PEOPLE v. LOPEZ

Appellant’s Reply Brief

Cal.January 25, 2013

‘SUPREME COURT ll " ‘COPY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA 0 , | ) PEOPLE OF THE STATE OF CALIFORNIA, ) No. 8099549 ) Plaintiff and Respondent, ) Alameda County ) Superior Court V. ) No. H-28492A ) SUPREME COURT MICHAEL AUGUSTINE LOPEZ, ) FILED ) Defendant and Appellant. ) JAN 25 2013 Frank A. McGuire Clerk APPELLANT’S REPLY BRIEF . Deputy On Automatic Appeal from a Judgment of Death Renderedin the State of California, Alameda County (HONORABLE PHILIP V. SARKISIAN, JUDGE,ofthe Superior Court) MICHAELJ. HERSEK State Public Defender EVANYOUNG Cal. State Bar No. 112201 SeniorDeputy State Public Defender 1111 Broadway, 10" Floor Oakland, California 94607 Telephone: (510) 267-3300 Attorneys for Appellant DEATH PENALTY IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, No. S099549 Plaintiff and Respondent, Alameda County Superior Court V. No. H-28492A MICHAEL AUGUSTINE LOPEZ, Defendant and Appellant. N e e e e e e e e e e e e S e S S ” APPELLANT’S REPLY BRIEF On Automatic Appeal from a Judgment of Death Renderedin the State of California, Alameda County (HONORABLEPHILIP V. SARKISIAN, JUDGE,ofthe Superior Court) MICHAEL J. HERSEK State Public Defender EVAN YOUNG Cal. State Bar No. 112201 Senior Deputy State Public Defender 1111 Broadway, 10" Floor Oakland, California 94607 Telephone: (510) 267-3300 Attorneys for Appellant II. TABLE OF CONTENTS Page APPELLANT WAS DEPRIVED OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A RELIABLE GUILT AND PENALTY DETERMINATION UNDER THE FIFTH, EIGHTH AND FOURTEENTH AMENDMENTSBY THE ADMISSION OF UNRELIABLE STATEMENTS AND TESTIMONY BY THE PROSECUTION’S TWO CHILD WITNESSES ....... 2 A. Introduction 20... . cece ccc eee nnn nee 2 B. The Trial Court’s Rulings Denying Appellant’s Motions to Exclude the Children’s Testimony Were Erroneous Because the Trial Court Failed to Make a Determination of the Witnesses’ Personal Knowledge Under Evidence Code Section 702 and Because the Record Does Not Support a Finding of Personal Knowledge .............. 4 l, The fatal blow... 0.02... 2c eee ee cee ees 8 2. Lewdandlascivious conduct ...............00. 14 3. The “diaper bruise”... 0... 0. eeeee es 18 C. Due Process Considerations of Reliability and Trustworthiness of Evidence Require an Adequate Determination by the Trial Court of a Witness’s Personal Knowledge Before the Witness Testifies ....... 19 THE EVIDENCEIS INSUFFICIENT TO SUPPORT THE FIRST DEGREE MURDER CONVICTION OR THE SPECIAL CIRCUMSTANCEFINDING OF TORTURE MURDER 1.0.0.0... ccc ceceenn e ee eaes 22 A. Lack of Substantial Evidence of Deliberate Premeditated Murder .............. 0.0. c ee ecueeeees 22 1. Insufficient evidence of planning ............... 22 HI. IV. TABLE OF CONTENTS Page 2. Insufficient evidence of motive ................ 24 3. Insufficient evidence of manner of killing ........ 24 B. Lack of Substantial Evidence of Murder by Torture ...... 25 C, Lack of Substantial Evidence of Felony Murder ......... 30 D. The Record Contains Insufficient Evidence to Support a True Finding of the Torture-Murder Special Circumstance... 1... cece eee eee renee es 35 THE PROSECUTION FAILED TO ADDUCESUFFICIENT CREDIBLE, RELIABLE EVIDENCE TO SUPPORT THE CONVICTION FOR FORCIBLE LEWD AND LASCIVIOUS ACTS ON A CHILD UNDER 14 AND THE GREAT BODILY INJURY ENHANCEMENT....... 2.0.00 eect eee 36 A. Evidence ofthe Injuries to the Genital Area is Insufficient to Support a Finding that Appellant Committed a Lewd and Lascivious Act..............4. 36 1. Genital laceration ........- 0. ccc eee eee ee eens 36 2. Genital bruising ... 2... . ccceee 41 B. The Record Contains Insufficient Evidence That Appellant Inflicted Ashley’s Genital Injuries ........... 43 THE ERRONEOUS ADMISSION OF IRRELEVANT AND INFLAMMATORY EVIDENCE THAT APPELLANT BROKE SABRA BARONI’S LEG AND THREATENED TO KILL HER RENDERED APPELLANT’S TRIAL FUNDAMENTALLY UNFAIR AND REQUIRES REVERSAL OF THE CONVICTIONS AND DEATH SENTENCE .............45. 44 il VI. VII. VIII. TABLE OF CONTENTS A. The Trial Court Abused Its Discretion In Admitting Evidence of Sabra’s Broken Leg .................4.. B. The Trial Court’s Error In Admitting Evidence Of Uncharged Criminal Conduct Was Prejudicial And Requires Reversal Of Appellant’s Convictions And Death Sentence ........ 0.0... cee eee eee eee eens THE TRIAL COURT COMMITTED REVERSIBLE ERROR, AND DENIED APPELLANT HIS CONSTITUTIONAL RIGHTS, IN FAILING TO REQUIRE THE JURY TO AGREE UNANIMOUSLYON THE THEORYOF FIRST DEGREE MURDER 0...cen THE TRIAL COURT PREJUDICIALLY ERRED, AND VIOLATED APPELLANT’S CONSTITUTIONAL RIGHTS, IN INSTRUCTING THE JURY ON FIRST DEGREE PREMEDITATED MURDER AND FIRST DEGREE FELONY MURDER BECAUSE THE INFORMATION CHARGED APPELLANT ONLY WITH SECOND DEGREE MALICE MURDERIN VIOLATION OF PENAL CODE SECTION 187 2.0... eeeeeeee e ees THE TORTURE-MURDER SPECIAL CIRCUMSTANCE FAILS TO PERFORM THE NARROWING FUNCTION REQUIRED BY THE EIGHTH AMENDMENT AND FAILS TO ENSURE THAT THERE IS A MEANINGFUL BASIS FOR DISTINGUISHING THOSE CASES IN WHICH THE DEATH PENALTY IS IMPOSED FROM THOSEIN WHICH ITIS NOT 2...eecee CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION AND INTERNATIONAL LAW . iii Page » 45 . 49 . 56 _ 57 . 59 .. 60 IX. TABLE OF CONTENTS Page THE TRIAL COURT IMPROPERLY COERCED A DEATH VERDICT BY REFUSING TO ADDRESS MULTIPLE ASSERTIONS OF DEADLOCK AND FAILING TO DISMISS A JUROR WHO COULD NO LONGER FUNCTION PROPERLY AND IMPARTIALLY ............. 61 A. The Trial Court’s Responses and Failure to Respond to the Jurors’ Multiple Declarations of Deadlock and Concerns About Their Personal Circumstances Were COCICIVE 2. eeee eens 62 The Trial Court’s Refusal to Discharge a Juror Who Had BecomeIncapacitated and Requested to Be Taken Off of the Case Denied Appellant His Right to Trial By a Fair and Impartial Jury ......... 0.0... eee eee 64 THE TRIAL COURT’S RESPONSE TO THE DELIBERATING JURORS’ QUESTION ABOUT EVIDENCE OF ACTS OF VIOLENCE COUPLED WITH THE PROSECUTOR’S ARGUMENT ALLOWED THE JURORS TO CONSIDERIN THEIR PENALTY DETERMINATION EVIDENCE THAT WAS NOT ADMISSIBLE AS AGGRAVATION AND WHICH THEY WERE NOT REQUIRED TO FIND TRUE BEYOND A © REASONABLE DOUBTIN VIOLATION OF APPELLANT’S STATE AND FEDERAL RIGHTS ............ 0.0.0.0 0000 68 A. The Trial Court’s Response to the Jury’s Question and the Prosecutor’s Argument Were Misleading and EITONeOUS .. 0...eeeeeeene 68 The Jury’s Penalty Determination Was Not Properly Confined to Consideration of Aggravating Evidence Under the Statutory Factors and Instances of Violent Criminal Activity that Were Proved Beyond a Reasonable Doubt .. 72 1. Allegations of violent acts against Sabra from the guilt phase... 1...eeeee 72 iv Page 2. Evidence of Sandra Harris’s allegations from the guilt phase 1.1... ... ee eee ee eee 74 3. Violent Acts Against Donna Thompson Not Listed in CALJIC No. 8.87 1.0... 0... cee eee 75 C. The Jury’s Improper Consideration ofNonstatutory Aggravating Evidence and the Trial Court's Failure to Give a Reasonable DoubtInstruction Asto Incidents of Alleged Criminal Activity Constitute Prejudicial Error ... 76 XI. THE PROSECUTOR COMMITTED PREJUDICIAL MISCONDUCT AT THE PENALTY PHASE WHEN HE IMPROPERLY REFERRED TO APPELLANT’S LACK OF REMORSEAND FAILURE TO TESTIFY ............... 78 A. The Prosecutor Impermissibly Commented on Appellant’s Failure to Testify at the Penalty Phase ....... 78 B. The Prosecutor’s Comments Violated Appellant’s Constitutional Rights and Were Prejudicial ............ 79 XI. THE ADMISSION OF EVIDENCE THAT APPELLANT COMMITTED WELFARE FRAUD WAS IMPROPER REBUTTAL AND VIOLATED APPELLANT’S STATE AND FEDERALRIGHTSTO A FAIR TRIAL AND REASONABLE PENALTY DETERMINATION............. 81 XI. REVERSAL IS REQUIRED BASED ON THE CUMULATIVE EFFECT OF THE ERRORS................ 84 CONCLUSION ..... 00...eetnee ees 85 CERTIFICATE OF COUNSEL ........ 0. eee eee eee eee 86 TABLE OF CONTENTS TABLE OF AUTHORITIES Page(s) FEDERAL CASES Allen v. US. (1896) 164 U.S. 4920.eens64 Chapmanv. California (1967) 386 U.S. 182.teenees 50 Donnelly v. DeChristoforo (1974) 416 US. 6372.nente nes 50 Griffin v. California (1965) 380 U.S. 609 2.ceeteens 78, 79 Harrington v. California (1969) 395 U.S. 250 0.eeeene 50 Kennedy v. Louisiana (2008) 544 U.S. 4072.eeetenes 3, 20 Krulewitch v. United States (1949) 336 U.S. 440 0.eeeeee eens 52 New Hampshire v. Maine (2001) 532 U.S. 742 0...eeeeee nts 65 Old Chiefv. U.S. (1997) 519 U.S.172 2.0enenee 55 Russell v. Rolfs (9Cir. 1990) 893 F.2d 1033 20... cece eeeee 65 Schneble v. Florida (1972) 405 U.S. 427 0.eeetenes 50, 51 Tucker v. Catoe (4Cir. 2000) 221 F.3d 600.0... eeeeee tenes 64 vi TABLE OF AUTHORITIES Page(s) U.S. v. McElhiney (10" Cir. 2001) 275 F.3d 928.0... ccc ce eect eens 64 STATE CASES People v. Alcala (1984) 36 Cal.3d 604 2...ceeene 22 People v. Anderson (1968) 70 Cal.2d 15 2.eeeete ene 22, 24 People v. Anderson (1987) 43 Cal.3d 1104 2...cette50 People v. Anderson (2001) 25 Cal.4th 543 2.ceeens 5, 6, 9, 13 People v. Aponte (N.Y.App.Div. 2003) 306 A.D.2d 42 2...cece eee 64 People v. Avalos (1984) 37 Cal.3d 216 0...eeceeteens 46 People v. Bell (2007) 40 Cal.4th 582 2...ee eee Lede c eee eee nee eee 62 People v. Bender (1945) 27 Cal.2d 164 oo...teennea 24 People v. Brooks (1979) 88 CalApp.3d 180 2... ce ceee eens 45 People v. Burgener (2003) 29 Cal.4th 833 2...eetenes 51 People v. Collins (2010) 49 Cal.4th 175 2...cete tenes 65 - Vii TABLE OF AUTHORITIES Page(s) People v. Crandell (1988) 46 Cal.3d 833 oo...cccee eee e ntti 48 People v. Crayton (2002) 28 Cal.4th 346 2...eeeres 48 People v. Crittenden (1994) 9 Cal.4th 83 oeeetes 78,79 People v. Davenport (1985) 41 Cal.3d 247 1...eeeeee ees 26 People v. Dellinger (1984) 163 Cal.App.3d 284 0.0... ceeeet eens 53 People v. Dennis (1998) 17 Cal4th 468 oo.ettenes 2,19 People v. Gonzales (2011) 51 Cal.4th 894 2...ceeeee tne 27 People v. Guerrero (1976) 16 Cal.3d 719 20...eeeee teens 52, 53 People v. Guiuan (1998) 18 Cal.4th 558 2...eeeeens 57 People v. Gutierrez (2002) 28 Cal.4th 1083 2... eiceceeens 33 People v. Hamilton (1961) 55 Cal.2d 881 1...eeetenets 52 People v. Hill (1992) 3 Cal.4th 959 octeteens 1 vill TABLE OF AUTHORITIES Page(s) People v. Jablonski (2006) 37 Cal.4th 774.00.eteenn eens 64 People v. James (1987) 196 Cal.App.3d 272 20...ccccnt nes 28 People v. Jennings (2010) 50 Cal.4th 616 2... ccc cece eee e neces 29 People v. Killebrew (2002) 103 Cal.App.4th 644 2.0... ccccee neees 32 People v. Lasko (2000) 23 Cal.4th 101 2...eeeeee teens 24 People v. Lewis (2001) 25 Cal.4th 610...kceee eee nes 70, 71, 76, 78 People v. Lewis (2001) 26 Cal.4th 334 2...eee2, 6, 9, 10 People v. Lohbauer (1981) 29 Cal.3d 364 2.cece teen t eens 57 People v. Marquez (1994) 28 CalApp.4th 1315 0...eeeee 43 People v. Martinez (1995) 11 Cal.4th 434 Joo.ccene e en eee 42 People v. Mendoza (2011) 52 Cal.4th 1056 2...cccteens 45 People v. Mincey (1992) 2 Cal.4th 408 2.0...eeeete eens 29 ix TABLE OF AUTHORITIES Page(s) People v. Olguin (1994) 31 CalApp.4th 1355 2.ceeeee 46, 47 People v. Paniagua (2012) 209 Cal.App.4th 499 oo...eees 47, 48 People v. Pensinger (1991) 52 Cal.3d 1210 2...ceeces 24, 25, 27 People v. Proctor (1992) 4 Cal.4th 499 oo.ceenee nes 28, 29 People v. Ramos (1997) 15 Cal.4th 1133 2...ceeens 81 People v. Rodriguez (1986) 42 Cal.3d 730 2...eeeen nee 62 People v. Sakarias (2000) 22 Cal.4th 596 0...eeeeeens 33 People v. Sandoval (1992) 4 Cal.4th 155 2...cetee eens 62 People v. Sandoval (2007) 41 Cal.4th 825 1.ceecents 48 People v. Scheid (1997) 16 Cal4th 1]...eeeteens 46 People v. Schmeck (2005) 37 Cal.4th 240 2...ceeeens 59, 60 People v. Siripongs (1988) 45 Cal.3d 548 2...cceee nee 81, 82 TABLE OF AUTHORITIES Page(s) People v. Steger (1976) 16 Cal.3d 539 2.eeeeen eens 28 People v. Thompson (1990) 50 Cal.3d 134 2...cneteens 34 People v. Thompson (2010) 49 Cal.4th79...teeee nes 65, 66 People v. Toro (1989) 47 Cal.3d 966 20...ceeteen e nen ee 57 People v. Tuilaepa (1992) 4 Cal.4th 569 2.ceceeens 74 People v. Valdez (2012) 55 Cal.4th 82 ccece e teens 45 People v. Walkey (1986) 177 Cal.App.3d 268 20.0... eecteee 26, 27, 28 People v. Whisenhunt (2008) 44 Cal.4th 174 2...eects 23, 25 People v. Williams (1997) 16 Cal.4th 1532eeeeens 46 People v. Williams (1999) 21 Cal.4th 335 2...eeteens 57 People v. Yeats (1984) 150 Cal.App.3d 983 2.0...ceeet eens 45 People v. Zambrano (2007) 41 Cal.4th 1082 2...cee7,79 xi TABLE OF AUTHORITIES Page(s) State v. Williams (S.C. Ct. App. 2001) 344 S.C. 260 oo.eee64 CONSTITUTIONS U.S. Const., Amends. VILoeee ees 21 XIV oo.eeees 21 STATE STATUTES Evid. Code, §§ 352 cette eee passim TOL cic cece ee eee passim T02 Lice ccc eee ees passim T80 occ cece cece eee eens 51 Pen. Code.§§ 187 eee cece ee eeeeeeeeaeeenes 57 190.2... cece eee eee eee 72 190.3... cece eee eee 68, 69, 72 288, subd.(b)(1) ........... 14, 30, 42 5 1259 Lice cee eens 56 12022.8 0... ccc eee eee eee 14 JURY INSTRUCTIONS CALJIC Nos. e71 8.87ceeeee passim 10.42 .o cece cee ee ees 42 xii IN THE SUPREME COURT OF THE STATE OF CALIFORNIA Defendant and Appellant. ) PEOPLE OF THE STATE OF CALIFORNIA,) ) Plaintiff and Respondent, ) No. 8099549 ) v. ) Alameda County ) Superior Court MICHAEL AUGUSTINE LOPEZ, ) No. H-28492A ) ) ) APPELLANT’S REPLY BRIEF In this reply, appellant addresses specific contentions made by respondent, but does not reply to arguments that are adequately addressed in his opening brief. The failure to address any particular argument, sub- argumentor allegation made by respondent,or to reassert any particular point madein the openingbrief, does not constitute a concession, abandonmentor waiver ofthe point by appellant (see People v. Hill (1992) 3 Cal.4th 959, 995, fn. 3), but reflects appellant’s view that the issue has been adequately presented andthepositions ofthe parties fully joined. // // I. APPELLANT WASDEPRIVEDOF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A RELIABLE GUILT AND PENALTY DETERMINATION UNDERTHEFIFTH, EIGHTH AND FOURTEENTH AMENDMENTSBY THE ADMISSION OF UNRELIABLE STATEMENTS AND TESTIMONY BY THE PROSECUTION’S TWO CHILD WITNESSES A. Introduction Beforetrial appellant squarely challenged admission of testimony by six and a half-year old Sabra Baroni and almost five-year-old Michael ~ Lopez, Jr. as lacking their personal knowledge under Evidence Codesection 702.! (5 CT 1117.1-1117.6 [Sabra]; 5 CT 1140-1144 [Michael Jr.] 38 RT 2686-2688.) The trial court refused to hold a hearing as to Sabra and instead relied on the finding of the magistrate that she was competent to testify under section 701, and deemed MichaelJr. qualified to testify only after denying trial counsel the opportunity to question him abouthis personal knowledge.’ Respondent defendsthetrial court’s actions by claiming that the court properly consideredthe issue of personal knowledge and made ' All further statutory references are to the Evidence Code unless otherwise noted. 2 Respondent repeatedly, and erroneously, refers to appellant’s motionsin the trial court as challenging the children’s “competence.” (RB 23-24.) As noted by this Court in People v. Lewis (2001) 26 Cal.4th 334, “Although many, including defendant, have referred to a witness’s capacity to perceiveandto recollect (Evid. Code, § 702) as an issue of competency to testify, the term “competency”is more precisely referring to a witness’s qualification to testify under Evidence Codesection 701, subdivision (b). (d. at p. 356, fn. 4, citing People v. Dennis (1998) 17 Cal.4th 468, 525.) appropriate findings. (RB 23-43.) In respondent’s view, once that happened, it was up to the jury to decide whetheror not to believe the children. Appellant’s claims, according to respondent, are simply disagreements with the jury’s verdicts. (RB 39, 40-41.) Asset forth below, however, respondent’s arguments should be rejected for several reasons. First, respondent misconstruesthetrial court’s ruling as finding personal knowledge when,in fact, no such finding was made. Next, respondent mischaracterizes appellant’s claim as simply quarreling with the verdict and complaining only about leading questionsat trial. (See RB 32.) Respondent misreads the law on personal knowledge by equating capacity and opportunity to observe events with having actually observed them. Respondent ignores those parts of the record that demonstrate a lack of personal knowledge while at the same time misusing the record by equating the children’s trial testimony that appellant injured Ashley with personal knowledgeofthis fact, i.e., that they observed appellant injure Ashley. Significantly, respondent fails to address the substantial problems with the reliability of child witness testimony resulting from suggestive interview techniques, which the high court recognized in Kennedy v. Louisiana (2008) 544 U.S. 407, 443. As a result, respondent also avoids responding to appellant’s claim that the trial court has, or should have, a gatekeeping role regarding admission of such child testimony, something that has been acknowledged or endorsed by the courts of atleast six states and instead simply repeats the refrain that the issue is one for the jury to sort out. Becausethetrial court erroneously refused to consider appellant’s objection to the children’s testimony on the groundthat they lacked the requisite personal knowledge, the court also failed to addressthe effect of 3 the extensive suggestive questioning to which both children were exposed on the question of their personal knowledge. Thetrial court’s errors in failing to properly considerthe direct challenge madeto the children’s testimony,i.e., that they did not witness the events about which they were called upon totestify, but were merely repeating what they had beentold by others, resulted in the admission of highly unreliable evidence in violation of the due process clause of the Fourteenth Amendment andthe heightened reliability demanded by the Eighth Amendment. B. The Trial Court’s Rulings Denying Appellant’s Motions to Exclude the Children’s Testimony Were Erroneous Because the Trial Court Failed to Make a Determination of the Witnesses’ Personal Knowledge Under Evidence Code Section 702 and Because the Record Does Not Support a Finding of Personal Knowledge By refusing to conductan inquiry into the personal knowledgeofthe two very young children upon whosetestimony the entire prosecution case rested, the court failed in its most basic gate keeping functionattrial, which is to ensure that only reliable evidenceis presentedto the jury. Respondent misstates the record by claiming that the trial court found “the children’s testimonyreliable, trustworthy, and that it was based on their personal knowledge.” (RB 22.) Thetrial court made no such findings. Instead, as to Sabra, the court relied on the magistrate’s determination that she was “qualified”to testify (38 RT 2693), and asto Michael Jr. the court allowed him totestify after he had been questioned only about his understandingof the obligation to tell the truth. (53 RT 3666-3670.) Asset forth at length in the openingbrief, the preliminary hearing transcript makesclear that in ruling on the issue of Sabra’s competence undersection 701, the magistrate did not consider the question ofpersonal knowledge undersection 702. (See AOB 36-39.) For example, 4 when counsel for appellant argued at the preliminary hearing Sabra’s responses madeit impossible to determine what she “observed or what she saw or what happened,” the magistrate did not address counsel’s concern over the apparent lack of personal knowledge, but instead simply reiterated its ruling that Sabra was competent undersection 701 because she understood her duty to tell the truth and she was capable of expressing herself so as to be understood. (4 CT 771-772.) Similarly, at the Penal Code section 403 hearing whentrial counsel sought to explore Michael Jr.’s personal knowledge and attempted to ask him whether anyone had told him whatto say in court, the court cut him off, sustaining the prosecutor’s objection that the question was the subject of cross-examination, rather than pertinent to the issue of the witness’s ability to testify. Hadthetrial court allowed the inquiry, as it should have, Michael Jr. would have admitted, as he did on cross-examination before the jury, that he did not witness his father kill Ashley and that he was only saying what others had told him to say. (53 RT 3680-3681.) That testimony clearly showed that MichaelJr. lacked the personal knowledge that the prosecution wasrequired to show before he wasallowedto testify. Respondent fails to address this point, instead treating MichaelJr.’s admissions on cross- examination solely as impeachmentevidencethat the jurors could “consider in weighing MichaelJr.’s testimony.” (RB 39.) Michael Jr.’s testimony should not have been considered by the jury and should not be considered by this Court, as it was inadmissible under section 702. Respondentoffers no argument whythis is not the case. Instead, citing People v. Anderson (2001) 25 Cal.4th 543, 573, respondentclaims “there was no evidence that the children lacked the ability or opportunity to perceive the events leading to Ashley’s death, and 5 that formedthe basis of their testimony against appellant.” (RB 25.) Respondent’s argumentis based on selective — and inaccurate — reading of Anderson’s discussion of section 702. The portion ofAnderson from which respondent quotesis taken from the Law Review Commission Comments following section 701. The commentdistinguishes the limited capacities addressed in section 701 — to express oneself and understand the duty totell the truth — from the capacities that are involved in a personal knowledge determination under section 702 — to perceive and recollect. As Anderson states, “the capacity to perceive and recollect particular events is subsumed within the issue of personal knowledge.” (People v. Anderson, supra, 25 Cal.4th at p. 573.) While those capacities may be “subsumed”in section 702, they do not define “personal knowledge,” as the language of section _ 702 makes clear. That section does notparallel section 701 and refer to whether the witness is “capable”or “incapable” of perceiving or recollecting; rather, it frames the question as whether the witness “has personal knowledgeof the matter.” In this way, section 702 is about the “actuality” of the witness’s personal knowledge, evenif her “capacity” for such knowledgealso is inherent in the requirement. The “capacity to perceive and recollect particular events” under section 702 requires that the witness have ““‘a present recollection of an 299 impression derivedfrom the exercise ofthe witness’s own senses.’” (People v. Lewis (2001) 26 Cal.4th 334, 356, quoting Cal. Law Revision Com. Com., reprinted at 29B pt. 2 West's Ann. Evid. Code (1995ed.) foll. § 702, p. 300,italics added.) Personal knowledge of an event is what the witness actually perceived, not what she was capable ofperceiving by virtue of physicalability, as the decisions in Anderson and Lewis clearly show. In both cases, this Court did not concludeits analysis of personal knowledge with a finding that the challenged witnesses had the capacity to perceive 6 and recollect, but looked at the evidence in the record supporting a conclusion that they actually did perceive and recollect the matters about whichtheytestified.’ In arguing that the record supports a finding of Sabra’s personal knowledge, respondentpoints to portions of Sabra’s testimonyas proofthat she had personal knowledge of the subjects she was questioned about: ‘Rather than passively or reflexively agreeing with the prosecutor’s questions, Sabra wasspecific in the facts that established her personal knowledge.” (RB 32.) But Sabra’s recollection of some facts does not establish her personal knowledgeasto all the facts to whichshetestified. The requirement of personal knowledgeis related to the “particular matter” about which a witnessis called to testify, not their general competenceas a witness. (People v. Zambrano (2007) 41 Cal.4th 1082, 1140 [“Even if a witnessis not entirely disqualified for incapacity to communicate understandably or grasp the duty to tell the truth, his or her testimony on a particular matter is inadmissible if he or she lacks personal knowledge of the subject matter. (Evid. Code, § 702, subd. (a).)”].) Respondentignoresthis distinction, as shown bythe factthat three of the examples cited involve subjects unrelated to the allegations against appellant, for which there was independent evidence and about which Sabra’s personal knowledge wasnot challenged: the fact that Ashley came to live with her rather than Sabra going to live with Ashley; how many times she had seen Sandra Harris in court; and with whom she wasliving > Exceptfor its citation to Anderson, respondentfails to dispute or even addressthe discussion ofAnderson and Lewis in the openingbrief. (AOB 41-42.) whenshe turnedsix years old.* (RB 32-33.) Sabra was obviously able to easily answer these questions because she actually perceived them. On the central issues ofthe trial, however — whether Sabra saw appellant sexually assault and murder Ashley — the record makesclear that Sabra’s words were not her own. Respondent separately addresses the evidence of personal knowledge for these three areas of Sabra’s testimony — lewd andlascivious conduct allegations, the “diaper bruise”and “the fatal blow.” Appellant will respondto each separately as well. 1. Thefatal blow In the trial court, appellant moved to prevent Sabra from testifying about the circumstances of Ashley’s death because she had been subjected to “brainwashing.. . to the point thatit’s no longer testimony from her personal knowledge.” (38 RT 2688-2690.) Thetrial court denied the motion based on the magistrate’s finding at the preliminary hearing that Sabra was competentto testify under section 701. In the openingbrief appellant set forth at length the preliminary hearing proceedings and showedthat Sabra’s testimony could not support a finding of personal knowledge undersection 702. (AOB 36-41.) Respondentignores the preliminary hearing testimony completely and relies instead on Sabra’s trial testimony to demonstrate her personal knowledgeof the events leading up to Ashley’s death: “Sabra’s testimony established that she was in close proximity when these events occurred since she shared a bed with Ashley.” (RB 32.) According to respondent, Sabra’s own testimony — which is the only evidence that Ashley was thrown * The fourth example cited by respondent, Sabra’s testimony that she saw appellant punch Ashley “in herprivates,” is addressed below in section 3. to the bedroom floor by appellant in the early morning hours of September 4, 1999 — provesthat she personally witnessed the event. According to respondent, “Viewing Sabra’s testimony and reluctant demeanoras a whole, the record demonstrates that she was present and witnessed appellant’s violent murder of Ashley ....” (RB 31.) Beyondthis bald assertion, however, respondent offers nothing to support a finding that Sabra witnessed appellant assaulting Ashley. Instead, respondentreturns to the argumentthat a witness’s “opportunity to perceive events”is sufficient to establish personal knowledge. (See RB 25.) Contrary to respondent’s claim, however, the fact that Sabra customarily shared a bed with Ashley in the room in which she was found in no way proves Sabra’s claim at trial that she witnessed appellant commit the lethal assault. In reviewing the testimony of a witness whose personal knowledge has been challenged, this Court looks at whether the witness’s claim that she waspresent at the events to be recountedis plausible and corroborated. In People v. Anderson, supra, 25 Cal.4th 543, this Court pointed to the “many indicia by which a rationaltrier of fact could concludethat [the witness], despite her specific delusions, was actually present during the Mackey robbery and murder, and had accurately perceived andrecollected those events.” (Id. at p. 574,italics added.) These included details that were unlikely to be known by someone who wasnot present and were corroborated by independent evidence. Moreover, the witness wasable, after a long absence from the city where the victim waskilled to direct authorities to significant locations involved in the crime. (/bid.) Similarly, in People v. Lewis, supra, 26 Cal.4th 334, this Court found noerror in admission of the testimony of a witness of “limited intellectual abilities,” because he knew details of the crime “which were 9 unlikely to be known by anyone not present,” and which were independently corroborated by the evidence. (/d. at p. 357, italics added.) For example, the witness led the police to where the murder weapon,a piece of wood, had been discarded, and the woodpile from which the defendant had procuredit. (Jbid.) In both Anderson and Lewis, the witnesses’ personal knowledge was established not by the opportunity of a witness to perceive events, but by evidence that provided a sufficient basis for finding that the witnesses were actually present at the events about whichthey testified. Here, by contrast, there is nothing beyond Sabra’s trial testimony that establishes her presence at the time ofthe fatal assault. Sabra provided no details that would be knownonly to an eyewitness, i.e., there is no evidence that she was actually present, nor is there independent corroboration of hertrial testimony as to how, when and by whom Ashley waskilled. Respondent accuses appellant of taking “an exceedingly narrow view ofthe term ‘corroboration.’” (RB 41.) While acknowledgingthat “no other witness saw appellant actually inflict the injuries on Ashley,” respondent arguesthat the injuries suffered by Ashley corroborate the children’s testimony: “The nature of the fatal injury was consistent with the attack described by the children, and inconsistent with the various explanations offered by appellant — fall against a dresser, being hit by MichaelJr. with the lid of a toy box.” (RB 42.) In somecases, evidence that the fatal wounds match the witness’s description of how the victim was killed could tend to show that the witness saw the killing, but only to the extent that the description demonstrates that the only source of the information about the mannerofthe killing was witnessing the homicide. Here, however, simply because the fatal injuries are consistent with the story Sabratold attrial does not prove that she witnessed the infliction 10 of the injuries, because Sabra had another source of the information about Ashley’s injuries. Sabra knew that Ashley had severe head injuries from having seen her when appellant, Harris and Strodtbeck wentinto the bedroom that morning and later when she wastold by Detective Koller that Ashley wasbadly injured, and questioned about whohit Ashley on the head. (See Def. Exhs. HH & TT.) The sameis true about how the injuries were inflicted. Respondent notes that both children “testified and either demonstrated, or adopted the demonstration of the manner in which appellant held Ashley over his head before throwing herto the floor.” (RB 42.) Again, respondent’s reasoning is circular: Sabra’s testimony that appellant threw Ashleyto the flooris proofthat she saw the event. This analysis fails to address the critical question in determining personal knowledge — whether she observed the event. By paraphrasing Sabra’s trial testimony, respondenttries to avoid the inescapable conclusion that the words spokenattrial are not her own. For example, respondent claims, “Sabra was in the room whenappellant grabbed Ashley, hiding under the covers because she wasafraid.” (RB 29.) But Sabra did not say appellant “grabbed Ashley,” rather, she simply respondedto a leading question from the prosecutor: “Now do you remember how he held Ashley the night she died?” (51 RT 3521, italics added.) Respondent misstates the record by claiming, “When asked what appellant did, Sabra testified that appellant had thrown Ashley to the ground, repeating her answerthree times before it became audible, and > Trial counsel’s objection that the question assumeda fact not in evidence — Sabra had nottestified that appellant held Ashley — was overruled. (51 RT 3521.) 1] confirming it a fourth time with a nod.” (RB 29.) Sabra wasasked, “Did he do something with Ashley? and she answered “Yes.” Herfirst two responsesto the question “What did he do?” were inaudible and thus were not repeats of her answer. It was only when the prosecutor asked her “What did he do when-heheld herlike this?” while holding the Ashley-doll above his head, that Sabra answered, “Threw her on the ground.” Then the prosecutor threw the doll on the ground and asked Sabraif that was what she saw. She responded by nodding. (51 RT 3522.) Asnoted in the openingbrief, until Sabra was confronted attrial by the prosecutor holding the Ashley-doll above his head and asking herto show him “how Big Mikeheld Ashley the night she died,” she had never said that she saw appellant hold Ashley over his head. (AOB 81.) Nor had she ever before said that appellant threw Ashley to the ground. In addition, whenassessing the source of Sabra’s testimony, the court must also consider MichaelJr.’s testimony that “people”told him that his father picked Ashley up and threw her down’, and that before he took the stand, the prosecutor used the Ashley-doll to show him howto throw it. (53 RT 3677.) It is not unreasonable to assume that Sabra was similarly coached. In the end,the fact that Sabra’s trial testimony matched Ashley’s injuries doesnot prove that she saw how and by whom they wereinflicted. Respondent arguesthat the timing of the injuries also corroborates Sabra’s testimony. (RB 42-43.) Asto the head injuries,’ respondentcites Dr. Crawford’s testimony that the skull fracture was inflicted perhaps as 6 Michael Jr. may have been referring to the meeting when the prosecutorasked him, “Do you remember when your dad cracked Ashley [sic] head and didn’t wake up?”(53 RT 3690.) 7 The timing ofthe injuries alleged to be the result of sexualassaults is discussedin section 2. 12 early as 12-24 hours before Ashley wasseen at the hospital, but more likely within a 5-10 hour period. (47 RT 3303.) Dr. Crawford estimated the head injuries could have occurred within five hours of the first CAT scan, which wasat 1:00 p.m., meaningas late as around 9:00 a.m., hours after appellant had left for work.’ (47 RT 3303, 3338.) The fact that the fatal injury could have been inflicted before appellant went to work does not corroborate Sabra’s testimony, it merely means that she may have had the opportunity to observe the event. As discussed above, however, a witness’s opportunity and capacity to perceive does not demonstrate her personal knowledge, absent evidencethat she actually observed the event. Notonly is there a complete lack of evidence from which a rational jury could find that Sabra “accurately perceived and recollected”the fatal assault (People v. Anderson, supra, 25 Cal.4th at p. 574), what evidence there is points to the opposite conclusion. Neither Sandra Harris nor Laurie Strodtbecktestified the children said anything that morning whenthey got up about having seen appellant enter the bedroom and throw Ashleyto the floor. (43 RT 3065-3067; 58 RT 3915-3917.) That night, when Sabra was questioned by Detective Koller, she said she did not see what happened to Ashley (Def. Exh. HH), and she repeated this when she was questioned at the Calico center five days later. (Def. Exh. TT.) During two hours of testimonyat the preliminary hearing Sabra never said she saw appellant inflict the fatal injuries.’ ® According to his employer, appellant came to work as usual on Friday, June4, starting his shift at 6:00 a.m. and taking a lunch breakat 10:00 a.m. (45 RT 3222.) ° Asnoted in the openingbrief, early in the hearing the prosecutor asked Sabra, “Do you know what happened to Ashley?” Defense counsel’s objection based on a lack of foundation was sustained. (4 CT 716.) After 13 Respondent must rely solely on Sabra’s trial testimony because nothing she said beforetrial supports a finding ofpersonal knowledge ofthe circumstances of Ashley’s death. Anditis only by ignoringthe effects of suggestive pre-trial questioning — discussed further below — that respondent can arguethat thetrial testimony establishes that Sabra witnessed the infliction of the fatal head injury. 2. Lewd andlascivious conduct The evidence offered by the prosecution in support of Count 3, whichalleged a violation of Penal Codesection 288, subdivision (b)(1), and the accompanying great bodily injury enhancement under Penal Code section 12022.8, was Sabra’s trial testimony that at some unspecified time and place she saw appellant making “thrusting” motions with “his privates” and “Ashley’s privates.” (51 RT 3519-3520.) Appellant arguesin the openingbrief that Sabra’s testimonyat the preliminary hearing — upon which the magistrate andthetrial court based their findings that Sabra was competentto testify — was insufficient to establish that Sabra witnessed appellant sexually assault Ashley. (AOB 40- 44.) In response, respondent does nothing more than quote Sabra’s trial testimony that she saw appellant making“thrusting” motions toward Ashley, and makes no attemptto explain how this testimonyestablishes Sabra’s personal knowledgeoftheinfliction of the genital laceration. (RB 26-27.) As discussed in connection with Sabra’s testimony regarding the fatal head injuries, respondent offers no authority to support its claim that a witness’s uncorroborated statements are sufficient evidenceto establish her that, she was asked very few questions about her knowledge of violence committed against Ashley and none directly about whether she sawthe fatal assault. (AOB 40-41.) 14 personal knowledge under section 702, especially whenthereis significant evidence that the witness has been subjected to suggestive questioning. Moreover, respondentfails to acknowledgethat the likely source of Sabra’s trial testimony wasthe prosecutorat the preliminary hearing showing Sabra the motion made while trying, unsuccessfully, to get Sabra to say she had seen appellant assaulting Ashley.'® Indeed, respondentfails to even mention Sabra’s preliminary hearing testimony in which shesaid she did not see this action. (4 CT 743.) The medical testimony wasthat the genital tear was consistent with penetration by a man’s penis within three to seven days before Ashley’s death. (47 RT 3293, 3297.) The prosecution theory at trial was that the injury occurred on Sunday, May 30, between noon and 2 p.m., while appellant was at home with Ashley and Sandra Harris wasat Santa Rita visiting her daughter Nicole. (68 RT 4471, 4476, 4494; see AOB 116.) '° The following exchangetook place at the preliminary hearing between the prosecutor and Sabra: Q: Sabra, did you ever see big Mike holding Ashley like this . (indicating) .. . in front of him? A: (Witness shakes head) The Court: Shaking her head no. : Did you ever see big Mike moving Ashley’s body against him like this . . . (indicating)? | (Witness shakes head) Indicating sort of a back and forth motion — (Witness shakes head) — in the pubic area? : (Witness shakes head) The Court: Shaking her head no. Q: You never saw that? A: (Witness shakes head) “ O P O R O R : (4 CT 743.) 15 The only evidence of how thegenital tear wasinflicted cited by the prosecution was Sabra’s testimony that she saw appellant making “thrusting” movements with his “private parts” toward Ashley’s “private parts.” (68 RT 4500, 4504, 4505-4506.) Respondentgoes along with the prosecutor’s theory in this argument in order to argue that the injury corroborates Sabra’s testimony for purposes of establishing that she saw appellantinflict the genital tear by his “thrusting.” (RB 42 [discussinggenital injury as corroboration of children’s testimony and noting evidence that Ashley was walking awkwardly on Sunday, May 30].) Respondent fails, however, to address the fact that neither Sabra’s trial testimony, nor any other evidence, establishes that she was presentat the time the prosecution claimed appellant attempted to force his erect penis into Ashley’s vagina, resulting in the laceration to the genitalia. On the contrary, Harris said Ashley and Michael Jr. were there when she got home from thejail at 2:00 p.m., but Sabra wasnot, and there was no evidence about when Sabraleft. (60 RT 4016.) As noted previously,in hertrial testimony Sabra did not say when or where she madeherobservations. Moreover, as respondent acknowledgeselsewherein its brief in responseto a different argument, Sabra allegedly told Laurie Strodtbeck that she saw appellant making the thrusting motions“in the middle ofthe night,” meaningthat it could not have been during the day on Sunday. (52 RT 3621.) Indeed, in light of this evidence, in response to ArgumentII, alleging insufficient evidence ofthe allegations of lewd andlascivious conduct as a basis for felony murder, respondent changes course and argues that the “thrusting”incident was “a separate occurrence from the Sunday afternoon incident.” (RB 57-58 [“Since the Sunday incident did not occur at night, the only reasonable inferenceis that this was a second incident”’].) 16 Respondent makes no attempt to explain when the “second incident” might have occurred or how Ashley could have been the victim of a second penetrating assault, but have sustained no correspondinginjury. Nor does respondent acknowledge howthis shift in theory affects its argumentin this claim. If the “thrusting” incident allegedly witnessed by Sabra did not happen on May 30 and wasnotthe causeofthe genital injury, then respondentis forced to speculate about how the injury wasinflicted, without relying on Sabra as a witness, which is completely consistent with her lacking personal knowledge of the matter. This is precisely what happensin the response to ArgumentIII. Reciting the evidencein the record that supports the allegation of forcible lewd andlascivious act in Count 3 and the great bodily injury enhancement, respondentrefers to the testimony of Laurie Strodtbeck, Lupe Murillo, David Smith, and Sandra Harris, but not the testimony of Sabra. (RB 62.) Respondent misstates the record by claiming that “Debra Kavarias [Sabra’s foster mother from January to July 2000]testified to statements made by Sabra regarding her observations of appellant making thrusting motions with his pelvis toward Ashley’s pelvis.” (RB 57.) Kavarias was questioned by the prosecutor: Q: Did you ever ask her whether or not Big Mike had puthis private parts in her private parts, for lack of a better term? A: Yes. Q: What washer responseto that? A: She said no, she said, not to her. Q: Okay. A. But — Q: What did she say? A: She said to Ashley. 17 © Now, did she evertell you how she observed Ashley — > She — when I asked her aboutit, and she said that what she saw or she heard Ashley crying, and that she went andhid, but she never told me — she didn’t tell me that she observed or (52 RT 3613-3614,italics added.) Sabra’s testimony aboutthe alleged “thrusting” incident, untethered to any specific time or place and unsupported by the physical evidence, should not have been presented to the jury. This is especially true in light of the extensive suggestive questioning to which she was subjected, including the demonstration by the prosecutor at the preliminary hearing. Respondent’s complete and unexplained changeoftheories from one argumentto the next demonstrates just how problematic Sabra’s testimony is. In the end, respondent can point to nothing in the record from which a rational jury could find that Sabra was a witness to appellant sexually assaulting Ashley. 3. The “diaper bruise” Aswith the lewd andlasciviousacts, in discussing “the diaper bruise” respondent simply cites Sabra’s trial testimony that she saw appellant punch Ashley “in her privates.” (RB 28.) Again, however, there | is no attempt to establish that this testimony was the product of Sabra’s own observations rather than what she wastold by others. Contrary to respondent’s argument, the nature of the injury does not corroborate Sabra’s testimony. (RB 42.) As discussed in the opening brief (AOB 27), there was medical evidencethat the diffuse area of hemorrhage around the pelvic area and lower abdomen could possibly be a secondary hemorrhage from deep bruising that came outlater from the genital laceration. (47 RT 3314-3315; 56 RT 3809-3810.) Thus, because the “punch”to the diaper area is not the only possible source ofthe injury, 18 Sabra’s alleged observations are not corroborated by Ashley’s condition. Even if one were to consider only the trial testimony, as respondent does, it is abundantly clear from this record that Sabra’s status as the only eyewitness to the events that constituted the allegations of sexual abuse and murder of Ashley, was highly problematic. When viewedin light of the suggestive questioning to which she was exposed from the day of Ashley’s death, up to and including the examination by the prosecutorattrial, the record is clear that Sabra lacked the requisite personal knowledge to allow her testimony to constitute the only evidence to convict appellant of the crimes with which he was charged and whichled to the death sentence in this case. C. Due Process Considerationsof Reliability and Trustworthiness of Evidence Require an Adequate Determination by the Trial Court of a Witness’s Personal Knowledge Before the Witness Testifies Appellant argued in the opening brief that a determination ofa witness’s personal knowledge requiresa trial court to consider the effects of suggestive questioning, especially with child witnesses and whenthereis, as in the present case, ample evidence that the witnesses were subjected to such questioning. (AOB 44-77.) Respondenttreats the question of the taint caused by suggestive questioningasstrictly an aspect of a credibility determination and erroneously recasts appellant’s argument as one of “dissatisfaction with the credibility findings madeby the jury.” (RB 33, 39-40.) Respondentrelies on this Court’s decision in People v. Dennis, supra, 17 Cal.4th at p. 525, but fails to address the distinguishing points about Dennis raised inthe opening brief. (AOB 39-40, 42, 46.) For example, in Dennis, the objection to the child’s testimony was madeonly undersection 701, not on the basis of a lack of personal 19 knowledge undersection 702,as in the present case. Further, in Dennis this Court was not faced with evidence of suggestivenesslike that which exists in the present case. Here, unlike in Dennis, trial counsel directly challenged admission of the testimony of the child witnesses on the groundthattheir testimony wassolely the product of suggestive questioning. These critical differences are ignored by respondent. Moreover, appellant argued that if the decision in Dennis is read to hold that the effects of suggestive questioning are not to be considered as part of the determination of a witness’s personal knowledge undersection 702, and that the determinationis strictly one of credibility, then this Court must reconsiderthe decision in light of the extensive research that such testimony may be immunetothe traditional meansof evaluating credibility. (AOB 46.) Again, respondent offers no counter argument. Respondentalso fails to address appellant’s argumentthat the determination of personal knowledge requires consideration of the effect of the child witness’s exposure to information from outside sources in order to comport with the reliability standards of the due process clause and the Eighth Amendment. Instead, respondentis dismissive of appellant’s argument, describing it as “a generalized assertion that children are not reliable, citing to dicta in the Supreme Court decision of Kennedy v. Louisiana, supra, 544 U.S. at p. 443, noting ‘heightened concerns’ over the reliability of evidence in child rape cases.” (RB 39.) Appellant's argument cannot beso easily dismissed. It was neither general nordid it rely only on the high court’s dicta in Kennedy. Asset forth at length in the openingbrief, courts and legislatures throughoutthe country have recognized and respondedto the well-established body of knowledge about the danger of suggestive questioning of children. (AOB 46-55.) Respondent offers nothing in response, exceptto reiterate its glib 20 and mistaken position that appellant’s claim “comes downto a claim based entirely on credibility determinations made by the jury.” (RB 39-40.) In respondent’s view,the right of cross-examination cures whatever problems may inhere in child testimony that results from suggestive questioning. (RB 33-35, 38-39.) Yet, respondent neither acknowledgesnorrefutes the authorities presented in the opening brief regarding the imperviousness of tainted memories to cross-examination. (AOB 48-50.) Asthe authorities cited by appellant make clear, due process considerations of reliability require that when challenged under section 702, a witness’s personal knowledge must be established before the jury may be permitted to consider the testimony. (AOB 44-45.) Respondent’s refusal to address appellant’s argument in a meaningful way suggests that there is no viable response. In this way, respondent simply sidesteps the serious concernspresented here about thereliability of testimony of young children who havebeen subject to repeated, suggestive questioning. The statements and testimony of Sabra and Michael Jr., which comprise the evidence of appellant’s guilt, lack the reliability demanded by the due processclause of the Fourteenth Amendmentandthe Eighth Amendment. This Court should reverse the convictions and death sentence. // /I 21 Il. THE EVIDENCEIS INSUFFICIENT TO SUPPORT THE FIRST DEGREE MURDER CONVICTION OR THE SPECIAL CIRCUMSTANCEFINDING OF TORTURE MURDER Appellant arguesin the opening brief that the recordis insufficient to sustain the first degree murder conviction based on theories of premeditated and deliberate murder, torture murder, or felony murder, and that there is insufficient evidence of the torture-murderspecial circumstance. (AOB 89-112.) Respondent counters that, while this Court need only find sufficient evidence to support onetheory offirst-degree murder, the record contains sufficientof all three theories. (RB 45-60.) A. Lack of Substantial Evidence of Deliberate Premeditated Murder In the openingbrief, appellant notes that the prosecutornever offered the jury a theory of premeditated and deliberate murder, but also acknowledgesthat the prosecutor’s argumentis not evidence andthe jury may considertheories notoffered therein. (AOB 92.) Respondent argues, and appellant doesnotdisagree,that this is “in no way determinative ofthe sufficiency of the evidence.” (RB 45.) The complete inability of the prosecutorto articulate a theory offirst degree murder is, however, indicative of the lack of such evidencein the record. 1. Insufficient evidence of planning The record contains insufficient evidence to support a finding that the killing was planned, “the most important prong ofthe [People v.] Anderson [(1968) 70 Cal.2d 15] test.” (People v. Alcala (1984) 36 Cal.3d 604, 627.) Respondent dismisses appellant’s argumentthat killing Ashley in front of two witnesses and within earshot of Sandra Harris showsa lack of 22 planning by arguing that appellant obviously assumedthat the children would not be credited as witnesses and that Harris would protect him. (RB 47.) Respondent misses the point, however, whichis that appellant’s actions must be evaluated for what they reveal about his state of mind. Certainly, as respondent argues, appellant could have discounted Sabra and Michaelas credible witnesses, and believed that Sandra Harris would not betray him, but such a calculation takes away substantially from the force of the evidence as indicative of planning. In addition, given that appellant had access to Ashley many other times during the week, had he planned the homicide, he could easily have done it away from any witnesses. The fact that he allegedly chose to kill Ashley when he wasnot alone with her cuts against a finding of planning. (See People v. Whisenhunt (2008) 44 Cal.4th 174, 202 [defendanttaking “deliberate advantage” of mother’s absence indicates premeditation and deliberation].) Relying on this Court’s decision in People v. Whisenhunt, supra, 44 Cal.4th at p. 201, respondent arguesthat the “‘methodicalinfliction’ of injuries and continuing andescalating acts of abuse” that occurred during the week leading up to Ashley’s death support a finding of premeditation and deliberation. (RB 47.) But, as appellant notes in the opening brief in distinguishing Whisenhunt from the present case, missing from this case is a comparable mannerofinflicting injuries, like that by the perpetrator in Whisenhunt who “methodically poured hot cooking oil onto various portionsof [the victim’s] body, repositioning her bodysoastoinflict numerous burns throughout her body, including her genital region.” (Jd. at p. 201; see AOB 97.) In Whisenhunt, that evidence demonstrated the mental state of premeditation and deliberation; respondentoffers nothing to counter the lack of similar evidence in this case. Instead, respondent cites appellant’s failure to act in the face of 23 Ashley’s injuries over the course of the week, which might show neglector recklessness, but fails to explain howthis is indicative of planning for purposes ofproving premeditation and deliberation. (RB 47-48.) Similarly,it is unclear how evidencethat appellant failed to alert Sandra Harris of Ashley’s injuries, but instead put her back in the bed and wentto work,or tried to dissuade Harris from taking Ashley to the hospitalis indicative of planning behavior. (RB 48.) 2. Insufficient evidence of motive Respondent echoesthe prosecutor’s argumentthat appellant’s motive for killing Ashley was because he resented havingher stay at the apartment and considered hera financial burden (RB 48-49), but ignores the fact that the financial aspect of appellant’s objection to having Ashley stay with them was eliminated when he got the money Jesse Lopez had given to Laurie Strodtbeck. (AOB 94.) 3. Insufficient evidence of mannerofkilling Respondentargues, as the prosecutor did, that the mannerofkilling demonstrates appellant’s intent to kill. (RB 49.) As discussed in the opening brief, however,intentto kill alone does not equal premeditation. First degree murder requires a premeditated and deliberate intent. (People y. Bender (1945) 27 Cal.2d 164, 181, overruled on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 110.) Respondentfails to explain which facts about the killing show thatit wasso particular and exacting as to be accomplished accordingto a preconceived design“to take [the] victim’s life in a particular wayfor a ‘reason’ which the jury can reasonablyinfer from facts of [planning or motive].” (People v. Anderson (1968) 70 Cal.2d 15, 26-27.) Respondent cites People v. Pensinger (1991) 52 Cal.3d 1210, for the proposition that “the victim’s young age andresulting inability to defend 24 herself can be considered”in determining premeditation. (RB 49.) In Pensinger, it was not simply the victim’s young age, but the fact that the victim was so young she could not walk or crawl or struggle against the defendant, that was relevant to this Court’s finding that the manner of killing showed premeditation. The defendant, after driving the five-month- old victim to a remote dump, removedher from her car seat and carried her to the place where he then committed various violent acts that led to her death. The vulnerability of the child, which made such actions by the defendant unnecessary, were cited by this Court as evidence supporting an inference that the killing was preconceived. (/d. at p. 1238.) There is nothing analogous about the mannerofkilling posited in the present case. Respondentalso claims this case is similar to People v. Whisenhunt, supra, 44 Cal.4th 174, “in terms of reasoning.” (RB 49.) As previously discussed, however, the “progression of bruises” on Ashley’s body over the course of the week preceding her death cannot be comparedto the pouring of hot oil over specific parts of the victim’s body, as in Whisenhunt. (See ante, at p. 23.) It was the methodical nature of the injuries that raised the inference of premeditation, and is precisely what is missing from the present case. The record contains insufficient evidence of planning, motive or mannerofkilling to support a finding of premeditated and deliberate murder. B. Lack of Substantial Evidence of Murder by Torture Appellant argues in the opening brief that the record contains insufficient evidence of torture based on the failure of the prosecutor to prove that the murder was committed with the requisite wilful, deliberate and premeditated intent to inflict extreme and prolonged pain. Instead, as appellant argues, the record shows that Ashley wasa tragically abused 25 child, but not that she was tortured. (AOB 97-101.) | Respondentrelies first on the condition of Ashley’s body to establish sufficient evidence of the requisite intent to torture. (RB 51.) Listing the injuries to the body, respondentarguesthat the severity of the injuries and the violence required to inflict them demonstrate the intent to inflict cruel suffering. (RB 51-52.) Respondent acknowledgesthat the nature of the victim’s wounds is not determinative of the issue of intent to torture (People v. Davenport (1985) 41 Cal.3d 247, 268), but offers no other circumstances that demonstrate the requisite intent to cause suffering. Respondentarguesthat appellant’s failure to seek medical treatment for Ashley after she was rendered unconscious by the skull fracture and his later attempts to dissuade Sandra Harris from taking Ashley to the hospital demonstrate an intent to cause pain and suffering in addition to death. (RB 54.) Respondentcites no authority for this assertion and fails to discuss the decision in People v. Walkey (1986) 177 Cal.App.3d 268, cited in the opening brief, in which the court rejected a similar argument. (See AOB 102.) In Walkey, the defendant was convictedof the first degree torture murderofhis girlfriend’s two-year-old son who suffered a blunt force trauma woundthatperforated his intestines. The child had various other injuries, including bite marks, a partially healed fractured rib and a large numberof bruises. On the day of the child’s death, the defendant was seen carrying the child who was motionless, unresponsive and wrapped in sheets or a blanket. The defendant bathed the child who was covered with bruises and cuts and was unconsciousor in a depressedstate, yet failed to seek medical attention for the child. (People v. Walkey, supra, 177 Cal.App.3d at p. 275.) The Court of Appeal reversed the conviction, finding insufficient 26 evidence oftorture, despite evidence of the severity of the wounds, which were inflicted over a period of time, testimony that the injuries would have caused the child pain, and evidence that defendant resented having to take care of the child. (People v. Walkey, supra, 177 Cal.App.3d at pp. 275- 276.) The court found that the evidence did not support a finding that appellant’s intent was to cause the child to suffer and thus did not constitute torture. The same reasoning and conclusion apply here. Respondentcites People v. Gonzales (2011) 51 Cal.4th 894, for the assertion that appellant’s “ongoing maltreatment of [Ashley] in the face of her obvious suffering is evidence from which jurors could have inferred an intent to inflict ‘cruel suffering.’” (RB 53.) The four-year-old victim in Gonzales was subjected to habitual torture at the hands of her aunt and uncle, culminating in being held downin a bathtub of scalding water and then burned with a hair dryer. The victim’s body bore signsof injuries consistent with being hung by her neck, handcuffed and beaten with a brush. (People v. Gonzales, supra, 51 Cal.4th at pp. 901-902.) Similarly, in People v. Pensinger, supra, 52 Cal. 3d at p. 1240,also cited by respondent, the cuts inflicted by the defendant on the five-month-old victim were, as described by this Court, “carefully made with a sharp instrument, leaving no jagged edges, and showing no evidenceofeither hesitation or frantic slashing.” (/bid.) There is simply no legitimate comparison betweenthefactsofthis case and those in Gonzales and Pensinger. Respondent’s attempts to analogize the facts of the present case to those cases that involve physical evidence of the most extreme cruelty and sadistic behavior should be rejected. Missing from this case is the additional evidenceofintentto inflict pain for a sadistic purposethat exists in the cases cited by respondent and 27 others in which the torture murder theory has been sustained on appeal. For example, in People v. James (1987) 196 Cal.App.3d 272,the three-year-old victim sustained numerousinjuries, including broken bonesandbruises,in the five monthsleading up to her death. The fatal wounds wereblunt force trauma to the abdomenresulting in significant internal injuries, including a ruptured pancreas, as well as bruises less than 12 hours old over her head and body. (/d. at p. 293.) The Court of Appeal madeclearthat its decision wasnotbased on the death-causing injuries, which were described as “undeniably severe,” but, following the decisions in People v. Steger (1976) 16 Cal.3d 539, and People v. Walkey, supra, 177 Cal.App.3d 268, were not of themselvessufficient to support the torture-murder theory. (Peoplev. James, supra, 196 Cal.App.3d at p. 294.) In addition to the multiple injuries of various ages and the fatal trauma, there was evidence from numerousindividuals whotestified to seeing the defendanttreat the child in an extremely cruel and sadistic manner. This testimony, along with evidencethat the defendant had forced the child to ingest alcohol and tobacco before she died, supported an inference that his intent was to cause the child pain and suffering. (/bid.) Respondentcites People v. Proctor (1992) 4 Cal.4th 499, for the argument that the evidence of “ongoing acts of cruelty inflicted over the course of the week,” supports a finding of cruelty andalso relies on Dr. Rogers’s testimony that, while the cause of death was the skull fracture, the blunt injuries to the body “contributed to the death.” (RB 55.) Proctor, however,is not analogous to this case. The defendant in Proctor argued that the non-lethal knife cuts madeto the victim should not be considered torture because they did not contribute to her death. This Court, in rejecting the argument, notedthat“it is the continuum of sadistic violence that constitutes the torture.” (People v. Proctor, supra, 4 Cal.4th at pp. 530-531, 28 italics added.) As this Court observed, The woundsrevealed that a relatively slow, methodical approach had been employed intheir infliction, rather than their having resulted from sudden, explosive violence. The nature of many of the wounds, including the repeated blows to the face and to other parts of the body, as well as the knife “drag” marks, suggests that they were administered over a substantial period of time and that defendant intended to inflict cruel pain and suffering on the victim. (Id. at p. 532.)!! Again, it is precisely that evidence — of a sadistic intent in the infliction of the injuries — that is missing in the present case. This is starkly demonstrated by respondent’s ownrecitation of the facts in the cases of People v. Jennings (2010) 50 Cal.4th 616, 645 (“evidence of deliberate starvation, ‘along with the evidence of chronic and acute physical abuse’”), and People v. Mincey (1992) 2 Cal.4th 408, 435 (‘the length of time over whichthe beatings occurred, the numberofinjuriesinflicted, the variety of objects with which the injuries were inflicted and the fact that the victim was madeto eat his own feces,’ established the requisite planning to inflict cruel pain and suffering”). (RB 56.) Respondent can pointto no similar behaviorin this case. Respondentarguesthat the “pattern of injuries . .. combined with the lack of any evidence that would support a ‘heat of passion’ argument” '! The “continuum of violence” cited by the court in Proctor included the following: “the victim was subjected to strangulation by two different methods, her wrists were boundsotightly as to cut into her skin, she was beaten in the face severely enough to have caused hereyesto be swollen shut and herlips to be swollen, she received severe blowsto other parts of her body, and she suffered repeated, incision-type stab woundsto her neck, chest, and breast area.” (People v. Proctor, supra, 4 Cal.4th atp. 531.) 29 support a finding that “appellant intended to inflict cruel suffering.” (RB 52.) Beyondthis bald assertion, however, respondentoffers nothing to support the claim. For example, respondentcites the injury to Ashley’s ear, which could have been caused by tearing or squeezing the ear. (RB 51, citing 47 RT 3293-3294,italics added.) In addition, in response to a question bythe prosecutor, Dr. Rogers agreed that the bruising to labia could have been caused by squeezing or pinching. (56 RT 3814,italics added.) In fact, because there was no evidence as to how these two injuries happened, no assumptions can be madeabout the mental state with which they were inflicted. Respondentcan pointto nothingin this case that brings it within the universe of cases in which a finding of torture murder rather than child abuse has been upheld. Despite respondent’s efforts to cast it as something different, in the end the only argument madein support ofa finding of torture is that Ashley suffered painful injuries in the days leading upto the fatal head injury. (RB 51-56.) As the cases discussed here andin the opening brief makeclear, however, that evidence, in the absence ofproofofan intent to inflict pain for a sadistic purpose,is insufficient to support a finding of torture. . C. Lack of Substantial Evidence of Felony Murder In the openingbrief, appellant arguesthat the record lacks substantial evidence that the murder was committed in the perpetration of the felony of lewd andlascivious acts by force under Penal Code section 288, subdivision (b)(1). (AOB 104-110.) The prosecutor’s theory of felony murder appearedto be thateither the felony — a forcible lewd and lascivious act — occurred when appellant was changing Ashley’s diaper on the morningofthe fatal head injury, or the lewd actresulted in the genital laceration, which wasalleged to have 30 occurred the previous Sunday. Respondent contendsthat the genital injury “likely ... occurred on Sunday, May 30.” (RB 57.) Recognizing the problem with having the felony occur five days before the fatal injury was inflicted, respondent’s argument appearsto be that if appellant was molesting Ashley throughout the week before she waskilled, and possiblyfondled her on Friday morning before the fatal head injury wasinflicted, that is sufficient evidence to support a finding of felony murder. This argumentis contrary to both the record and to well settled felony-murder law. In support of the claim that appellant was sexually abusing Ashley, respondent cites Sabra’s testimony that she saw appellant making “thrusting” motions with his private parts toward Ashley’s private parts. As discussed in connection with Arguments I andIII, respondent’s theory of whetherthis testimony correspondsto the genital injury sustained by Ashley changes from argument to argumentin its brief. Here, because Laurie Strodtbecktestified that Sabra told her she saw appellant making the “thrusting” motions at night, respondent adopts the position that Sabra’s observations must have occurred sometime other than Sunday and therefore constitute a “second incident” of abuse. (RB 58 [Since the Sunday incident did not occur at night, the only reasonable inferenceis that this was a second incident”].) In addition to the complete lack of any evidence of a injury associated with this alleged “second incident,” respondentalso cannot connectthis incidentto a specific time, and certainly cannotlink it to the morning whenthefatal injury wasinflicted. Similarly, Dr. Rogers’s testimony that squeezing ofthe genitals could account for darker bruises on the labia and evidence of bruises on the insides of Ashley’s thighs, referred to by respondent (RB 58), may be evidence that Ashley was being abused,there is no evidence that the abuse 31 wasinflicted by appellant, nor that it was associated in any way with the killing for purposesof a finding of felony murder. Finally, respondent opines that based on evidencethat appellant changed Ashley’s diaper in the mornings, even though her diaper was not routinely changed in the morning before she cameto stay with Harris and appellant, the jury could “reasonably find that he continued to fondle Ashley underthe guise of caring for her.” (RB 58.) Respondent’s arguments consist of nothing more than sheer speculation, and “speculation is not substantial evidence.” (People v. Killebrew (2002) 103 Cal.App.4th 644, 661.) Respondent offers no evidence, and indeed there is none, to show that appellant committed a forcible lewd act on the morning of June 4,at the time he allegedly threw Ashley to the floor. Respondentstates, “Since Ashley wascrying just before appellant threw her to the floor, the jury could reasonably have foundthat the fondling occurred that morning,or that appellant at least intended to continue fondling her when he entered the room.” (RB 58-59.) Respondent’s explanation for why Sabra and Michael, whowereallegedly witnesses to appellant’s actions in the bedroom that morning,did not report seeing appellant changing Ashley’s diaperis that they may have beenasleep,or “if they were awake and Ashley began crying whenappellant entered the room, he may have avoided touching Ashley on that occasion.” (RB 58.) According to respondent, either appellant “fondled” Ashley long before the fatal injury — actions that do not constitute a killing during the commission of a forcible lewd act — or appellant “intended”to fondle Ashley, but did not, in which case no felony was committed. Thus, respondent’s argumentis that, even if appellant did not commit a forcible lewd actat the time the fatal injury was inflicted, the fact that he may have 32 molested Ashley at another time during the previous weekis sufficient for a finding of felony murder. Respondentposits two legal theories to support this argument, neither of which is viable. First, respondent arguesthat felony and the killing werepart of “‘one continuoustransaction,” the existence of whichis a jury question. (RB 59, citing People v. Gutierrez (2002) 28 Cal.4th 1083, 1141; People v. Sakarias (2000) 22 Cal.4th 596, 624.) Neither case cited by respondent stands for the proposition that a scenario in whichthe commission of a felony and a killing are separated by a period of days, during which the victim is separated from the defendant, can be deemed a continuoustransaction. In Gutierrez, the victim, Stopher, waskilled in the midst of a burglary of Rose V.’shome. This Court noted, “There is no suggestion that any appreciable time elapsed between the time defendant and Joseph forced their entry into Rose V.’s home and subdued her and defendant’s forcible entry into the master bathroom where he killed Stopher.” (People v. Gutierrez, supra, 28 Cal.4th at p. 1141, italics added.) Here, either the lewd act was committed five days before, as the prosecutor and respondent— at times — argue,orit happened at some other unspecified time in the week before Ashley died. Either way, there was an appreciable period of time between the commission of the felony and the killing, making this case distinguishable from Gutierrez. In People v. Sakarias, supra, 22 Cal.4th 596, the killing took place during a burglary and robbery, many hoursafter the defendants had entered the victim’s house. The issue in Sakarias was whetherthetrial court erred in telling the jury, in response to a question, that if the defendant entered with the intentto steal, the burglary and the killing were part of one continuous transaction. This Court held that the question of continuous transaction is one for the jury, but that the error was harmless. (/d. at pp. 33 623-624.) Sakarias is not relevant. Not only was the jury in the present case not instructed on the issue of continuous transaction, there is no basis for such a finding in a case in which there is a period of several days between the felony andthe killing, during which the victim and the defendant were physically separated and the victim was not otherwise restrained. No evidence supports the theory that the alleged felony and the killing were part of a continuoustransaction. The second theory posited by respondentis that of “continuous control.” According to respondent, “Because Ashley waslivingin his home, she was constantly underhis control, and most certainly was directly underhis control on Friday morning, June 4. Such continuous control can support a finding of felony murder, even wherethere is a break between the underlying crime andthekilling.” (RB 59, citing People v. Thompson (1990) 50 Cal.3d 134.) Thompson,as discussed by appellant in the openingbrief,is completely inapposite. (See AOB 108-109.) The defendant was convicted of felony murder based on the commission of a lewd act and murder of the victim during the course of the same evening, probably within an hour or two of each other. During the entire period, the victim was underthe defendant’s control, and for much of the time waseither bound, locked in a trunk, or both. (People v. Thompson, supra, 50 Cal.3d at pp. 171-172.) Here, of course, the lewdact allegedly occurredfive days before the killing. During that time, appellant went to work and left Ashley with Laurie Strodtbeck and Sandra Harris, as well as other care givers. Under these facts, a theory of continuoustransaction for purposesofthe felony- murderrule is completely untenable. 34 D. The Record Contains Insufficient Evidence to Support a True Finding of the Torture-Murder Special Circumstance For the reasonsset forth in section C., the record contains insufficient evidence to support the special circumstance of torture murder because the prosecution failed to prove that if appellant was responsible for the injuries inflicted on Ashley, it was done with the requisite mental state. / // 35 Hil. THE PROSECUTION FAILED TO ADDUCE SUFFICIENT CREDIBLE, RELIABLE EVIDENCE TO SUPPORT THE CONVICTION FOR FORCIBLE LEWD AND LASCIVIOUS ACTS ON A CHILD UNDER14 AND THE GREATBODILY INJURY ENHANCEMENT Appellantargues that the record contains insufficient evidence that he inflicted the genital injuries that constituted the basis for the finding of forcible lewd andlascivious act and great bodily injury. (AOB 113-127.) Respondent counters with little more than conjecture in an attemptto implicate appellant. A. Evidenceof the Injuries to the Genital Areais Insufficient to Support a Finding that Appellant Committed a Lewd and Lascivious Act As was donein the openingbrief, the two injuries — the genital laceration andgenital bruising — will be addressed separately based on the testimony of the medical doctors, one of whom opinedthat the injuries could have been the result of two separate incidents. (47 RT 3300.) 1. Genital laceration In responseto this argument, respondent abandonsthe claim made in ArgumentI that Sabra was a witnessto the assault that caused the genital laceration andrelies instead on the fact that Ashley was within appellant’s care during the period of time whenthe injury could have beeninflicted, and on Sandra Harris’s observations of Ashley. (RB 61-62.) Respondent’s argumentdistorts the record, ignorescritical facts and in the end fails to demonstrate that appellant was responsible for the injury. Dr. Crawford estimated that the genital laceration occurred “anywhere from threeto five or six or seven days” before Ashley’s death. Healsotestified “I would estimate it as in the order of 72 hours to perhaps 36 as long as a week.” (47 RT 3297.) Accordingto the prosecution theory attrial, which respondent adopts, Ashley sustained the genital laceration on Sunday, May 30, 1999, between the hours of noon and 2 p.m. when she was with appellant while Sandra Harris wasvisiting Nicole at the jail. The prosecutor argued that the laceration was caused by appellant forcing his erect penis into Ashley’s vagina, resulting in what the prosecutor described as a “horrific injury.” (68 RT 4471, 4476, 4494.) No witnesstestified that this happened, and the physical evidence does not support such a scenario. Dr. Crawford described the “area inside of the genitalia area called the posterior fourchette. Basically this area was ripped andtorn,basically, from where her vagina opens, and the tear extends to the margin of her anus right where the sphincter is.” (47 RT 3291-3292.) The object that caused the injury was“inserted very violently into her genitalia. And in the course of doing that, it tore the tissue.” (47 RT 3292.) The tearing of that much tissue would have been “quite painful,” according to Dr. Crawford. (47 RT 3297.) “If something had happened that morning, you would expect bleeding. You'dsee things that happened, things that would be clearly visible because it was a recent injury.” (/bid.)” Yet, when Sandra Harris got home at 2:00 — which would have been, according to the prosecution theory, no more than two hoursafter infliction of this injury — she noticed only that Ashley was “walking funny,” and when she changed Ashley’s diaper that afternoon, saw rednessand bruising. (59 RT 3963.) It is not possible to reconcile Ashley’s behavior and her physical condition as described by Harris with the ripped andtorn tissue 2 In the testimony quoted here, Dr. Crawford wasreferring to the morning of Ashley’s death, but the same opinion undoubtedly applies equally to infliction of the injury on the previous Sunday. 37 described by Dr. Crawford having beeninflicted within the previous two hours. Respondent implicitly concedes this when,in discussing the genital laceration as evidence to support the felony murdertheory,it refers only to diaper bruising, not a laceration. (RB 57 [“in light of Harris’s observations regarding the first appearance ofthe diaper area bruising, it seems likely to have occurred on Sunday, May 30, while Ashley wasin appellant’s care”’] italics added.) That is not the injury described by Dr. Crawford. Respondent’s attempts to explain away this damningfactfall far short. “While Ashley’s initial suffering may have somewhat abated by the time Harris returned on Sunday, hence the lack of evidence that she was crying when Harris saw her . . . her continued fussiness waslikely the result of constantirritation of the laceration from urine and feces in addition to the ongoing physical abuse evidenced by the growing constellation of bruises over her entire body.” (RB 62.) Respondent fails to explain how, within two hours — at the most — of having sustained such a significant injury Ashley would not be crying or showing any signs of discomfort beyond “walking funny,” and “fussiness.” Respondent respondsto the lack of evidence of any bleeding on Sundayby citing Laurie Strodtbeck’s claim that she saw “a little bit of blood on [Ashley’s] diaper” on Wednesday (RT 3059-3060), but fails to explain how that in any way provesthat the injury wasinflicted three days earlier. (RB 62.) Notonly did no onesee appellant inflict the injury on Sunday(orat any time), no one who saw Ashley without her diaper after that saw a recent laceration. On Wednesday, Laurie Strodtbeck saw Ashley’s “private area” whichshe described as “bruised badly, very badly. It was red and purple and blue.” (43 RT 3059.) Strodtbeck did not describe a laceration. Similarly, Leonora Murillo, who babysat for Ashley during the week, was shown Ashley’s “bottom area” while Sandra Harris was changing her diaper 38 on Thursday, and described “bruising” and “big, dark, swollen area,”(41 RT 2944-2945), but did not say she saw a laceration. Both witnesses were shown People’s Exhibit No.7 andtestified that the photograph — which does not show a recentlaceration — depicted the condition of Ashley’s diaper area as they observedit. (43 RT 3059 [Strodtbeck]; 41 RT 2945 {[Murillo].) Recognizing that Sabra’s trial testimony that she saw appellant making “thrusting” motions with his “privates” and “Ashley’s privates,” does not correspondto the Sunday afternoon time frame'’, respondent abandonsthe prosecutor’s trial theory and instead claims that Sabra was referring to a “separate occurrence from the Sunday afternoon incident” as part of “ongoing trauma”that caused the genital bruising. (RB 63.) Because Sabra neversaid when this happened, whether appellant and/or Ashley were clothed, or even whether there was physical contact, this testimony does not support a finding of lewd and lascivious conduct with great bodily injury. In the absence of any direct evidence that appellant assaulted Ashley, respondentrelies heavily on the assumption that the injury occurred “within the time frame that Ashley was underappellant’s care.” (RB 64.) If access to Ashley during the window oftime Dr. Crawford estimated the injury could have beeninflicted was as incriminating as respondentargues, then Harris and Strodtbeck werelikely suspects. Ashley was with Strodtbeck both before Strodtbeck dropped her off on Saturday, and later during the week, she was with Strodtbeck and Harris while appellant was at work. '? As noted, according to Sandra Harris, Sabra was gone from the apartment when Harris returned on Sunday afternoon. (60 RT 4016.) In addition, Strodtbeck claimed that Sabra told her she saw appellant doing this to Ashley in the middle of the night. (52 RT 3621.) 39 As argued in the openingbrief, the medical evidence is far more consistent with the genital injury having occurred before Ashley came to stay with Sandra Harris and appellant. Given Dr. Crawford’s estimate that the injury was as much as seven days old when he saw Ashley on Friday, June 4, 1999, it could have happenedasearly as the previous Friday, while Ashley was with Laurie Strodtbeck. (47 RT 3297.) By Sunday,the laceration would havestarted to heal, with hemorrhaginginto the surroundingtissue causing the bruising in the diaper area observed by Harris. By ridinga tricycle with no seat and without a diaper, as appellant allegedly reported to Harris, Ashley could haveeasily reinjured the laceration. This would account for her symptoms on Sunday — “walking funny”and red, bruised appearance — and wouldalso explain why the symptoms were not more severe. In order to implicate appellant, however, the prosecutor was forced to rely completely on the word of Laurie Strodtbeck that Ashley was unhurt when she was dropped off on Saturday.'* Respondent must also castits lot with Strodtbeck, even though, as respondent admits elsewherein thebrief, she washardly the ideal care giver."° ' Respondentnotes: “Laurie Strodtbeck reported that Ashley was fine when she was droppedoff at appellant’s home on Saturday. Harris likewise made statementsto that effect.” (RB 62.) Sandra Harris did not see Ashley’s diaper area on Saturday so she wasnotin a position to say whether Ashley was “fine” when she was dropped off. (59 RT 3960; 60 RT 4018.) '5 Respondent ignores Laurie Strodtbeck’s obvious shortcomings except whenthey reflect poorly on appellant. In arguing that appellant had a motiveto kill Ashley, because he did not want to take care of her, respondent argues: “[Appellant and Harris] actively refused to care for her twice, appellant apparently preferring to leave the 21-month-old in the care of her 16-year-old [sic] drug-addicted aunt rather than allow Harris to care 40 Respondent’s description of Strodtbeck’s activities during the time she had Ashley from Wednesday to Saturday — with the help ofherfriend, Kelly Reiss, Laurie took care of Ashley, keeping her on her usual schedule (RB 4)— is misleadingly benign. Respondentfails to mention that Strodtbeck took Ashleyto a billiards parlor on Friday night (44 RT 3129), that she and Kelly Reiss were methamphetamineusers (43 RT 3080) and that male friends of Strodtbeck were staying at the house while Ashley was there (40 RT 2866; 42 RT 2984), because those facts, combined with the physical evidence, makeit far more likely that she was assaulted before she was dropped off with appellant and Harris on Saturday. Based on the record in this case, there are no reasonable circumstances under which the jury could find that appellant was the person whoinflicted the genital injury. 2. Genital bruising If the diaper bruise wasthe result of trauma separate from the genital laceration, as Dr. Crawford opined and the prosecutor argued, respondent asserts that it was caused by 1) the incident described by Sabra in which she claims to have seen appellant punch Ashley in the genitals'®; 2) the incident described by Sabra in which she claims to have seen appellant making “thrusting” motions toward Ashley; 3) ongoing trauma “such as pinching.” (RB 63.) for her for a few days.” (RB 48.) '§ As noted in the openingbrief, it is not clear from the record if the prosecutor relied on this alleged incident as proof of a lewd andlascivious act. During his closing argument, the prosecutor simply re-read the testimony of Dr. Crawford regarding the fact that the bruising of Ashley’s genital area could have beenthe result of a punch to that area. (68 RT 4490.) Appellant will address it because respondentrelies on it as evidence in support of Count 3. 4] Without citation to the record, respondent arguesthat the genital bruising “would be indicative of a fresh injury on Sunday in combination with ongoing trauma. The mostsevere bruising, however, waslikely caused by the incident Sabra witnessed where appellant punched Ashley in the genitals.” (RB 63.) Asappellant argued in the openingbrief, if the genital bruising was intended to constitute a basis for the conviction for Count3, there is insufficient evidence of the required specific intent to sustain such a conviction. Penal Code section 288, subdivision (b)(1) requires that the touching of a child be done with the specific intent to arouse, appealto, or gratify the lust, passions, or sexual desires ofthat personorthe child. (CALJIC No. 10.42; 6 CT 1369.) Although the touchingitself need not be sexual in nature, it must be committed with the specific intent to sexually arouse either the defendant or the child. (See People v. Martinez (1995) 11 Cal.4th 434, 442; AOB 123.) Respondent misconstrues appellant’s discussion ofthis requirement. (RB 63 [“Appellant’s discussion of ‘innocent’ grooming and ‘normal healthy upbringing’ behaviors is preposterous”].) Appellant’s argumentis that certain acts are not so obviously sexual or obscenethatthe actitself provides evidence of the sexual motivation. The act of punchinga child in the genital area does notin andofitself prove that the touching was done with the requisite lewd intent.'’ The circumstancesof the act must be '7 Respondent claims, “Appellant’s proffered alternatives — a bike with a broken seat, being kicked by MichaelJr., or being poked with a stick by Rouslen — are either inconsistent with the injuries or not credible.” (RB 63) Contrary to respondent’s assertion, appellant did notproffer alternative means by whichthe genital bruising could have happened,but addressed the record as presented by the prosecution,i.e., that the bruising was caused by punchingthe genital area. 42 evaluated in order to establish whether or not the perpetrator had the specific intent to sexually arouse himselfor the victim. It is the union of the act and the intent that constitutes the offense. (See People v. Marquez (1994) 28 Cal.App.4th 1315, 1324.) Respondentneither responds to the authorities cited by appellant in the openingbrief nor cites any authority to the contrary. Nor does respondentpoint to any evidence in the record to show a sexual motive for the alleged “punching.” Instead, respondentrefers to the genital laceration, which wasconsistent with insertion of a male penis. (RB 63.) That, however,is potentially a separate injury, the motivation for which cannot necessarily be ascribed to the “punching”injury. B. The Record ContainsInsufficient Evidence That Appellant Inflicted Ashley’s Genital Injuries Appellant argues in the openingbrief that the record contains insufficient evidence that he was responsible forthe infliction of the genital injuries to Ashley because he wasnotthe only person with accessto the victim during the time frame whenthe injuries could have been inflicted. (AOB 126.) Respondentreturns to the argumentthat the genital injuries must have been inflicted on Sunday, May 30, when appellant was with Ashleyat the apartment and Harris was at Santa Rita. (RB 64.) As appellant has set forth in here and in ArgumentI, the physical evidence does not support such a scenario. Those arguments will not be repeated here. The record contains insufficient evidence to support the conviction for Count 3 and the section 12022.8 enhancement and reversal of both is required. // // 43 IV. THE ERRONEOUS ADMISSION OF IRRELEVANT AND INFLAMMATORYEVIDENCE THAT APPELLANT BROKE SABRA BARONI’S LEG AND THREATENED TO KILL HER RENDERED APPELLANT’S TRIAL FUNDAMENTALLY UNFAIR AND REQUIRES REVERSAL OF THE CONVICTIONS AND DEATH SENTENCE Appellant arguesthat the trial court erred in allowing the prosecutor to present extensive testimony that six months before Ashley waskilled appellant broke Sabra Baroni’s leg and threatened to kill her and Sandra Harris if she told anyone. Thetrial court failed to weigh the prejudicial effect of the evidence; had it done so, the court should have excludedit under section 352 because the prejudice far outweighed any probative value. (AOB 128-151.) Respondent contendsthat the evidence of the broken leg was admissible to establish Sabra’s fear of appellant and to explain why her testimonyat the preliminary hearing was different than hertrial testimony. If the ruling waserror, respondentargues that it was harmless beyond a reasonable doubt because the evidence of appellant’s guilt was overwhelming, because the trial court properly admonishedthe jury as to the limited admissibility of the evidence and because appellantelicited evidence that cast doubt onthe truth of the allegations. (RB 65-74.) Respondentdoes not, however,dispute that the trial court failed to address appellant’s section 352 objection or attempt to defendthetrial court’s failure to consider the prejudicial impact of the evidence about Sabra’s broken leg and appellant’s alleged threats. Nor does respondent address any of the cases appellant cites in support of his argumentthat the prejudicial effect of the evidence outweighed its probative value. Respondentrelies on the limiting instructions delivered by thetrial court to 44 argue that any error was harmless, yet does not respond to appellant’s argumentthat, in light of the extensive evidence admitted about Sabra’s brokenleg, the limiting instructions were inadequate to prevent the jury from considering the evidence for its truth. As a result, respondent offers this Court no basis upon whichto find that thetrial court’s actions did not result in reversible error. A. The Trial Court Abused Its Discretion In Admitting Evidence of Sabra’s Broken Leg In the opening brief, appellant argues that the evidence of appellant’s alleged threat to Sabra was inadmissible becauseat the time the court ruled the prosecutor could question Sabra about the broken leg and threat evidence and present witnesses to testify about Sabra’s statements, there was no aspect of Sabra’s testimony that was explained by her fear of appellant, and additionally, at the time the court ruled that the broken leg evidence was admissible, the prosecution had not yet demonstrated that Sabra’s testimony wasinconsistent. (AOB 136-140.) Appellant’s argumentrelies on the cases of People v. Yeats (1984) 150 Cal.App.3d 983, and People v. Brooks (1979) 88 Cal.App.3d 180. Since appellant’s brief was filed, this Court has disapproved both Yeats and Brooks on this point, holding that “in order to introduce evidence of the witnesses’ fear, the prosecution was not required to show thattheir testimony wasinconsistent with prior statements or otherwise suspect.” (People v. Valdez (2012) 55 Cal.4th 82, 135, 136 & fn. 33, citing People v. Mendoza (2011) 52 Cal.4th 1056, 1086.) If the evidence is deemed relevant to Sabra’s credibility, the trial court erred in not excluding it under section 352 becauseit is more prejudicial than probative. Appellant argues in the opening brief that the record does not 45 affirmatively show that thetrial court exercisedits discretion by weighing the probative valueofthe broken leg evidence, an argument respondent fails to address. (AOB 141-142.) Respondent argues only that the evidence was admissible to establish that Sabra was fearful of appellant and thus relevant to her credibility, but does not address the question of section 352 weighing. (RB 70.) As respondent acknowledges,trial counsel objected to admission of the broken leg evidence on the groundsthat it wasirrelevant, and that it should be excluded as moreprejudicial than probative under section 352. (RB 67, citing 38 RT 2707.) Respondent’s silence on the issue ofthetrial court’s failure to conduct any weighing suggests either a misapprehension ofthe two-step analysis required in a section 352 determination or a concessionthatthe trial court failed to exerciseits discretion and rule on the question. A ruling on the admissibility of this evidence has two components, (1) whether the challenged evidencesatisfied the “relevancy” requirement set forth in section 210, and (2) if the evidence was relevant, whether under section 352,the probative value of the evidence wasnot substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice. (People v. Scheid (1997) 16 Cal.4th 1, 13.) The record must demonstrate that “the trial court understood andfulfilled its responsibilities under section 352.” (People v. Williams (1997) 16 Cal.4th 153, 213.) The admissibility of evidence of a witness’s fear on the issue oftheir credibility is subject to evaluation under section 352. (People v. Avalos (1984) 37 Cal.3d 216, 232.) When evidence of a witness’s fear is relevant, the jury is “entitled to know notjust that the witness wasafraid, but also, within the limits ofEvidence Code section 352, those facts which would enable them to evaluate the witness’ fear.” (People v. Olguin (1994) 31 46 Cal.App.4th 1355, 1369, italics added.) Here, the trial court madethefirst step in the section 352 analysis by ruling that the evidence was relevant to Sabra’s credibility, but it did not rule on the second. In the recent case of People v. Paniagua (2012) 209 Cal.App.4th 499, the Court of Appeal reversed the conviction based on the erroneous admission of evidence admitted over defendant’s section 352 objection, without any section 352 analysis. The trial court in Paniagua evaluated the proffered evidence only onthe issue of its authenticity — part of thefirst step in the section 352 analysis — but did not weigh the probative value of the evidence againstits prejudicial impact. Thus, the Court of Appeal found no discretion was exercised andthe trial court’s ruling was error. (d. at pp. 886-887.) The sameis true in the present case, in which thetrial court made only the first part of the determination of the admissibility of the broken leg and threat evidence,ruling that it was relevant to Sabra’s credibility. As argued in the openingbrief, the trial court’s statements makeclearthat it believed that any impeachmentof Sabra by the defense would “open the door” to admission ofthe broken leg evidence. Noneofthe court’s statements regarding the admissibility of the evidence refers to assessing the prejudicial impact of the evidence, but only to whether admission was triggered by trial counsel’s questioning of the witness. (See, e.g., 38 RT 2703 [court observes that evidenceis “probably going to comein in redirect’; see also 38 RT 2706 [“It’s hard for me to imagine,if she’s cross- examined, it won’t come upin redirect”]; 38 RT 2716 [“We’ll just wait and see what the cross-examination is, and it may well be — I don’t mean to prejudge this — it may belikely that the evidence would comein,if there is evidence of inconsistencies in her testimony. It just depends. We’ll have to hear the cross-examination’”’].) In response to cocounsel’s objection under 47 section 352 (38 RT 2705), the court noted “I know I have Mr. Chettle’s objection. Notwithstanding, I can’t imagine it won’t comein asredirect.” (38 RT 2706.) The court’s responseto trial counsel’s complaint that the ruling had the effect of precluding impeachmentalso suggests admission of the broken leg evidence was automatic: “It puts you in a very difficult position,I agree, and I’m sureit wasa difficult decision for you to decide whether you were going to go into that area or not.” (51 RT 3573.) This is clearly how the prosecutor understood the court’s ruling: “Your ruling pretrial wasif there is any impeachment, it can be goneinto as a result of her state of mind and/or fear. Once there was impeachmentdone,the barn door was opened.” (51 RT 3572; see also 51 RT 3511 [prosecutorstates, “if, on cross-examination, things come out indicating the fear factor or anything like that, the Pandora’s box is wide open and I’m jumping in with both feet’’].) The court in Paniagua also cited, as evidence of a lack of the exercise of discretion, the trial court’s “absolute silence” on the subject of sanitizing the proffered evidence. (People v. Paniagua, supra, 209 Cal.App.4th at p. 886.) Similarly, in the present case, trial counsel’s suggestion of how to limit the damage from the proposed evidence was never mentioned by the court. (38 RT 2708; 2716.) Further,the trial court’s failure to evaluate or even mention the extensive nature of evidence produced bythe prosecution, discussed below,is a clear indication that no weighing of the prejudicial effect of such evidence was done by the court. Thefailure to exercise discretion also may constitute an abuse ofdiscretion. (See, e.g., People v. Crandell (1988) 46 Cal.3d 833, 861, overruled on another ground by People v. Crayton (2002) 28 Cal.4th 346, 364-365; People v. Sandoval(2007) 41 Cal.4th 825, 847.) 48 A meaningful analysis of the evidence under section 352 should have resulted in exclusion of the broken leg and threat evidence because,as discussed in the next section of this argument, the prejudicial impact of the evidence far outweighed its probative value. Thetrial court’s failure to conduct such an analysis constitutes a complete lack of the required exercise of discretion and waserror. If the trial court is deemed to have conducted the requisite weighing process, then the court abusedits discretion in admitting the extensive evidence of Sabra’s broken leg because the probative value wasgreatly outweighed bythe prejudicial effect of the evidence. Had the court intended that the evidence be used merely to explain Sabra’s changed testimony,all that was needed was Laurie Strodtbeck’s testimony that Sabra told her appellant broke her leg, and not the many other witnesses and records that were ultimately admitted. Respondent’sfailure to address this aspect of the court’s ruling, and its decision to movedirectly into a discussion of prejudice under the federal constitutional standard can only be read as a concession that if admission of the evidence waserror, it violated the due process clause of the Fourteenth Amendment.'®? (See AOB 149-150.) B. The Trial Court’s Error In Admitting Evidence Of Uncharged Criminal Conduct Was Prejudicial And Requires Reversal Of Appellant’s Convictions And Death Sentence In the openingbrief, appellant argues that the erroneous admission of the broken leg and threat evidence so infected thetrial as to render '8 In ArgumentIV (B), respondentarguesthatthe broken leg evidence wasrelevant to Sabra’s testimony “and therefore admissible.” (RB 70.) In section (C), respondent argues that “any error in its admission is harmless beyond a reasonable doubt.” (RB 71.) 49 appellant’s convictions fundamentally unfair under the due process clause of the Fourteenth Amendment. (AOB 150.) The United States Supreme Court has distinguished “ordinary trial error” from thoseerrors that violate due process, such as the prosecutor’s knowinguse of false evidence or failure to disclose evidence under Brady. (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 646-647.) The distinction madeby the court is that false evidence “may profoundly impress a jury and may havea significant impact on the jury’s deliberations”; likewise, the manipulation of evidence caused by a Brady violation,is “likely to have an important effect on the jury’s determination.” (/bid.) Appellant submits that this precisely describes the effect in the present case of the erroneous admission of the broken leg and threat evidence. The prosecution’s case against appellant was extremely thin, resting as it did on the highly questionable testimony of a very young child. The only other evidence came from Sandra Harris and Laurie Strodtbeck,the other two adults who had as much,if not more, access to Ashley in the last days and hoursof herlife. Evidence that appellant broke Sabra’s leg by throwing her to the floor undoubtedly made a profound impression on the jury and hada significant effect on the jury’s decision. Respondent cannot meetits burden to show that the erroneous admission ofthis evidence is harmless beyond a reasonable doubt under Chapmanv. California (1967) 386 U.S. 18, 24. This Court must determine on the basis of its “‘own reading of the record and on what seemsto[the court] to have been the probable impact . . . on the minds of the average jury,’ [citation], whether [evidenceofthe broken leg and threats] w[as] sufficiently prejudicial to [appellant] as to require reversal.” (Schneblev. Florida (1972) 405 U.S. 427, 432; accord, Harrington v. California (1969) 395 U.S. 250, 254; People v. Anderson (1987) 43 Cal.3d 1104, 1128.) 50 Framing the question as the high court did in Schneble — would the “minds of the average jury” have foundthe state’s case significantly less persuasive had the testimony been excluded — the answeris clearly “yes.” (Schneble v. Florida, supra, 405 U.S. at p. 432.) Without evidence that appellant had previously committed a grievous assault on anotherchild in his care, the jurors had only Sabra’s tentative, insubstantial and highly unreliable claim that appellant assaulted and killed Ashley. With the broken leg evidence, however, the prosecution’s claim that it was appellant rather than Harris or Strodtbeck became much more compelling. Respondent arguesthat if the evidence was erroneously admitted, the error was harmless because the jury was advised ofthe limited nature of the evidence by the court’s instructions, and because appellant effectively impeachedthe claim that appellant broke Sabra’s leg and threatenedher. (RB 72-74.) Respondent is wrong on both counts. Evidence of Sabra’s statements accusing appellant of breaking her leg and threatening her was admissible only as non-hearsay evidence relevant to her credibility. Testimony admitted for a proper credibility purpose undersection 780 is deemed non-hearsay andis not admitted for the truth of the matter asserted. (People v. Burgener (2003) 29 Cal.4th 833, 869.) As noted above,the trial court made no mention of the volume of evidence presented on the issue of Sabra’s broken leg, despite its ostensible admission solely as “state of mind” evidence. Respondentis also silent on the topic, offering neither argument nor authority for admission of the testimony ofsix different witnesses whotestified to hearsay statements by Sabra regarding her broken leg and the alleged threats. In addition, Dr. Crawford was permittedto testify at length about his examination of Sabra, his belief that she had been abused andhis opinion that her leg was 51 intentionally broken. The court even went so far as to admit the medical records of the broken leg. (People’s Exh. 55.) Remarkably, respondent offers no justification for admission of evidenceofthis type and volume. Instead, respondent argues that any error was harmless beyond a reasonable doubt becausethetrial court told the jury that the broken leg evidence was admitted only as it bore on Sabra’s state of mind. (RB 72- 74.) Beyondthe barerecitation of instancesin the record of the court’s limiting instructions, respondent makes no argument, cites no authority, and has no response to the cases and argument cited in appellant’s opening brief that the improper admission of the broken leg evidence wasprejudicial error. The limiting instructions in this case could not begin to overcome the force of the evidencethat all but demanded that the jury considerthe truth of the allegation that appellant broke Sabra’s leg and threatenedtokill her. “The naive assumption that prejudicial effects can be overcome by instructions to the jury [citation] all practicing lawyers know to be unmitigated fiction. [Citation.]” (Krulewitch v. United States (1949) 336 U.S. 440, 453.) This Court recognizedthe impossibility of a jury obeying a limiting instruction about the use of fear evidence in People v. Hamilton (1961) 55 Cal.2d 881. There, the Attorney General argued that evidence ofthe murdervictim’s fear of her husband wasnot prejudicial because the jury wastold the statements were admissible only as to her state of mind. This Court rejected the argument and observed,“It is difficult to believe that even the trained mind of a psychoanalyst could thus departmentalize itself sufficiently to obey the mandate ofthe limiting instruction. Certainly a lay mind could not do so.” (/d. at p. 896, fn. omitted.) Similarly, in People v. Guerrero (1976) 16 Cal.3d 719, this Court 52 reversed a murder conviction becausethe trial court erroneously admitted evidence of an unrelated rape committed by defendant. The court found the evidence prejudicial “beyond a shadow of a doubt,” and wenton to observe, “No limiting instruction, however thoughtfully phrased or often repeated, could erase from the jurors’ minds the picture of defendant’s role in raping a 17-year-old girl .. . ‘The net effect to the jury was to paint a sign on (defendant) whichsaid ‘rapist.’” (/d. at p. 730, citation omitted.) Echoing the holding in Guerrero, the Court of Appeal in People v. Dellinger (1984) 163 Cal.App.3d 284, reversed the defendant’s conviction for the murder of his two-year-old stepdaughterafter the trial court erroneously admitted evidence of prior cocaine use and evidence that two weeks before her death, the victim suffered a spiral fracture caused by someonetwisting her leg. Rejecting the Attorney General’s contention that the error was not prejudicial in part because a limiting instruction was read to the jury, the court, paraphrasing Guerrero, noted the futility of a limiting instruction in erasing from the jurors’ mindsthe picture of a ““‘cokehead’ brutally twisting the leg of an innocent toddler until it snapped.” (d. at p. 300.) Respondent offers no basis for this Court to find that the limiting instructions in this case were any more effective than the ones in Guerrero and Dellinger in preventing the jurors from considering for their truth allegations that appellant broke Sabra’s leg and threatenedto kill her and her grandmother. Respondentalso argues that admission of the evidence was harmless beyond a reasonable doubt because the defense effectively undercutits credibility: [A]ppellant extensively cross-examined Sabra and the other witnesses in an effort to demonstrate that Sabra’s statements implicating appellant were planted by family members. Appellant also clearly established that Sabra and Michael Jr. 53 were returned to appellant and Sandra Harris based on a conclusion by children’s services that the broken leg was the result of an accident. Additionally, the jurors viewed the two video-taped interviews of Sabra containing statements inconsistent with hertrial testimony. § In light of the extensive impeachmentefforts on cross-examination, the admission of the agency finding that the break was accidental, andparticularly in light of the repeated instructionsto the jury that the evidence was being admitted for a limited purpose, any error in its admission is harmless beyond a reasonable doubt. (RB 74.) Respondent’s own argument showsthat the danger that the jurors would consider the evidence that appellant broke Sabra’s leg and threatened to kill her for its truth is not merely theoretical. By claimingthat cross- examination and defense efforts to impeach the prosecution evidenceofthe broken leg rendered the erroneous admission of the evidence harmless, respondentnecessarily treats the broken leg evidenceas offered forits truth and offers no reason whythe jury would not have done the same. As respondent points out, the evidence was extensive and contested by the defense in the same manneras other evidence attrial. The obvious conclusion to be drawn by the jurors — as respondent’s own argument suggests — is that it was their job to determinethetruth of the these allegations against appellant along with the others presented by the prosecution. Indeed, if respondent is confused about this, there can belittle doubtat least one ofthe jurors was as well. Further, as noted in the opening brief (see AOB 149), the prosecutor argued thatthe allegations were true by referring to Sabra as “another victim of Michael Lopez” (68 RT 4483), a point respondent fails to address. Respondent’s argumentin support of a finding of harmless error assumesthat the jurors did not believe that the allegations about the broken 54 leg and threat weretrue. If, as is far more probable, the jurors took as true the fact that appellant intentionally broke Sabra’s leg and threatenedto kill her and Harris six months before he was accusedof killing Ashley in the same manner, appellant did not receivea fair trial. “The term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proofspecific to the offense charged.” (Old Chief'v. U.S. (1997) 519 U.S. 172, 180.) This description aptly describes the effect of the admission of evidence of the broken leg and threat on the fairness of appellant’s trial. The erroneous admission of this evidence requires reversal of the convictions. In addition, at the penalty phase the jury was erroneously instructed that this evidence could be considered as aggravating evidence. (See Argument X,post.) // // 55 V. THE TRIAL COURT COMMITTED REVERSIBLE ERROR, AND DENIED APPELLANTHIS CONSTITUTIONAL RIGHTS, IN FAILING TO REQUIRE THE JURY TO AGREE UNANIMOUSLY ON THE THEORYOF FIRST DEGREE MURDER In the openingbrief, appellant argues that the failure to require the jury to agree unanimously on the theory of first degree murder was erroneous, and that the error denied him his right to haveall elements ofthe crime of which he was convicted proved beyond a reasonable doubt, his right to a unanimousjury verdict, and his right to a fair and reliable determination that he committed a capital offense. (AOB 152-163.) Respondentinitially asserts that the contention is waived because appellant failed to object at trial. (RB 75.) Respondent cites no authorities to support its waiver claim, and such a claim is unfounded. (Pen. Code, § 1259 [“the appellate court may . . .review any instruction given, refused or modified even though no objection was madetheretoin the lowercourt, if the substantial rights of the defendant were affected thereby”].) Respondentargues, as appellant acknowledges, that this Court has rejected similar claims. (RB 75-76.) Because respondent simply relies on this Court’s prior decisions and adds nothing new to the discussion,the issues are fully joined and noreply is necessary. For the reasons stated in appellant’s openingbrief, this Court should reconsider its previous opinions and hold thatthe instructions given in this case were erroneous. // // 56 VI. THE TRIAL COURT PREJUDICIALLY ERRED, AND VIOLATED APPELLANT’S CONSTITUTIONAL RIGHTS, IN INSTRUCTING THE JURY ON FIRST DEGREE PREMEDITATED MURDERANDFIRST DEGREE FELONY MURDER BECAUSE THE INFORMATION CHARGED APPELLANT ONLY WITH SECOND DEGREE MALICE MURDERIN VIOLATION OF PENAL CODE SECTION187 Appellant asserts that because the information in his case charged him with only second degree murderin violation of Penal Codesection 187, the trial court lacked jurisdiction to try him for first degree murder. (AOB 164-170.) Respondentinitially asserts that the contention is waived because appellant failed to objectat trial. (RB 76.) Respondentcites no authorities to support its waiver claim, and such a claim is unfounded. Appellant’s failure to object to the trial court’s instructions is of no moment. Subject matter jurisdiction cannot be conferred by consent, waiver, or estoppel (People v. Williams (1999) 21 Cal.4th 335, 340), and since no accusatory pleading charging appellant with first degree murder had been filed, the court lacked subject matter jurisdiction to proceed with that charge (People v. Lohbauer (1981) 29 Cal.3d 364, 368).” '° In People v. Toro (1989) 47 Cal.3d 966,overruled on other grounds in People v. Guiuan (1998) 18 Cal.4th 558, 568,fn. 3, this Court recognized a limited exception to this rule. Toro held that defense counsel could waivethe jurisdictional bar in order to allow the defendantto be convicted of a lesser but not included offense. The exception was designed for the defendant’s benefit, to provide the jury the broadest range of options supported by the evidence and allow the defendantto be convicted ofa less serious offense if that is what the evidence showed. The exception has no application here, where the uncharged offenses were not lesser offenses but ones which, unlike the charged offense, could subject the defendantto a sentence of death. 57 Respondentargues, as appellant acknowledges,that this Court has rejected similar claims. (RB 76-77.) Because respondentsimply relies on this Court’s prior decisions and adds nothing new to the discussion, the issues are fully joined and noreply is necessary. For the reasons stated in appellant’s opening brief, this Court should reconsider its previous opinions and hold that the instructions given in this case were erroneous. H/ // 58 VIL. THE TORTURE-MURDERSPECIAL CIRCUMSTANCEFAILS TO PERFORM THE NARROWING FUNCTION REQUIRED BY THE EIGHTH AMENDMENTANDFAILS TO ENSURE THAT THEREIS A MEANINGFULBASIS FOR DISTINGUISHING THOSE CASES IN WHICH THE DEATH PENALTYIS IMPOSED FROM THOSEIN WHICHIT IS NOT Appellant argues in his openingbrief that the torture-murder special circumstancefails to perform the narrowing function required by the Eighth Amendmentandfails to ensure that there is a meaningful basis for distinguishing those cases in which the death penalty is imposed from those in whichit is not. (AOB 171-176.) Respondentcites decisions of this Court that have rejected these claims. (RB 77-78.) Theissue is joined and no further briefing is necessary unless this Court requests further briefing to reconsider these claims. (See People v. Schmeck (2005) 37 Cal.4th 240, 303-304 [standard claims challenging death penalty considered fairly presented to the Court].) // H/ 59 VULI. CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT?’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION AND INTERNATIONAL LAW Appellant has argued that the California death penalty statute is unconstitutional in several respects, both on its face and as applied in this case. Appellant acknowledgesthis Court’s decisions rejecting these claims but asked that they be reconsidered. (AOB 177-192.) Respondentcites decisions of this Court that have rejected these claims. (RB 78-80.) The issue is joined and nofurther briefing is necessary unless this Court requests further briefing to reconsider these claims. (See People v. Schmeck, supra, 37 Cal.4th at pp. 303-304 [standard claims challenging death penalty considered fairly presented to the Court].) // HI 60 IX. THE TRIAL COURT IMPROPERLY COERCED A DEATH VERDICT BY REFUSING TO ADDRESS MULTIPLE ASSERTIONS OF DEADLOCK AND FAILING TO DISMISS A JUROR WHO COULD NO LONGER FUNCTION PROPERLY AND IMPARTIALLY Appellant arguesin the openingbrief that the death judgment was coerced by the actionsofthe trial court in refusing to address multiple assertions of deadlock over nine days of deliberations, by failing to respond to concernsof the jurors about their personal circumstances, and by refusing to dismiss a juror who could no longer deliberate. (AOB 193-214.) Respondent counters thatthe trial court did not abuse its discretion in refusing to declare a mistrial, nor did the court err in refusing to discharge Juror No. 8. Respondent denies that the cumulative effect of the trial court’s actions was coercive. (RB 81-89.) Respondent’s argumentshould be rejected becauseit ignores the coercive aspectsof the trial court’s actions toward the deliberating jurors and instead treats the issue as simply one of the court’s discretion to order jurors to continue deliberating. Further, respondent’s position thatthetrial court’s refusal to discharge Juror 8 at the request ofthe prosecutor, was not error, is not only unseemly,it is legally indefensible. Finally, respondent’s position that the jury’s penalty verdict was not coerced ignoresthe difficulty the jury had in reaching a decision — deliberating for nine days before finally reaching a death verdict, twice declaring they were deadlocked — even after convicting appellant of the torture murder of a young child and hearing aggravating evidence of other violent criminal activity. After the first four days the jurors declared a deadlock. (6 CT 1459-1460.) Ordered by the court to continue 61 deliberating, they did so for two more days before once again declaring they were “a deadlocked jury, with no hopeofresolution!” (6 CT 1469.) At that point, after six days of deliberation and having taken at least four votes, the jury wasevenly split on the issue of penalty. (83 RT 5199-5201.) Onthe ninth day of deliberations, the last court day before oneofthe jurors was scheduledto leave on a prepaid vacation, and on the same day that the court refused the request of a distressed juror to be released from the jury, the jury finally reached a verdict. The effects ofthe trial court’s coercive actions andits error in refusing to discharge Juror No. 8 cannot be ignored by this Court, and reversal of the penalty determination is required. A. The Trial Court’s Responses and Failure to Respond to the Jurors’ Multiple Declarations of Deadlock and Concerns About Their Personal Circumstances Were Coercive Respondentarguesthatthe trial court did not abuseits discretion in refusing to declare a mistrial after the jury twice advised the court thatit was deadlocked. (RB 83-84.) As respondentnotes, this Court has held in several casesthat trial court does not abuse its discretion by ordering jurors to deliberate further (RB 83-84,citing People v. Bell (2007) 40 Cal.4th 582, 616; People v. Rodriguez (1986) 42 Cal.3d 730, 774; People v. Sandoval (1992) 4 Cal.4th 155, 194-197.) As appellant argues in the opening brief, however, it was the combinationofthe trial court’s actions — and failure to act — that created the coercive atmospherethat ultimately led to a death verdict. (AOB 200- 206.) In addition to the two timesthe court refused to declare a mistrial after the jurors announced they were deadlocked, the trial court also failed to respondto inquiries by the jurors concerning their personal circumstances: Juror No. 5 informed the court of an upcoming pre-paid vacation, and one ofthe alternates, Juror No. 15, asked to return to work. 62 Asrespondent admits, neither request was acknowledged by nor respondedto by the court. Respondent speculates that the jurors likely inferred from the court’s silence and refusal to release the alternates that there were alternates available, should one of the jurors need to be released. (RB 89.) Respondentalso cites the jury’s continued deliberations and requests for clarification of instructions after each refusal by thetrial court to declare a mistrial as support for the trial court’s assessmentthat further deliberations were justified. (RB 84, 89.) The fact that the jury continued to deliberate is also consistent with a belief that they had no other choice — the trial court’s actions had made clear that the court was not going to release them for any reason, not deadlock, not a juror’s vacation, nor a juror’s extremedistress. Respondentnotesthat at the time of the second deadlock, one of the jurors, Juror No. 3, expressed some possible disagreement with the foreperson’s assessmentthat the jury was hopelessly deadlocked, andcites this as support for the trial court’s decision to order further deliberations. (RB 84; see 83 RT 5202-5203.) Becausethetrial court made no further inquiry of Juror No. 3 or of any other jurors, but simply instructed the jury to continuetheir deliberations,it is difficult to assess the significance of Juror No. 3's statement. Moreover, this was not the only time the jury declared a deadlock,noris it the sole basis for the claim of coercion. As appellant argues in the openingbrief, the trial court’s actions — refusing to respondto the concerns about their personal circumstances expressed by the jurors, refusing to declare a mistrial after two declarations of deadlock andrefusing to discharge a juror in obviousdistress — resulted in coercive and unduepressure upon the jury to reach a verdict. Actions by a trial court that suggest to a jury that they will be kept until they reach a 63 20 and areverdict have deemed coercive in the context of an “Allen charge, thus relevant in assessing the court’s actions here.”! (See, e.g., Tuckerv. Catoe (4" Cir. 2000) 221 F.3d 600, 611 [relevant consideration in reviewing an Allen chargeis “suggestions or threats that the jury would be kept until unanimity is reached”]; People v. Aponte (N.Y.App.Div. 2003) 306 A.D.2d 42, 45-46 [recognizing coercive impact of an instruction that presents the jurors with the prospect of unending deliberations unless and until a verdict was reached]; State v. Williams (S.C. Ct. App. 2001) 344 S.C. 260, 265 [acknowledging the coercive effect of court’s implying the jury would haveto deliberate indefinitely].) Respondent does not address the authorities cited by appellant in the opening brief in support of the claim of coercion (ee AOB 199-206; 210- 214), and fails to offer this Court a basis for concludingthatthe trial court’s actions were not coercive. B. The Trial Court’s Refusal to Discharge a Juror Who Had BecomeIncapacitated and Requested to Be Taken Off of the Case Denied Appellant His Right to Trial By a Fair and Impartial Jury Thetrial court abused its discretion by refusing to discharge Juror No. 8 after she madeclear her inability to perform a juror’s functions. (People v. Jablonski (2006) 37 Cal.4th 774, 807.) Respondent’s assertion 0 «“4/len charge”refers to an instruction to a deadlocked jury under Allen v. U.S. (1896) 164 U.S. 492. 1 Ag the Tenth Circuit Court of Appeals observed, “Evenif the district’s court’s comments did not constitute an instruction (Allen or otherwise), its remarksstill had the potential to coerce the jury, and, as coercion is the primary concern with the giving of an Allen instruction, the overall Allen analysis wouldstill be applicable.” (U.S. v. McElhiney (10" Cir. 2001) 275 F.3d 928, 941.) 64 that the claim is waivedis not only legally incorrect, it is peculiar, as it puts respondentin the position of defending on appeal the denial of its own requestat trial.”” Asthis Court has held, the reason for the forfeiture ruleis that, “[i}t is both unfair and inefficient to permit a claim of error on appealthat, if timely broughtto the attention of the trial court, could have been easily corrected or avoided.” [Citation.] (People v. Collins (2010) 49 Cal.4th 175, 226-227.) Here, the issue was broughtto the court’s attention by the prosecutor who urged the court to dismiss Juror No. 8 because of her obvious distress. (83 RT 5211-5212.) Defense counsel’s addition of commentsto the prosecutor’s argument(see, e.g., 83 RT 5212) demonstrates their agreement with the position of the prosecutor. Certainly the court was made aware of the arguments in favor of dismissing the juror and had the opportunity to correct or avoid its erroneousrulingat the time. The claim waspreserved, notforfeited. Respondent attempts to distinguish the present case from People v. Thompson (2010) 49 Cal.4th 79, in which this Court upheld the discharge of a juror whoaskedto be dismissed because she was in extreme emotional distress during the penalty phase deliberations. (/d. at p. 137.) Respondent arguesthat, unlike the juror in Thompson,Juror No. 8 “did notstate that she was unable to participate or cometo a decision.” (RB 88.) An obvious *2 Becausethe state did not prevail in the trial court, the doctrine of judicial estoppel, which prevents a party from making a factual assertion in a legal proceeding which directly contradicts an earlier assertion made in the same proceeding, cannot be invoked. (See New Hampshire v. Maine (2001) 532 U.S. 742, 749.) The theory underlying the doctrine certainly applies, however: “Judicial estoppel is intended to protect againsta litigant playing fast and loose with the courts.” (Russell v. Rolfs (9" Cir. 1990) 893 F.2d 1033, 1037, citations and internal quotes omitted.) 65 difference is that the court in Thompson specifically asked the juror if she wasable to continue deliberating; here the court asked Juror No. 8 only if she was “willing to continue.” (83 RT 5210,italics added.) As this Court stated in Thompson,theissue there “was not whether[the juror] was unwilling to deliberate, but rather, based on her extremely distressedstate, whether she was unable to deliberate.” (People v. Thompson, supra,at p. 139, original italics.) On the question of whether she wasable to continueto deliberate, Juror No.8 told the court she had been living with “a level of intolerable stress” for days, that was “affecting every part of my life... my job, my health.” She felt that she “was going to snap,” and “wokeup crying in the night.” (83 RT 5209-5210.) Respondent fails to explain how this description of Juror No. 8's mental state at the time she asked to be excused differs in any meaningful way from the juror in Thompson who was deemed unable to continue deliberating because of her “extremely agitated emotionalstate.” (People v. Thompson,supra, at p. 137.) Moreover, it was the prosecutor who expressed his concern over Juror No.8's mental state, observing that “it seems to me, Your Honor, somebody who wakesup crying in the middle of the night becauseofthe *3 Respondentstates, “While, as noted, the prosecutorasserted that she was on the verge of crying, the court’s own observations wereto the contrary.” (RB 88.) What the record shows, however,is that the prosecutor stated, “I don’t know if you were looking ather, judge. I think she did indicate reluctance. When you said would you go back, she almost broke down in tears. I could see the lips quivering.” The court responded,“I didn’t see that.” (83 RT 5211.) It appears that the trial judge did not see that the juror was on the verge of tears because he wasnot lookingat her, not because she wasnot visibly emotional as respondent suggests. Again, respondentis in the position not only ofarguing a position on appeal diametrically opposedto the state’s position attrial, but even challenging the veracity of statements made by the prosecutor. 66 stress factor, she has the mental makings of somebody under immense stress and medically unqualified to keep continuing.” (83 RT 5212.) The veteran prosecutor added,“Never heard ofjurors waking up in the middle of the night crying. It’s a first for me.” (Jbid.) Respondent makes no attempt to justify its complete repudiation of the state’s position at trial. Respondentalso fails to address the ramificationsofthetrial court’s stated intention to discharge Juror No. 8 if she were to ask again without | any additional showing — “‘{i]f she asks to be excused again for the reasons she’s indicated, I’m going to grant her request.” (83 RT 5212,italics added.) Having determined that Juror No. 8 had made a sufficient case for discharge ~— as evidenced by the court’s stated intention to dismiss herif she asked again without any additional showing— the trial court abusedits discretion by sending her back to deliberate further. The court’s actions resulted in a coerced death verdict that should not be permitted to stand. / H 67 X. THE TRIAL COURT’S RESPONSE TO THE DELIBERATING JURORS’ QUESTION ABOUT EVIDENCE OF ACTS OF VIOLENCE COUPLED WITH THE PROSECUTOR’S ARGUMENT ALLOWED THE JURORS TO CONSIDERIN THEIR PENALTY DETERMINATION EVIDENCE THAT WAS NOT ADMISSIBLE AS AGGRAVATION AND WHICH THEY WERE NOT REQUIRED TO FIND TRUE BEYOND A REASONABLE DOUBTIN VIOLATION OF APPELLANT’S STATE AND FEDERAL RIGHTS In the openingbrief appellant arguesthat the court’s responseto the juror’s question during penalty phase deliberations, coupled with the prosecutor’s argument, erroneously allowed the jurors to consider evidence admitted at the guilt phase as evidence in aggravation in deciding | appellant’s punishment. (AOB 215-232.) Respondent counters that the trial court’s response was appropriate and the jurors were correctly instructed. (RB 90-98.) Respondent’s argumentrests, however, on readily distinguishable authority and an erroneousreading of the record. A. The Trial Court’s Response to the Jury’s Question and the Prosecutor’s Argument Were Misleading and Erroneous Thejury wasinstructed by CALJIC No. 8.87, whichlisted five incidents of unadjudicated violent criminal activity under Penal Code section 190.3, factor (b), and instructed that they could not consider evidenceof other criminal activity as aggravation. (83 RT 5174.) After hearing the prosecutor’s argument urging them to consider evidence of other unadjudicated acts of violence from both phasesoftrial, including evidence that was admitted only against Sandra Harris at the guilt phase,the jury asked the court for clarification: 68 Can any acts of violence be considered as an aggravating circumstance or are we limited to the 5 acts of violencelisted on 8.87 of the jury instructions? “A juror may not consider any evidence of any other criminal acts as an aggravating circumstance” vs. C8841 [sic] “you must determine what the facts are from the evidence received during the entiretrial unless you are instructed otherwise.” (6 CT 1462.) Asargued in the opening brief (AOB 217-219), the court’s response, to whichtrial counsel objected, was erroneousbecauseit told the jurors that while they could not use the evidence of “any acts of violence,”ie., evidence other than the five incidents listed in CALJIC No. 8.87 as an aggravatingfactor, they were not foreclosed from considering the evidence as a basis for deciding in favor of the death penalty. The distinction made by the court — between consideration of evidence as “an aggravating circumstance” whichthe jurors were told waslimited to the five acts listed in CALJIC No.8.87, and consideration of evidence “in determining which penalty is to be imposed on the defendant,” for which they “shall” consider all the evidence from both phasesoftrial — was reinforced by the prosecutor’s question to the jury: “What is the appropriate penalty for the evidence you have before you andthe factors in aggravation and mitigation?” (81 RT 5117,italics added.) Thetrial court’s response is contrary to California law governing the penalty phase, which permits the jury to consider evidence relevant to the penalty determination only ifit falls into one of the statutory aggravating factorsor is a mitigating factor under Penal Code section 190.3. Nonstatutory aggravation is not admissible, meaning that the jury may not consider or weigh guilt phase evidencethat does notfall under section 190.3 as factor (a) a fact or circumstance of the crime or a special circumstance; factor (b) criminal activity involving the use or threat of force 69 or violenceor factor (c) a prior felony conviction. Thetrial court’s responseto the jury’s question, coupled with the prosecutor’s argument, improperly permitted the jury to consider non- statutory aggravating evidence, and to use evidence of unadjudicated criminalactivity without finding it true beyond a reasonable doubt. Respondent’s reliance on this Court’s decision in People v. Lewis (2001) 25 Cal.4th 610, is misplaced and respondent’s interpretation of the issue — “essentially, appellant’s complaintis that the instruction was incomplete” — demonstrates a misunderstanding of appellant’s argument. (RB 92-93.) . In Lewis, one of the incidents of violent criminal activity admitted under factor (b) was not includedin the list of incidents under CALJIC No. 8.87. Defendant argued on appealthat its omission from the jury instruction resulted in a failure to inform the jury thatit had to find the incident true beyond a reasonable doubtbefore it could considerit as aggravation. The incident had been inadvertently left off the prosecutor’s original notice of factors in aggravation from whichthe trial court compiled the list under CALJIC No. 8.87. (People v. Lewis, supra, 25 Cal.4th at pp. 665-666.) This Court found that the instruction was not erroneous, only incomplete, and that it wastrial counsel’s responsibility to request a more complete instruction as to the missing incident. (People v. Lewis, supra, at p. 666.) Further, the court found that there was no reasonable possibility the jury misunderstood the requirementthat it could only usethe incident as a factor in aggravation if it found it to be true beyond a reasonable doubt. (Id. at pp. 666-667.) Lewisis easily distinguishable from the present case. First, unlike the evidence erroneously considered by the jury in this case, there the 70 incident that was omitted from the list of under CALJIC No. 8.87 was statutory aggravation that was not challenged by the defendant. Second, in Lewis this Court found no reasonable likelihood that the jury understoodthe instruction to mean that the omitted incident could be considered as aggravation whetheror not it was found true beyond a reasonable doubt. Either the jury believed that it could not consider the omitted incident as a factor in aggravation becauseis was not “any of such alleged criminal activity” described by CALJIC No. 8.87, which would be beneficial to defendant. Or,if the jury believed it could consider the omitted factor in the same manneras the other evidence ofviolent criminal activity presented by the prosecution at the penalty phase, it would also have understoodthat it could not do so unless it found the incident true beyond a reasonable doubt. (People v. Lewis, supra, 25 Cal.4th at pp. 666- 667.) The same assumptions cannot be madein this case. Unlike the present case, in which the jury specifically asked about the apparent contradiction between CALJIC Nos.8.87 and 8.85, in Lewis there was no jury question and noreasonto believe the jury might consider evidence of other crimes as aggravation. The court’s response and the prosecutor’s argument negated any possible limiting effect because they allowed the jury to considerall of the guilt phase evidence, evenif it did not constitute statutory aggravation. Further, by distinguishing “other acts of violence” from the five incidents listed in CALJIC No.8.87, the court’s response also eliminated the requirement in that instruction that uncharged acts of violence be proved beyond a reasonable doubt. Respondentfaults appellant for not objecting to the proposed CALJIC No.8.87 instruction, or requesting inclusion of the additional incidents, which respondent claims “apparently were overlooked.” (RB 71 92.) Appellant did not object to CALJIC No. 8.87 attrial because it was not the instruction that was the problem — it was the prosecutor’s argument, the court’s rulings on appellant’s objections to the argument and the court’s responseto the juror’s question that created the error. Moreover, as discussed in more detail below,the error was not in the failure to include the additional incidents in CALJIC No.8.87, but rather in permitting the jury to consider as aggravating factors guilt-phase evidence of defendant’s conduct that was not noticed as an aggravating factor under, or subject to the substantive and proof requirements of, Penal Code section 190.3, factor (b). B. The Jury’s Penalty Determination Was Not Properly Confined to Consideration of Aggravating Evidence Underthe Statutory Factors and Instances of Violent Criminal Activity that Were Proved Beyond a Reasonable Doubt Asset forth in the opening brief (AOB 221-229), because of the errors at the penalty phase, the following incidents of violent acts were impermissibly considered by the jury in making the penalty determination. 1. Allegations of violent acts against Sabra from the guilt phase In his penalty phase argument, in the course of contrasting the aggravating and mitigating evidence, the prosecutorreferredto,interalia, “assaults against Sabra”as part of the aggravating evidence. (81 RT 5093- 5094.) Whileit is true, as respondentnotes, that trial counsel did not object to the prosecutor’s argumentat the time (RB 97), the real damage from the argument camelater whenthe court’s response to the jurors’ question informed them that they could use as aggravation evidence that was not admissible under Penal Code section 190.2, and without finding proof beyond a reasonable doubt, to which counsel did object. 72 Respondent argues that the jury would not consider the broken leg evidencefor its truth at the penalty phase because it was introducedat the guilt phase for the limited purpose of assessing Sabra’s credibility. (RB 97.) Respondent does not address appellant’s argumentthat it was for this very reason that the broken leg evidence was not admissible underfactor (a) as a circumstanceofthe crime. (AOB 222.) Appellant has addressed the futility of the limiting instructions to preventthe jury from considering the broken leg evidenceforits truth in Argument IV. (See AOB 148-149; ARB 52-53.) Even assuming, arguendo,that the jury had properly followed the court’s limiting instruction at the guilt phase, no limiting instruction was given at the penalty phase, and the jury wasinstructed to disregard the guilt phase instructions, so there was no constraint on the jury using the evidenceforits truth and in aggravation. Thus, while respondent’s cursory response, “Because the jury is presumedto follow the law, the prosecution’s limited statement could not have been prejudicial to petitioner [sic]” (RB 97), states a valid concept,it is not applicable in this context and does not negate the likely harm from theerror. Respondenttries to minimize the harm from the argument by reducing it to simply “the three words‘assaults against Sabra’” and mentions only the broken leg evidence, but, of course, that is not all the evidence that the prosecutor’s words invoked for the jury. At the guilt phase, in addition to the extensive evidence of Sabra’s broken leg, Dr. Crawfordalso testified about seeing bruises on Sabra’s body when she was admitted to the hospital, and there was evidence presented that Pilar Ford, appellant’s neighbor, said she saw bruises on Sabra after she was with appellant. Having been told that they should consider all of the guilt phase evidence, includingthe plural “assaults” against Sabra, the jury likely 73 included this evidence in their penalty phase determination. Respondent offers no argument to the contrary. Nor does respondent address appellant’s argument (AOB 222-223) that the contradictory and speculative evidence about Sabra’s broken leg was inadmissible under factor (b) because it does not constitute “substantial evidence from whicha jury could conclude beyond a reasonable doubt that violent criminal activity occurred.” (People v. Tuilaepa (1992) 4 Cal.4th 569, 587.) 2. Evidence of Sandra Harris’s allegations from the guilt phase As respondent acknowledges (RB 94-95), the trial court overruled appellant’s objection to the prosecutor’s argumentthat the jury should consider evidence that was admitted only against Sandra Harris atthe guilt phase. (81 RT 5084-5085.) In his closing argument, the prosecutor told the jury to consider as evidencein aggravation statements made by Sandra Harris at the guilt phase that were admitted only against her. Respondent argues that the record with regard to the admission of the Harris tapes is “somewhat muddled,” and ultimately argues that regardless of whether the tapes were limited to Harris, any error in their admission was harmless. (RB 94-95.) Respondent’s confusion about whether the tapes could be considered by the jurors against appellant strongly suggests the jurors were similarly confused andlikely considered the allegations made on the tapes for theirtruth. Respondent argues that it would be “pure speculation” to assumethat the jury would consider any portions of the tapes other than those specifically mentioned by the prosecutor. (RB 96.) On the contrary, not only did the prosecutornottell the jury to confine themselvesto the portions of the tape he mentioned, he madesure that the jury would 74 considerall the statements on the tape. Trial counsel objected to the prosecutor’s telling the jury they could rely on Harris’s taped statements from the guilt phase, which was “testimony you have before you” (81 RT 5084), on the ground that the evidenceat the guilt phase had been admitted only against Harris. Before thetrial court could overrule the objection, the prosecutorinterjected: “I believe they are instructed they can considerall the evidence from theinitial part of the trial, your Honor.” (81 RT 5084- 5085.) Thus, in addition to the trial court’s response to the jury’s question in which the court told the jury to consider evidence from both phases of trial, at the very momenttheissue of the tapes wasraised, the prosecutor told the jury they could considerall of the evidence presented attrial. Respondent offers no reason why the jury would not considerall of the statements made by Sandra Harris in her taped statements, which include accusations against appellant of drug use (60 RT 4042, 4077), verbal abuse of Harris and her daughter, Laurie (60 RT 4064), and speculation by Harris that appellant was responsible for Ashley’s death (60 RT 4067). And because respondent assumesthe jury did not consider these allegations, it does not counter appellant’s showing abouttheir prejudicial impact. 3. Violent Acts Against Donna Thompson Not Listed in CALJIC No. 8.87 As appellant argues in the openingbrief, the prosecutor told the jury to consider as aggravation two incidents described by Donna Thompson that were not includedin the list of crimes under CALJIC No. 8.87 — the 1994 incident where appellant allegedly pushed Thompson out of her car and took her purse which contained money from herjob, and an alleged threat by appellant to have Thompson’s brother and son killed by the Mexican Mafia. (AOB 228.) 75 ‘Respondentnotes that appellant did not object to CALJIC No.8.87 as given or request inclusionof these incidents. Respondentfurther argues, “given these failures, even assuming that the jurors did consider them, there is no error, nor, under Lewis, is there any basis to supposethat the jurors would not have applied the appropriate standard before giving such consideration.” (RB 94.) While the argumentis not completely clear,if respondentis simplytrying to bring this issue within the holding of People v. Lewis, supra, 25 Cal.4th 610, then the samedistinctions apply,as discussed abovein subsection A. of this argument. Unlike the incident omitted from the list in Lewis, these incidents were not admissible ageravating evidence, and here,the jury specifically asked about “other incidents” and were given misleading instructions about whether they could consider such evidence as aggravation. Respondent doesnot address these differences with Lewis. Given the questionable nature of Thompson’s claimsas to both incidents, had the jury been properly instructed that they had to find these incidents true beyond a reasonable doubt before they could consider them as aggravating evidence,it is unlikely they would have doneso. C. The Jury’s Improper Consideration of Nonstatutory Aggravating Evidence and the Trial Court's Failure to Give a Reasonable Doubt Instruction As to Incidents of Alleged Criminal Activity Constitute Prejudicial Error Respondentclaims, in cursory fashion, that any error was harmless “given the brutal nature of the murder, appellant’s prior convictions andhis other violent criminal behavior,” but makes no effort to meet its burden of showingthat the error was harmless beyond a reasonable doubt. (RB 98.) There is, in fact, a clear indication that the improper consideration of nonstatutory aggravating evidence andthe failure to instruct the jury that 76 -unadjudicated criminal activity must be proved beyond a reasonable doubt did affect the verdict. The jurors had been deliberating for five days at the time they asked the question about which incidents could be considered as aggravation. Presumably, over those five days they had considered the facts of the crime, appellant’s prior convictions and other violent criminal behavior, but had been unable to cometo a decision about penalty. It was only after they were told they could consider evidenceof additional unadjudicated criminal activity that they reached the death verdict. That evidence included allegations that were different and more aggravating than the incidents that were listed in CALJIC No.8.87. Respondentclaimsthat the assertion that the jurors would considerthis evidenceis “speculative at best.” (RB 97.) On the contrary, having asked the court for guidance onthis precise point and being told specifically to considerall the evidence from the guilt phase, it is difficult to see why the jurors would not follow the court’s direction. To this point, respondent has no answer. Thetrial court’s responseto the jury together with the prosecutor’s argumentpermitted the jury to consider inadmissible evidence in aggravation andfailed to require that incidents of violent conduct be proved beyond a reasonable doubt. The errors were prejudicial and require reversal of appellant’s death judgment. /I // 77 XI. THE PROSECUTOR COMMITTED PREJUDICIAL MISCONDUCT AT THE PENALTY PHASE WHEN HE IMPROPERLY REFERRED TO APPELLANT’S LACK OF REMORSEAND FAILURETO TESTIFY Appellant argues in the opening brief that the prosecutor’s argument at the penalty phase commenting on appellant’s lack of remorse and failure to testify violated his constitutional rights and require reversal of the death judgment. (AOB 233-236.) Respondentclaims that the comments were notdirected at appellant’s failure to testify and, taken in context, were properly addressed to the absence of remorse. Further, if there was any error, it was harmless. (RB 100-103.) A. The Prosecutor Impermissibly Commented on Appellant’s Failure to Testify at the Penalty Phase The prosecutorin the present case argued that noneofthe family memberscalledto testify at the penalty phase had said that appellant had expressed remorse to them. (81 RT 5110-5111.) He then wenton to ask the jurors “Did you ever hear one word of remorse from him?” (81 RT 5111.) Respondent claims that the prosecutor’s comments did not constitute error under Griffin v. California (1965) 380 U.S. 609, because “taken in context” they referred only to the failure of appellant to express remorse to his family and friends, and notto his failure to testify at the penalty phase. (RB 100.) . The first comments are arguably comparable to those in People v. Lewis (2001) 25 Cal.4th 610, cited by respondent. In Lewis, the prosecutor told the jurors that they could consider defendant’s lack of remorse and argued that “[n]owhere in this trial did you see any evidence of any remorse on his behalf.” (/d. at p. 673.) Similarly, in People v. Crittenden (1994) 9 78 Cal.4th 83, the prosecutor’s cross-examination of mitigation witnesses and reference in closing argument to defendant’s lack of remorse washeld to be not a commentuponhis failureto testify during thetrial, but a legitimate reference to defendant’s never having expressed remorse for the murders in communication with numerous individuals. (/d. at p. 147.) Wherethese cases differ from appellant’s, however,is in the clear distinction made by the prosecutor between what appellant told his family and friends and what hefailed to say to the jury. The argument made by the prosecutor — asking the jurors if they heard any words of remorsefrom appellant — could not have been more clear. Respondent claimsthat the statement “would be understood, in context to reference non-testimonial statements by appellant” (RB 101), but fails to explain whythisis so. People v. Zambrano (2007) 41 Cal.4th 1082, cited by respondentis also distinguishable, because there the prosecutor’s comments about the lack of evidence that the defendant had ever expressed remorse were not tied to his failure to testify, as they were here. By focusing on appellant’s failure to testify at the penalty phase and express remorse, the prosecutor’s argument constituted Griffin error. B. The Prosecutor’s Comments Violated Appellant’s Constitutional Rights and Were Prejudicial Respondent argues that any error was harmless beyond a reasonable doubt. (RB 102.) But respondent makes no mention about the lack of any of the factors upon which this Court hasrelied in finding Griffin error harmless. As noted in appellant’s opening brief (AOB 223-224), not only did the trial court fail, after sustaining appellant’s objection to the prosecutor’s argument, to instruct the jury not to draw any adverse inference, the court denied counsel’s request to admonish the prosecutor and did nothing more than urge him to “move on.” (81 RT 5111.) 79 In the absenceof an instruction to the jury not to draw an adverse inference from appellant’s decision notto testify at the penalty phase and express remorse or an admonitionto the jury to disregard the prosecutor’s comments andnot to discuss appellant’s failure to testify, respondent cannot show that the error is harmless beyond a reasonable doubt. The prosecutor’s misconductat the penalty phase requiresreversal of the death judgment. H/ /I 80 XI. THE ADMISSION OF EVIDENCE THAT APPELLANT COMMITTED WELFARE FRAUD WAS IMPROPER REBUTTAL AND VIOLATED APPELLANT’S STATE AND FEDERALRIGHTSTO A FAIR TRIAL AND REASONABLE PENALTY DETERMINATION In the openingbrief, appellant argues that evidencethat he committed welfare fraud was not proper rebuttal becauseit did not relate directly to the mitigation evidence presented by appellant at the penalty phase. (AOB 237-238.) According to respondent, because appellant introduced evidence of his dedication to his religion, the evidence of dishonesty was proper rebuttal. (RB 106.) The cases cited by respondent for this position are distinguishable because appellant did not offer evidenceofhis religious faith as part of an argumentthat he had a charactertrait for honesty that could properly be rebutted by evidence of dishonest behavior. In People v. Ramos (1997) 15 Cal.4th 1133, this Court found no error in the prosecution’s impeachmentofthe testimony of a character witness for defendant whohadtestified to the defendant’s rededication to religion while he was at San Quentin. As noted by this Court, the “testimony tended to suggest not only devout faith but concern for others to embraceits spiritual benefits by turning away from past misdeeds involving force and violence.” (/d, at pp. 1172-1173.) Evidence that the defendant wasfrequently in possession of weapons while in custody, evidence which, “particularly in a prison environment, would reasonably implicate a violent character was proper impeachmentofthis testimony.” (/d. at p. 1173.) In People v. Siripongs (1988) 45 Cal.3d 548, the defendant had requested a ruling from the trial court about the admissibility of prior theft convictions if he presented mitigation evidence that he was “a devout 81 Buddhist and a good son.” (/d. at p. 577.) On appeal, the defendant argued that the trial court’s ruling prevented him from presenting mitigation evidence. This Court found no such restriction and notedthat “as long as he did not introduce testimony showing that one of the characteristics of a ‘devout Buddhist’ was truth or honesty, he was free to introducethis evidence as well without fear of impeachment by the Thai priors.” (/d. at p. 578.) Respondent overlooks this law in arguing that evidence of dishonesty was proper rebuttal because “[a] well-known tenet of Christianity is honesty and truthfulness.” (RB 106.) Under respondent’s reasoning, evidence of a defendant’s behaviorthat is inconsistent with any teachingofhis religious faith would be admissible rebuttal, even when he has offered no evidence of character in conformity with that particular religious principle. Such a rule plainly would be inconsistent with both the law and commonsense. Missing from the present case is any attempt by appellant to argue that his religious faith was evidence ofhis character traits for truth or honesty. Thus, it was error to permit rebuttal with evidence of welfare fraud. Nor wasthe evidence admissible to rebut the mitigation evidence of appellant’s intellectual limitations. (RB 107.) It was never suggested by the defense that appellant’s mental health limitations were so significant as to precludehis ability to act in a dishonest or manipulative manner, thus “opening the door” to contrary evidence, as respondent suggests. (/bid.) Respondent argues that any error was harmless because of the limited nature of the evidence and the overwhelming nature of the aggravating evidence. (RB 107.) As appellant claims, however, the evidence was used by the prosecutor to argue that the evidence was indicative of appellant’s “anti-social personality or psychopathic disorder” (81 RT 5105), which wasprejudicial beyond the bare fact of a conviction 82 for welfare fraud. (AOB 238.) Further, as previously noted, the jury struggled with their penalty decision, deliberating over the course ofnine days, evenly divided for much ofthe deliberations, and twice declaring they were deadlocked. These actions belie respondent’s assertion that the aggravating evidence was so overwhelmingas to render any error harmless. // // 83 XIII. REVERSAL IS REQUIRED BASED ON THE CUMULATIVE EFFECT OF THE ERRORS Appellant believes that his trial was infected with numerouserrors that deprived him ofthe type of fair and impartial trial demanded by both state and federal law. However, cognizant of the fact that this Court may find any individual error harmlessin andofitself, it is appellant’s beliefthat all of the errors must be consideredas they relate to each other and the overall goal of according him fair trial. When that view is taken, he believes that the cumulative effect of these errors warrants reversal ofhis convictions and death judgment. (AOB 239-241.) Even thoughasto three of the arguments propounded by appellant, respondenthas arguedthat any error is harmless, respondent does not address appellant’s cumulative error argument. (See, e.g., RB 65-74 [Arg. IV]; RB 98 [Arg. X]; RB 100-103 [Arg. XI].) As such, it does not merit a response, and appellant merely reiterates what hehasset forth in his openingbrief. H/ H/ 84 CONCLUSION Forall of the reasons stated above and those in appellant’s opening brief, both the judgment of conviction and sentence of death in this case must be reversed. DATED:January 25, 2013 Respectfully submitted, MICHAEL J. HERSEK State Public Defender EVAN YOUNG Supervising Deputy State Public Defender Attorneys for Appellant 85 CERTIFICATE OF COUNSEL (CAL. RULES OF COURT, RULE 8.360(b)(1)) I, Evan Young, am the Supervising Deputy State Public Defender assigned to represent appellant, Michael Lopez, in this automatic appeal. I conducted a word countofthis brief using our office’s computer software. On the basis of that computer-generated word count, I certify that this brief is 23,239 wordsin length excluding the tables and certificates. Dated: January 25, 2013 Evan Young [kK 86 DECLARATION OF SERVICE Re: People v. Michael Augustine Lopez Alameda County Sup. Ct. No. H-28492A Cal. Sup. No. S099549 I, Glenice Fuller, declare that I am over 18 years of age, and not a party to the within cause; my business address is 1111 Broadway, 10th Floor, Oakland, California 94607; that I served a copy ofthe attached: APPELLANT’S REPLY BRIEF on each ofthe following, by placing same in an envelope addressed respectively as follows: Michael A. Lopez, # T-24622 Miro Cizin CSP-SQ Habeas Corpus Resource Center 4-EB-98 303 2™ Street, 400 South San Quentin, CA 94974 San Francisco, CA 94107 Attorney General’s Office Superior Court of Alameda County Alice B. Lustre, Deputy Attorney Attn: Honorable Philip Sarkisian General 1225 Fallon St. 455 Golden Gate Ave., Ste. 11000 Oakland, CA 94612 San Francisco, CA 94102 Each said envelope wasthen, on January 25, 2013, sealed and deposited in the United States mail at Oakland, California, the county in which I am employed,with the postage thereon fully prepaid. I declare under penalty of perjury that the foregoing is true and correct. Executed on January 25, 2013, at Oakland, California. “DECLARANT