3d 907, 951-952.) Alternatively, bias can be found by looking to the nature of the misconduct and the surrounding circumstances to determine whetherit is substantially likely the juror was actually biased against the defendant. (E.g. In re Hitchings, supra, 6 Cal.4th at 121.) The judgment mustbeset aside if the court finds prejudice undereithertest. (/n re Carpenter, supra, 9 Cal. 4th at p. 654.) 104 This twopart test is different than the harmless error standard commonly used in typical appellate analysis. While the first alternative of the juror misconduct standard of Carpenter is somewhat analogousto the general “harmless error” analysis, the second is not. As stated in Carpenter, supra, 9 Cal.4th at pp.653-654, “[u]ltimately, the test for determining whether juror misconduct resulted in actual biasis ‘different from, and indeed less tolerant than,’ normal harmlesserror analysis, for if it appears substantially likely that a juror is actually biased, we mustset aside the verdict, no matter how convinced we mightbe that an unbiased jury would have reached the sameverdict. A biased adjudicator is one of the few ‘structural defects in the constitution of the trial mechanism which defy analysis by harmless error standards.’” (See Arizona v. Fulminante (1991) 499 U.S. 279, 309; see also Rose v. Clark (1986) 478 U.S. 570, 577-578.) 2. Juror #1's Concealment of Her Relationship With Deputy Bakerat Voir Dire was Misconduct Oneaccused of a crime hasa constitutional right to a trial by impartial jurors. (U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, § 16; In re Hitchings, supra, 6 Cal.4th at p. 110; Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 110.) “The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to trial by jury 105 guaranteed by the Constitution.” (bid, quoting People v. Galloway (1927) 202 Cal. 81, 92.) Further, a defendant’s rightto a fair trial is violated even if only one ofhis jurors is biased. (People v. Nessler (1997) 16 Cal.4TH 561, 578.) The impartiality of prospective jurors is explored at the preliminary proceeding knownasvoirdire. “ Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendmentright to an impartial jury will be honored. Without an adequate voir dire the trial judge's responsibility to remove prospective jurors whowill not be able to impartially follow the court's instructions and evaluate the evidence cannot be fulfilled. [Citation.] Similarly, lack of adequate voir dire impairs the defendant's right to exercise peremptory challenges where provided by statute orrule ....” Un re Hitchings, supra, 6 Cal.4th at 110, citing to Rosales-Lopez v. United States (1981) 451 U.S. 182, 188.) Therefore, it stands that a juror who conceals relevant facts or gives false answers during voir dire commits misconduct in that the parties are not able to properly evaluate that juror’s ability to be impartial in the particular case in question. “[W]here a party has examinedthe jurors concerningtheir qualifications, and they do not answertruly,it is manifest that he is deprived of his right of challenge for cause, and is deceived into foregoing his right of 106 peremptory challenge.[citation.] The prosecution, the defense andthetrial court rely on the voir dire responses in making their respective decisions, and ifpotential jurors do not respond candidly the jury selection processis rendered meaningless. Falsehood, or deliberate concealment or non- disclosure of facts and attitudes deprives both sides of the right to select an unbiased jury and erodesthe basic integrity of the jury trial process. [citation.]” Un re Hitchings, supra, 6 Cal. 4" at 112.) Thereis no dispute as to the fact that Juror #1 was not forthcoming as to her relationship with a Ventura County deputy sheriff. She mentionedit neither in her questionnaire norin her oral voir dire. Contrary to the court’s holding that the juror’s relationship was “very distant”, making the concealmentirrelevant, Juror #1's concealment was misconduct. The court mischaracterized the relationship. The deputy was a relative through marriage whom shehad seen multiple times socially. Deputy Bakerwasthesister-in-law ofJuror #1's daughter. Therefore, Juror #1 would be the aunt to any children that Deputy Baker may have. The deputy was present enough in the juror’s mind that she called Deputy Baker prior to the verdict being rendered in the guilt phase and talked about the case. |? 12. The trial court’s finding that Juror #1 did not know that Deputy Baker worked in close proximity is not supported by Juror #1's testimony. (63 RT 11196-11203.) 107 Juror #1's concealment ofher relationship with a member ofthe same police force that not only was involvedin the investigation of appellant’s case but wasactually victimized by appellant wascritical. Appellant’s counsel had every right to know this. Whether it would havejustified a challenge for cause or not, there is no reason to doubt counsel’s statement to the court that this juror would have been the subject of a peremptory challenge had counsel knownofthis relationship. (63 RT 11270.) No further proof is needed of the wisdom ofsuch a challenge than whatactually happened because of the concealment. Deputy Baker was not simply a law enforcement officer. She was a law enforcement officer who, becauseofher position and employer, had an inherent bias against appellant. Had counsel knownofthis relationship, there is no question that Juror #1 would have been subjected to at least a peremptory challenge. The concealment bore upona clearly material fact of the case: that a person, with whom Juror #1 was well acquainted and with whom shefelt comfortable discussing the case, had predictable prejudices against appellant.’? (See People v. Diaz (1984) 152 Cal.App.3d 926, 931.) Therefore, Evenifthis was the case, it has no bearing on the existence or nature of the conversation or the issue of concealment. 13. A reasonable prediction that a person in Deputy Baker’s position might be expected to be prejudiced against appellant was confirmed by Deputy Baker’s actual opinion that she wanted appellantto “fry.” 108 the act of concealmentwas,in and ofitself, an act of misconduct on the part of the juror. Whether this concealment wasintentional or inadvertent is irrelevant. (/d. at 938.) As stated in In re Hitchings, supra, 6 Cal.4th at 111, “Without truthful answers on voir dire, the unquestioned right to challenge a prospective juror for cause is rendered nugatory. Just as a trial court's improperrestriction of voir dire can underminea party's ability to determine whethera prospective juror falls within one of the statutory categories permitting a challenge for cause.” Hitchings further recognized that this type of concealment “eviscerate[s] a party's statutory right to exercise a peremptory challenge and remove a prospective juror the party believes cannot be fair and impartial. We have recognizedthat ‘the peremptory challengeis a critical safeguard of the rightto a fair trial before an impartial jury.’” bid.) Thelikelihood of this concealment demonstrating Juror #1's actual bias is multiplied by the additional misconduct of communicating with Deputy Baker. Further, as will be discussed in the next subsection, Juror #1 wasalso fundamentally dishonest regarding her contact with Deputy Baker, which supports the argument that her concealmentwasintentional and evidenceda biased state of mind. 3. Communicating with Deputy Baker Was Juror Misconduct. The Content of the Conversation and the Juror’s Testimony at the 109 Hearing Show Separately or Together, that There is a Substantial Likelihood that Juror #1 Was Biased Against Appellant Requiring a Reversal of the Judgment The court wascorrect in assessing that the conversation between Juror #1 and Deputy Baker was misconduct. However, the court was wrong in its assessmentthat the presumption ofprejudice had been overcomebythe overall circumstances, including Juror #1's honesty. Juror #1 wasnotatall honest and forthright. In her unsworn telephone interview with the court, Juror #1 stated that she never had any conversations with anyone aboutthe case. However, during her sworn testimony she told a completely different story, swearing that there was indeed a conversation between herself and Deputy Bakerin which the deputy said “I hope you put him away”and the juror responded that she would. (62 RT 10960; 63 RT 11200.) The above are not minor discrepancies, but rather the type of contradictions one would expect from a person who found herself in a very difficult position because she had not been totally honest with the court. During her unsworn phone conversation with the court and counsel, Juror #1 clearly attempted to distance herself from the misconduct that had been uncovered. However, once she was compelledto testify under oath, her story fundamentally changed. This is not the hallmark of an honest witness. Regarding the circumstanceofthe timing of the conversation, the 110 court was factually wrong whenit held that the conversation took place after deliberations had commenced. While this is what Juror #1 stated during the phonecall, when she wasnot underoath, she testified at the hearing that the conversation in which she and Deputy Baker discussed the case was “maybe two or three weeks”before the jury deliberations. (62 RT 10951-57; 63 RT 11198.) Thetrial court essentially ruled that the fact that the presumption of prejudice vis a vis Juror #1's misconduct was overcomebythe fact that she testified that her deliberations were “open-minded” and any comments she made were“offthe cuff.” The court was wrong. Everything that Juror #1 said or did must be viewed throughthe prism of her attempt to disavowall knowledge of any misconductin her telephone conversation with the court. It is hard to fathom how the court could reach a determination that Juror # 1 wasan honestperson,in light of the fact that the court found that the juror did indeed likely use the word“fry,”or at least assented toit, in respect to appellant, even though the jurorinitially denied in the phone conversation that such a discussion even took place. (63 RT 11378.) Regarding the court’s finding as to the “open-minded”attitude of Juror #1 as she approached deliberations, this finding was fundamentally flawed as well. The juror clearly testified that she had already made up her 111 mind prior to deliberations and that she doubted that anything said at deliberations would have changed her point ofview. (63 RT 11219-11221.) The characterization of this as “open-minded”clearly misses the whole point of the deliberative process. This Court has madeit clear that the presumption ofprejudiceis strengthened by a concealment of information by a jurorat voir dire. (Jn re Hitchings, supra, 6 Cal.4th at 119.) As this Court stated, ‘“[I]n most cases, the honesty or dishonesty ofajuror's response [to a question on voir dire] is the best initial indicator of whether the juror in fact was impartial.” [bid quoting to McDonough Power Equipment, Inc. v. Greenwood(1984) 464 U.S. 548, 556.) The dishonesty ofJuror #1 has been discussed above and clearly works in favor ofthe presumption ofmisconduct. Further, the court’s emphasis on whether the juror wasentitled to form someopinionsasto the truth or weight of evidenceprior to deliberations was misplaced. This was not a situation in which a juror was simply evaluating and judging evidenceasit was receivedattrial. This case represents a situation in which Juror #1 had direct contact concerning the disposition of the case with a third person whowasprejudiced against appellant. Whatis critical to the determination of prejudice in this case is that Juror #1 spoke with Deputy Baker and therefore failed to comply with 112 the court’s repeated fundamental warnings notto discuss the case with anyoneprior to formal deliberations. This is the core of the misconduct. This failure cannot be underestimated in the determination of prejudicein thatit “casts serious doubts on (the juror’s) willingness to follow the court’s (other) instructions” or perform her duties. (People v. Cissna (2010) 182 Cal.App.4th 1105, 1118 citing to In re Hitchings, supra, 9 Cal.4th at 120; see also People v Gray (2005) 37 Cal.4th 168, 217.) By engaging in any form of conversation with anyone about the case, Juror #1's claims to have been “open-minded”ring hollow. Herprotestations are made more hollow still by her concealmentin voir dire. The juror’s misconduct cannotbe takenin isolation. Juror #1's disregard for the court’s admonitions created a substantial likelihood that she gave “short shift” to other vital court instructions. (People v. Cisna, supra, 182 Cal. App.4th at 1119.) “Jury adherenceto thetrial court's instructions-which cover such matters as the burden ofproof, the presumption of innocence, the elements ofthe crime, and the evaluation of witness credibility-is essential to a fair trial.” bid.) The long-honored presumption that the law assumesthat jurors will follow instructions (e.g. People v. Gray, supra, 37 Cal.4th 217) does not hold in this case. By her voluntary actions, Juror #1 introduced into this case 113 a 13" juror, who walked in the same uniform as those prosecuting appellant. (People v. Cissna, supra, 182 Cal.App. 4"" at 1120.) The conversation between Juror #1 and Deputy Bakerindicated that Juror #1 had already decided the issue. In essence, at the very least, she gave her word to an agent ofthe State that she would “do her duty” and remove appellant from society. This wasnot an “off-the-cuff” or casual comment. This was not a situation in which a juror makesa briefpassing commentto a disinterested party about her general feelings of stress about being a juror or some other matter irrelevant to a defendant’s guilt. (People v. Danks (2004) 32 Cal.4th 269, 307, 310.) Thetrial court did not take into account that Deputy Baker wasnot a disinterested person. She was a law enforcementofficer, a member of the same departmentthat had a disagreeable history with appellant from before the murder, and clearly wished to see him “put away.” Thefact that Juror #1 discussed this matter with Deputy Baker, who wasalso a relation by marriage, indicated that Juror #1 trusted this law enforcement officer, with all her understandable bias, and valued Deputy Baker’s opinion. The fact that Juror #1 engaged a law enforcementofficer in such a conversation was not a de minimus “off-the-cuff” conversation. Even if there was no misconductvis a vis the concealment, this conversation itselfwas an act of 114 serous juror misconduct. Thetrial court further misplaced its reliance on the “overwhelming” evidence presented by the prosecution to rebut the presumption ofprejudice. It has been held that, “In general, when the evidence ofguilt is overwhelming, the risk that exposure to extraneous information will influenceajuror is minimalized.” (People v. Tafoya (2008) 42 Cal.4th 147, 192.) However, the factual situation in the instant case doesnotfit the general rule for the reasons stated below. Thecases that speak to the effect of “overwhelming” evidence can be readily distinguished from the instant case in that in those cases the nature of the evidence had to be factored into the “substantial likelihood” standard to determineif there was juror bias. In the instant case, the bias was established directly from the juror’s own mouth. In Tafoya, the juror misconduct entailed a penalty phase juror who briefly spoketo a priest about the Catholic Church’s position on the death penalty. As related by the offending juror, this conversation was neutral in that the priest told the juror that the Catholic Church believes in following the law ofthe land. (/d. at 193.) The juror related this to her fellow penalty phase jurors. The court removed the offending juror from the penalty phase juror and instructed the jury to disregard her remarks. This Court held thatin light of the neutrality of the 115 remarks, that the juror was removed andthat the juror in question did not advocate for one position or another, and,in light of the nature of the evidence, there was “no inherent or substantial likelihood that the extraneous information influenced the other jurors or resulted in any juror’s actual bias in rendering the penalty phase.” (/bid, citing to In re Carpenter, supra, 9 Cal.4th at 653.) In Carpenter, the misconduct consistedof a juror inadvertently learning, during the guilt phase, ofthe defendant’s prior conviction for a related murder. The juror did not share this information with the other jurors. The jury convicted petitioner. However, there was no evidencethat the juror had any actual bias toward the petitioner nor was there evidence to indicate an inherent bias. It was underthis set of facts that this Court factored into the equation ofprejudice the “overwhelming”nature ofthe evidence. This Court held that there was no indication that the juror decided the case upon anything other than the “overwhelming evidence” presented at trial, and further indicated that there was no substantial likelihood the juror was biased as a result of the extraneous information. (/d. at 656.) In In re Hamilton, supra, 20 Cal.4th 273, it was revealed that one of the jurors who returned guilty and death verdicts against petitioner had somediscussion about the case with her neighbors long before she was 116 chosen as a juror. (/d. at 286.) The discussion wasbrief and fairly neutral. There was no mentionin the discussion that the juror in question thought that petitioner was guilty or deserved the death penalty. The juror never revealed this discussion to the court or counsel or fellow jurors. (/d. at 287.) This Court found there to be no prejudice to petitioner in that the discussion that the juror had was “brief, isolated and ambiguous”andthat there was no substantial likelihood that it would have created any actual bias in the mindofthe juror. (/d. at 305.) In doing so, this Court weighed in the fact that the evidence was“very strong” as to petitioner’s “brutal crimes.” Ud. at 301, fn 21.) The above cases madeclear that the fact that the evidence presented against the accused was very strong or even “overwhelming”is only a factor to be considered in determining whether there wasa substantial likelihood that the accused suffered prejudice. Nowhere in these cases, or any others,is there even a suggestion that a trial in which one or morejurors is biased against a defendantis constitutional as long as the evidence against him is relatively strong. Juror #1 did not merely receive outside information from which actual prejudice can be established or inherent prejudice be inferred. No inference is necessary. The juror’s feelings of bias toward Mr. Merriman 117 wereplainly stated. During the guilt phase ofthe trial she expressed her actual bias against appellant. She stated that appellant needed to be “fried” and assured her law enforcementrelative that she knew her duty wasto find appellant guilty. It is not necessary to weigh whether, in light of the evidence, there was a substantial likelihood ofprejudice. Juror #1 was biased against appellant. Apparently, according to her own testimony, other jurors were as well. It matterslittle that Juror #1 testified that she judged the case only upon the evidence. Jurors are traditionally very reluctant to admit they were biased and the proof of such bias is usually circumstantial. (United States v. Gonzalez (9" Cir 2000) 214 F3d 1109, 1111-1112.) The circumstantial evidence in this case demonstrated not only that Juror #1 made statements that unambiguously indicated this bias, but that wheninitially asked by the court to explain what had occurred between herself and Deputy Baker, she lied. This sort of dishonesty weighs heavily in favor of a finding of bias.(Fields v. Brown (9" Cir 2005) 431 F.3d 1186, 1195-1196.) Theparticipation of a biased juror in rendering a verdict is never harmless. Thebiasofthis juroris structural error, requiring a newtrial without a showing ofactual prejudice. (Dyer v. Calderon (9" Cir 1998) 151 F3d 970, 973.) The bias or prejudice of even a single juror violates the right 118 to a fair trial. (Dyer v. Calderon, supra, 151 F.3d at 973.) Therefore, it is unnecessary to delve into the bias of the other eleven jurors. Underthe United States Constitution, appellant wasentitled to the unbiased opinion of 12 jurors, not 11. Under either prong of the above described “substantial likelihood”analysis, Juror #1 was biased. Objectively, the circumstances attending her misconduct were inherently and substantially likely to have influenced her. More subjectively, her failure to reveal her relationship to Deputy Bakerat voir dire, her contradictory statements about the event in question, and herutter disregard ofthe court’s admonition all combineto establish actual prejudice and defeat any attempt to rebut the presumption of prejudice so wisely created by this Court. The portrait that is painted by the evidenceis one of a juror whocarried a bias against appellant through a substantial part ofthe guilt trial, and through deliberations. This Court has long held that an accused’s entitlement to an unbiased jury is grounded in the United States Constitution.m re Hamilton supra, 20 Cal.4th at 293; United States Const., amends VI and XIV.) This Court has interpreted this to mean that every juror must be unbiasedorthe jury is constitutionally infirm. (People v. Nessler supra, 16 Cal.4th at 578.) Appellant was not judged by such a jury and hence wasdeprivedofhis right to a fairtrial, effective representation of counsel and due process of law 119 seeIRNOREIRREIRRSRAROTERROERDEAEMARORA RIE oe the Be under the California and United States Constitutions. Therefore, the judgmentagainst him mustbe reversed. In addition, it must be considered that Juror #1 did sit in the penalty phase and heard a goodpart ofthe evidence. While the other jurors indicated there was no discussion of penalty, the presence of a prejudiced juror in the penalty phaseis constitutionally unacceptable. Even if Juror #1's misconduct did not require a reversal of the guilt judgment, the need for legitimacy beyond reproachin the penalty phase mandatesreversal ofthe penalty judgment. Further, by the use ofthe word “fry,”there was indication that at least some of the jurors had discussed the penalty during the guilt phase. INTRODUCTION TO ARGUMENTSII-VIII The capital crime in this case that resulted in appellant’s sentence of death involved the murder ofKatrina Montgomery. If the prosecutor’s two chief witnesses (Nicassio and Bush) wereto be believed, appellant murdered Katrina Montgomery after she voluntarily went to appellant’s house and climbed into bed with him. According to these witnesses, appellant respondedto this by raping and then murdering her. There was no physical evidence connecting appellantto the crime. Ms. Montgomery’s body was never recovered. No murder weapons were 120 found. No DNAofthe victim was discovered in appellant’s room, where the murderallegedly took place. In addition, every single witness that testified against appellant about the murdereither (1) was extremely biased against appellant or (2) received somesort of a beneficial deal from the District Attorney to testify, was himself the possible murderer, or was part of a criminal gang that had absolutely no respect for the truth or the law. The evidence as to the murder count was weak. Therefore, it was very advantageous for the prosecution to be able to prejudice appellant before the jury to such an extent that they would be predisposedto find appellant guilty of the capital crime. Thetrial court allowed the prosecutor to gain this improper advantage by permitting, over the objection of counsel, not only the joinder of three sets of completely unrelated and highly prejudicial crimes to the murder count but also the highly prejudicial admission of several non-charged offenses. Thetrial commenced with evidence of the charges that arose out of appellant’s arrest on January 30, 1998. (Counts 9-15.) Before the jury heard any evidence pertaining to the murderthey heard evidence that branded appellant as a person deserving oftheir disgust. This evidence, by itself, made it impossible for appellant to get a fair 121 trial on the murder counts. However, this wasjust the beginning of a concerted effort by the prosecution, supported by the court, to paint appellant as a monster, to be found guilty and sentenced to death irrespective of the weaknessofthe evidence in the capital crime. The prosecutor wasalso allowed to join two unrelated sets of sexual assault charges. (Counts 2-4 ( Robin Gates) and Counts 5-9 (Billie Bryant.)) The alleged victims of these offenses had been in consensualrelationships with Mr. Merriman. Their testimony was intended to, and did, paint a portrait of appellant as a savage brute whodid not hesitate to take advantage of womenfor his own gratification. The evidence pertaining to these sets of counts had no probative valueat all as to the murder counts. However, it was all too probative of the prosecutor’s theory that appellant was a monster, as he referred to appellant in his summation. (57 RT 10127.) Thefinal set of counts that the court improperly joined to the murder count were counts 16-20, and the associated Penal Code section 186.22 criminal street gang allegation for count 16. While there might have been somelimited probative value to this evidence regarding consciousness of guilt, the probative value was completely outweighedbythe prejudicial aspect of this evidence. Asthe alleged conspiracy involved membersofappellant’s gang, the 122 secondhalf of the trial testimony was a long litany of the violent, racist and misogynistic activities and attitudes of the gang members, including a prison gang expert whodescribed the nature of the gang’s brutal actions andanti- social attitudes in detail. The jury was presented with an in depth exposure to the world of “white power” organizations with Nazi sympathies, who treated woman like chattel, despised blacks and Jews, and had no compunction against using deadly violence against their enemies. Noneofthis had the slightest relevance to Katrina Montgomery’s murder. In addition to the constitutionally improperjoinder, the trial court also improperly permitted the prosecution to present evidence of uncharged acts of unrelated alleged sexual assault on four separate women, Corrie Gagliano, Billie Bryant, Susan Vance anda prior attack on Katrina Montgomery.It also improperly and prejudicially admitted evidence that appellant was a car thief. Neither the evidence ofthe joined counts nor the uncharged acts bore any significant probative value as to the murder of Ms. Montgomery. They did not provide any relevant evidenceas to the guilt of appellant on the charge for which the jury imposed the death penalty. What this evidence did was prejudice appellant beyond the point where he could get a fair trial on the capital charge and violate appellants rights under both California state 123 law and the Due Process Clause of the Fifth and Fourteenth Amendmentsto the United States Constitution. II. UNDER CALIFORNIA LAW, THE COURT COMMITTED REVERSIBLE ERRORBY FAILING TO SEVER COUNTI (THE MURDER COUNT) FROM THE BALANCEOF THE INDICTMENT A. ProceduralHistory The 1998-1999 Ventura Grand Jury returned a twenty-five count indictment (CR4565 1) against appellant. (Supp CT 5 et seq). This indictment includedall of the charges on which he wastried with the exception ofthe conspiracy and dissuading witnesses charges. The same grand jury returned a second five count indictment (CR46564) charging appellant with one count of conspiracy and four counts of Solicitation to Dissuade or Attempting to Dissuade a Witness by Force or Threat. (Supp CT 31 et seq.) On June 11, 1999, the prosecution moved to consolidate the two indictments. (III CT 843.) On August 8, 2000, appellant filed his Notice and Motion for Separate Trials and Memorandum of Points and Authorities. (V CT 1235 et seq.) In the motion, appellant requested that the murder be severed from the balance of CR45651'* and that the murderbetried 14. In the Motion, appellant denominated the murder related counts as counts 1-3, counts 2 and 3 being sexual assault charges vis a vis Ms. Montgomery. However, 124 separately from all other charges. Counsel argued that according to the factors stated in Williamsv. Superior Court (1984) 36 Cal.3d 441, 452-453, the two indictments should not be consolidated. (V CT 1239-1240.) He further maintained that none of the evidence ofthe crimes charged in the rape counts was cross-admissible with the murderor special circumstances. In addition, it was argued that the two other rapes would so inflamethe jury against appellant that he would be unduly prejudiced as to the murder count. Appellant also argued that in a death penalty case “the court must analyze the severance issue with a higher degree of scrutiny and care than is normally applied in a non-capital case.” (Williams v. Superior Court, supra, 36 Cal.3d at 454; V CT 1240-1241.) In addition, appellant argued that counts 11-20 (the crimesarising from the arrest of appellant on January 30, 1998 and the dissuading witnesses related counts) were not even statutorily joinable with the murder counts under Penal Code section 954, in that they were neither of the same class nor connected in their commission with the murder. (V CT 1242.) Appellant also maintained that Evidence Code section 352 mandated a severance of the murder count from the balance ofthe indictment as did the Due Process and Equal Protection Clauses of the United States in the final version of the indictment, the sexual assault charges were dismissed and the murder charge was denominated as Count1. 125 Constitution. (V CT 1246.) On September 20, 2000, the Court granted the motion to consolidate. (21 RT 3470- 3471) and indicated that the consolidated indictment will have the docket number ofCR45651. The court severed counts 17-18 and 20-25 of original indictment CR45651 but denied the severance motion as to the balance of the counts. The court ruled that the joined counts were cross- admissible as to each other and the evidence of the non-murder counts would be admissible as to the murder under either Evidence Code 1101(b) or 1108, therefore making the issue of severance moot underthe law. (21 RT 3471 et. seq.) B. Statutory Standards for Joinder Under California Law and General maw Penal Code section 954'° provides that "[a]n accusatory pleading may charge ... two or more different offenses of the sameclass of crimes or offenses, under separate counts, ... provided, that the court in which a caseis triable, in the interests ofjustice and for good cause shown, mayin its discretion orderthat the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each ofsaid groupstried separately." If this preliminary statutory 15. Appellant recognizes that Penal Code section 954.1 clarified that cross- admissibility is not required for joinder of offenses. It did not, however, render cross-admissiblity irrelevant to the question of whether joinder comports with DueProcess. 126 requirementis satisfied a defendant can predicate error in denying a motion to sever only upon a clear showing ofpotential prejudice. (Peoplev. Bradford (1997) 15 Cal.4th 1229, 1315; People v. Osband (1996) 13 Cal.4th 622, 666; People v. Sandoval (1992) 4 Cal.4th 155, 172-173.) Asstated by this Court: The burdenis on the party seeking severanceto clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried. [Citation.] The determination of prejudice is necessarily dependent on the particular circumstances of each individual case, but certain criteria have emerged to provide guidance in ruling upon and reviewing a motionto severtrial. [Citation.] Refusal to sever may be an abuse ofdiscretion where: (1) evidence on the crimesto be jointly tried would not be cross-admissible in separatetrials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a “weak” case has been joined with a “strong” case, or with another “weak” case, so that the “spillover” effect of aggregate evidence on several charges might well alter the outcome of someorall of the charges; and (4) any one ofthe chargescarries the death penalty or joinder of them turns the matter into a capital case. (People v. Bradford, supra, 15 Cal.4th at p. 1315 citing to People v. Sandoval, supra, 4 Cal.4th 155, 172-173; Peoplev. Mayfield (1997) 14 Cal.4th 668, 721; People v. Memro (1995) 11 Cal.4th 786, 849-850; People v. Mason (1991) 52 Cal.3d 909, 933-934; Williams v. Superior Court (1984) 36 Cal.3d 441, 452-454 .) In reviewing such a claim,thetrial court's ruling may be reversed only if the court has abusedits discretion. (People v. Mayfield, supra, 14 Cal.4th at p. 720; People v. Davis (1995) 10 Cal.4th 463, 508.) An abuse of discretion may be found whenthetrial court's ruling “falls outside the 127 1 atoaHRORERINRetENABENS ge eee ereechma waetNISRCTN tesBee tA bounds ofreason.” (People v. Osband, supra, 13 Cal.4th 622, 666.) Asa general proposition, "[T]he first step in assessing whether a combinedtrial [would have been] prejudicial is to determine whether evidence on each ofthe joined charges would have been admissible, under Evidence Codesection 1101, in separatetrials on the others. If so, any inference of prejudice is dispelled.” (People v. Bradford, supra, 15 Cal.4th at pp. 1315-1316 quoting People v. Balderas (1985) 41 Cal.3d 144, 171-172; see People v. Mayfield, supra, 14 Cal.4th 668, 721.) This Court has held that while this cross-admissibility suffices to negate prejudice, it is not necessarily essential for that purpose. “Although wehave held that cross- admissibility ordinarily dispels any inference of prejudice, we have never held that the absence of cross-admissibility, by itself, sufficed to demonstrate prejudice." (/d. at p. 1314. quoting People v. Sandoval, supra, 4 Cal.4th 155, 173.) C. General Law of Cross-Admissibility Evidence Code Section 1101 states: (a) Except as provided in this section and in Sections 1102 and 1103, evidence of a person's characteror a trait of his or her character (whetherin the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. (b) Nothingin this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act whenrelevant to prove some 128 fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendantin a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. ( c ) Nothingin this section affects the admissibility of evidence offered to support or attack the credibility of a witness. Asseen from the wording ofthe statute, admission of evidence of subsection (b) is essentially an exception to the general law of subsection (a) forbidding evidence of a defendant’s general propensity to commit crimes before the jury. In order to fully understand exceptions of subsection (b) the general law against propensity mustbe fully explored. 1. Subdivision (a) Subdivision (a) of section 1101 prohibits admission of evidence of a person's character, including evidence of character in the form ofspecific instances of uncharged misconduct, to prove the conductofthat person on a specified occasion. In People v. Thompson (1980) 27 Cal.3d 303, 326, this Court explained the reason for the prohibitions of 1101(a); The primary reasoning that underlies this basic rule of exclusion is not the unreasonable nature of the forbidden chain of reasoning. (See People v. Schader, supra, 71 Cal.2d at p. 772.) Rather, it is the insubstantial nature of the inference as comparedto the “grave danger of prejudice”to an accused when evidenceofan uncharged offense is given to a jury. (Citations) As Wigmore notes, admission ofthis 129 evidence produces an “over-strong tendency to believe the defendant guilty of the charge merely becauseheis likely person to do such acts.” (Citation) It breeds a “tendency to condemn,not becauseheis believed guilty of the present charge, but because he has escaped unpunished from other offenses....” (Citation) Moreover, “the jury might be unable to identify with a defendant of offensive character, and hence tend to disbelieve the evidencein his favor.” (Citation.) “We have thus reached the conclusion that the risk of convicting the innocent... is sufficiently imminent for us to forego the slight marginal gain in punishing the guilty.” (Citation) (People v. Thompson, supra,27 Cal.3d at p. 317, fns. omitted.) Therefore, evidence must be excluded undersection 1101 (a) if the inferenceit directly seeks to establish is solely one of propensity to commit crimesin general, or of a particular class. (/bid.) 2. Subdivision (b) Subdivision (b) of section 1101creates an exception to the general rule of 1101(a) by stating that the general rule does not prohibit admission of evidence of uncharged misconduct when such evidenceis relevant to establish some fact other than the person's character or disposition, such as motive, intent, common plan or schemeoridentity. (People v. Ewoldt (1994) 7 Cal.4th 380, 393.) However, the following rationale explains why 1101(b) must be carefully and sparingly applied. “Because other-crimes evidence is so inherently prejudicial, its relevancy is to be ‘examined with care.’ It is to be 130 received with ‘extreme caution,’ and all doubts about its connection to the crime charged must be resolved in the accused's favor.” (People v. Sam (1969) 71 Cal.2d 194, 203; People v. Peete (1946) 28 Cal. 2d 306, 316) Therefore, even though 1101(b) provides for possible joinder of cross-admissible offenses, the relevance of these offenses to one another mustbe carefully and fully examined before they are deemed“cross- admissible.” D. General Law of Cross-Admissiblity for Issues of Intent, Common Plan or Scheme and Identity 1. Intent Evidenceofintent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense.“In proving intent, the act is conceded or assumed; whatis soughtis the state of mind that accompaniedit.[Citations omitted.|” (People v Ewoldt (1994) 7 Cal.4th 380, 394, fn 2.) In order to be admissible to prove intent, the uncharged misconduct mustbe sufficiently similar to support the inference that the defendant'probably harbored the same intent in each instance.’ [Citations.]" (People v. Robbins (1988) 45 Cal.3d 867, 879; see People v. Ewoldt, supra, 7 Cal.4th at 402.) The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. "[T]he recurrence of a 131 prwesomaitttite UP LACE Sek ote Sh ae TOGETHERAMBREReBRMethNes imioT similar result ... tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mentalstate, and tendsto establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such anact.... (2 Wigmore, supra, (Chadbourn rev. ed. 1979) §§ 302, p. 241.) 2. Common Plan or Scheme Evidence of a commondesign or plan is admissible to establish that the defendant committed the act alleged, unlike evidence used to prove intent, where the act is conceded or assumed. (People v. Ewoldt, supra, 7 Cal.4th at p. 394 fn 2.) “The presence ofa design or plan to do or notto do a given act has probative value to show that the act was in fact done or not done”in the charged crime. (People v. Ewoldt, supra, 7 Cal.4th at p.394.) A greater degree of similarity is required in order to prove the existence of a commondesignorplan. “Evidence of uncharged misconduct must demonstrate not merely a similarity in the results, but such a concurrence of commonfeatures that the various acts are naturally to be explained as caused by a general plan of which theyare the individual manifestations.” (Ewoldt, supra, at p. 399.) 132 3. Identity Evidenceofidentity is admissible to prove that the defendant was the perpetrator where it is conceded or assumedthat the charged offense was committed by someone. (Ewoldt, supra, at p. 394.) The greatest degree of similarity is required for evidence of uncharged misconductto be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share commonfeatures that are sufficiently distinctive so as to support the inference that the same person committed both acts. (People v. Miller (1990) 50 Cal.3d 954, 987.) KE. There is No Cross-Admissibility Between the Murder and Counts 9- 6 Asstated in above in the Introduction, there is absolutely no cross- admissiblity as to the evidence in these counts to any other counts in the indictment. The prosecutor argued that these counts were cross-admissible with the murder count because appellant’s flight from the police is evidence of consciousness of guilt of the murder. (21 RT 3474-3478.) Even if this was the case, a single witness stating that appellant fled when approached by the police was sufficient for this purpose. The vast majority of the evidence of Counts 9-15 served no other purpose than to prejudice appellant. This involved violent, anti-social behavior of a completely non- sexual nature that 133 ERSENARTSEAGERrienee FY ome Rew wee provided no relevant evidenceas to appellant’s guilt in any ofthe other counts, including the murder count. Further, to claim that appellant’s flight proved his consciousness of guilt of a murderthat took place overfive years prior is rank speculation. Appellant had a long negative history with the police. He had been in and out of confinement during this five year period. There were any numberof reasonsthat he would havefled at the sight ofthe officers. F. There is No Cross-Admissiblity Between the Rape Counts and the Murder Counts 1. Application of Evidence Codesection 1101(b) The prosecution’s theory of admissiblity as to Counts 2-8 under Evidence Code section 1101(b) is unclear at best. It never stated exactly how the other rapes were relevant. In its Opposition to Motion to Sever, the prosecution stated the rape counts are cross-admissible to the murder because “[flirst, the victims in [the rape counts] are still alive, compared with the victim in [the murder count] and will be able to personally describe to the jury howit felt to be raped by Mr. Merriman...” (V CT 1292.) While this certainly shows why the prosecutor would want Ms. Gates and Ms. Bryant to testify in a trial on the murder, it has absolutely no connection with 1101 (b) that would maketheir testimony admissible. Thetrial court held that the facts underlying the rape counts would 134 have been admissible under | 101(b), thereby allowing for joinder understate law. The court cited whatit called “somerather distinctive and unusual similarities” between the rape and murdercounts. (33 RT 5846.) The court indicated that these similarities were that the women were “skinhead groupies” who camebackto appellant no matter how badly they were treated, the use of drugs during the acts, that there were multiple sex acts, that there were acts of false imprisonment, the proximity of other people during the acts, that all of the women were treated in a less than human manner, that the womenhada prior sexual relationship with appellant, the use ofpornography and the length ofthe event. (33 RT 5846-5848.) Regarding the relevant matters for which Evidence Codesection 1101(b) evidence can be employed,intent is clearly not at issue in the murder. Regarding common plan or schemeand identity, appellant has no idea what the prosecutor’s argument would have been if he had chosen to make one. However, the similarities between the Gates/Bryant alleged assaults and the Montgomery murder are completely insufficient to allow any inference ofthe type permitted by thestatute. Asstated in the Statement of Facts regarding Counts 2-4, Ms. Gates would often voluntarily socialize and take drugs with appellant. She was living on her father’s house boat which she turned into a drug party location. 135 During oneofthese parties, appellant was present along with certain other people. He and Ms. Gates used heroin and methamphetaminetogether. At some point, Ms. Gates invited appellant below deck to ingest more drugs. Ms.Gates willingly began to have sex with appellant. Appellant began to get more aggressive during the sexual conduct. He produced pornographic magazinesand “ordered her’ to perform oral sex on him. However, Ms. Gates could not even rememberif she told appellant she wanted to stop. Shealso testified that she thought that he had placed a gun in her vagina. The two then had vaginal sex, after Ms. Gates told appellant that she wanted him to leave. The incident lasted for 2-3 hours and eventually appellant left the boat. None of these criminal allegations were reported to the police until years after they occurred. Noneofthis is even remotely similar to what the prosecutor claimed occurred to Trina Montgomery. Similarly, the Bryant counts (5-8) involved a woman with whom appellant had a long-standing relationship and with whom hehad engaged in consensual sex on many occasions over several years. Prior to, in between and after the alleged sexual abuse, she would continue to have a voluntary sexual relationship with appellant. At least one of counts charged (Count6) was an incident that took place at appellant’s house after Ms. Bryant was allegedly raped by appellant months before. As with the Gates counts, the 136 allegations involved incidents that went on for several hours. The factual similarities between these twosets of sexual assault charges and the murderare insufficient to prove either commonplan or schemeoridentity. In fact, the only commonality was that appellant knew all three women. Even ifNicassio and Bush wereto be believed, there was no prior sexualrelationship between appellant and Ms. Montgomery. Most importantly, there was no evidence of deadly force used against either of these women. While the trial court may have been correct that the twosets of rape counts were cross-admissible as to each other, it was incorrect in holding that there were sufficient similarities between the rape counts and the murder count. The prosecutor spent a great deal of effort to convince the jury that Ms. Montgomery “just wanted to be friends” with appellant and had rejected him as a sexualpartner. (56 RT 9933-9937.) In fact, the evidence wasthat Ms. Montgomery had twice before resisted appellant’s sexual advances. While there was no direct evidence why Ms. Montgomery went to appellant’s residence the morning ofher disappearance, the circumstantial evidence clearly points to her wanting to spite the Porchosor that she just neededa placeto sleep after her fight with them. There certainly was no evidence, as with Ms. Gates and Ms. Bryant, that Ms. Montgomery went to 137 se NeosShaperPRESETHERERO ETRE igie Soe Re ns appellant’s residence as part of a long-term consensual relationship with him. In addition, there was no evidence, as there was in the Gates and Bryant counts, that drugs were used immediately prior to the alleged murder of Ms. Montgomery. There was no evidencethat the alleged murder and rape of Ms. Montgomery wereprotracted, as were the alleged rapes. Further, there was no evidence of appellant’s use of pornographyin the alleged rape/murder of Ms. Montgomery. Regarding the presence of third persons, given the most favorable interpretation of the evidence for the prosecutor,it was Ms. Montgomery whopickedthe time and place of heralleged fatal encounter with appellant. The fact that Nicassio and Bushallegedly were there was happenstance and not part of a common modus operandi. Regarding the court’s finding ofwomen being“treated in less than a human fashion” as a common factor, this is a commonality in a// rapes. Any time a woman is forced to have sex against her will, she is dehumanized. Holding that this dehumanization is a commonfeature of these crimesis akin to holding that the stoppage of the victims’ hearts is a commonfactor in an otherwise unrelated set of murders. Aswith the prosecutor, the trial court never specified whatthe evidence of the rape counts would be admissible to prove in the murder 138 count: intent, common plan or scheme. However,it does not really matter. Thesimilarities are completely inadequate to sustain the necessary inference for any of these matters under the above law. The prosecutor’s statement to the jury that the testimonyofthe living victims had the purpose of speaking for Ms. Montgomery should be considered the last and most accurate word on the real purpose and effect of this joinder. It had nothingatall to do with any legally cognizable purpose under Evidence Codesection 1101(b). It was simply to inflame the jury, to artificially substitute the testimony of Ms. Gates and Ms. Bryant for that of Trina Montgomery andhorrify the jury. “Howit felt to be raped” by appellant is neither an element of any crime charged nordoesit pertain to any conceivable relevant issue in the guilt phase. 2. Application of Evidence Codesection 1108 Thetrial court also held that, regardless of the application of section 1101(b), the Gates and Bryant rape counts would be cross-admissible to the murder of Ms. Montgomery under Evidence Codesection 1108. The pertinent part of Evidence Codesection 1108 reads as follows: (a) In a criminal action in which the defendantis accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352 139 (d) As usedin this section, the following definitions shall apply: (1) “Sexual offense” means a crime underthe law ofa state or of the United States that involved any of the following: (A) Any conduct proscribed by Section 243.4, 261, 261.5, 262, 264.1, 266c, 269, 286, 288, 288a, 288.2, 288.5, or 289, or subdivision (b), (c), or (d) of Section 311.2 or Section 311.3, 311.4, 311.10, 311.11, 314, or 647.6, of the Penal Code. (B) Any conductproscribed by Section 220 of the Penal Code, except assault with intent to commit mayhem. ( C ) Contact, without consent, between anypart of the defendant's body or an object and the genitals or anus of anotherperson. (D) Contact, without consent, between the genitals or anus of the defendant and any part of another person's body. (E) Deriving sexual pleasure orgratification from the infliction of death, bodily injury, or physical pain on another person. (F) An attempt or conspiracy to engage in conduct described in this paragraph. a. Evidence Code 1108 Does Not Apply to Murder or the Special Circumstances In People v. Lewis (2009) 46 Cal.4th 1255, 1288, this Court held that Evidence Code section 1108 evidence may be admissible in a case of murder with a rape special circumstance. However,to the best of appellant’s knowledge, the United States Supreme Court has never ruled on whether the admission ofthis evidenceis in violation ofthe provisions of the United States Constitution that guarantee a defendantthe rightto a fair trial, due process of law and effective assistance of counsel. (U.S. Const. Amnds V, VI and XIV.) 140 It is appellant’s argument that Evidence Code section 1108 is unconstitutional under the above stated provisions of the United States Constitution. b. The Application of Evidence Codesection 1108 is Subject to Evidence Code 352 Analysis In People v. Falsetta (1999) 21 Cal.4th 903, 911, this Court stated that the reason why Evidence Codesection 1108 was not violative of state or federal Due Processis the inclusion therein of the requirement that a “careful analysis under Evidence Code section 352 must be conducted by the trial court to assure that the defendant has not suffered undue prejudice.” (/d. at p. 911.) This Court set forth at least some ofthe factors that the trial court should consider in making this determination. These include the degree of certainty ofthe Evidence Code section 1108 offenses, the similarity of these offenses to the charged offense, the relevance of said charges, its prejudicial impact on the jurors, the possibility of less prejudicial alternatives and the likelihood of “misleading or distracting the jurors from their main inquiry.” (People v. Falsetta, supra, at pp. 917- 919.) Falsetta also madeit clear that the trial judge’s obligation to consider exclusion ofthis type of evidence under Evidence Codesection 352 is to be taken seriously. This Court directed that this discretion be 141 SOARMINTSORE BISEES Da Eee Nm TE “na RNmESENAEEOEATES elSpineseencentcr-19 An» “broad”and wentso far as to state that there is ‘“‘no reason to assume”that the trial courts will find that the “prejudicial effect of a sex prior offense will rarely if ever outweighits probative effect.” (People v. Falsetta, supra, at p. 919.) If this Court’s confidence in the protections of the law is to be borne out, it must hold that the trial court was incorrect in holding that the evidence ofthe Gates and Bryant rapes was admissible under Evidence Code section 1108. Appellant wasontrial for his life. This fact alone should be a transcendent consideration. As stated above,all of the prosecution’s witnesses regarding the murder count had credibility problems.In spite of their intimate involvementin the alleged murder, Nicassio got what can only be considered a sweetheart deal from the prosecution and Bush walked away with no chargesat all. The balance of the witnesses that offered testimony as to the murder were gangsters and gangster “associates,” all ofwhom had ulterior motivations and whose credibility or memory wasin question. Therefore, the prejudicial effect of the Bryant and Gates counts is greatly magnified. Asstated above, this Court also considers the existence of a prior conviction for Evidence Code section 1108 incidents as an important factor to be considered by thetrial court when considering admission ofthis 142 evidence. There were no such prior convictions. In fact, neither woman went to the police and both basically ignored the matter for years. It was only whenthe police started to press for evidence on the murder did these women “reveal” the alleged rapes. Regarding the Faretta factor of the similarities between the charged offense and the section 1108“crimes,” as discussed above,in spite of the urging of the prosecutorthat the living speak for the dead, a thorough review reveals few similarities. Ultimately, the issue comes downto whetherthis sort of evidence distracted the jury from its main area of inquiry. (Falsetta, supra at p. 919.) Asstated in the Introduction to the Arguments of Counts I-V, this entire trial waslike the tail that wagged the dog with the evidence ofalleged crimes and incidents completely unrelated to the murder of Ms. Montgomery dominatingthe trial. The prosecution chose to charge appellant with capital murder. The main focus ofthe jury should have been the evidence ofthat murder and whetherthe prosecution provedits case beyond a reasonable doubt. Instead the jury was presented evidence of a plethora of other incidents, appellant’slife style, his Nazi leanings, his hatred of blacks and Jews, his past problems with the police and any numberofanti-social acts referenced in this brief. This unquestionably had 143 ESETRAIBNIG aRHE Ne ena BETHFETELTIIRLEIHGSINENT CTA AE SME NERS ESS RPE the effect of distracting the jury from the sober consideration of the capital charge. In essence, the guilt trial was a referendum of whether appellant wasa candidate to die based on his general character, opinions, relationships and past offenses. By the time the prosecution finished with its presentation, the jury could not have helped but believe that appellant was someonein need ofkilling despite the dearth of direct evidence regarding the murder ofMs. Montgomery. Relying onstate law, the two sets of rape counts, if not improperly joined with the murders, would not have been admissible to prove the murder as per Evidence Code section 1108. G. The Very Limited Cross-Admissibility Between the Murder and Counts 16-20 (Conspiracy and Witness Dissuasion) Was NotSufficient to Dispel the Inference of Prejudice While it can be argued that some reference of appellant’s alleged attempt to dissuade witnesses from testifying is relevant as consciousness of guilt as to the murder count, the overwhelming prejudice of the voluminous amountof evidence, including evidence of gangs, racism and other violent crimes admitted as to the proof of Counts 16-20, so far outweighed any probative evidence of consciousness ofguilt that the inference ofprejudice cannot be dispelled. The nature of this prejudice will be discussed below. 144 H. The Trial Court Committed Reversible Error in Joining the Non- Cross-Admissible Counts in that Appellant Suffered Substantial Prejudice From the Joinder 1. Public Policy Considerations Regarding Judicial Economy The burden on the party seeking severance arises from certain policy factors that favor joinder. “Joinder of related charges... ordinarily avoids needless harassment of the defendant and the waste ofpublic funds which may result if the same general facts were to be tried in two or more separate trials.” (Williams v. Superior Court, supra, 36 Cal.3d at p. 451 citing to Coleman v. Superior Court, supra, 116 Cal.App.3d at p. 138.) This Court has indicated that in deciding a defendant’s motion to sever, the trial court must weighthe prejudicial effect on the defendant against any probative value to the prosecution with the consolidation of the counts. Any beneficial policy effects are to be added to the side of the argument favoring the prosecution. (/d. at p. 451 citing to People v. Matson (1974) 13 Cal.3d 35, 39.) Asit was appellant who soughtthe severance, the policy consideration of needless harassment to defendant can be eliminated from the determination of whether severance was appropriate in this case. (Williams v. Superior Court, supra, 36 Cal.3d at p. 451.) Therefore, the only policy issue to be taken into accountis the waste of public funds if the case 145 were to be tried in two or moretrials. The “waste ofpublic finds” occurs whenthere would be a duplication of evidence presented dueto the fact that the crimes were “joined together in their commission.” (Ibid, see Peoplev. Brock (1967) 66 Cal.2d 645,655.) | Thejoint trial ofthe murder count with the non-murder counts saved very little time or court resources. If appellant had not been charged with any other crimes, the prosecution’s evidence submitted to prove appellant’s guilt in count I consisted of the testimony ofNicassio and Bush,the only two “eyewitnesses”to the crime, and appellant’s alleged statements to bargain-seeking, inherently unreliable gang membersand associates about his “involvement” in the Montgomery crime. Neither ofthe other alleged victims in the twosets of rapes knew anything about what happenedat the Merriman residencein the early morning hours ofNovember 27, 1992, and as such would not have been called as witnesses. Therefore, these witnesses would not have to be subjected to testifying more than once. As the murder count and the other counts were not connected together in their commission, there was nosignificant savings oftime in their joinder. (People v. Brock, supra, 66 Cal.2d at p. 655; Williams v. Superior Court, supra, at p. 451.) Regarding the Counts 9-15, none of the witnesses as to these counts would havehadto testify both at the murdertrial and a trial on these counts, 146 as Counts 9-15 have no relationship, whatsoever, to the murder count and attendant special circumstances. A few of the witnesses may havehadto testify at both severedtrials. However, saving a day or two oftestimonyis not the sine qua non of the law ofjoinder. As stated by this Court, “[a]lthough there is inevitably some duplication in cases where the same defendantis involved, it would be error to permit this concern to override more important and fundamental issues of justice. Quite simply, the pursuit ofjudicial economy and efficiency may neverbe used to deprive a defendanthis rightto a fairtrial.” (Williams v Superior Court, supra, 36 Cal.3d 451 citing to In re Anthony T. (1980) 112 Cal.App.3d 92,102; see People v. Smallwood (1986) 42 Cal.3d 415, 426.) The type ofjudicial efficiency to be gained by joinder was discussed by this Court in People v. Mason (1991) 52 Cal.3d 909, which held that the public policy ofjudicial efficiency favored joinder when twocapital cases were joined together and the severance of cases would require selection of twojuries at a cost of several monthsof court time and a delay of a much longer time to get both cases tried. However, in the instant case, there was only one capital crime and the jury selection for the non-murder case would have taken only a day or two. In fact, the reality of the matter is that a second jury would not have 147 been necessary for the trial of the severed cases. A death qualified jury could have been selected for the trial of count I. The murder case could have beenthentried to guilt verdict. If the jury found appellant guilty, then the trial could proceeded to the penalty phase. As each and every non- murder felony charged in the indictment would have qualified as a (b) factor aggravation, the penalty phase of count 1 could also haveserved as a guilt phase for the non-murder counts. There would have been no downside to either party or to the prompt administration ofjustice in such an arrangement. With the exception of a very few witnesses, this arrangement would have allowed most ofthe witnessesto testify once, with only one jury to be employed. The jury would not have needed to hear evidence of the highly prejudicial and non-cross-admissible non-murder counts, unless and until they had determined that appellant was guilty of Ms. Montgomery’s murder. In such a manner, the joined non-murder crimes could not have possibly had any effect on the jury’s determination of appellant’s guilt in the capital count. It would not be necessary for any of the victims to have comeforward during this phaseofthetrial, yet, the prosecution would have been deprived of neither the opportunity to try appellant for the other crimes he allegedly committed nor the use ofthose crimes as aggravating factors in the penalty phase. Therefore, any public 148 policy consideration ofjudicial efficiency is, upon closer examination, illusory. Howeverinstead of employing such an eminently fair procedure as described above,the trial court embarked upon the unnecessarily dangerous process of allowing the jury deciding appellant’s life or death fate to hear the evidence of otherwise inadmissible other crime evidence before they determinedhis guilt of the capital murder. Asdiscussed earlier in this Argument, the danger of the procedure used by the court has long been a concern ofthis Court. “Because other- crimes evidenceis so inherently prejudicial, its relevancy is to be examined with care. It is to be received with ‘extreme caution’ and all doubts about its connection to the crime charged must be resolved in the accused's favor.” (People v. Sam, supra, 7\ Cal.2d at p. 203.) This Court has often stated its concern as to the likelihood that a jury not otherwise convinced beyond a reasonable doubt of the defendant's guilt of one or more ofthe charged offenses might permit the knowledge of the defendant's other criminal activity to tip the balance and convict him.Ifthe court finds a likelihood that this may occur, severance should be granted. (See Williams v. Superior Court, supra, 36 Cal.3d at p. 451.) It is within the context ofthese overarching philosophical concernsthat 149 the four “Bradford” factors must be considered. 2. Discussion of the Four “Bradford”Criteria While this Court has set forth the four factors cited above in Bradford, at the same time it has madeclear that these factors are simply . “criteria that have emerged to provide guidancein ruling upon and reviewing a motionto severtrial.” (People v. Bradford, supra, 15 Cal.4th at p. 1315.) This Court has madeclear that“prejudice is a highly individualized exercise necessarily dependent upontheparticular circumstances of each individual case.” (Williams v. Superior Court, supra, 36 Cal.3d at 452; People v. Balderas (1985) 41 Cal.3d 144, 173.) It is in the context of this individual determination that the prejudice in this case must be analyzed. a. Cross-Admissibility of Counts Thefirst of the four criteria outlined in Bradford has already been fully discussed in this brief. The evidence in the non-murder counts is not cross-admissible as to any contested issue in the capital murder. Therefore, this criterion most definitely favors appellant. b. One of Crimes is Punishable by Death Thefinal of the four criteria is indisputable and similarly favors appellant’s motion to sever in that count I charged a crime punishable by death. In formulating such a fact specific criterion, this Court clearly 150 recognized the unique nature of death penalty cases and the necessity of keeping them asfree ofprejudice against defendant as possible without violating basic public policy. As stated in Williams, “since one of the charged crimesis a capital offense, carrying the gravest possible consequences,the court must analyze the severance with a higher degree of scrutiny and care than is normally applied in a noncapital case.” (Williams v. Superior Court, supra, 36 Cal.3d at 454.) Therefore, the first and last of the criteria outlined by this Court in Bradford clearly favor severance of the murder and non-murdercounts. c. Inflammatory Nature of Crimes Thefirst of the two remainingcriteria is an analysis of whethercertain of the charges are unusually likely to inflame the jury against the defendant. The analysis of this issue often revolves around whether a defendant’s actions in oneset ofthe charges were substantially more moral egregious than in the other charge or charges. However, such a subjectively based analysis is largely dependent upon whatthe individual judge believesis a “worse crime” and as such is neither reliable or consistent. The true meaning of “inflammatory” charges in this context rests less upon whetheroneset of crimesis “worse” than the other and more upon the foundational issue of predisposition. The overarching concern ofjoinder of 151 _~ snarenaNNEREAEOERRfIe attanegay ste egg +e tenee non-cross-admissible crimes is that evidence of these other crimes “could produce an overstrong tendency to believe the defendant guilty of the charges merely because heis a likely person to do such acts.” (Williams v. Superior Court, supra, 36 Cal.3d at p. 453 quoting People v Thompson, supra, 27 Cal.3d at 317.) Stated otherwise, “it may be error to consolidate an ‘inflammatory offense’ with one that is not under circumstances where the jury cannot be expectedto try both fairly.” (People v. Mason, supra, 52 Cal.3d at p. 934.) Therefore, the analysis must focus not upon some inevitably arbitrary and subjective assignmentofrelative heinousnessto each set of offenses. Instead the inquiry must rest upon a highly individualized evaluation of whetheror not the joint trial of the two sets of charges would have produced in appellant’s jury a tendency to convict appellant of the murder because the jointtrial of all of the crimes unfairly preyed uponthe jury’s emotions, convincing them that appellantis the type of evil person that would commit murder. In the instant case, the number, diversity and inflammatory nature of the evidence of the non-murder counts could have had no other effect than to convince the jury that appellant was a very dangerous criminal capable of virtually any type of violent crime. The sheer volume of evidence asto the non-murder counts that were joined in this case was overwhelming. It 152 bombardedthe jury with inflammatory evidence that appellant was essentially a terribly dangerous, psychopathic predator who wouldstop at nothing to see that his needs were fulfilled. In no other reported case where joinder was not based upon cross-admissibility was there evidence of so many unrelated alleged crimes and anti-social behavioras in this case. (See, e.g., People v Mason (1991) 52 Cal.3d 909; People v. Sandoval(1992) 4 Cal.4th 155; People v. Mendoza (2000) 24 Cal.4th 130; People v. Balderas (1985) 41 Cal.3d 144; People v. Bean (1988) 46 Cal.3d 919; People v. Musselwhite (1998) 17 Cal.4th 1216.) This type of assault on the jury’s ability to makea logical, dispassionate decision as to appellant’s guilt in the capital count far exceeds the prejudice in cases reversed for improperjoinder of counts for this very reason. In Williams, this Court issued a writ to set aside a trial court order denying defendant’s motion to sever two unrelated murder counts which apparently involved gang membership. This Court held that the introduction of evidence of two seemingly “senseless, gang-related shootings” would created the forbidden “overstrong tendencyto believe defendant guilty of the charge merely becauseheis a likely person to do such acts.” (Williams v. Superior Court, supra, 36 Cal.3d at p. 453 citing to People v.Thompson, supra, 27 Cal.3d at p. 317.) In addition, the Williams 153 Court cited to the fact that gang activity was a “highly publicized phenomena”whichalso encouraged the jury to convict on something other than the evidence presented. (/d.) Similarly, in Coleman v. Superior Court (1981) 116 Cal.App. 3d 129, the court of appeal issued a writ to set aside a trial court order denying defendant’s motion to sever two counts of sex crimes against minors from an unrelated murder case. The court of appeal held that defendant was prejudiced by the presentation of evidence of the sex crimes in the same trial as the murder count. The court stated, “...evidence of sex crimes with youngchildren is especially likely to inflame a jury. When confronted by direct evidence from two minorvictims concerning petitioner’s propensity to commit sex crimes, the jury would be hard pressed to decide the murder case exclusively upon evidencerelated to that crime. That difficulty would be exacerbated by the fact that the murder case consisted primarily of circumstantial evidence[.]” (/d. at p 138.) The Coleman court did not engage in the ultimately fruitless exercise of determining which crime was “worse,” the sexual assaults or the murder, as there is no way to ever answersuch a question without engaging in moral hairsplitting. The court simply stated that the introduction of other crimes of an emotionally inflammatory nature would invariably cause the jury to 154 factor into its murder deliberation the “fact” that defendantis a reprehensible person. (1) Inflammatory Nature of the Evidence of Counts 9-15 Appellant wasontrial for his life for the murder of Katrina Montgomery. He wasentitled to a trial that determined his guilt based on the evidence of that crime. Instead, he got a trial where before such evidence was even proffered to the jury, they learned from witnesses to Counts 9-15 the following: 1. Appellant customarily carries a gun. 2. He has complete contempt for the law. 3. He drew his gun on several police officers, putting their lives in danger. 4. He is a meth user,if not an outright addict. 5. He caused a disturbancethat terrified an entire neighborhood and putit at risk. 6. In order to save himself, he broke into an innocent person’s house,terrifying the residents. 7. He used his gun to menacethe peoplein the house. 8. He threatened to shut little girl up “forever” if she did not stop crying. 9. He created a dangerous hostage situation where tear gas wasused. 10. He completely trashed the house for no other reason but to do so, doing another $50,000 worth of damage and destroying a lot of property of sentimental worth, including irreplaceable family heirlooms. 11. He tried to make a bomboutof a can of Drano, insinuating that he had developed knowledge of incendiary 155 PP IToecatean Nei pe Nong, tn rab Renae monOREHOtAARRANMERarte ey pan wate devices. 12. After the police managedto force him outofthe premises, he wasso crazed that even rubberbullets could not stop him. 13. His arrest created a situation which put several police officers at risk of their lives. Noneofthis had the slightest relevance to the alleged murder. (2) Inflammatory Nature of Evidence of Counts 2-9 The joinder of the unrelated Gates and Bryant counts also added to the inflammatory nature of the joinder, because of both the numberof incidents and the graphic and prejudicial nature of the evidence. As stated above,neither ofthese sets of counts had any probative value as to the murder charge. What their inclusion in this indictment did was present the jury with evidence of demeaning and sexually aggressive behavior by appellant against women.It again portrayed him as a person whousedillegal drugs, consorted with immoral people, had no respect for others and used his physical size and presenceto gratify his sexual needs. He was again portrayed as a person who had norespect for motherhoodor children. The testimony elicited to support these twosets of crimes was explicit, revolting and inflammatory by any definition. In short, the evidence of these twosets of sexual assault counts further added to the impression conveyed by the 156 evidence elicited in Counts 9-15 that appellant was an out-of-control psychopath. (3) Inflammatory Nature of Evidence of Counts 16-20 Regarding Counts 16-20, the evidenceelicited as to these counts, yet again, demonstrated appellant’s bad character as opposedto his guilt of the alleged murder. The prosecution wasallowed to present to the jury an incredible gamut oftestimony that placed appellant in the worst possible light. There were dozensofletters that illustrated appellant’s gang contacts, unpopular political and social beliefs, racism, bigotry, use of drugs, violent nature, lack of respect for the system and willingness to use other people to suit his ends. The joinder ofthe Penal Code section 186.22 gang enhancement of Count 16 with the murder count allowed for the admission of a plethora of gang related evidence that greatly prejudiced appellant vis a vis the capital count of the indictment. None of this evidence wasin any way relevant to the murder of Ms. Montgomery, as the murder wasnot in any way gang related. However, the improperjoinder allowed the jury that decided appellant’s guilt on the murder count to consider that appellant was a memberofa violent, neo-Nazi, white powerstreet and prison gang who 157 [ohticRAANDEHSesSPREEMINNaan ancien tes Na Se ea ‘ committed any numberofserious crimes.It further permitted the introduction of evidence of the connections of appellant’s gangto the state prison system andofthe violent crimes committed by the membersofthe gang. It also allowed for the testimony of several young women whoeagerly cooperated with the gangin their illegal activities. The slavish devotion of these young womeninvoked created a Manson-like aura around appellant, which, along with the other above mentioned evidence and the evidence of the other joined counts, stamped appellant as an evil individual and assured his conviction of any charge that the prosecution cared to bring against him. As such, there can be no confidence in the verdict in count I and the attendant special circumstances. The joinder of this set of counts allowed several witnesses to testify that appellant was a memberofthe Skin Head Dogs white supremaciststreet gang. (37 RT 6570; 37 RT 6572; 38 RT 6683; 38 RT 6686.) Scott Porcho testified at length as to the origins and nature ofthis gang. He stated that when the gang first was formed in the late eighties, the name “skinhead” referred moreto the fashion oftheir clothes and their haircuts than anything else. (39 RT 6999.) However, after a time, the gang turned far more violent and racist. (39 RT 7000.) Porcho then recounted for the jury his own prodigious criminal record. (39 RT 7000-7001.) 158 Porchothentestified that violence would be used on membersor associates ofthe gangs that cooperated in any way with the police. (39 RT 7004.) He further described the violent “jumping in”rituals by which a new aspirant would have to be beaten up to become a member. (39 RT 7020.) Porchofurthertestified that appellant was a leader of the gang. (39 RT 7022.) Porchoalso identified a series of photos of gang members, including photos of appellant. Various tattoos were prominent on the bodies ofthe members, espousing “white power”and a devotion to Nazism, replete with swastikas and the number “88" signifying Adolph Hitler. (48 RT 8584- 8587.) In order to provethis special allegation, the prosecutor was allowed to called Wesley Harris. Mr. Harris was a corrections officer at Wasco State Prison who workedasaninstitutional gang investigator, gathering information on prison gangs. (Vol. 47 RT 8408-8409.) He defined a “prison gang”as onethat didn’t form onthe streets but hasits roots in the prison system. (Vol. 47 RT 8412.) Mr. Harristestified that all such gangs consider anyone who cooperates with law enforcementin any wayas traitor. (Vol. 47 RT8421.) If someoneis thought to be an informant, a gang memberwill take the 159 «PeetehthennStSERRARLERAMSeeRNIN EAE ak gS Me enPA matter to a “shotcaller,” the “top” criminal from each particular racial or social group for a particular geographical area of the state. If the shot caller orders it, it would be incumbent on individual gang membersto carry out retribution on the informant. (Vol. 47 RT8424.) Pursuantto this special allegation to Count 16, District Attorney’s Investigator Mark Volpei was allowedto testify as to the nature ofthe Skin Head Dogs, the gang ofwhich appellant was a member. Volpei educated himself on the structure ofthe Skin Head Dogs. He interviewed membersof the gang, examined correspondenceand obtained information from the Ventura Police Department. (Vol. 48 RT 8574-8576.) He related the criminal convictions ofthe various membersandtheir violent andracist leanings. (Vol. 48 RT 8577-8588.) Volpei also learned aboutthe attitude of the Skin Head Dogs toward people who co-operated with the police against one of their members. They were proneto use violent retribution against these people but needed “paperwork,” written proof of such cooperation. They would also use the words “rats” and “snitches” to describe these people. (Vol. 48 RT 8589- 8591) California law has long understood the inherent prejudicial effect of admission of a defendant’s gang membership orparticipation in gang 160 activities. It is fair to say that when the word gangis used in Los Angeles County, one does not havevisions of the characters in the “Our Little Gang” series.. The word “gang”’...connotes opprobrious implications...the word “gang”takes a sinister meaning whenit is associated with activities. (People v. Perez (1981) 114 Cal.App.3d 470, cited by People v. Albarran (2007) 149 Cal.App. 4" 214.) Dueto its highly prejudicial and inflammatory nature, this Court has condemnedthe use of such evidenceunlessit is more than tangentially relevant to the charged offenses. (People v. Cox (1991) 53 Cal.3d 616, 630.) This Court has further held that in cases not involving specific gang enhancements, evidence of gang membership should not be admitted. (People v. Hernandez (2004) 33 Cal.4th 1040, 1047.) Therefore, the illegal joinder permitted the introduction of evidence that would not otherwise be allowed underthe law. Even if such gang evidence can besaid to be relevant to prove an issue pertinent to the guilt of a charged crime, the trial court must carefully scrutinize gang-related evidence before admitting it becauseofits potentially inflammatory impact on the jury. (People v. Williams (1997) 16 Cal.4th 153, 193; People v. Carter (2003) 30 Cal.4th 1166, 1194.) In the instant case, neither the murder, the rapes nor any ofthe other substantive offenses charged had anything to do with gang activity. 161 nineinanatantDEESeet However, the prosecutor’s presentation throughoutthe entire case emphasized every possible aspect of appellant’s relationship with certain racist gangs and the violent and hateful acts performed in their name. The problem hereis not so muchthe inflammatory nature of the joined counts but the inflammatory evidence that was attendant to the joined non-murder counts. Asindicated in the statement of facts, pursuant to the proof of Counts 16-20, dozensof letters and other exhibits were admitted into evidence. However,the effect of these exhibits went far beyond these counts. The exhibits contained irrelevant and highly prejudicial evidence as to appellant’s character. This content was vulgar, sexually perverse, obscene, and anti-social and in general presented appellant in such a extraordinarily negative light that his conviction on the murder count was assured. None of this evidence would have been admissible if the murder count wastried alone. The following are summaries of the information contained in these exhibits. People’s Exhibit 73, is a “kite” (a note from one jail inmate to another) from appellant to an unknown inmate. Appellant not only uses the word “fuck” on many occasionsbut includes a “poem”that has nothing to do 162 with any offense. This poem relates to homosexual anal sex andis disgusting arid perverse. Thefirst four lines of this “poem”read; Gloomyfarthole of defeat Between yourcheeks I sink my meat Massiveshit hole with crusty hair Aging sperm goessourthere. This poem continues for many morelines and only gets more obscene and revolting. It further refers to womenby the term “mud-duck.” (45 RT 8185.) People’s Exhibit 66 is a letter from appellant to Kristin Spellins. In the letter he mocks sobriety and urgesher not to bother with avoiding intoxicating substances. People’s Exhibit 74 is another kite from appellant. It is also full of vulgarities and homosexualreferences. Exhibit 78, a letter from appellant to Nicassio,is also full of vulgarities and the racially charged term “niggah.” People’s Exhibit 83is a letter from appellant to Brandon Sprout. It is obscene, racist and obscene. It contains a racially charged “joke” about “Buckwheat,”a racial caricature of an Afro-American. Appellant signs the letter “Peter-Goes-In-Ya,” yet another juvenile sexual reference. People’s Exhibit 84 is a letter from appellant to Harlan Romines. This letter contains the same “joke” as People’s Exhibit 83. It also makes homosexual references (“hairy butt cheeks”) and is signed “Peter-Goes-in- 163 Ya.” People’s Exhibit 85 is a letter from appellant to Mike Gawlick. In this letter there are various ugly references to women suchasthe use of the words“bitch” and “hos.” It also refers to “pussy” and “blow jobs” and employs the word “fuck”liberally. People’s Exhibit 87 is a letter from appellant to Vic Challoner. It is replete with homosexualreferences, obscenities and vulgarities.In it, appellant makes light of domestic violence and liberally uses profanity. People’s 89 is a letter from appellant to Robbie Imes. It is a repulsive note about “sucking dick,” “butt holes” and a array of obscenities that would makethe proverbialsailor blush. People’s Exhibit 98 is a letter from appellant to Tori Szot, who was a teenagegirl at the time that appellant pennedtheletter. In a postscript to the letter, appellant references a “fucked up Christian ministry,” demonstrating a contempt for the good deedsofthis society’s pre-eminentreligious institution. People’s Exhibit 99 is a return letter from Ms. Szot in which she professes her love for appellant and attempts to impress him bytelling him about a “white power” documentary in which she wasfeatured. People’s Exhibit 100 is a letter from Mitch Joyce to Tori Szot. It features a drawing of a nude, heavily tattooed womanposedin a suggestive manner. While not coming from appellant, this drawing clearly reflects upon 164 the people he associates with, hence upon appellant, himself. Similarly, People’s Exhibit 107 is a letter from one of appellant’s confederates to Jennifer, yet another young girl. It contains drawings of swastikas and other Nazi symbols. People’s Exhibit 102 is a letter from appellant to Mitch Joyce.It contains the aforementioned “Buckwheatjoke” as well as various obscene references. People’s Exhibit 108 is a letter from appellant to Jenny Wepplo which contains the word “nigger” and various other obscenities and homosexual references. People’s Exhibits 109 and 110 are letters from Wepplo to appellant. They are obscene and replete with various unsavory sexual references. Exhibit 110 uses the word “nigger.” Exhibit 111 is a letter from appellant to Ian Morrow. It is full of obscenities and vulgar sexual references, including repulsive imagery of anal sex. People’s Exhibit 124 is a letter from appellant to Stacey Warnock. Onceagain,it contains the “Buckwheat”racial reference, various obscenities as well as being signed “Peter-Goes-in-Ya.” People’s Exhibit 125 is a letter from Mike Bridgeford to appellant. It is not only laced with various obscenities, it reveals highly negative attitudes toward women.It also contains references to Hitler and Nazism. While 165 SORMRRremne cn eneSPRERBANAPLEtemcreo these are not statements of appellant, it is clear from the letter that appellant shares these attitudes and beliefs. Similarly, People’s Exhibit 126 is a letter from appellant to Sal Sponza that contains various homosexualreferences. People’s Exhibit 131 is a letter from appellant to Jed Malmquist in which appellant makes various racial comments and talks about beating up “Niggs.” This racist theme is continued in People’s Exhibit 152,a letter from appellant to Gene Ebright in which appellant pens the following “poem” about Afro-Americans. Coon, coon, Black Baboon.Brutal, worthless thieving goon. Often high, he thrives in jail. His welfare check is in da mail. Some40 offspring have been had, not one ofthem willcall him Dad. But he hollers day and night. “I blames da white man fo’ my plight! It him whospreadshis trash around my shack,it’s him who makes me smokedis crack. Butlittle by little we’re takin hold cause when da white bread starts to mold, we’ll over run your homesand soon...Dey only befit fo a Black-assed coon. People’s Exhibit 172 is a letter from appellant to his mother in which appellant denigrated yet another entire group ofpeople. In that letter he makesvery positive comments about Adolf Hitler, referring to him as “quite a man” and a “hero.” He blamesthe “lies” told about Hitler to “Jewish traders.”’® Appellant goes on for about a pageextolling the virtues of the greatest monster ofthe twentieth century. In People’s Exhibit 173 >16. It is impossible to tell whether appellant meant “Jewish traders” or “Jewish traitors.” In this context, it hardly makesa difference. It is a loathsome reference, regardless. 166 appellant’s mother answershis letter, commenting on appellant’s “depth of character,” presumably for his comments on Hitler. Further, the testimony of Tori Szot (48 RT 8633), Samantha Medina (48 RT 8617), Jasmine Guinn (48 RT 8672), Kara Allen (47 RT 8486), Stacey Warnock (48 RT 8745) and Jennifer Wepplo (48 RT 8698) was perhaps the most inflammatory and disturbing of any of the evidence that was completely unrelated to the murder. All of these people were allegedly part of the conspiracy to dissuade witnesses. They wereall very young women who were into gangactivities. They all had “friendships” with appellant. They all would do virtually anything for him. In fact, Samantha Medinatestified that she was on probation for the same dissuading offense for which appellant was being tried. (48 RT 8618.) This evidence, combined with the testimony of both Ms. Gates and Ms.Bryant, imparted to the jury that appellant was a Mansonesquefigure, who held somesort of psychosexual power over young women, who would dohis illegal bidding without question. The prejudice of this very thinly veiled association of appellant with one of the most infamous mass murderersin the history of California is inestimable. In addition, this evidence also revealed a very unsavory and perverse relationship between appellant and his mother.It also allowed the 167 prosecutorto bring out the fact that appellant’s motherpled guilty to the same conspiracy with which appellant was being charged. (53 RT 9401.) Therefore, the jury heard that both Ms. Medina and Mrs. Merirman had already been convicted for conspiring with appellant, virtually assuring his conviction for Counts 16-20, hence, his conviction for the joined murder count. Appellant could not have received a fair trial on the capital count from a jury who hadbeen regaled and confronted with such an overpowering array of evidence which had nothing to do with the murder yet served the purpose of condemning appellant as a person notfit to live. d. Joinder of “Weaker” and “Stronger” Cases Thefinal factor involves a “weak” case having been joined with a “strong” case, or with another “weak”case, so that the spillover effect of aggregate evidence on several charges might well alter the outcome ofsome or all of the charges. The rationale behindthis factoris that the jury would not be able to decide one case exclusively on the evidencerelating to that crimein that “it would be difficult for jurors to maintain doubts about the weaker case when presented with stronger evidenceas to the other.” Williams v. Superior Court, supra, 36 Cal.3d at p. 453, citing to Coleman v. Superior Court, supra, 116 Cal.App. 3d at p. 138.) 168 This Court has addressedthis “strong case” vs. “weak case”issue many times. However, no precise standard has ever been formulated for determining whether one case is indeed “weaker” than the other for purposesofthe joinder issue. This is because this Court has recognizedthat such a determination is an individualized process dependent upon the totality of facts and circumstances of each case. (People v. Bradford, supra, 15 Cal.4th at 1315.) As indicated above, the instant case presents a highly individualized set of facts and circumstancesin that the prosecution sought and was granted joinderofthree separate sets of crimes to the murder count. Therelative strengths and weaknesses cannot be measured by comparing the evidence in the murder case to each of the other counts separately, as the prosecution urged conviction on the premisethat all of the cases were so similar that the same person must have committed all of them. The measuring stick must be the relative weakness of the murdercase vis a vis all of the remaining joined counts. In addition, this Court in Williams downplayed the necessity of demonstrating a greater disparity in the strengths of the joined counts. “This reasoning should not be limited to situations wherethe relative strengths of the cases are unequal. Indeed, our principle concernslies in the dangerthat the jury here would aggregate all of the evidence, though presented 169 nrOETAMIO$eODNDIST OI P EARS tpo separately in relation to each charge and convict on both charges.” (Williams v. Superior Court, supra,36 Cal.3d at 453.) Therefore, much as in the case of the joinder of inflammatory counts, the concern addressedin this factoris that joinder would makeit difficult for the jury not to view the evidence cumulatively. “One danger in joining offenses with a disparity of evidenceis that the state may be joining a strong evidentiary case with a weakeronein the hopethat the overlapping consideration of the evidence will lead to a conviction on both.” (Bean v. Calderon, supra,163 F.3d at 1085 citing to Lucvero v. Kirby (10" Cir ) 133 F3d 1299,1315.) J. Even if the Trial Court Did Not Abuse Its Discretion in Denying the Motionto Sever, Joinder of the Counts Actually Impacted the Trial to the Extent that Appellant Suffered Substantial Prejudice This Court has long stated that in applying the rules ofjoinder the trial court must consider the matter on the basis of the evidence before the court at the time ofits ruling. (People v. Brawley (1969) 1 Cal.3d 277, 292.) However, the reviewing court must also look to the evidence actually introducedat trial to determine whether "a gross unfairness has occurred such as to deprive the defendantof a fair trial or due process of law." (People v. Turner (1984) 37 Cal.3d 302, 313.) That is, whether, in the instant case, it is reasonably probable that the jury was influencedin its verdict of guilt on the murder by its knowledgeofhis possible involvement 170 in non-capital counts. (See United States v. Bagley (1985) 473 U.S. 667, 682.) This is often described as the “spillover effect.” Appellant continues to maintain that the trial court erredin its denial of the motion to sever. However, even if this Court should find that thetrial court ruled properly considering only the information beforeit at the time of the motion, review ofthe entire record of the trial establishes that the joinderofthe counts did indeed prejudice appellant. As stated above, the prosecutor’s entire theory was to urge uponthe jury that all of the charged crimes were committed by the same person. The improperjoinderofthe counts clearly facilitated this theory immeasurably. Therefore the “actual impact” of the joinder on the trial was pervasive and manifest. K. Appellant Was Substantially Prejudiced by the Improper Joinder The improperjoinder of the murder and non-murder counts substantially prejudiced appellant and violated his right to due process of law anda fair trial under the Fifth and Fourteenth Amendmentsto the United States Constitution. (Bean v. Calderon, supra, 163 F.3d at p. 1084.) A trial court error of federal constitutional law requires the prosecution to bear the burden of proving that the error was harmless beyond a reasonable doubt. (Chapmanv. California (1986) 386 U.S. 18, 24.) The prosecution cannot meetthis burden. 171 Reet somites It is clear that appellant was substantially injured by the errors of which he complained andit can not be said that “it appears that a different verdict would not otherwise have been probable”ifnot for the error. (People v. Watson (1958) 42 Cal.2d 818, 836.) This error was too great and manifest to be called harmless. This entire judgement mustbe reversed. Ill. THE JOINDER OF THE NON-MURDER COUNTS AND THE MURDER COUNT VIOLATED APPELLANT’S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION Notonly did the improperjoinder discussed in ArgumentI violate California law, it also deprived appellant of his right to due process of law under the United States Constitution. Under the United States Constitution, all criminal defendants are entitled to due process of law. (U.S. Const. Amendments V and XIV.) The United States Supreme Court has recognized due process requirements not specified in the Bill of Rights. The Court has held that any errorthat fails to ensure fundamental fairness in the determination of guilt at trial violates the Due Process Clause ofthe United States Constitution as it applies to the states. (Albright v. Oliver (1994) 510 U.S. 226, 283; Estelle v. McGuire (1991) 502 U.S. 62, 68.) As stated by this Court, trial court 172 error that madethetrial fundamentally unfair violates federal due process rights. (People v. Partida (2005) 37 Cal.4th 428,436.) In orderto find a violation of due process, this reviewing court must find that the absenceofthis fairness “fatally infected”the trial. (Linsebav. California (1941) 314 U.S. 219, 237.) While there may be nosingle test for “fundamental unfairness” (People v. Albarran (2007) 149 Cal. App4th 214, 239), both this Court and the United States Supreme Court have generally definedit as error that “undermines confidence in the outcomeofthetrial.” (See e.g. People v. Ochoa (1998) 19 Cal.4th 353,474; Kyles v. Whitley (1995) 514 U.S. 419, 434.) As stated in Brecht v. Abrahamson (1993) 507 U.S. 619, 637, due processis violated whentrial error “had substantial and injurious effect or influence in determining the jury’s verdict.” Thejoint trial of various counts of an indictment can result in the type of fundamental unfairness that violates the due process clause. (Parkv. California (9" Cir 2000) 202 F.3d 1149.) The reviewing court must “consider each count separately, asking whether‘the trial on a particular count was fundamentally unfair in light of that count’s joinder with one or moreothercharges.”(bid citing to Featherstone v. Estelle (9" Cir 1991) 948 F.2d 1497, 1503.) 173 erhennihrlapstetnef ee eaansigeict ne YORE netahaatne? The federal courts also warn against an overly liberal application of the subsection (b) exception to the general 1101 (a) rule against evidence of predisposition. In Bean v. Calderon, supra, 163 F.3d 1073, the Ninth Circuit discussed the dangers ofjoining counts when the evidence was of questionable relevance vis a vis cross-admissibility. Wehave previously acknowledged that there is “a high risk of undue prejudice whenever... joinder of counts allows evidence of other crimes to be introducedin trial of charges with respect to which the evidence would otherwise be inadmissible.” United States v. Lewis, 787 F.2d 1318, 1322 (9th Cir. 1986) (citation omitted). In Lewis, we explained this risk by observing that “[i]t is much moredifficult for jurors to compartmentalize damaging information about one defendant derived from joined counts, than it is to compartmentalize evidence against separate defendants joined fortrial, ‘and by recognizing studies establishing "that joinder of counts tends to prejudice jurors’ perceptions of the defendant and ofthe strength of the evidence on both sides ofthe case.” (/d. at 1084) The Ninth Circuit framed the issue in terms ofwhether or not with properinstruction, the jury could “compartmentalize” each count. (United States v. Douglas (9" Cir. 1986) 780 F.2d 1472, 1479.) Federal courts have expressed skepticism aboutthe efficacy of any jury instructions designed to ameliorate the damage cause by the introduction of other crime evidence that has no real relevance to the charged count. "Totell a jury to ignore the defendant's prior convictions in determining whether he or she committed the offense being tried is to ask human beingsto act with a measure of 174 dispassion and exactitude well beyond mortal capacities." (Lewis, supra, 787 F.2d at 1323 quoting United States v. Daniels (D.C.Cir.1985) 770 F.2d 1111, 1118.) Further, appellant contends that Evidence Code section 1108 violates the Due Process Clause of the United States Constitution in that, by itself, creates a fundamentally unfair paradigm in which a defendant’s uncharged sex Offenses serve to unconstitutionally prejudice him in the eyes of the jury. However, whetherthis is the case or not, the concerns stated in the abovecases resonate with particular force in the instant case. Not only did the trial court join counts for which the evidence was not cross-admissible, but the prosecution encouraged the jury to consider the charges in concert. Hestated that there was a pattern established through Gates, Bryant, Gagliano, Spellins, and Montgomery andthat it was not just “one evil act but all evil together,” (56 RT 9880) as reflecting the modus operandi characteristic of appellant’s criminal activities. Thus, the jury could not "reasonably [have been] expected to 'compartmentalize the evidence’ so that evidence of one crime [did] not taint the jury's consideration of another crime"(United States v. Johnson (9" Cir. 1987) 820 F.2d 1067, 1071), whenthe prosecution’s closing argument urged them to the exact opposite. 175 In the previous argument, appellant discussed in great detail the fundamental unfairness wrought upon appellant by this improperjoinder. The improperjoinder of the murder and non-murdercounts substantially prejudiced appellant and violated his right to due process of law anda fair trial under the Fifth and Fourteenth Amendmentsto the United States Constitution. (Bean v. Calderon , supra, 163 F.3d at p. 1084.) A trial court error of federal constitutional law requires the prosecution to bear the burden of proving that the error was harmless beyond a reasonable doubt. (Chapman v. California (1986) 386 U.S. 18, 24.) This entire judgement must be reversed. IV. THE ADMISSION OF EVIDENCE OF UNCHARGED ALLEGED OFFENSES AGAINST OTHER WOMEN VIOLATED APPELLANT’S RIGHT TO A FAIR TRIAL UNDER BOTH STATE LAW AND THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION A. Kristen Spellins Arnold 1. Factual and Procedural Summary Overthe objection of counsel, the jury heard testimony regarding the following uncharged offenses. Kristin Spellins Arnold had been an acquaintance of appellant since approximately 1994. She had met him at a party where they consumed drugs together. (Vol. 44 RT7873-7874.) One evening after their first meeting, appellant asked her to go for a ride. They 176 first went to Jack Garcia’s house and then to appellant’s house. Ms. Spellins had been using methamphetamine with appellant that night. (Vol. 44 RT 7875-7877.) Ms. Spellins was, in her own words, an “out of control little girl” who used large quantities of drugs such as methamphetamine. (Vol. 44 RT 7934-7935.) Ms. Spellins memory ofthat night was hazy, at best. She didn’t rememberif she arrived at Garcia’s house with appellant and stated that she could not rememberif she planned on having sex with appellant once they got to his house. However, her grandjury testimony indicated that she knew they were going to have sex. (Vol. 44 RT 7944-7948; 7958-7959.) She couldn’t even state with any degree of certainly whether she and appellant were boyfriend and girlfriend on the night this sexual encounter occurred. (44 RT 7965.) There is no doubt that Ms. Spellins willingly went with appellant to his room. Everything was consensual andthe twostarted kissing. According to Spellins, the sexual acts turned to things that she did not particularly like to do. She said that he had her touch his anus and masturbate him while he was looking at pornographic magazines. He wanted her to orally copulate him and she said she “probably did,” although she could not say for sure what happened. (44 RT 7878-7880.) 177 ariseice Contwet ROEM,dtsaitRams oe 8 wee om Cary on eam Ms. Spellins stated that this went on for “a couple of days.” However, she nevertried to run away, and doesn’t rememberif appellant tried to restrain her. (44 RT 7881.) She said that she wasscared ofhis behavior but could not articulate what wasfrightening her. (44 RT 7882.) Eventually, both she and appellant voluntarily left the apartment and both wenttheir own separate ways. She neverreported any ofthis to the police. (44 RT 7884-7885.) Ms. Spellins next remembered seeing appellant one night at a tattoo shop whereshe was getting a white powertattoo, designed by appellant, put on her buttocks by “Tattoo Bob.” After she received the tattoo, she and appellant went into the bathroom together, where appellant started shooting drugsinto his arm. He then used the syringe to squirt his blood at Ms. Spellins. According to Ms. Spellins, she got upset and tried to leave. Appellant told her to shut up or he would “slit her throat” like Trina. (44 RT 7886-7890.) Again, she never called the police. (44 RT 7995.) However, after all of this she continued to see appellant on a regular basis, explaining that she couldn’t explain this behavior except for the fact that she was a “junkie.” (44 RT 7978-7979.) Priorto trial appellant attempted to have this evidence excluded. In appellant’s December 12, 2000 Response to People’s Trial Brief, counsel 178 argued that this conduct was prejudicial misconduct that was not subject to any exception to the general rule against admissibility of evidence to show propensity to commit crime. Ata pre-trial hearing, counsel argued that this evidence was not admissible under either Evidence Code section 1101 or 1108 andthat it was highly prejudicial to appellant. (32 RT 5679.) Counsel further indicated that while appellant’s statement concerningslitting Trina’s throat wasrelevant, the circumstances surroundingthis statement made at the tattoo parlor were irrelevant and highly prejudicial. (32 RT 5680.) Thetrial court held that the sexual incident was admissible either under Evidence Code section 1101(b) or Evidence Code section 1108, there being no undue prejudice. (33 RT 5843-48.) It also held that, as with the Gates and Bryant charged counts, the sexual incident was admissible as to the murder count under both Evidence Codesections 1101 and 1108. (33 RT 5844-48.)"" It also held that the entire tattoo incident was admissible as the court did not feel that it was properto take it out of context. (33 RT 5843.) 2. Legal Argument Asappellant’s argumentis the sameas its argument against joinder stated above in Arguments I andI], it will not be repeated in detail in this 17. The specific reasons for admissibility given by the court were the same as those given for the joinder of Counts 2-9. 179 section. Once again, the jury who decided appellant’s guilt on a capital murder charge was exposedto ugly, prejudicial evidence that could only have had the effect of insuring appellant’s conviction of the capital charge. Further, the recollection of the act by Ms. Spellins is so vague, disjointed and inherently unreliable that it should have been excluded for these reasons alone. She wasa self-admitted heavy drug userat the time of the incident and her testimony bears this out. She remembered few details of the incident. In fact, she could not even say whether the event was non- consensual. She wasnot sure whether appellant actually tried to restrain her or whether he forced her to do anything she didn’t want to do. She also stated that all of this went on for “days,” during which time she was not sure whether she ever soughtto leave. Even assumingthat this incident happened the way the witness said it did, it has no probative value. Thereis no reliable proof that appellant committed any sort of criminal act or forced Ms. Spellins to do anything against her will. Therefore, it lacks any degree of similarity with the charged offenses and is inadmissable under Evidence Code section 1101 (b). Further, the prosecutor did not show that any non-consensualact occurred. As bizarre as this sexual encounter was, there was no indication that any sort of crime took place. It was not a “sexual offense” under 180 Evidence Code section 1108, therefore, it was not admissible underthat section. Instead, this was is yet another bizarre and disturbing incident involving appellant and drugs and strange sex which again improperly prejudiced appellant by creating an aura of evil around him.In spite of the fact that it had no probative value atall, it was admitted contrary to Evidence Code 352. It was just another brush stroke in the prosecutor’s constitutionally improper, yet successful, attempt to paint the portrait of a “monster.” As stated several times in this brief, this portrait would stand in the stead of convincing evidence ofthe murder count to assure appellant’s conviction of the capital count and usher him toward death row. Regarding the “tattoo” incident, there is no argumentas to the admissiblity of appellant’s alleged admission that he cut Ms. Montgomery’s throat. However, the court refusal to exclude the surrounding incident is both improperand legally inexplicable. It would have been contextually sufficient to have the jury hear that there was an incident where Ms. Spellins got upset with appellant and he responded with the statement in question. The jury would have heard Ms. Spellins contention that appellant admitted to the murder and would have been able to evaluate its reliability in light of the witness’s drug use and bias against 181 appellant and her drug use. However, the jury was allowed to hear about yet anotherirrelevant incident that could not have had anyother effect than to make them hate appellant even more. This time, the jury heard that a young, drug addled woman washaving her buttocks tattooed with a white powertattoo designed by appellant. Once again, appellant is made to appear as a corruptor ofyoung women, a Manson-like figure who can get young womento do whatever he wants them to do. The testimony as to what happened in the bathroom was even worse. It described appellant, in his underwear, shooting drugs into his arm, then using the syringe to squirt his own blood at Ms. Spellins. In the age of HIV, and considering appellant’s drug and sexual habits, the jury likely consideredthis act as a depraved indifference to the life of Ms. Spellins. There is no legal reason for the admission of this evidence. It is the mostprejudicial type of “propensity” evidence, which is clearly forbidden by Evidence Code section 1101(a). Its prejudice completely outweighsits non-existent probative value under Evidence Codesection 352. This is yet another piece of irrelevant, and highly prejudicial evidence that deprived appellant of a fair trial under both state and federal law. 182 B. Corrie Gagliano 1. Procedural and Factual Summary Corie Gagliano met appellant in approximately 1985, when she was about 16 years old and appellant a year younger. They became sexualactive and remainedsofor parts of their relationship over the ensuing years. (Vol. 41 RT 7313-7314.) On one occasion during their relationship she and appellant drove to Ojai in Clint Williams’ truck. She and appellant rode in the back ofa covered pickup truck with Williams driving. Whenthey arrived in Ojai, Ms. Gaglianotried to get out of the truck but appellant would not let her. She sensed that he wanted sex but she did not wantto oblige him in the truck. He held her arms so she could not move andshe knewthat it would only be worse if she fought back as he was muchbigger than she was and she knew his reputation for violence. She started to scream but no one cameto her aid. (41 RT 7319-7324.) Ms. Gagliano wasusing a lot of drugs during this period of time. She also frequently associated with the Skin Head Dogsandshared their white supremacist views. (41 RT 7329-7333.) She did not report this incident to the police and only told them aboutit a longtimeafterit happened. (41 RT 7334-7336.) She also saw appellant after this incident and felt safe with him because he was the toughest guy she knew. (41 RT 183 7340-7342.) She also continued to hang out with the Skin Head Dogs and continued to take drugs with them. (41 RT 7340-7341.) Aswith the above testimony of Ms. Spellins, appellant attempted to exclude this testimony of Ms. Gagliano (VI CT 1581; 32 RT 5672) on the grounds that Evidence Codesection 1101 did not apply to the incidentin question, that the incident was irrelevant andthat its proffer was an attempt to “inflame the jury and establish, by proxy, Mr. Merriman’s alleged propensity to have raped and killed Ms. Montgomery.” However,thetrial court ruled that the Gagliano incident was admissible under Evidence Code section 1108. (33 RT 5843.) 2. Legal Argument Appellant has discussed the application of Evidence Code section 1108 in ArgumentI, section F. 2 (B) ofthis brief and incorporatesit by reference into this section. Applying said law, the Faretta factors argue against the admission of this incident. There are few similarities between this incident and the murder charge. Further, because Ms. Gagliano chose not to come forwardto the police, there was no conviction. In addition, her testimony revealed someone whoregularly had sex and used drugs with appellant. Her objection to this particular sex act seemed to havefarless to do with the act itself than it did with the location. It is also remote, in that it could have occurred as early as 1985. 184 This sort of evidence has no probative value as to whether appellant murdered Ms. Montgomery.It is yet another incident which simply adds to the jury’s perception of appellant as a completely out of control, psychopathic monster. The federal and state law that assured appellant of a fair trial on the capital count and due process of law wasviolated by the admission of this evidence. C. Susan Vance 1. Factual and Procedural History Susan Vance, 27 years old at the timeof thetrial, first met appellant whenshe was 14 years of age. She began a sexualrelationship with him She hung out with appellant and other Skin Head Dogssuch as James Tibbs, Scott Porcho, Mike Wozny and their female associates, Billie Bryant, Bridget Callahan and Apryl Porcho. Ms. Vancestated that her lifestyle was very different at the time of her testimony thanit used to be. (39 RT 6866- 6869.) In 1992, Ms. Vance became aware that Trina Montgomery disappeared after a party (39 RT 6868-6869.) She had a conversation with John Cundiff in 1995 about Trina’s disappearance. Shortly after this, Ms. Vancevisited appellant at his residence. She arrived in her car, accompanied byherfriend, Maria. She was not sure why she wenton that particular occasion but she had been seeing appellant off and on for the past 185 three years. According to Ms. Vance, before she could getinto the residence, appellant came downstairs and started to beat herin the face. Sheretreated into the car to escape. Howeverappellant talked her into leaving the car, whereuponhehit her, once again, multiple times in the face. Maria attempted to cometo her aid but appellant told her to stay back. (39 RT 6870-6875.) Appellant took Ms. Vance by the arm and they proceededto his room where he asked what she and John Cundiff had talked about regarding the disappearance of Trina Montgomery. Ms. Vancerefused to answer any questions that appellant asked about her conversation because she was afraid that appellant might hurt John. She eventually left the room and never went back there again. (39 RT 6875-6877.) Ms. Vancerecalled telling the police about this incident in 1995 but did not recall telling the police that appellant hit her. She did not report the incident to the police the evening that it occurred nor did she seek medical attention. She admitted that she could haveleft after the first time that he hit her but she did not. (39 RT 6878-6880.) While denying that she had used drugs on that particular day, Ms. Vance admitted that she was a methamphetamine user during that general time period. She also admitted to having a drug-related conversation with appellant that night in his room. 186 (39 RT 6890-6891.) Again, appellant attempted to exclude this evidence, arguing thatit wasinadmissible and highly prejudicial. Counsel argued that it was highly questionable whether appellant’s beating of Ms. Vance because she spoke to John Cundiff about the murder had any tendencyto provethat he committed it. He also argued that the fact that appellant beat a defenseless woman would inflame the jury to the point that prejudice would hold sway overlogic. In addition, counsel suggested that if the court did feel that her conversation with appellant about Cundiffwas relevant, the beating was still not relevant and evidence ofit could be excluded (32 RT 5683-5688.) While acknowledging that the evidence ofthe beating “would have an impacton the jury,” the court stated that it would be “an error and injustice to sanitize a situation like this where we have an admission, alleged admission potentially bearing significant probative value that I do believe outweighs its prejudice I’ve been referring to. Some things we’ve got to take as they allegedly happened andlet the jury sort it out.” (33 RT 5692.) 2. Legal Argument This is yet another tawdry, repulsive, violent and unreliable story told by yet another hanger-on wholed the ganglife. As stated bytrial 187 counsel, the only conceivable legitimate purpose for this evidence was to demonstrate to the jury that appellant was concerned about Ms. Vance and Mr. Cundiff discussing anything about Trina. However, as with Ms.Spellins’s “tattoo” incident, under the banner of “context,” the court allowed the jury to hear evidence that had no other purpose than to further bias the jury against appellant. There is no statute no principle in the law that would allow for this testimony of a completely unrelated act of violence to be heard by a jury considering a capital murder count. Even the court realized that this evidence would have an “impact on the jury,” but felt it was best to “let the jury sort it out.” Ruling on the admissibility of evidence is the responsibility of the court, not the jury. (People v. Nelson (2008) 43 Cal.4th 1242, 1266.) If that were not the case, and the prosecutor was allowed to introduce any prejudicial and irrelevant evidence it chose for the jury to “sort out,” due process of law would havelittle meaning. Yet again, still another layer of prejudicial evidence is added; utterly irrelevant to the ultimate issue of appellant’s guilt on the murder count, yet just as utterly damning as to appellant’s character. In light of this evidence, and all of the other evidence, irrelevant to the murder, it is simply a fiction to hold that this jury decided the murder count on the evidence ofthe 188 murder and not on the plethora of evidence that stood for the fact that appellant was simply a bad man. Appellant is on death row for what he was, not what he did. For the reasons stated above, the entire judgment must be reversed. V. THE ADMISSION OF THE HEARSAY STATEMENTSOF TRINA MONTGOMERY TO SHAWNATORRES, KATHERINE MONTGOMERYAND LEE JANSEN PREJUDICED APPELLANT AND DENIED HIM A RIGHT TO A FAIR DETERMINATION OF BOTH GUILT AND PENALTY UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION AND THE LAW OF THE STATE OF CALIFORNIA A. Procedural and Factual Summary 1. Shawna Torres On November14, 2000, the prosecution filed its Trial Brief. (V CT 1367 et seq.) In the brief, the prosecutor described an attack that appellant allegedly perpetrated upon Trina Montgomery during the summerof 1992, a few monthsprior to her disappearance. Ms. Montgomery had gone to appellant’s house with her friend, Shawna Burgess-Torres. The prosecutor alleged that Trina went to appellant’s house to inform him that she was not his girlfriend and that he should stop calling and sending herletters. Ms. Montgomery allegedly went into appellant’s house to talk with him while Ms. Torres waited outside in the car. According to the Trial Brief, 189 Ms.Torres wassurprised that Trina had goneinside alone as she had indicated that she wasafraid of appellant. (V CT 1399-1400.) Trina returned to the car after approximately 20 minutes. She was visibly upset and told Ms. Torres that appellant had grabbed her by the neck and had started to choke her. She further allegedly indicated that she began to scream which caused Sue Merriman to comeinto the room. Mrs. Merriman saw whatwasgoing on but did nothing to stop it. The Brief indicated that Trina told Ms. Torres that she had managed to escape from appellant and flee the house. While Trina wastelling Ms. Torres this, Ms. Torres noted red marks on Trina’s neck. (V CT 1400.) On December18, 2000, this matter wasraised in court. (32 RT 5561 et seq.) The prosecutor said that Trina Montgomery’s statement to Ms. Torres was an excited utterance. (32 RT 5562-5563.) Defense counsel argued that the prosecutor did not meet the legal requirements of Evidence Code section 1240 and made additional objections under Evidence Code section 352. (32 RT 5563.) Thetrial court’s initial impression wasthat the probative value of this evidence wasvery high. (32 RT 5563.) On December20, 2000, the prosecution filed a Motion to Admit Victim’s Spontaneous Statements of Defendant’s Prior Sexual Attack. (VI 190 CT 1625 et seq.) On the same day an evidentiary hearing was held with Ms.Torrestestifying along the general lines set forth in the prosecutor’s trial brief. (33 RT 5770.) After hearing testimony and argument, the court held that the testimony of Ms. Torres was admissible under the spontaneous declaration doctrine of Evidence Code section 1240. (33 RT 5787-5788.) Ms. Torrestestified at trial that the incident in question took place in the summerof 1992. (37 RT 6548.) She and Trina Montgomery drove to appellant’s house so Trina could “straighten out a couple of things.” (37 RT 6549.) Uponarriving at appellant’s house, Ms. Montgomery wentinside while Ms. Torres remained in the car. After the passage of some time, Ms. Montgomery returned to the car. She was upset and told Ms. Torres that appellant had “gotten mad”andattacked her and she also showed Ms. Torres red marks on her neck. Ms. Montgomery also said that she was angry because appellant’s mother, Sue Merriman, witnessed the attack and did nothing to stop it. (37 RT 6549-6551.) 2. Kathryn Montgomery On December 20, 2000, there was a separate, but legally related, pretrial hearing as to the admissibility of statements allegedly made by Trina Montgomery to her mother, Kathryn. Mrs. Montgomery testified at this hearing andstated that in a conversation in the family homein the late 191 pgARRSNEREAMEAPC? ENCOREGAPEhe piehiRAENTTA BRNYn spring or summerof 1992, Trina related an incident to her motherthat allegedly had happenedto herfairly recently. Mrs. Montgomery stated that Trina looked agitated, emotional and afraid. (33 RT 5792.) This conversation took place on a Monday morning.Trina had just returned from spending the weekendin Ventura. (33 RT 5793.) Trina beganto relate an alleged incident that occurred either the night before or the night before that. (33 RT 5793-5794.) Trina told her that she visited Justin at his houseto say hello. It was late at night and Justin’s mother suggested she spend night. (33 RT 5794- 5795.) She went to sleep in an extra bedroom and when she woke up appellant was in bed with her making sexual advances. Trina told him to stop. (33 RT 5795.) Mrs. Montgomery further related that her daughter told her that to escape from the situation she told him she wassick and hadto go to bathroom. She then ran off to her car. Trina also told her mother that as she wasdriving away, appellant ran out of the houseyelling at her. (33 RT 5796.) ’ The court granted the prosecutor’s request for a Evidence Code section 1240 hearsay exception and permitted this testimony. (33 RT 5841.) Ultimately, Mrs. Montgomery wasallowedto testify about Trina’s hearsay statements. (37 RT 6485-6488.) 192 3. Lee Jansen The prosecutor also proffered the testimony of Lee Jensen, a friend of Trina’s. At a pretrial hearing Ms. Jensen testified that Trina called her and told her that she had visited Justin’s house and stayed over. She went to sleep alone but wokeup to find appellant on top of hertrying to pull her shorts off. (33 RT 5828-5829.) She told him to get off of her, and that she had to go to the bathroom. Trinasaid that at that point she was able to escape. (33 RT 5829.) The witness stated that the call came within a few daysofthis alleged incident. (33 RT 5830.) The court initially ruled that Trina’s statement was not a spontaneous declaration. (33 RT 5841.) However, before calling Ms. Jensen to testify on other matters, the prosecutor requested that the court allow questioning of Ms. Jensen as to Trina’s statement to corroborate Kathryn Montgomery’s testimony. The prosecutoralso said that it would be relevant to prove Trina Montgomery’s state ofmind as to whether she would consent to sexual intercourse with appellant. (37 RT 6561.) Once again, counsel objected on hearsay grounds. (37 RT 6561- 6562.) The court respondedbystating that it is “[h]ard to argueit’s prejudicial since the jury has already heard it.” (37 RT 6562.) Counsel responded by arguing that the testimony wasprejudicial in that the more 193 times a declarant says something the more believable it becomes. (/bid.) The court then ruled that it would allow Ms. Jensento testify, without details, that Trina told her about an incident that involved her fleeing appellant’s residence after he entered her room. The court saidit would give a limiting instruction, unlike with Kathryn Montgomery. (37 RT 6562-6563.) Such an instruction wasgiven. (37 RT 6566-6567.) Ms.Jensen ultimately testified before the jury that at some point during the summerof 1992, Trina told her that “something happened”at appellant’s house. (37 RT 6566.) B. Discussion of the Law Evidence Codesection 1240's codification of the hearsay exception for spontaneous statements provides: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and (b) Was madespontaneously while the declarant was underthe stress of excitement caused by such perception.” The United States Supreme Court in White v. Illinois (1992) 502 U.S. 346, 356 stated that an evidentiary rule creating a spontaneous declaration exception to the hearsay rule does not necessarily violate the confrontation clause but that such exception must be “firmly rooted in 194 American Jurisprudence.” (/d at fn 8; [Idaho v Wright (1990) 497 U.S. 805, 817.) This Court has taken a similar approach,stressingthe reliability of the statement as opposedto strict formulaic approach. “To determine whether the declaration passes the required threshold of trustworthiness, a trial court ‘may take into accountnot just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant.’ [Citation.]” (People v. Cudjo (1993) 6 Cal.4th 585, 607.) This Court has also stated that “Evidence Code section 1240 codified the common law exception for spontaneous statements. ‘The foundation for this exception [in the common law]is that if the declarations are made under the immediate influence ofthe occurrence to which theyrelate, they are deemed sufficiently trustworthy to be presented to the jury.” (Showalter v. Western Pac. R. Co. (1940) 16 Cal.2d 460, 468, quoting Wigmore on Evidence[2d ed.], sec. 1747 et seq.) In Showalter, this Court set forth the logical underpinningsofthis exception. “The basis for this circumstantial probability oftrustworthiness is ‘that in the stress of nervous excitementthe reflective faculties may be stilled and the utterance may becomethe unreflecting and sincere expression of one's actual impressions and belief.’ ” (Showalter, supra, 16 195 Cal.2d at p. 468.) In People v. Poggi (1988) 45 Cal.3d 306, 318, this Court directly quoted Showalter in setting forth the requirements for the admission of such a statement. “ ‘To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and renderthe utterance spontaneousand unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposedstil! to dominate andthereflective powersto be yet in abeyance; and (3) the utterance mustrelate to the circumstance ofthe occurrence precedingit.’ [Citation.]” ( People v. Poggi, supra, (1988) 45 Cal.3d at p. 318.) Poggi further held that “[w]hether the requirements of the spontaneous statement exception are satisfied in any given caseis, in general, largely a question of fact. [Citation.] The determination of the question is vested in the court, not the jury. [Citation.]” (Poggi, supra, 45 Cal.3d at 318.) Accordingto this Court, “[t]he crucial element in determining whethera declaration is sufficiently reliable to be admissible underthis exception to the hearsay ruleis ... the mental state of the speaker. The 196 nature of the utterance- -how long it was madeafter the startling incident and whetherthe speaker blurted it out, for example- - may be important, but solely as an indicator ofthe mental state of the declarant.” ( People v. Raley (1992) 2 Cal.4th 870, 892-893, citing to People v Farmer (1989) 47 Cal.3d 888, 903.) Regarding the standard of review upon appeal, this Court has ruled that thetrial court's determination ofpreliminary facts will be upheld if supported by substantial evidence. (People v. Brown (2003) 31 Cal.4th 518, 541.) However, this Court will review the trial court’s decision to admit the evidence in question for abuse of discretion. (People v. Phillips (2000) 22 Cal.4th 226, 236.) Asseen above, the body of case law regarding Evidence Code section 1240 focuses uponreliability. In order to judgereliability, it is not enough simply to perform some temporal calculation as to the passage of time or make a subjective determination on how stressful the incident might have been to the declarant. The critical determination was whetheror not, given thetotality of the surrounding facts and circumstances, thetrial court can be convinced that these statements were sufficiently reliable so as to justify an exception to the Confrontation Clause. 197 1. Statement to Ms. Torres Nothing aboutthe facts ofthis case suggests that Trina Montgomery’s statements to Ms. Torres werereliable. The relationship of Trina Montgomery and appellant wasat its core unpredictable and hard to fathom. In spite of a good family background, Ms. Montgomery had chosen to consort with a gang with a reputation for both violence andhate. She dated members ofthis gang and attendedtheir parties, sharing their philosophy. (37 RT 6484-6485, 39 RT 7023, 7028, 7037.) She seemed to enjoy appellant’s company and continued herrelationship with him while he wasin jail. She encouraged his sexual fantasies and led him along. According to Ms. Torres, Ms. Montgomery voluntarily entered appellant’s house, alone. This wasin spite of the fact that she was allegedly assaulted for sexual purposes by the very same person at the very same location a few months before. (37 RT 6550-6551.) In addition, according to the prosecutor’s own witnesses, Ms. Montgomery lied to her own family in order to go to the gang party on the night of November 27, 1992. (37 RT 6490-6493.) To say that Trina Montgomery led a duallife is an understatement. In spite of her alleged fear of appellant, she threw herself at him. In spite of having a promising future, she entered into a gang-driven social life that was based on hatred and violence. Nothing about Ms. Montgomery’slife- 198 style wasreliable or predictable. As such, her statement to Ms. Torres was innately unreliable. 2. Statement to Kathryn Montgomery In addition to the innate unreliability of any statement that Trina Montgomery might have made aboutthe appellant, the statement made to her motheralso suffers from other specific indicia of unreliability. It was not madeuntil a substantial amountoftime had elapsed. As such, Trina was not under the immediate influence of the alleged incident which sherelated. Further, as stated above, the evidence given throughoutthis trial indicated that Trina Montgomery wasextremely conflicted as to her relationship with appellant and the entire gang milleau in which she voluntarily immersed herself. According to Mrs. Montgomery’s testimony, it may have been 36 hours from the time of the incident to the time Trina made her statement to her mother. She had any numberofmotivations to deceive her mother, as her entire life at home was a deception. 3. Statement to Lee Jensen Trina Montgomery’s statement to Ms. Jensen was improperly admitted for the reasons stated above. The fact that the court “cleaned it up”so that Ms. Jensen only told the jury that Trinatold her that “something happened” betweenher and appellant in the summer of 1992, does not 199 akin ReaneaadNOMAHERESEhateon tentNhes ameliorate any error as Mrs. Montgomery and Ms.Torres already informed the jury of the details of Trina’s statement. Asstated above,thetrial court originally recognized that Ms. Montgomery’s statement to Ms. Jensen wasunreliable and inadmissible under Evidence Code section 1240. However,it reversed its ruling when the prosecutorstated that it would only go to state of mind andto support the credibility of Kathryn Montgomery. The court’serror is twofold. Firstly, if the statement to Ms. Jensen is inadmissible dueto a lack ofreliability, logically, it should be inadmissible for all purposes. The fact thatit is being used for a limited purpose does not make the statementany less unreliable. Secondly, counsel never questioned that Trina made the statementto her motheror that her mother wastelling the truth. No question was ever raised as to Mrs. Montgomery’s credibility. Evidence Code section 1240 does not invokethe credibility of the witness.It is the credibility of the declarant that must be determined by the court. Therefore, the court was incorrect to admit the statement for this reason. C. Prejudice The pattern of error discussed in the above arguments holdstrue for this improperly admitted evidence. Once again, the prosecutor proffered, and the court admitted, evidence that madeit impossible for appellant to get 200 a fair trial. Through this evidence whose admission violated both the Confrontation Clause ofthe Sixth Amendment and the Due Process Clause of the Fifth Amendmentto the United States Constitution, the prosecutor finally got his wish for Trina to speak for herself. These statements improperly told the jury that appellant had been violent toward Trina in the past. As such they were very prejudicial. By the admission of this evidence the prosecution’s burden of proof was reducedto the point wherethe trial was fundamentally unfair and violative of the Due Process and Confrontation Clauses of both the California and United States Constitution. A trial court error of federal constitutional law requires the prosecution to bear the burden ofproving that the error was harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 U.S.at p. 24.) Even using the Watson standard,it is clear that appellant was substantially injured by the errors ofwhich he complains and it can not be said that “it appears that a different verdict would not otherwise have been probable”ifnot for the error. (People v. Watson, supra, 42 Cal.2d at p. 836.) This error was too great and manifest to be called harmless. 201 ag? A tnedeteligrleiGNEIRCMENNOREONFommeLetipepid Fao cae ee ane ciety manent nigieneMritenner weet BeCEk Fae VI. BY ALLOWING IRRELEVANT AND PREJUDICIAL EVIDENCE THAT APPELLANT POSSESSED A STOLEN CAR, THE COURT DEPRIVED APPELLANT OF DUE PROCESS OF LAW ANDOF A FAIR DETERMINATION OF GUILT AND PENALTY UNDER BOTH STATE LAW AND THE FIFTH AND FOURTEENTH AMENDMENTSOF THE UNITED STATES CONSTITUTION A. Factual and Procedural History Roy Miller was a witness for the prosecution. Hetestified as to certain statements that appellant made to him concerning people who were wearing wires, and also wasa percipient witness to appellant’s January 30- 31, 1998 arrest. (39 RT 6923-6926.) During cross-examination, Miller indicated that on that morning, he had observed Merriman driving a car. (39 RT 6939-6940.) Upon re-direct examination, the prosecutor asked whether appellant told Mr. Miller where he had gotten the car. (39 RT 6941.) Counsel objected on the groundsofrelevance. The court initially sustained the objection. (39 RT 6941.) The prosecutor then explained that the reason why he wantedto pursuethis line of inquiry wasthat “there will be some defense on the Avenue with Mr. Merriman driving to the house in Naomi Sponza’s car to imply he has this car and he’s driving around like this was his car. He hadstolen a car that day and he wasselling it.” (/bid.) Presumably, the prosecutor was trying to foreclose a potential defense 202 argumentthat appellant had a car so he would not have been on a bicycle the night ofhis arrest. (39 RT 6942.) Defense counsel respondedby stating that he was notsure that the defense was going to pursue such a line of defense andthat up until this point it had never been raised. (39 RT 6941-6942.) The court then reversed itself and overruled the objection. (39 RT 6943.) Mr. Miller testified that appellant told him that the car was “hot” and that he needed Miller’s help to getrid ofit. (39 RT 6943-6944.) B. Legal Argument Relevant evidence is defined in pertinent part as any evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evidence Code section 210.) The fact that appellant stated that the car in question was stolen is completely irrelevant to any disputed matterin this case. Firstly, there was no issue raised by appellant before the jury that related to whether appellant was or wasnotdriving a car the morning that precededhisarrest. The fact that defense counsel may have considered such a defenseis irrelevant. In any event, the fact that appellant possessed a car in the morning has no relevanceto the fact that he was on a bike that same evening. 203 Poonameteuighentiinteeeamepame Sastre Hat ith oes eee eg tn teidnt indentcan be Even if there was somepossible relevanceto the fact that appellant wasdriving a car on the day in question, the fact that the car wasstolen is not only irrelevant but was highly prejudicial to appellant. Once again, evidence wasintroduced branding appellant as a criminal yet having absolutely nothing to with any counts ofthe case, let alone the murder count. (Evidence Codesection 352.) The definition of unduly prejudicial evidenceis that it “uniquely tends to evoke an emotional bias against a party as an individual, while having only slightly probative value with regard to the issues.” (People v. Robinson (2005) 37 Cal.4th 592, 632, fn. omitted.) Evidence of defendant’s commission of a crime that otherwise has no probative evidentiary value clearly falls into this category of barred evidence. (People v. Karis (1986) 46 Cal. 3d 612, 671-672.) Clearly, evidence that the car in question was stolen is exactly the type of evidence that this Court discussed above. The court’s admission of this evidence defied both the law and commonsense. The fact that appellant had stolen a car was completely gratuitous, with no concomitant probative purpose. This sort of error deprived appellant of a fair determination of guilt and penalty and deprived him ofDue Process of Law underthe Fifth and Fourteenth Amendments to the United States Constitution. 204 Vil. BY ALLOWING IRRELEVANT AND PREJUDICIAL EVIDENCE THAT APPELLANT ASKED HIS MOTHER TO DO CERTAIN POSSIBLY ILLEGAL ACTIVITIES FOR HIM, THE COURT DEPRIVED APPELLANT OF DUE PROCESS OF LAW AND A FAIR DETERMINATION OF GUILT AND PENALTY UNDER BOTH STATE LAW AND THE FIFTH AND FOURTEENTH AMENDMENTSOF THE UNITED STATES CONSTITUTION A. Procedural and Factual Summary During the prosecutor’s cross-examination of Sue Merriman, he asked her whether appellant asked herto do illegal acts for him. Counsel objected under Evidence Code sections 1101 and 352. (54 RT 9556.) Out of the presence ofthe jury, the prosecutor informed the court that he had evidence that appellant had asked his motherto retrieve a 45 caliber gun from someone named “Mike.” (54 RT 9557.) The prosecutor also informed the court that appellant asked his mother to help him with a schemeto illegally obtain social security disability money. (54 RT 9557.) The prosecutor stated that this evidence wasrelevant to explain the relationship that appellant had with his mother. (54 RT 9558.) The court indicated that this testimony had somerelevanceto this issue and that it would allow “somebrief inquiry in these areastoillustrate the point that is being made here on cross.” (54 RT 9559.) 205 chicasepancedRELMEOInyct oSonePe pawe a8 Pursuant to the court’s holding, the prosecutor had Mrs. Merriman read a letter from appellant in which he asked herto pick up the gun for him. (54 RT 9560-9561; Exhibit 181.) In addition, the prosecutor also had Mrs. Merrimanread a letter (Exhibit 185) in which appellant requested assistance from his mother regarding the social security disability scheme. (54 RT 9565.) B. Legal Argument Appellant relies upon the same legal argument made in Argument V, supra. Yet again, the jury heard of more of appellant’s alleged criminal activity that had nothingat all to do with the murder charge. Once again, the jury was distracted from their task of determining appellant’s guilt as to that charge from the evidence pertaining to that charge. Once again, evidence as to appellant’s general character overshadowedthe evidence ofhis guilt or lack thereof. Thesituation here is similar to that in People v. Ortiz (1979) 95 Cal.App. 3d 926. In Ortiz, the court of appeal reversed a murder conviction due to the admission of testimony that defendant practiced a religion that embraced violent animalsacrifices. The court held that whatever limited probative value this evidence may have was overcomebythe prejudice of the jury hearing about how he butchered animals. (/d. at 933.) 206 Whateversmall probative value that this evidence had asto the appellant’s relationship with his mother was overcome by yet more evidence of completely unrelated crimes. These crimes added a new page to appellant’s resume;trafficking in guns and social security fraud. These incidents had absolutely nothing to do with Ms. Montgomery’s murder. If anything, the admission of this evidence demonstrated just how far afield most of the evidence wasto whatactually happened to Trina Montgomery. VIII. THE IMPROPER USE AND ADMISSION OF INFLAMMATORY PHOTOGRAPHS DEPRIVED APPELLANT OF A FAIR DETERMINATION OF GUILT AND PENALTY UNDER THE FIFTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION A. Procedural and Factual History Atan in limine hearing, the prosecutor told the court that during the November23, 1997, execution of a search warrant in appellant’s bedroom, Investigator Volpei found approximately one hundred pornographic magazines. Two ofthem were seized. (50 RT 8990.) The prosecution argued that these magazines were probative to corroborate the testimony of the witnesses that indicated that appellant looked at pornographic magazines during their sexual encounters. (SO RT 8991.) Defense counsel argued that the magazines were “disgusting,” hence, highly prejudicial. (50 RT 8998.) The court admitted these magazines, holding that they were 207 ree ARARDENEMAARESa probative to support the testimony of those witnesses. ([bid.; People’s Exhibit 160.) In addition, the prosecutor informed the court that during the execution of the same warrant two photos were seized. One was a photo of appellant and Mitch Buely holding knives, with a hacksaw in the background. The second photo wasa staged photo of appellant and another friend holding knives to each other’s throats. The prosecutor stated that these photos were relevant to demonstrate appellant’s access to knives and tools. (50 RT 8991.) Counsel objected on the groundsthat the photos had no probative value and that they were highly prejudicial. (50 RT 8992.) The court ruled that photo depicting appellant and Buely was admissible and the other photo was not. (50 RT 8994); People’s Exhibit 159.) At a subsequentin limine hearing, the prosecutor proffered another photo that was seized pursuant to a search warrant. This photo portrayed Mitch Buely holding a large knife in appellant’s bedroom. (50 RT 9242- 9243.) Counsel made the same objection. (/bid.) The court ruled the photo admissible. (50 RT 9246; People’s Exhibit 169.) B. Legal Argument Appellant restates the legal argument advanced in Argument V and 208 VI as if more fully stated herein. Regarding the pornographic magazines, there was absolutely no reason for their admission into evidence. The presence of the magazines in appellant’s room wassufficient to corroborate the testimony of witnesses whopreviously testified as to their use. It was not necessary for the jury to see the contents ofthe magazines. As stated by counsel, these magazines weretruly “disgusting.” They portrayed violent acts against women, scenes of bondage and degradation, and the general humiliation of women. They were highly prejudicial in that once again they portrayed appellant as a person of low moral character, worthy of a murder conviction regardless of the relevant evidence. Regarding the photos, once again there was no probative valueatall. Thefact that appellant had access to knives and a hacksaw provesnothing. Virtually every adult has access to knives. Further, there was no possible relevance to the fact that appellant had a hacksaw in his room. There was no evidence that a hacksaw played anypart in the alleged murder. Further, People’s Exhibit 169, depicting Mitch Buely holding a large knife, has no probative value whatsoever regarding appellant’s alleged use of a knife on Ms. Montgomery. Once again, this evidence wasutterly irrelevant to the alleged murder 209 of Trina Montgomery. Onceagain, the real effect of this evidence wasto further prejudice appellant by ascribing to him more anti-social behavior. The prejudice discussed in section 352 is not the type of prejudice that normally flows to the defendant’s case from relevant and highly probative evidence. Rather, it is the prejudice that causes a prejudging of a defendant because of factors extraneousto the issues in disputeattrial. People v. Zapien (1993) 4 Cal.4th 929, 958.) Nothing could be more extraneous than the evidence details in this and the previous two Arguments. SUMMARYOF COUNTSII-VI Appellant wasontrial for murder. He faced the death penalty. He had a right to have his jury consider the evidencethat pertained to that murder. The central task of the jury wasto decide, rationally and logically, whether Justin Merriman killed Trina Montgomery beyonda reasonable doubt. This task was made impossible by both the improperjoinder of offenses, and improper admission of non-charged offenses. The evidence that had no relevance to the murder charge was overwhelmingly and fatally prejudicial to appellant. The body and tenor of this evidence wasso repellant that appellant had no chancewith the jury who heard it. From the first witness, they were pre-conditioned to view 210 appellant as a person who could and would commit any sort of crime, no matter how depraved. The evidenceof appellant’s alleged life-style, propensities, prior violent actions, racist and misogynistic attitudes, twisted sexual proclivities, drug use, admiration of Adolf Hitler, willingness to corrupt younggirls, bizarre relationship with his mother and leadership of a violent, hateful and depraved gang madeit impossible for the jury to compartmentalize the murder count and decide appellant’s guilt as to the murder on the evidence of the murder. The admission of this evidence eased the prosecution’s burden of proofto the point where the trial was fundamentally unfair and violative of the Due Process Clauses of both the California and United States Constitution. The United States Constitution requires that a defendant be tried for what he did, not for who heis. This axiomatic principle was violated by the cumulative error described above and as suchthe entire judgment mustbe reversed. 211 o ptantetsattAMAEROTeepe aor P= IX. APPELLANT WAS DENIED HIS DUE PROCESS RIGHT TOA FAIR DETERMINATION OF GUILT AND PENALTY BY THE ADMISSION OF PREJUDICIAL EVIDENCE AS TO THE RELUCTANCEOF WITNESSES TO TESTIFY A. Proceduraland Factual Summary On sevenseparate occasions, before eliciting any relevant testimony from his witness, the prosecutor asked the witness how she“felt.” Thefirst of these witnesses was Jennifer Bowkley, who had witnessed the January 30, 1998 vandalism of Jan Rail’s house. The prosecutor began the examination by asking Ms. Bowkley how she“felt” about testifying. Ms. Bowkley respondedthat she felt “nervous and scared.” The prosecutor then asked why she wasscared and the witness respondedthat she “wanted to forget that night.” The prosecutor then asked the leading question “you don’t want to be here today; is that correct?” The witness answered“no” and defense counsel objected as irrelevant and movedtostrike. The objection was overruled. (37 RT6448-6449.) The prosecutorthenelicited, by leading questions, that the witness was in court because she had been subpoenaed and would prefer not to have anything to do with the case. (37 RT 6449.) Similarly, the prosecutor asked Billie Bryant, an alleged victim of charged sexual offenses, how shefelt about testifying. The witness stated “not good.” The prosecutor then asked the leading question,“It’s 212 something that you would rather not talk about in front of people,” and the witness answeredin the affirmative. (38 RT 6682.)'® Susan Vance,an alleged victim of an uncharged offense, responded to the prosecutor’s question as to how she wasfeeling by stating “very nervous.”(38 RT 6666.) Corrie Gagliano wasthe alleged victim of another uncharged offense. After making aninitial inquiry as to whethershe recalled an “incident” in Ojai involving the appellant, the prosecutor said “Before I ask that, you’re uncomfortable talking aboutit in public. Is that true?” The witness answeredin the affirmative. The prosecutor then askediftestifying before the grandjury wasdifficult for the witness, again eliciting an affirmative response. The prosecutor then asked “But in comparisonis this even harder?” The witness answered,“yes”, and the prosecutor asked, “‘Whyis that?” Counsel objected on relevancy grounds, and the court overruled the objection. The witness then answered “He’s right there and her [sic] momis right there. The prosecutor then asked “Are you gonna be able to do this?” The witness noddedher head. The prosecutor then said 18. After the initial objection to this sort of testimony from Ms. Bowkley, with the exception of Ms. Gagliano, no further objections were made by counselasto the similar testimony of the other witnesses delineated in this Argument. This does not mean that the issue was waivedas to these witnesses, as it is clear that the court would haveruled the same and any further objection would have beenfutile. 213 > wn datte RdeenctipopettiarbelionnitiiaRIMInog eah ten feeten > eee ney Sehr asue anteaed aotaa “Take your time. we’ll go slow,all right.” (41 RT 7317-7319.) Before questioning Robyn Gates, an alleged victim of charged sexual offenses, the prosecutorelicited that the witness was nervousand that the subject matter ofher testimony made her uncomfortable. (42 RT 7484.) The prosecution commenced the questioning ofElaine Byrd, a friend ofRobyn Gates, by eliciting that she felt nervous that morning. (43 RT 7640.) Kristin Spellins Arnold, an alleged victim of an uncharged offense as well as an alleged victim ofthe witness intimidation conspiracy, was similarly questioned. The prosecutor asked her, upon being called to the stand, to identify appellant. At that point the prosecutor asked Ms.Spellins whether she was“feeling all right?” The witness answered “no” at which point the prosecutor led the witness into stating that she is not comfortable talking in public about the subject matter of her testimony. (44 RT 7873.) B. Legal Discussion In the instant case, the prosecutor’s pattern of questioning as to the discomfort and nervousnessofthe female witnesses wasclearly an attempt to improperly represent to the jury that the witnesses, most ofwhom had allegedly been assaulted by appellant, had been directly threatened by appellant and were afraid of him. This questioning had additional impact as 214 the jury had already knownthat appellant was charged with attempting to dissuade witness testimony against him. This line of questioning served no relevant purpose. There are instances where such evidence of a witness’s discomfort may be admissible. In People v. Naverette (2003) 30 Cal.4th 458, 506, the witness was fearful dueto the presence ofthe defendant’s girlfriend in the courtroom. The prosecutor madean offer ofproof outside of the presence ofthe jury that the witness had reason to fear this person and this Court held that the evidence wasrelevant to the witness’s credibility. Similarly, in People v. Avalos (1984) 37 Cal.3d 216, 232, this Court limited this sort of testimony to situations where the jury observed that the witness was hesitant or reluctant totestify. There was no specific reason offered for such evidencein this case. The questioning about the witnesses’ “feelings” occurred in the beginning of their testimony. Seven separate witnesses were encouraged by the prosecution to create this aura of danger, intimidation and menace emanating from appellant. There was nothing in the record to indicate that these witnesses were having any problemstestifying truthfully because of their “nervousness.” None of the witnesses exhibited any confusion born of trepidation or fear. 215 I acleeaenateeivntaRtaRemolndeARENARAREIETI fet tet ce = cuteepPRSSABMDOTEiINE Roarmeen tas + fn en Witnessesare typically “nervous.” In addition, very few people enjoy talking about personal sexual matters in open court. It must be assumedthat the prosecutor understood this. Therefore, the only reason for this repeated irrelevant questioning was to improperly influencethe jury. C. Prejudice Yet again, we see the admission of evidence that wasirrelevant for any other purposebut to prejudice appellant by putting him in a bad light. This time, evidence was admitted that had no other purpose than to insinuate that appellant wasstill a risk to the safety of the witnesses. Combined with the other errors, appellant was clearly deprived ofhis right to Due Process of Law underthe Fifth Amendmentofthe United States Constitution. X. THE CUMULATIVE EFFECT OF THE DUE PROCESS VIOLATIONSIN THE GUILT PHASE REQUIRES REVERSAL OF THE JUDGMENT Asstated in Parle v. Runnels (9" Cir. 2007) 505 F.3d 922, 927, “The Supreme Court has clearly established that the combined effect of multiple trial court errors violates due process whereit renders the resulting criminal 216 trial fundamentally unfair.” (See Chambers v. Mississippi (1973) 410 U.S. 284, 302-03.) Chambers madeit clear that the cumulative effect of multiple errors can violate due process even wherenosingleerrorrises to the level of a constitutional violation or would independently warrant reversal. (/d. at 290, n. 3; see also Montana v. Egelhoff(1996) 518 U.S. 37, 53 (stating that Chambersheld that “erroneous evidentiary rulings can, in combination,rise to the level of a due process violation;” see also Taylor v. Kentucky (1978) 436 U.S. 478, 487 n. 15 (“[T]he cumulative effect of the potentially damaging circumstancesofthis case violated the due process guarantee of fundamentalfairness....”); see also Thomas v. Hubbard (9" Cir. 2001) 273 F.3d 1164, 1179 (“In analyzing prejudice in a case in whichitis questionable whether any ‘single trial error examined in isolation is sufficiently prejudicial to warrant reversal,’ this court has recognized the importance of considering ‘the cumulative effect of multiple errors' and not simply conducting ‘a balkanized, issue-by-issue harmlesserror review.’ ” (citing to United States v Frederick (9" Cir 1996) 78 F.3d 1370, 1381.) The judgment must be reversed when this cumulative error caused “substantial and injurious effect or influence on the jury's verdict.” (Brecht v. Abrahamson (1993) 507 U.S. 619, 637.) Appellant has set forth abovethe errors that allowed his jury to 217 ttndo RAIMIMRSAeta decide his guilt of murder on evidence that had absolutely nothing to do with the murder. Tostate that this error had a “substantial and injurious effect on influence on the jury’s verdict” is to understate the effect of the cumulativeerror. Assuch, the judgmentin this case must be vacated. PENALTY PHASE ARGUMENTS XI. THE TRIAL COURT COMMITTED FUNDAMENTAL CONSTITUTIONAL ERROR UNDERTHESIXTH, EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION BY EXCLUDING QUALIFIED POTENTIAL JURORS A. Discussion of the Law Anydiscussion of this argument must begin with the statutory weighing process which sets forth how a California jury determines the punishmentin a death penalty trial. (Penal Code section 190.3.) This Court has subjected this statute to considerable interpretation. However, the nature of the weighing processis set out in CALJIC 8.88. The weighing of aggravating and mitigating circumstances does not mean a mere mechanical counting of factors on each side of an imaginary scale, or the arbitrary assignment of weights to any of them. Youare free to assign whatever moral 218 or sympathetic value you deem appropriate to each andall of the various factors you are permitted to consider. In weighing the various circumstances you determine underthe relevant evidence whichpenalty is justified and appropriate by considering the totality of the aggravating circumstances with the totality of the mitigating circumstances. To return a judgmentof death, each ofyou must be persuaded that the aggravating circumstancesare so substantial in comparison with the mitigating circumstancesthat it warrants death instead oflife without parole. Therefore, it is each individual juror who must makethis decision. This basic maxim of California law leads to the question that is at the center of appellant’s argument. Whatsort of individuals can the trial court exclude from the jury panel on the basis that their personal beliefs preclude them from following this instruction? The answerhas evolved from decisions of the United States Supreme Court and this Court over many years, and clearly demonstrates that the trial court committed reversible error in this case and the judgment below must be vacated. Overforty years ago, in Witherspoonv. Illinois (1968) 391 U.S. 510, the United States Supreme Court made clear that the Sixth and Fourteenth Amendments to the United States Constitution prohibited the prosecution from excluding jurors simply because they opposed capital punishmentor who had conscientiousscruples against inflicting it. Jd. at p. 512.) The High Court expressly rejected the notion that such individuals should be 219 iaeciateeetot StbameES ekaoton excluded because they will frustrate a state’s interest in the legitimate enforcementofits death penalty statute. Ud. at pp.518-519.) Recognizing that the [Illinois statute in question gave the individual jurors wide discretion as to the determination of the penalty, as does California’s current statute (Penal Codesection 190.3), Witherspoon rejected the exclusion ofpotential jurors because ofpersonal opposition to or bias against the death penalty. [w]hen it swept from the jury all who expressed conscientious or religious scruples against capital punishment and all who opposedit in principle, the State crossed the line of neutrality. In its quest for a jury capable of imposing the death penalty, the State produced a jury uncommonly willing to condemn a manto die. It requires but a short step from that principle to hold, as we do today, that a State may not entrust the determination of whether a man shouldlive or die to a tribunal organized to return a verdict of death. Specifically, wehold that a sentence of death cannot be carried out if the jury that imposed or recommendedit was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples againstits infliction. No defendant can constitutionally be put to death at the handsofa tribunal so selected.(/bid.; footnotes omitted.) In Wainwright v. Witt (1985) 469 U.S. 412, the High Court followed Witherspoon’s teachings. The Court stated that the fact that a prospective juror would view with as higher degree of concern and gravity their task, or would be more emotionally involved than other prospective jurors did not indicate that such a juror could not follow the law. (Ud. at 420-421) 220 Further, the Witt Court stated “a juror may not be challenged for cause based onhis views about capital punishment unless those views would preventor substantially impair the performance ofhis duties as a juror in accordance with his instructions and his oath.” (Witt, supra, at p. 420.) Regarding the burden ofproof for such an excusal, citing to Witt, this Court stated in People v. Stewart (2004) 33 Cal.4th 425, 445, that the prosecution, as the moving party, bore the burden of demonstrating to the trial court that this standard wassatisfied as to each ofthe challenged jurors. Thetrial court is in the best position to resolve ambiguities in juror responses and to this end can look to the individual juror’s demeanor and the totality of his voir dire to make the determination as to whether he or she should be excused under the above law. (Darden v. Wainwright) 477 U.S. 1268, 178; Wainwright v. Witt, supra, 469 U.S. at p. 421.) In cases where after proper questioning,a particular juror’s state of “substantial impairment”isstill ambiguous, the trial judge must resolve this ambiguity. Asstated by this Court “On appeal we will uphold thetrial court’s ruling if it is fairly supported by the record, accepting as bindingthetrial court’s determination as to the prospective juror’s true state of mind whenthe 221 io eetaiRehReisheeMthanMMe Rede acta cedars Me 1 ceshe eignTAREEPeakeebay prospective juror has made statements that are conflicting or ambiguous.” (People v. Cunningham (2001) 25 Cal.4th 926, 975 citing to People v. Jenkins (2000) 22 Cal.4th 900, 987.) However, the ambiguity and conflict must exist within the context of the juror’s responses to questioning. This Court in Stewart pointed out that “decisions of the United States Supreme Court and ofthis court makeit clear that a prospective juror's personal conscientious objection to the death penalty is not a sufficient basis for excluding that person from jury service in a capital case under Witt, supra, 469 U.S. 412, 105 S.Ct. 844.” (Stewart, supra, at p. 446.) This Court further cited to Lockhart v. McCree (1986) 476 U.S. 162, 176, in which the Supreme Court clearly stated that “[n]otall those who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they clearly state that they are willing to temporarily set aside their ownbeliefs in deference to the rule of law.” (bid.) The Stewart Court recognized, [T]hat a prospective juror may not be excluded for cause simply becausehis or her conscientious viewsrelating to the death penalty would lead the juror to impose a higher threshold before concluding that the death penalty is appropriate or because such views would makeit very 222 difficult for the juror ever to impose the death penalty. Because the California death penalty sentencing process contemplates that jurors will take into account their own values in determining whether aggravating factors outweigh mitigating factors such that the death penalty is warranted, the circumstance that a juror's conscientious opinions or beliefs concerning the death penalty would makeit very difficult for the juror ever to impose the death penalty is not equivalent to a determination that such beliefs will “substantially impair the performanceofhis [or her] duties as a juror” under Witt, supra, 469 U.S. 412, 105 S.Ct. 844. ..A juror mightfind it very difficult to vote to impose the death penalty, and yet such a juror's performancestill would not be substantially impaired under Witt, unless he or she were unwilling or unable to follow thetrial court's instructions by weighing the aggravating and mitigating circumstancesofthe case and determining whether death is the appropriate penalty under the law. (Stewart at 447.) A trial court’s error in excluding jurors who were not “substantially impaired” pursuant to the above law requires reversal ofthe death penalty, “without inquiry into prejudice.” (People v. Stewart, supra, 33 Cal.4th at 454, citing to Gray v. Mississippi (1987) 481 U.S. 648, 659-667.) B. The Excusalfor Cause of the Following Perspective Jurors Wasa Violation of the Above Law 1. Prospective Juror ShannonBillic a. Questionnaire Responses In her questionnaire, prospective juror ShannonBillic indicated that if “a person killed someone they should serve a life sentence or receive the 223 “2 eMASCIONEAPOICRIRPE HESHOTSTaswo see ten ee ntniatile death penalty.” (XXI CT 6185, Q 37.) On scale of “1-10" with “10" being most in favor of a death penalty law, she rated herself a “9.” (XXI CT 6186, Q 41.) She also stated that the death penalty served a purposein that “people that kill other people should not be let go to do it again.”(XXI CT 6187, Q 48a.) She also said she felt that a life without parole sentence was worse for a defendant (/d. at 49a), but she could be open minded about the imposition of the penalty. (XXI CT 6188, Q 50.) b. Oral Voir Dire Pursuantto the court’s initial questioning, Ms. Billic gave no sign tht she was not qualified to sit on a capital jury. She informed the court that she would automatically vote for a life sentence, unless the crime involved a serial killing. (28 RT 4768-4769.) This statement precipitated a challenge for cause from the prosecutor. (28 RT 4769.) Upon more detailed questioning by appellant’s counsel, Ms.Billic admitted that she really hadn’t given too much thoughtto her prior answer. (28 RT 4771.) She further stated that in a situation such asa child killing or other type of brutal, remorseless killings, she could impose the death penalty even thoughtthere was only one victim. (28 RT 4770-4772.) The following exchange then occurred between appellant’s counsel and Ms.Billic. 224 COUNSEL: JUROR: COUNSEL: JUROR: COUNSEL: JUROR: COUNSEL: JUROR: COUNSEL: Okay. I don't want to changeyourattitudes and viewsaboutit. I just think you didn't have enough information before right now -- Uh-huh. -- is that fair? Okay. BecauseI'll tell you what, in the right case with only one victim it sounds to melike yourset of values says yeah, maybe, in anothercaselife without parole but in this case death penalty, depending on what you hear. True? Yes. What we're trying to find out is if you have an opinion that cannot be changed based on your attitudes and life experiences, because if you comein here andtell us, "Look, no matter what happens, one body, forgetit, life without parole all the time. More than one body,I'll considerit. I don't think you're saying that. I'm willing to listen to the case, I think, before | make my decision. Andright case, you are gonna give the appropriate verdict no matter how it comes down? (Juror nods head.) (28 RT 472-4774.) After somepreliminary questions, the prosecutor’s questioning producedthe following exchange. DA: Now,in the penalty phasethat's a separate trial and I know you wouldlisten, I'm not saying you wouldn't. You're obviously a polite person and you are somebody who wouldlisten, I know you would, no doubt in my mind. But would you seriously consider coming back to a courtroom in a case with only onevictim,not a serial murderer, not a mad bomber,just one adult 225 JUROR: DA: JUROR: DA: JUROR: DA: JUROR: DA: JUROR: DA: JUROR: DA: JUROR: DA: JUROR: DA: feetMetnieataintiatitrettie btmSiesiB victim. Could you seriously consider the death penalty? I would listen to everything that's going on and try to, you know. I know you would listen. There's no doubt in my mind you would listen, but could you consider it? I mean, could you actually see yourself coming to court and saying, “Sir, your sentence is death?” I could considerit but I don't know if I would do it. . Okay. I'd think aboutit. I'd think aboutit. Whenyou say you don’t know if you would do it. That’s I guess where our languagebarrieris. I know you wouldlisten, but-- I would considerit. I don't want you to do it arbitrarily, I wouldn't wantyou to doit that way, but I’m saying if there was evidencethat this crime was aggravated and there wasn’t much evidencethat the crime was mitigated-- Uh-huh. -could you walk into a courtroom and say that the appropriate sentence for this defendantis death? Yes. You could look over at him andtell him that? No. Could you live with it? If I really believed that he wasguilty, he did it, yeah,I could. Okay. And so whatI'm -- I don't know exactly — I’m little confused at what I’m hearing but your questionnaire, you know,kind of confuses me 226 and some ofyour answersdid to the judge because you camein here and you werepretty affirmative about that you couldn't do it unlessit was a Serial murderer. Why did you wantthe judge to know that? JUROR: So he could know how felt. DA: Wasthat to tell the judge potentially you could not be fair? JUROR: Potentially. DA: Okay. Is there that potential that exists? JUROR: Yeah. DA: I just want to make sure -- there's nothing wrong with saying that. If I wassitting in your seat I'd havetotell the judge there’s a good chance I’m not gonna betoo fair to everybody. So that’s a very honest response and werespect that response. Okay. So there is a potential you can’t be fair on this issue, the death penalty issue? JUROR: Yeah. (28 RT 4777-4780.) The prosecutor then continued. DA: Now,given all your answershere, I'm gonna ask you onelast time to make sure. You havesaid it a couple oftimes but I’Il ask again to make sure. There's a good chancein a caselike this that you probably won't be fair in a penalty stage. Fair statement? JUROR: Yes. DA: Tell me if I'm saying your words wrong or misstating what you said. JUROR: That's right. (RT4781-4782.) Appellant’s counsel then recommencedhis questioning. 227 1eaESSAPSRCeeASRPEDANTICa ieeN VSL Feet mEa COUNSEL: JUROR: COUNSEL: JUROR: COUNSEL: JUROR: COUNSEL: JUROR: COUNSEL: JUROR: COUNSEL: JUROR: COUNSEL: JUROR: sate finaSiresetmyuanaa "Fair" is kind of a hard question. Kind of hard to define whatis “fair." I won't use that word, I'm just gonna ask this word. Ifyou are convinced — this is hard for me because Mr. Merrimanis myclient and he’s pled not guilty, but if you are convinced beyond a reasonable doubt heis guilty of the charges, you would vote guilty, wouldn’t you? Yes. The reason is becausethat's the rules we have in our country and that’s yourjob and you haveto make a hard decision and you havelistened to meandin your own mind would havesaid, “I’ve listened to you”-- Yes. -- and the prosecutor has convinced you and that's the way it is. You made the hard decision, you found him guilty, correct? Yes. Now wecomeback in and you take your same seat and we present evidence and the D.A’s convince you based on the law and based on how seriousthis case wasthat the death penalty wasthe right verdict... If you were convinced that the appropriate penalty was death based on the evidence, would you return that verdict? Yes. Now,you see the wordsI used were"ifit's appropriate based on the evidence.” “Fair" can mean different things to different people. Un-huh. HowI think the prosecutor meantit was will you listen to him the same as you wouldlisten to me. Yes. That would befair; right? (Juror nods head.) 228 COUNSEL: JUROR: COUNSEL: JUROR: COUNSEL: JUROR: COUNSEL: JUROR: COUNSEL: JUROR: COUNSEL: JUROR: COUNSEL: JUROR: COUNSEL: JUROR: Would you weigh the evidence according to the rules the judge gave you? Yes. Okay. Wouldn't that be fair? Uh-huh. Okay. Now,ifyou are convincedthatlife without parole is the correct punishment, you would return that verdict, wouldn't you? .- Yes. And you'll notice how I used the words,that's the correct verdict. You would do whatis correct? Yes. Now,again,I'll just end it this way. No oneis asking youto predict this case, okay, no more than they would ask you to predict where you're gonna be five years from now,cause you don't know. Lot of things can happen. True? True. All right. Early next year we're gonnastart with the evidence. You don't know what's gonna happen;true? True. Butif the case convinces you that death is appropriate, even though it's a tough and serious decision,if it's appropriate, what would you do? (No response.) If death is appropriate, what would you do? I would say yesif it was appropriate. (RT4782- 4784 The final round of questioning of Ms. Billic was done by the prosecutor. DA: I'm sorry we're sitting here playing Ping-Pong with you, I feel bad aboutthat, butI'l! ask it this 229 Pons ETAiheEyAManeTeniee A ne ee Saete JUROR: DA: JUROR: DA: JUROR: DA: JUROR: DA: JUROR: DA: JUROR: way because I don't want the words used to be my words, I want them yours. I don't want to put wordsin your mouthatall either. But when you said you potentially could not be fair and thought you would notbe fair, tell me what you meant by that. Well, I really want to hear, you know, everything that's going on in the case before I would make my decision andtry to be asfair as I could be. Right. But when you said you couldn't, you didn't think you could, just tell me what you meantby that when yousaid potentially could not be fair -- and, please, just be open as you can, use your own words, don't use any words we've used at all, don't worry about that-- I know you'll listen and do your best but when yousaid that, just tell me what you thought. Um, I don' t know. Can you say the question again? Remember whenI wastalking to you before and I asked you whenyoutold the judge about that after reading these facts you mentioned about you could only doit in a serial murderercase. You rememberthat? Yes. You weretelling the judge that you couldn't be fair, you thought you couldn't be fair, and you wanted the judge to know that and you agreed with me. Do you rememberthat I just wanted you to know my valuesup front. I appreciate that. Thank you. Okay. You're probably wishing you never opened your mouth now -- (Laughter.) -- but you did. Yeah. 230 DA: JUROR: DA: JUROR: DA: JUROR: DA: JUROR: DA: JUROR: DA Okay. That’s fine. But what I'm getting at hereis this: I asked you then later--I followed up andsaid, "You're telling me" -- I asked you, “Don't let me put words in your mouth" whenI askedit but I said, "There's a good chance you couldn’t be fair to us in this case?" and you said "Yes." You werehonest about that and I appreciate that. Thank you. Uh-huh. But, you know, Mr. Wiksell said you may not have known what those words meant, I may have confused you.I didn't want to do that. My question to you,so it's clear I'm not putting words in your mouth and I understand you completely, is just: Tell me what you meant when yousaid that, when you answeredthat question "yes." Well, it's ‘cause the way I feel about the death penalty and life without parole, I wasn't sure how I could -- if I could be fair, but I think I could be. Now -- so what has changed your mind? Just to let me know. Just -- I just want to hear whatall that's going on before I would decide but I wouldtry to be fair. I know you would. Yeah. I know you would. When you answered earlier that you didn’t think you could be, that’s when my concern comes.It’s okay if— like I told you before, there's a lot of cases I couldn’t be fair on either -- Yeah. -- and as long as we knowthat, I'm fine with that. Okay. It would be bad and uncomfortable for me if I found out whenit was too late because then it would be too late, we couldn't 231 JUROR: DA: JUROR: DA: JUROR: COUNSEL: COURT: DA: JUROR: DA: JUROR: DA: JUROR: talk to you aboutit, we couldn't change anything. Mr. Wiksell would be the same way;if it turned out you weren't fair to the defendant, that would be pretty roughto find that out at the end of the day. Yeah. Andthat's why when youstated it -- we appreciate jurors who speak up early. That's why we doit this way. So whatI'm getting atis that whenyousay you can't be fair, potentially won't be fair and you felt strong aboutit to let the judge know ahead oftime,I'm just asking: Why did you let the judge know? Why did you want us to knowthat? I wanted you to know myfeelings. Okay. I know you'll listen but you think it would be very unlikely, put it that way, that you would ever return a verdict of death in a case like this? Truthfully, yes. Calls for a predisposition. Sustained as to reference to this case. Let me putit this way: In a case with only one victim, it would be very unlikely for you to return a verdict of death? Yes. That's what you meantby not being fair? Yes. Okay. So you would listen and everything like that but at the end of the day it would be very unlikely in a case with one victim that you would ever return a verdict of death? Yes. (28 RT 4785-4788.) Atthe end of the questioning, the court stated that it was “leaning 232 toward excusing” the juror. (28 RT 4789.) Appellant’s counsel strongly . opposed the prosecutor’s challenge, but ultimately the court excused the juror for cause. (28 RT 4789-4795.) c. Analysis of Improper Granting of Challenge It is clear from the questionnaire and the oral voir dire that Ms.Billic did not have any generalized moral compunction against administering the death penalty. At no point did she say its imposition so offended her personal code that she could not in good conscience vote forit. In fact, she self-rated a “9" out of “10" regarding her willingness to see the death penalty imposed. Her answersconsistently reflected a favorable attitude toward said penalty. Shestated that the death penalty serves a purposein that “people that kill other people should not be let go to do it again.” (XV CT 6187.) Asreadily acknowledged by counsel, Ms. Billic was nota terribly sophisticated juror when it cameto the death penalty. While sheinitially told the court that she would only impose the death penalty on “serial murderers” (28 RT 4761), she quickly admitted that she hadn’t given much thought to her “serial killer” answer and that she could impose the death penalty for other brutal, remorseless killings even though it involved only one victim. (28 RT 4770-4772.) However, most importantly, Ms. Billic specifically affirmed that she 233 ertetamceaplSETAEABDLENEERDYee vee SengeAHRPRRMIES hore 6 could “weigh the evidence accordingto the rules that the judge gave you” and, “if appropriate,” return a verdict of death. (28 RT 4784.) Shealso stated that she could walk into the courtroom andstate that the appropriate verdict was death. (28 RT 4779.) Ms.Billic’s above answer madeit clear that she could subrogate any personalbeliefs that she might haveto the rule of law and impose death in this particular case. That wasall that was required to qualify hertosit according the law as fully set forth in Section A of this Argument. The prosecutor attempted to employ Ms.Billic’s initial statement about the death penalty being reserved forserial killers to get her to state that she could not be “fair” to the prosecution in a case with only a single victim. However, the mostthe prosecutor wasable to do is get an affirmative answer in responseto the leading question that there was a “good chance that you probably could notbe fair in any penalty phase.” (28 RT 4781-4782.) In addition to the above question having one too many modifiers to be a useful barometer of Ms.Billic’s attitude'’, the prospective juror’s affirmative answeris not a disqualifier under the law. As stated above,this Court has madeit clear that “‘a prospective juror's personal conscientious 19. Essentially, what this question asked is whether the juror probably could not be probably fair. Such a question is impossible to answer. 234 objection to the death penalty is not a sufficient basis for excluding that person from jury service in a capital case under Witt.” (Stewart, supra, 33 Cal.4th at 446.) Further, this Court has also madeit clear that “a juror whosepersonal opposition toward the death penalty may predispose him to assign greater than average weight to the mitigating factors presented at the penalty phase may notbe excluded,unless that predilection would actually preclude him from engaging in the weighing process andreturning a capital verdict.” (People v. Kaurish, supra, 52 Cal.3d at 699.) Asstated by both parties, it is evident from the voir dire that Ms. Billic was not a student of the complexities of the death penalty. In fact, it wasapparent from the voir dire that she hardly thought of the death penalty at all before she was summonedbefore the court to do her duty as a juror. (28 RT 4771-4772.) Thefirst time that she was called upon to express her beliefs was in the questionnaire where she stated an unconditional support of the death penalty. She did not qualify that support with any commentthatit should be limited to serial killers. Her initial commentas to possibly limiting a death verdictto serial killers was immediately modified upon additional questioning, in which she readily admitted that she could impose the death penalty in “brutal, remorseless killings.” As the voir dire progressed and Ms.Billic became more familiar with the process, she continued to makeit 235 clear that she could listen to the evidence, apply the law as given by the court and impose the death penalty, if appropriate. (28 RT 4783-4784.) It cannot be said that this murder wasprojected as anything bututterly brutal and completely remorseless. It was precisely the type of crime for which Ms.Billic clearly stated she could imposethe death penalty. This Court has made it clear that the standard that must be used to determine eligibility to serve under Witt is whether the prospective juror would be impaired given the general facts of the specific case before her. (People v. Butler (2009) 46 Cal.4th 847, 859-860.) Butler, in part, discussed how much a prospective juror should be told about the facts of the case in an effort to ascertain whether the juror’s personal beliefs create a substantial impairment under Witt. The Butler Court reiterated that while questions about the specific facts of the case that invite prejudgment or educated the jury as to the facts of the case should not be asked,the trial court “must probe prospective juror’s death penalty views to the general facts of the case.” (Butler at 859-860 citing to People v. Earp (1999) 20 Cal.4th 826, 853.) The Butler Court then held, Reconciling these competing principles dictates that death-qualification voir dire must avoid two extremes. On the one hand,it must not be so abstract thatit fails to identify those jurors whose death penalty views would prevent or substantially impair the performanceoftheir duties in the case 236 being tried. On the other hand, it must not be so specific that it requires the prospective jurors to prejudge the penalty issue based on a summary of the mitigating and aggravating evidencelikely to be presented. [Citation omitted] In deciding whereto strike the balancein a particular case, trial courts have considerable discretion. [Citations omitted.] Unlike Butler, this was not a case where the issue wasthe limitation on defense counsel’s voir dire based upon the above principles. However, this Court did makeit clear that the decision as to whethera jurorcansit as a juror on death cases must be based upon the general facts of the case in question, not upon someunrelated or overly generalized set of facts. There was no ambiguity, whatsoever, as to whetherthis juror could impose the death penalty in a case such as this according to the United States Constitution as interpreted by the United States Supreme Court and this Court. The prosecutor’s attempt to characterize Ms.Billic as being “unfair” to his causeis legally irrelevant. A prospective juror does not have to be “fair,” meaning unbiased, as she wouldin a guilt phase trial. The above law makesit clear that a death penalty juror can even be unequivocally opposed to the death penalty and haveanattitude thatwill makeit “very difficult” for the prosecutor to convince herto find for death and still qualify under the Witt standard. (People v. Stewart, supra, 33 Cal.4th 446.) Removal of such a juror violates the mandate of the United 237 saSoAEASPETRRSOUALISSABOMERCAit MLEAON)tha ae EN gt Re ment States Supreme Court that a penalty jury must not be organized for a finding of death by excusing prospective jurors who personally opposeit. In excusingthis juror, the court said that she “swayed with the wind” and granted the prosecutor’s challenge because ofher “general reluctance” to impose the death penalty in a single victim case. (28 RT 4793) The court committed clear error. There apparently was no concern on the part of the court as to whether Ms. Billic was capable of setting her personal beliefs aside in a single victim case and follow the law. The concern wasthat she would have a general reluctance to do so. Underthe abovestate law and facts, both Ms. Billic and the appellant were entitled to that reluctance under the United States Constitution as interpreted by the United States Supreme Court. The facts as clearly set forth in the record of this case makeit clear that this juror unambiguously stated that she could apply the law as set forth by the court as to the imposition of the penalty. As such, there was no “substantial impairment”according to controlling authority. If the court felt that there was any ambiguity, it was its affirmative duty to clear up any misunderstanding by making appropriate inquiry as the only approved standard: whetherthis juror could set aside any personal beliefs and could carry out her duty without “substantial impairment.” (See 238 People v. Martinez (2009) 47 Cal. 4" 399, 425-427.) _ Nosuch inquiry was made.Ms. Billic was excused not because she wassubstantially impaired but because she wasn’t a devotee of the death penalty in single victim cases. By excluding this juror from the panel, the trial court did exactly what Witherspoon, Witt, and Stewart specifically forbade. As such, appellant was deprived of due process in the penalty phase and the death judgment must be vacated. (Gray v. Mississippi, supra, 481 U.S. 661.) 2. Prospective Juror Bill Tallakson a. Answersto Questionnaire Mr. Tallakson stated in his written questionnaire that “I oppose the death penalty.” (XV CT4372.) When askedto rate himself from “1-10" with “10" being strongly in favor of having a death penalty law”and